Citation Nr: 1316172 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 05-32 273 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse, to include as secondary to service-connected psychiatric disorder. 2. Entitlement to service connection for peripheral neuropathy of the right lower leg. 3. Entitlement to special monthly pension (SMP) based on the need for aid and attendance. 4. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions occurring at the Mountain Home VA Medical Center (VAMC) on January 13, 2006. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to November 1970. This appeal initially came to the Board of Veterans' Appeals (Board) from a series of rating decisions. In a January 2009 decision, the Board denied multiple claims including service connection for alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse, service connection for peripheral neuropathy of the right leg and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions. The Board remanded issues of entitlement to service connection for PTSD and entitlement to SMP for further evidentiary development. A September 2010 rating decision granted service connection for PTSD, and assigned an initial disability rating of 30 percent effective October 24, 2003. As the Veteran has not appealed the rating or effective date assigned for this disability, this represents a complete grant of his appeal in regard to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This issue is no longer before the Board. It is also noted that subsequent to the Veteran's award of service connection for PTSD, it was determined by multiple medical examinations that he did not actually meet the DSM-IV criteria for PTSD and his service connected disability was reclassified as an anxiety disorder (without reconsideration of the service connection issue) in an April 2012 rating action. The RO in September 2010 granted service connection under the regulations for PTSD (which the RO now indicates the Veteran does not have). In any event, whether the original service connection claim should be reconsidered by the RO is not before the Board at this time. The Veteran appealed the issues which had been denied by the Board to the United States Court of Appeals for Veterans Claims (Court). In a January 2011 Memorandum Decision, the Court upheld the Board's denial of claims involving service connection for a right knee disability, a stomach condition and tinea pedis. The Court vacated the Board's decision regarding the issues of service connection for alcohol dependence, substance-induced mood disorder and opiate and benzodiazepine abuse, service connection for peripheral neuropathy of the right leg and entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions for additional consideration. In June 2011, the Board remanded the Veteran's claim for additional development to comply with the memorandum decision. Specifically, the Board requested that VA treatment records be obtained and that several VA examinations be provided. As will be discussed, the directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. It is noted that the Veteran was previously represented by the Disabled American Veterans (DAV). In January 2013, the RO contacted the Veteran to inquire who his representative was as there was some confusion as to whether it was the DAV or the American Legion. The Veteran indicated that the DAV was his representative. However, several days later, he submitted a signed VA Form 21-22 designating the American Legion as his representative (the Veteran can have only one representative). This document superseded the document which had appointed DAV, and therefore the American Legion is the representative of record in this case. FINDINGS OF FACT 1. The Veteran's alcohol dependence, drug dependence and substance-induced mood disorder result from his voluntary use of drugs and alcohol and are not secondary to his service connected psychiatric disability. 2. The Veteran's fall injury at the Mountain Home VAMC on January 13, 2006, which resulted in bilateral subdural hematomas and a contusion of the left forehead, is not shown to have been caused by carelessness, negligence, lack of proper skill, error in judgment, or similar incidence of fault on the part of the VA in furnishing treatment or prescribing medications, nor is it the result of an event that was not reasonably foreseeable. 3. The Veteran's peripheral neuropathy of the right lower extremity was neither caused by, not otherwise the result of, the Veteran's military service, to include any exposures therein. 4. The Veteran is 63 years of age. 5. The weight of the evidence is against a finding that the Veteran is either housebound or otherwise so helpless as to require the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for service connection for alcohol dependence, drug dependence and substance-induced mood disorder have not been met. 38 U.S.C.A. §§ 105, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303 (2012). 2. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions occurring at the Mountain Home VAMC on January 13, 2006 have not been met. 38 U.S.C.A. § 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). 3. The criteria for service connection for peripheral neuropathy of the right lower extremity (claimed as right leg disability) have not been met. 38 U.S.C.A. §§ 105, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309 (2012). 4. The criteria for entitlement to special monthly pension based on the need for regular aid and attendance of another person have not been met. 38 U.S.C.A. § 1521(d),(e) (West 2002); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Alcohol dependence, drug dependence and substance-induced mood disorder The basic wartime service connection entitlement statute is set forth in 38 U.S.C.A. §§ 1110. Section 1110 reads as follows: For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. The language of this statute which states "no compensation shall be paid if the disability is a result of the veteran's .. abuse of alcohol or drugs..." arises from an amendment to 38 U.S.C.A. § 1110 by the Omnibus Budget and Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388-1, 1388-351 (1990) (OBRA). See H.R. CONF. REP. NO. 964, 101st Cong., 2nd Sess. 1997 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2702. This amendment applies to claims filed after October 31, 1990, as in this case. See OBRA, § 8052(b). The regulatory provisions of 38 C.F.R. § 3.301 address line of duty and misconduct determinations. Under 38 C.F.R. § 3.301(a), direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See also 38 C.F.R. § 3.1(m). The provisions of 38 C.F.R. § 3.301(d), which specifically address line of duty determinations with respect to abuse of alcohol or drugs, state as follows: Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. The controlling precedential authority makes clear that direct service connection may not be granted for a disability that arises from a veteran's abuse of alcohol or drugs. Allen (William F.) v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001). The Allen Court interpreted 38 U.S.C.A. § 1110 as precluding service connection for disability that results from primary alcohol abuse, which the Allen Court defined as "arising during service from voluntary and willful drinking to excess." Id. at 1376. In conjunction with 38 U.S.C.A. § 105, the Allen Court concluded that Congress expressed a clear intent to preclude service connection for a primary alcohol abuse disability, and that primary abuse alcohol disability is included within section 105(a)'s and 1110's "express exclusion from compensation." Id. The Allen Court further held that section 1110 allows for alcohol abuse disability under one circumstance, when such disability arises "secondarily from or as evidence of the increased severity of a non-willful misconduct, service-connected disorder." Id. at 1378. The Allen Court reasoned that a secondary alcohol abuse disability "results from" a line of duty disease or disability rather than as a result of abuse of alcohol or drugs itself. Id. 1377-78. In other words, the Allen Court determined that the language of section 1110 reflected a Congressional intent that the cause of the alcohol-related disability determined whether the alcohol-related disability may be compensated under the statute, and that there were two mutually exclusive categories of causation: Either the alcohol-related disability is due to voluntary abuse of alcohol and therefore noncompensable or it is due to a service-connected condition in which case the alcohol abuse is involuntary and the disability is compensable. Id. at 1376-77. The Board notes that the Allen principles relating to alcohol abuse disabilities are equally applicable to drug abuse disabilities. In January 2009, the Board concluded that there was no medical evidence suggesting that the Veteran's alcohol and/or substance abuse was involuntary in nature or had secondarily resulted from a disorder of non-willful misconduct origin. In that decision, the Board remanded the Veteran's claim for service connection for PTSD for a VA examination, and service connection was eventually granted for PTSD by a September 2010 rating decision (although it was subsequently determined that the Veteran did not meet the DSM-IV criteria for PTSD and his service connected disability is now rated as an anxiety disorder). The January 2011 memorandum decision concluded that the Board should have deferred consideration of this issue pending adjudication of the claim of service connection for PTSD. In this respect, the Court interpreted the evidence of record to suggest a possible link between PTSD and substance abuse, though evidence for such a link was not made clear by the memorandum decision. Moreover, a review of the Veteran's claims file is void of medical evidence suggesting such an association. Nevertheless, in order to comply with the memorandum decision, the Board remanded the Veteran's claim in July 2012 to obtain a VA psychiatric examination addressing the possible relationship between the Veteran's substance abuse and his now service connected psychiatric disability. The examiner explained that the Veteran did not meet the DSM-IV criteria for PTSD as he did not report enough avoidant symptoms, but found that the Veteran did have an anxiety disorder. After a thorough examination and review of the Veteran's claims file, the examiner stated that when asked directly how his drinking and marijuana use helped him or served him, he denied that it helped at all in any way, suggesting therefore that any drinking problem he has was not used to medicate symptoms of a mental disorder. As such, the examiner concluded that it was less likely than not that the Veteran's diagnosed mental condition caused or supported alcohol dependence, substance induced mood disorder or opiate benzodiazepine abuse. The opinion is clear, direct, and supported by a plausible rationale. Moreover, the Veteran has not submitted evidence that in any way rebuts or challenges the examiner's conclusions. As such, the Board finds this opinion to be highly probative and entitled to great weight. VA treatment records have been reviewed, but they fail to address whether the Veteran's substance abuse was caused by his service connected psychiatric disability. As described, the medical evidence of record fails to associate the Veteran's alcohol/drug problems with his service connected psychiatric disability; and to the extent that the Veteran has alleged that such is the case, he lacks the medical training to be considered competent to provide such an opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, because the Veteran's substance abuse disorder is not caused by or secondary to a service connected disability, it must be denied. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.301(d); Allen, 237, F.3d. 1368 (Fed. Cir. 2001). Peripheral neuropathy of the right lower extremity The Veteran is also seeking service connection for peripheral neuropathy of the right lower extremity. In his brief to the Court, the Veteran asserted that his peripheral neuropathy of the right lower extremity could have resulted from exposure to Agent Orange or other herbicides. In a January 2006 record, the Veteran stated that he patrolled the 38th parallel in Korea and did have combat exposure there. In August 2007, the Veteran stated that he was with the 1st 32nd Infantry Division in Company C. Service personnel records confirm that the Veteran was stationed in Korea from May 9, 1968 to October 4, 1969, where he served in Company C of the First Battalion of the 32nd infantry in the 7th infantry division. His MOS was as a rifleman, gunner, and vehicle inspector. Exposure to an herbicide agent will be conceded if a person served in the active military, naval, or air service in or near the Korean DMZ between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. In the Veteran's case, his battalion is among those units that are presumed to have been exposed to herbicides, and he was stationed in Korea during the time tactical herbicides were known to have been used. As such, he is presumed to have been exposed to herbicides during his military service. However, herbicide exposure alone does not warrant service connection, rather, such exposure must cause a disease or disability to develop. That is, if a person is presumed to have been exposed to herbicides, service connection may then be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Acute and subacute peripheral neuropathy are on the exclusive list of diseases which are presumptively linked to herbicide exposure. However, Note 2 of the regulation qualifies that the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e). In the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy. Therefore, VA has proposed to amend §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy" and removing Note 2 to § 3.309(e), which currently requires, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolving within two years of the date of onset. However, even under these proposed amendments, peripheral neuropathy would still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it would no longer need to be transient. In this case, no evidence has been presented even suggesting that the Veteran's peripheral neuropathy began either during service or within one year after he separated from service. Service treatment records are silent for any complaints of symptoms which might be indicative of peripheral neuropathy, and the Veteran's lower extremities were found to be normal at his separation physical. Moreover, on his medical history survey completed in conjunction with his separation physical, the Veteran specifically denied cramps in his legs, foot trouble, neuritis, or paralysis. That is, he specifically denied symptoms which might have been considered later to have represented the onset of peripheral neuropathy. Following service, there is no medical evidence describing symptoms of peripheral neuropathy in the lower extremities for a number of years. In fact, in August 2006 the Veteran reported having experienced tingling and numbness in his feet for approximately five years, yet he had been out of service at that time for more than 35 years. As such, the presumption of service connection is not warranted for the Veteran's peripheral neuropathy as it was not shown to have manifested within a year of the Veteran's last in-service exposure to herbicides. See 38 C.F.R. §§ 3.307, 3.309(e). As noted above, disorders diagnosed after discharge may still be service-connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). A VA treatment record from July 2006 noted that an EMG/NCV was indicative of peripheral neuropathy. At a VA examination in July 2012, the Veteran was diagnosed with a peripheral sensory neuropathy that affected the legs more than the arms and with a left hemisensory deficit that most likely was a residual of the Veteran's 2005 cerebral contusion/subdural hematomas. No medical opinion is of record even suggesting that the Veteran's peripheral neuropathy might have been caused by his time in military service, to include as secondary to any exposures therein. In fact, the Board noted in January 2009, citing a VA discharge summary dated August 16, 2006, that clinical records included a suggestion that the Veteran's peripheral neuropathy of the right lower extremity resulted from alcohol abuse; and the Court in the memorandum decision did not take issue with such a conclusion. Rather, the Court suggested only that the Board needed to consider whether the Veteran's substance abuse disorder was secondary to his service connected psychiatric disability. As such, the memorandum decision may have essentially accepted the conclusion that the Veteran's peripheral neuropathy was secondary to the Veteran's substance abuse disorder (this is not clear). Simply stated, the concern was that PTSD (which the Veteran does not have - which was remanded by the Board) could have caused the drug abuse, and as it appears that the drug abuse caused the Veteran's peripheral neuropathy, the issue of peripheral neuropathy was not ripe for adjudication by the Board at the time Board addressed the issue. However, as discussed above, the Veteran's substance abuse disorder has not been found to be secondary to his service connected psychiatric disability, and, therefore, service connection is not warranted for a disability that is secondary to the substance disorder. The Board acknowledges the Veteran's belief that these disorders originated or were aggravated during service and/or are causally related to events or exposures during service. However, there is no evidence that he has been trained or educated in medicine; and therefore, he is not considered to be competent to offer an opinion as to the nature and etiology of these disorders. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for a right leg condition. 38 U.S.C.A. § 5107(b). The appeal, therefore, is denied. II. 1151 claim In January 2007, the Veteran filed a claim seeking compensation under 38 U.S.C.A. § 1151 for additional disabilities he contends he incurred after falling on January 13, 2007 while hospitalized at a VA medical center. He explained that he was in the detoxification ward at a VA medical facility when he fell and hit his head on the corner of a desk. He asserts that he laid on the floor for approximately 45 minutes before being discovered by another patient (although it is unclear how the Veteran would know how long he was unconscious for); and he that this fall caused bleeding in his brain, which required him to be hospitalized in the ICU for six days. His contention is essentially that upon being discharged from the recovery program, he was left unattended for a long period of time, and his fall was not discovered for an unacceptable period of time on account of lack of supervision. He believes that such actions, or failure to act, on VA's part constituted negligence or carelessness. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. See 38 U.S.C.A. § 1151. The first element of developing a claim under 38 U.S.C.A. § 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure. See 38 C.F.R. § 3.361. In his November 2007 substantive appeal, the Veteran alleged that he experienced loss of memory, frequent headaches, increased seizures and blurred vision following his fall. He added that he believed VA was negligent since they knew he had a history of blackouts and seizures and should have either provided him constant supervision or had him restrained from getting up. The Veteran was provided with a VA examination in July 2012, the examiner noted the Veteran's fall in 2006 in which he struck his right forehead. The examiner noted that the Veteran assertion that he had experienced had a seizure, but found that it was unclear whether the seizure had actually caused him to fall, explaining that an alcoholic withdrawal seizure 10 days into admission would be somewhat late, but could still be due to withdrawal. Further, the examiner also speculated that the seizure could have been secondary to the cerebral hemorrhage. In addition, the examiner noted that the Veteran did not suffer from seizures at the time of his examination and his past seizures were most likely due to alcohol withdrawal and should not therefore be considered to be residuals of his head injury. The examiner also observed that the Veteran's cognitive functioning had recovered rapidly from the head trauma in 2006, as evidenced by a normal CT and normal neurological examination later that year. Moreover, at the 2012 examination, the Veteran was able to give a coherent history and scored 29/30 on the MMSE which the examiner stated was an indication that if there were any cognitive residuals from the 2006 injury, they were relatively mild. The examiner did find that the Veteran had spasticity in his legs that was at least as likely as not caused by his 2006 brain injury. The examiner indicated that the spasticity left his legs prone to knee clonus which produced transient leg "spasms" that the Veteran was unable to control and which impeded his gait and balance. Thus, at the very least (or at best), it appears that the Veteran experiences leg spasticity as a result of the fall, which could be considered to constitute an additional disability. However, as noted, causation alone is not sufficient to warrant compensation under 38 U.S.C.A. § 1151. Rather, the evidence must show either that an additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. The Board will now examine the standard of care to determine whether VA breached any duty as the Veteran contends. The evidence of record shows that the Veteran was admitted to the Mountain Home VAMC on January 2, 2006 for alcohol detoxification. He was scheduled for discharge on January 13, 2002. In pertinent part, the records reflect the following chronology of events leading to a fall injury: At 10:26 a.m., the Veteran was seen in the hallway by the treatment team, where he appeared alert, oriented and wanting to go home. The Veteran felt that he was ready for discharge, and his gait was observed as steady and less tremulous. At 10:44 a.m., the Veteran was seen by his treatment team to discuss his discharge plans. The Veteran was noted to be pleasant/cooperative, in a good mood and had a bright affect. The Veteran was anxious to return home to his family. At 10:47 a.m., the Veteran's discharge planning team discussed the Veteran's discharge instructions. At 11:09 a.m., a VA nurse practitioner noted for the electronic record that the Veteran had been found on the floor by another patient, who had reported the incident to nursing staff. It was noted that the Veteran was unresponsive to verbal stimuli, respirations were shallow with snoring quality, color was grey, and skin was warm and dry. Treatment was initiated. Thereafter, the VA medical records establish that the Veteran incurred an egg-shaped lesion of his left forehead and suffered bilateral subdural hematomas. On further investigation, it was noted that the Veteran suddenly fell when packing his bags for home with questionable seizure activity observed by another patient. The Veteran admitted to some lancinating-type chest pain earlier on the day in question. The Veteran alleges that VA did not respond to his falling injury for 45 minutes, and that his fall would not have happened if VA had provided adequate supervision. The Veteran indicates that VA personnel, despite knowing of his past history of seizure episodes, did not take appropriate steps to protect him from a falling episode. The Board first observes that the medical evidence of record indicates that the Veteran's seizure activity is a residual of long-term alcohol abuse. The Board also observes that the Veteran previously informed VA personnel of a prior history of seizure episodes, including an instance in 2000 wherein he injured his back. However, a VA neurologist opined in July 2012 that while the Veteran had blacked out and fallen in 2000, he did not have a clear cut seizure history at the time of his discharge from the detoxification program in January 2006. At the time of the falling incident, the Veteran had been hospitalized for an approximate two-week period with no episodes of seizures reported or observed. A time period of approximately 25 minutes passed between when VA personnel last observed the Veteran (deeming him capable of discharge) and when a VA nurse entered into the electronic records system that the Veteran had fallen and was being attended to. Importantly, the last observation of the Veteran prior to the falling incident showed that he did not evidence any abnormalities, and the Veteran himself indicated that he was ready for discharge. Furthermore, there is no record that the Veteran ever reported that he had been experiencing chest pain symptoms earlier in the day, until after his fall. Quite simply, there is no information on the face of the record which suggests that the Veteran's seizure episode on January 13, 2006 could have been contemplated by VA medical personnel. The fact that the Veteran was in the process of discharge, according to his own wishes, provides strong evidence against a finding that VA knew or should have known that additional precautions were necessary to protect the Veteran against seizure activity. Overall, the Veteran's recollection of being left unattended for 45 minutes after his seizure episode is contradicted by the documentary evidence of record (which the Board finds to be of high probative value over the Veteran's recollection of events). Again, as there is no evidence that the Veteran is trained or educated in medicine, his personal opinion as to the appropriate standard of care has no probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The memorandum decision concluded that the Board should have obtained a medical opinion to assess whether the standard of care was breached, and the Board complied, obtaining a medical opinion of record in October 2012 from the assistant chief of neurology at a VA medical center. He reviewed the claims file and explained that while the Veteran had previously blacked out and suffered a fall in 2000, he did not have a clear cut seizure history at the time of discharge from the detoxification program on January 13, 2006. Moreover, the examiner added that even if he had had a known seizure disorder, it would have been within the standard of care to leave the Veteran unsupervised for 25 minutes while he was packing his bags to leave, because there had been no recent seizure activity. The examiner concluded that it was therefore less likely than not that the Veteran's bilateral hematoma and multiple cerebral contusions were caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. He added that the records showed that VA had provided excellent treatment that fell well within the standard of care. This medical opinion was based on a complete evidence of record and was provided by a competent medical professional. Moreover, no evidence has been presented to in any way undermine the examiner's conclusions. As such, this opinion is found to be highly probative and entitled to great weight. It is also important to note that this opinion directly complied with the directives of the memorandum decision. As described, there is no material doubt to be resolved in the Veteran's favor, and his claim is denied. 38 U.S.C.A. § 5107(b). II. Special monthly pension The Veteran is seeking special monthly pension claiming that he requires the regular aid and attendance of another person. "Need for aid and attendance" means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A claimant will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 C.F.R. § 3.351(b), (c). The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C.A. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the veteran is in need of regular aid and attendance of another person: (1) the inability of a veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of a veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). In a November 2005 aid and attendance questionnaire, the Veteran was noted to have hyperlipidemia, degenerative joint disease (DJD), dyspepsia/GERD, hypertension (HTN), chronic obstructive pulmonary disease (COPD), elevated liver function tests (LFT's), and alcohol dependence with alcohol induced mood disorder. Without providing any explanation, the examiner checked positive responses for the Veteran being incompetent and requiring aid to protect himself from the hazards and dangers incident to his daily environment due to a mental or physical condition; yet such a determination does not appear to fit with the other findings of that examination. Specifically, it was noted that the Veteran could feed himself unassisted, was able to attend to the wants of nature without assistance, and was able to walk on his own. Because no rationale was provided, the Board remanded the claim for clarification. In December 2009, the Veteran underwent a VA aid and attendance examination. The examiner indicated that the Veteran was neither permanently bedridden nor hospitalized; and he was found to be able to travel beyond his domicile by himself. His typical daily activities were reported as: arises, dresses himself, feeds himself, visits friends, watches TV, does shopping or occasional house work. He did not require any orthopedic or prosthetic appliance. With regard to being able to protect himself from the hazards of his daily environment, the examiner noted that the Veteran was dizzy less than weekly, and he was able to perform all functions of self care. The examiner did note that the Veteran's COPD-DOE did affect his ability to protect himself from his daily environment, but there was no suggestion that he was unable to protect himself. The Veteran was able to walk 1/2-1 mile by himself without assistance. He did not need any aid for ambulation and had no restrictions on his ability to leave the house. He did not have best corrected vision of 5/200 or worse in both eyes. The examiner diagnosed the Veteran with COPD, hypertension, hyperlipidemia, ETOH abuse, polysubstance abuse, degenerative joint disease of the lumbar spine, PTSD/depression, GERD, arthritis, and erectile dysfunction. In January 2012, the Veteran underwent a VA aid and attendance examination at which he complained that he was unable to drive due to pain, numbness and tingling in his feet and therefore was homebound. He added that he required assistance from his wife/caregiver with his activities of daily living. The Veteran was noted to walk with a crutch under his arm with a bent right knee and a limp. The Veteran complained of cramps and stiffness in his hands, such that he often needed assistance with buttoning clothing and performing activities that required fine motor movements. The Veteran had some limitation of motion in his upper extremities and his wife reportedly helped him with showering and dressing, and prepared all of his meals. The Veteran was noted to have atrophy and limited knee flexion. He had chronic back pain with tingling and numbness in both lower extremities. He struggled to walk with all the pressure his body weight put on his feet. The Veteran had chronic lung disease as well and walking any distance made him short of breath. He was incapable of standing upright on his feet and used a cane for support, leaning on it to walk. The Veteran's wife reported that he was becoming more forgetful, forcing her to repeat herself, and she believed he might have early dementia. She also reported that the Veteran had had several bowel or bladder accidents where he could not make it to the bathroom in a timely fashion. The examiner noted he was extremely short of breath and rarely traveled outside of the house. The examiner, a social worker, determined that the Veteran was able to walk without the assistance of another person, but only for short distances of 10-15 feet and the walking was found to be complicated by weakness and numbness of the lower extremities and by shortness of breath. It was also reported that the Veteran was dependent on someone to drive him when he left his home so he would only go out when someone was available to take him. The examiner noted 18 separate diagnoses. The examination report was reviewed and endorsed by a physician's assistant. In February 2012, a VA aid and attendance examination was conducted. It was noted that the Veteran had spinal stenosis in the cervical spine with lower extremities pain and radiculopathy, as well as chronic right knee pain. The Veteran was found capable of feeding himself, but he was not able to prepare his own meals, and it was indicated that he needed assistance in bathing and tending to other hygiene needs, although no explanation was provided as is specifically directed on the form. The Veteran was not blind, did not require nursing home care, and did not require medication management, although it was noted that his wife prepared his mediation. The Veteran was found to have the ability to manage his own financial affairs. It was noted that the Veteran had poor balance related to his lumbar spine pathology and gait abnormality. The Veteran reportedly left the house 2-3 times per week, but had someone walking with him. It was indicated that the Veteran required aids such as canes, braces, crutches or the assistance of another person for locomotion, but no explanation was provided. In March 2012, the Veteran's wife wrote that she had observed the Veteran growing weaker and noting that he fell a lot and was short of breath. She also asserted that 44 percent of his lung tissue was gone, his legs were weak and his bones were weakening. She indicated that he needed attention most of the time. While the aid and attendance examinations and the statement from the Veteran's wife present a grim picture of the impact the Veteran's disabilities have on him and his activities of daily living, his VA examinations for other disabilities have presented a much different picture. For example, at his PTSD examination in July 2012, the Veteran reported that he and his friends would talk around the service station or around the body shop and "just sit around and talk, pass the time away, tell jokes on each other and stuff like that." He reported that they did this 3-4 times per week, although many of his friends had passed away. He also reported hosting cookouts approximately once per month and hosting Sunday night dinner for the family, and he and his wife reportedly went out to eat 2-3 times per month. He indicated that he did a little yard work, but got winded easily, and he refinished furniture as a hobby. Similarly, at his TBI examination in July 2012, it was noted that the Veteran still drove his car and went out on social engagements, but kept them limited to friends and familiar places. VA treatment records have been reviewed, but the records do not provide any additional insight into the question of whether the Veteran is so disabled as to be either housebound or require the aid and attendance of another person. At this juncture, the Board notes that as finder of fact, it must determine, both the weight and credibility of all the evidence of record. To this end, equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Rather, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In weighing credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). As noted, the Veteran stated at his January 2012 aid and attendance examination that he unable to drive due to pain, numbness and tingling in his feet and therefore was homebound; yet, at the July 2012 VA examination, the Veteran indicated specifically that he still drove. Such an admission calls into question the integrity of the January 2012 aid and attendance examination. Moreover, the Board finds the two comments to VA examiners about his social interactions to be highly probative in that they were not given directly in pursuit of monetary benefits. That is, the Veteran was not at an "aid and attendance" examination when he made the comments, rather he made them in passing. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). Conversely, at the aid and attendance examinations the Veteran appears to have been more focused on fitting the criteria for aid and attendance. The Board also notes that while the examiner checked a number of boxes on the aid and attendance form, he frequently omitted any explanation as was specifically requested by the form. Without the requisite explanation, the Board finds that the probative value of the statements, even though recorded by presumably competent medical professionals is considerably undermined; particularly in light of the fact that the Veteran's own statements at the aid and attendance examinations have directly conflicted with his reports at other VA examinations. Based on the above, the Board finds that the Veteran is not an accurate historian of his disabilities as a whole. The Board's conclusion that aid and attendance is not warranted is further supported by the fact that neither the Veteran, nor his representative, objected to the VA's conclusion that the Veteran was still driving himself around, as was found in the January 2013 supplemental statement of the case. If this finding was in fact incorrect, one would have expected him to have endeavored to correct it. However, in the time since that finding was made, neither the Veteran, nor his representative, have voiced any objection to it, despite the fact that the representative filed a brief in this case in March 2013. This inaction is taken as evidence that the Veteran does in fact continue to drive to social occasions, a conclusion which weighs heavily against his claim for SMP. The Board acknowledges that the Veteran has a number of disabilities which likely render him unemployable, and does not intend in any way to belittle the pain and impairment that they cause. However, given the findings at several VA examinations that the Veteran appears to still be driving himself around to multiple social engagements each week, the Board simply does not find the Veteran to be either housebound or in regular need of aid and attendance by another person. It is also noted that at the time of this decision the Veteran is not 65 and therefore is not eligible for the lower housebound status. As described, the evidence of record in this case is against the Veteran's claim, and it is therefore denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letters dated in September 2004, February 2006, and March 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letters also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, he has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, VA has obtained all relevant, identified, and available evidence. The RO obtained the Veteran's service treatment records, his VA clinical records, and documents pertaining to his application for disability benefits with the Social Security Administration. There are no outstanding requests to obtain any private treatment records for which the Veteran has identified and authorized VA to obtain on his behalf. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations to be thorough and adequate in that they provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. These examination addressed the Veteran's 1151 claim, his substance abuse claim and his claim for SMP. See Trafter v. Shinseki, No. 10-3605 (Vet. App. Apr. 29, 2013) While a VA medical opinion was not provided with regard to the peripheral neuropathy claim, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). The record in this case is negative for any indication, other than the Veteran's own assertion, that his peripheral neuropathy is related to either service or a service connected disability. As such, this conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion. See Waters, 601 F.3d 1274. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for alcohol dependence, drug dependence and substance-induced mood disorder is denied. Service connection for right lower extremity neuropathy (claimed as right leg disability) is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral hematoma and multiple cerebral contusions occurring at the Mountain Home VAMC on January 13, 2006 is denied. Special monthly pension is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs