Citation Nr: 1335823 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 12-09 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss disability. 2. Entitlement to service connection for Machado-Joseph Disease (MJD). 3. Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance of another. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from July 1958 to July 1960. He also had service in the Army Reserves from 1982 to 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Providence, Rhode Island, The Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was exposed to loud noise during service. 2. Symptoms of sensorineural hearing loss were not chronic in service. 3. Hearing loss did not manifest to a compensable degree within one year of service separation. 4. Symptoms of sensorineural hearing loss were not continuous since service. 5. Current hearing loss disability is not causally or etiologically related to service, including the loud noise exposure during active service. 6. The Veteran's MJD is a hereditary disease. 7. The Veteran's MJD did not increase in severity during a period of ACDUTRA and no disease or injury was superimposed on the preexisting MJD during a period of ACDUTRA. 8. The Veteran has a service-connected disability of tinnitus that does not render the him unable to care for his daily needs without requiring the regular aid and attendance of another person. 9. The non-service-connected MJD renders the Veteran unable to care for his daily needs without requiring the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. Hearing loss was not incurred in active service or during a period of ACDUTRA or INACDUTRA nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309, 3.385 (2013). 2. The Veteran's preexisting MJD was not aggravated by service, to include any period of ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101, 1110, 1153, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.303(c), 3.306 (2013). 3. The criteria for an award of SMC based on the need for regular aid and attendance are not met. 38 U.S.C.A. §§ 1114(l) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350(b), 3.352(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As it relates to all issues, the Board notes that the Veteran's status has been substantiated. The Board observes that in August and November 2010 letters the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claims. The letters also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told him to submit relevant evidence in his possession. The Court has held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was notified of the effective date and disability rating elements in these same letters. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting a veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. No other relevant records have been identified. As it relates to the claim of service connection for MJD and the necessity for a VA examination, the Board notes that in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). An examination is not warranted under 38 U.S.C.A. § 5103A(d) for MJD because the weight of the evidence demonstrates that the Veteran's currently claimed MJD was not aggravated by service (that is, did not permanently worsen in severity during service beyond a natural progression), to include that there is no evidence of superimposed injury, to include any period of ACDUTRA. As will be discussed in detail below, there is other sufficient medical evidence of record to make a decision in this case. As it relates to the claim of service connection for bilateral hearing loss and the necessity for an examination, the Board notes that the Veteran was afforded a VA examination in March 2011 to assist in determining the nature and etiology of any current hearing loss and its relationship, if any, to service. The opinion obtained in conjunction with the examination is sufficient and provides detailed rationale. As such, the Board finds that an additional VA examination is not warranted as there is otherwise sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) . As to the necessity for an examination with regard to the Veteran's claim for special monthly compensation for aid and attendance of another person, the Board notes that service connection is currently in effect for only tinnitus. There has been no indication either in the record or by way of statements from the Veteran that his tinnitus results in his requiring the need for aid and attendance of another. The Veteran has testified that he requires aid and attendance as a result of his MJD. As such, an examination is not necessary on the question of whether tinnitus requires the need for aid and attendance of another. In June 2013, the Veteran appeared at the local hearing office at a Board videoconference hearing before the undersigned Veterans Law Judge in Washington, D.C. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. During the June 2013 Board hearing, the VLJ noted the issues on appeal and informed the Veteran and his representative what was needed for service connection for MJD and hearing loss and also addressed the issue of SMC based upon the need for aid and attendance. In addition, at the Board hearing, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim including asking about symptoms and asking for all possible treatment records and inquiring as to where the Veteran was receiving current treatment. The Board left the record open for thirty days so the Veteran could submit evidence in support of his claim. The Veteran has not done so. The hearing focused on the elements necessary to substantiate the claims. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. In addition, the Veteran was represented by an accredited representative. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and by his appearing at a Board videoconference hearing. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist in substantiating this claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21),(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Service Connection for Bilateral Hearing Loss The Veteran has claimed service connection for hearing loss, which if sensorineural in nature is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies in this case as it relates to sensorineural hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss (organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran maintains that he was exposed to acoustic trauma in service that caused his current hearing loss. The Veteran stated that he had noise exposure while serving in the Army in Korea as a truck driver. He also reported that many times he helped fire howitzers with intermittent use of noise protection. He contends that his hearing loss is as a result of exposure to howitzer and rifle fire and that it also arises as a result of exposure to truck engine noise during his period of active service. After a review of all the evidence, the Board finds that the Veteran was exposed to loud noises during his period of active service in the form of weaponry used and also when performing his duties as a truck driver, but symptoms of sensorineural hearing loss were not chronic in service. The DD Form 214 reflects that the Veteran earned the marksman (rifle) badge. A review of the Veteran's service treatment records does not reveal any complaints or findings of hearing loss. At the time of the June 1958 service enlistment examination, the Veteran was found to have 15/15 hearing on whispered voice testing, and normal findings for the ears were reported at that time. At the time of the June 1960 service separation examination, the Veteran was found to have decibel level readings of 0, 5, 5, -, and 5 in the right ear and 0, 0, 5, -, and 0 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Normal findings for the ears were again reported. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units. Essentially, that means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. Therefore, as converted to ISO units, the separation examination showed findings of 15, 15, 15, -, and 5 in the right ear and 15, 10, 15, -, and 5 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Normal findings were reported for the ears at service separation. On the June 1960 service separation report of medical history, the Veteran checked the "no" box when asked if he had or had ever had ear, nose, or throat trouble. The weight of the evidence also demonstrates that symptoms of bilateral sensorineural hearing loss were not continuous after service separation, including that hearing loss did not manifest to a compensable degree within one year of service separation. The evidence of record does not reveal symptoms, findings, or diagnosis of hearing loss in the years immediately following service. The first objective finding of hearing loss was not until October 1982, when the Veteran enlisted in the Army Reserves. At the time of the October 1982 enlistment examination, audiological testing revealed decibel level readings of 25, 15, 20, 65, and 45 in the right ear and 5, 10, 0, 40, and 30 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of the last Reserve physical, performed in October 1996, the decibel level readings were 5, 10, 20, 50, and 50 in the right ear and 0, 10, 25, 50, and 40 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. In conjunction with his claim, the Veteran was afforded a VA examination in March 2011. The examiner noted the results of the June 1958 and June 1960 examination results. The examiner also noted the results of the other audiological examinations performed during the Veteran's Reserve service. The VA examiner in March 2011 indicated that Veteran reported having difficulty understanding speech, especially with a group of people, when background noise was present, and without visual cues. The Veteran also reported talking louder the last two years. The examiner observed that the Veteran earned the marksman (rifle) badge. The Veteran stated that he had noise exposure while serving in the Army in Korea as a truck driver. He also reported that many times he helped fire howitzers with intermittent use of noise protection. The examiner noted occupational noise exposure including working in a mill using manufacturing equipment for printer material and folding cloth for two years without ear protection. The Veteran denied any recreational noise exposure. The examiner observed that the Veteran had a positive history for acquired familial history of hearing loss and hypercholesterolemia. The Veteran denied vertigo, hypertension, diabetes, head trauma, ear surgery, radiation or chemotherapy treatment. He also denied any other otologic problems. Audiological testing performed in March 2011 revealed decibel level readings of 20, 25, 55, 55, and 55 in the right ear and 10, 15, 30, 50, and 60 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing could not be performed due to the Veteran's difficulty understanding English. The examiner rendered a diagnosis of normal to moderately severe bilateral sensorineural hearing loss. The examiner rendered an opinion that it was less likely as not that the Veteran's bilateral hearing loss was caused by or a result of his military noise exposure. In support of his opinion the examiner noted that the Veteran's hearing thresholds were within normal limits at service separation. At the June 2013 Board hearing, the Veteran testified that during his period of active service he was exposed to Howitzer and rifle fire. He also reported having been exposed to generator and vehicle noise. The Veteran stated that he was not exposed to any noise following active service and that he was employed as a nurse anesthetist. The Veteran indicated that he first noticed a problem with his hearing approximately ten years ago. His wife reported that his hearing difficulties had increased in the past 10 years. The first evidence of complaints of hearing loss or finding of hearing loss following service was not until October 1982. Therefore, the weight of the credible evidence reflects no chronic symptoms of hearing loss during service or continuity of symptomatology of hearing loss since service. As such, the 38 C.F.R. § 3.303(b) presumptions have not been met. The Board finds that the Veteran's assertion that his current hearing loss is related to his in-service noise exposure during active duty is inconsistent with, and outweighed by, other more contemporaneous evidence that shows no symptoms of hearing loss in service or for years after service. The unfavorable evidence includes that the service treatment records do not reveal any complaints or findings of hearing loss, including at service separation. At the time of the June 1960 service separation examination, normal findings were reported for the ears. Moreover, contemporaneous to service, the Veteran checked the "no " box on the June 1960 report of medical history when asked if he had or was having any ear trouble; therefore, there is lay evidence of the Veteran affirmatively denying hearing loss in service, coupled with no evidence of even symptoms or complaints of hearing loss in service. Not only did the Veteran not give a history of hearing loss in service, at service separation he denied a history or complaints of hearing loss/ear problems in service, and there was otherwise no reference to any ear problems or difficulty hearing during service. The weight of the evidence also demonstrates that the Veteran did not experience continuous symptoms of hearing loss since service separation. The Veteran has not reported seeking treatment for hearing problems in close proximity to his period of active service. The above, more contemporaneous evidence, which includes the Veteran's own reports denying any hearing loss or ear disorder symptoms, is more probative than his recent assertions that his current hearing loss problems had their onset in service. The more recent assertions were voiced many years after service and in connection with the current claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). For the above reasons, continuity of symptoms since service has not here been established, either through the clinical record or through the Veteran's own credible statements. See 38 C.F.R. § 3.303(b). The Board further finds that the weight of the evidence demonstrates that the Veteran's current hearing loss is not otherwise related to service, including the loud noise exposure during service. See 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service); Hensley, 5 Vet. App. 155 (provisions of 38 C.F.R. § 3.385 do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service). As to the Veteran's belief that his current hearing loss is related to his period of service, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Veteran has not been shown to have the requisite expertise or training to assess the etiology of any hearing loss. Moreover, there are many complex factors and contributors to hearing loss, which the Veteran also does not have the requisite training to address. Service connection may also be granted when the evidence establishes a nexus between active duty service and current complaints. The Veteran was informed of the necessity to submit evidence showing a relationship between any claimed hearing loss and his period of service in the November 2010 duty to assist letter. The Veteran has not obtained or submitted such evidence tending to show a relationship between current hearing loss and noise exposure during active service. The Board finds the opinion provided by the March 2011 VA examiner that the Veteran's current hearing loss was less likely caused by or the result of his period of service to be of high probative value. The examiner's opinion was based upon an accurate history derived from a thorough review of the claims folder and a comprehensive examination of the Veteran. The examiner provided a rationale in support of his opinion. The Veteran's entire claims file, which at the time included his service treatment records and statements from the Veteran, was reviewed. Based on all the evidence, the examiner rendered an opinion that was supported by detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds the March 2011 VA examiner's opinion weighing against a finding of relationship of hearing loss to his period of service to be the most probative evidence of record. As it relates to the Veteran's Reserve service, at the time of the entrance into the Reserves he had a pre-existing hearing loss disability in both ears. The pre-existing hearing loss was severe enough at service entrance to even meet the criteria for hearing loss disability as defined at 38 C.F.R. § 3.385. While the VA examiner noted a worsening of the Veteran's hearing thresholds from the time of his entrance into the Reserves until the time of his separation from the Reserves, there has been no indication from the Veteran nor does the record demonstrate that the Veteran's hearing loss increased during any period of ACDUTRA on INACDUTRA. In addition, the evidence does not show any injury or disease during any ACDUTRA period or any injury during any INACDUTRA period. The Veteran has specifically asserted that his hearing loss is related to the noise exposure he encountered during his period of active service from 1958 to 1960. He has not even asserted the theory of aggravation of pre-existing hearing loss during a period of ACDUTRA or INACDUTRA. Therefore, service connection for hearing loss on the basis of aggravation during a period of ACDUTRA or INACDUTRA would also not be warranted. In sum, the preponderance of the evidence weighs against a finding that bilateral hearing loss is related to the Veteran's period of active service or any period of ACDUTRA or INACDUTRA. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Service Connection for MJD The Veteran maintains that his current MJD had its onset while he was on a two week period of ACDUTRA, which he states without specific dates was in 1990. The Veteran asserts that the disease was first diagnosed during a period of two week ACDUTRA while in the Reserves. The evidence in this case shows that the Veteran has been diagnosed with MJD, which is a congenital disease. MJD is also known as Azorean disease, a progressive degenerative disease of the central nervous system occurring in families of Portuguese-Azorean descent, having a variety of forms and inherited as an autosomal dominant trait. There are four major types; Type I with pyramidal and extrapyramidal deficits; Type II with cerebellar pyramidal and extrapyramidal deficits; Type III with cerebellar deficits and distal sensorimotor neuropathy; and Type IV with parkinsonism and distal sensory neuropathy. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 482 (27th Ed. 1988). Moreover, the Veteran's private physician, J. Friedman, M.D., in a July 2013 letter, indicated that the Veteran had been a patient of his for several years and that he had diagnosed him with MJD (spinocerebellar ataxia type 3) an inherited, progressive, and disabling neurological disorder. Congenital or developmental defects are not diseases or injuries as such within the meaning of applicable law, and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82-90 (a reissue of General Counsel opinion 01-85 (March 5, 1985), which in essence interpreted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin must, by its very nature, have pre-existed a claimant's military service). However, the VA General Counsel has further interpreted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen, 4 Vet. App. at 306-307, citing Hunt, 1 Vet. App. 292; VAOPGCPREC 67-90. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defect" would be definable as a structural or inherent abnormality or condition that is more or less stationary in nature. 38 C.F.R. § 3.303(c). In addition, 38 C.F.R. § 3.303(c) provides that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles the existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. This regulation also states that where there is the notation or discovery during service of such residual conditions, such as fibrosis of the lungs or congenital malformations, with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they pre-existed service. The General Counsel opinion draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in a defect is "more or less stationary in nature" while a disease is "capable of improving or deteriorating." VAOPGCPREC 82-90 at p. 2; Quirin v. Shinseki, 22 Vet. App. 390 (2009). The Board finds that MJD is a congenital disease because it is not "more or less stationary in nature." When congenital diseases such as MJD become the basis for a claim of service connection, VA adjudicators are ordinarily justified in finding that such a disease, by its very nature, preexisted the claimant's military service. VAOPGCPREC 82-90 at p. 3. Accordingly, entitlement to service connection turns on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. See Id.; 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b)(1); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). As noted above, the Veteran maintains that his current MJD had its onset during a period of ACDUTRA and does not contend onset during active service from 1958 to1960. He has not advanced a theory of direct service connection and there is also no evidence suggestive of a theory of direct service connection based on the period of service from 1958 to 1960; thus, the period of active duty from 1958 to 1960 is of no significance to the Veteran's claim. Notwithstanding an absence of claim or assertion of service connection for the active duty period, the Board has reviewed the record and finds that the other evidence does not reveal any findings of MJD or symptomology associated with MJD during this period of active service. After a review of all the evidence, the Board finds that the Veteran's MJD is a congenital disease that preexisted service. See VAOPGCPREC 82-90 (interpreting that when congenital diseases become the basis for a claim of service connection, VA adjudicators are ordinarily justified in finding that such a disease, by its very nature, preexisted the claimant's military service). 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In order to establish service connection, the evidence must show that the preexisting MJD was aggravated by a period of service, that is, that it permanently worsened during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). In a September 2010 statement, the Veteran indicated that he was diagnosed by Dr. Friedman with MJD in 1990. The Veteran stated that the number of years and dates were approximate. In an August 1991 treatment record, it was noted that the Veteran reported the onset of ataxic gait and left leg weakness approximately 3-4 years earlier. The gait ataxia had become progressively worse. Dr. Friedman noted that the Veteran had an extensive family history of MJD. In an October 2001 report, J. Gilchrist, M.D., indicated that the Veteran had been diagnosed with MJD in 1989. The disease was noted to have begun with ataxia but the Veteran later began to develop muscular atrophy in his lower extremities. At the time of the June 2013 Board hearing, the Veteran testified that he was diagnosed with MJD during a two week period of active duty for training in 1990. The Veteran indicated that he thought he was diagnosed during a period of two weeks of ACDUTRA. The Veteran stated that his symptoms of leg weakness and walking like a drunk brought him to the doctor. Notwithstanding the Veteran's recent assertion to the contrary, the Board finds that the weight of the evidence demonstrates that MJD was not initially diagnosed during a period of ACDUTRA. In the current case, while the Veteran has recently asserted that his MJD started during a two week period of ACDUTRA, the weight of the lay and medical evidence of record is against such assertion. The record reflects no findings or diagnosis of MJD during a period of ACDUTRA. There are various reported dates of first diagnosis of MJD, none (except the Veteran's) that mention ACDUTRA and none that are specific as to an exact day or even specific month of the alleged diagnosis during ACDUTRA. The Veteran is vague in his recollection of when the MJD diagnosis occurred. While the Veteran at various times has related MJD to an unspecified period of ACDUTRA in 1990, he has also indicated that the dates of onset are only an approximation. In contrast, the Veteran's treating physician, Dr. Friedman, has indicated that the Veteran was diagnosed with MJD in 1989, not 1990. As noted above, in an August 1991 treatment record, it was indicated that the Veteran reported the onset of ataxic gait and left leg weakness approximately 3-4 years earlier, which would place the onset closer to 1987 or 1988. With this specific medical information showing both symptoms and diagnosis at least one to three years before the Veteran's current estimate of when MJD had its onset, with the Veteran's vague assertions that the diagnosis was during ACDUTRA, without specificity as to which month and only an estimation as to which year, and service treatment records that do not reflect a diagnosis during ACDUTRA, the Board finds that MJD was not in fact diagnosed during an ACDUTRA period. The weight of the evidence also demonstrates that preexisting MJD was not aggravated during a period of ACDUTRA. As noted above, the disease is hereditary, and, as such, it is presumed to have preexisted service. The Veteran has not even entered an assertion that MJD worsened beyond normal progression during service, or that there was any superimposed injury or disease during a period of ACDUTRA service; instead, his contention is that, because the MJD was diagnosed during ACDUTRA (a contention that the Board has found not to be credible), that service connection should be granted for this reason alone. Thus, without evidence showing that the underlying congenital disease of MJD has been aggravated by a period of ACDUTRA, including no evidence of superimpose injury or disease during service, the Veteran's claim for service connection for MJD must be denied. See 38 C.F.R. § 3.306(b)(1); Hunt at 297. As the weight of the evidence is against a finding of aggravation of preexisting MJD during a period of ACDUTRA, the claim must be denied, and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Entitlement to Special Monthly Compensation Based upon Aid and Attendance SMC is payable to a veteran for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. Under 38 C.F.R. § 3.352, the factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). 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 decision is permissible. Particular personal functions which a 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 he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). It is logical to infer, however, a threshold requirement that "at least one of the enumerated factors be present." Turco, 9 Vet. App. at 224. "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a). The Veteran is currently service connected for tinnitus, and a 10 percent disability rating has been assigned for this disability. There has been no indication from the evidence nor has the Veteran indicated that his tinnitus results in his requiring the aid and attendance of another person. At the time of the June 2013 Board hearing, the Veteran specifically indicated that the need for aid and attendance was caused by his MJD. The Board finds that evidence of record does not show that the Veteran's service-connected disability has caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C.A. § 1114(l) by showing his service-connected disability cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a). The evidence does not reflect that, due to the service-connected tinnitus, the Veteran's service-connected disability has rendered him unable to dress or undress himself, to keep himself ordinarily clean and presentable, to feed himself, to attend to the wants or nature, or that his service-connected disability requires the need of adjustment of any special prosthetic or orthopedic appliance or result in other incapacity that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The evidence also does not reflect that the Veteran has a service-connected disability which, through its essential character, actually requires that he remain in bed. The Veteran's theory is that MJD causes the need for aid and attendance. Consistent with this assertion, the lay and medical evidence in this case shows that aid and attendance is necessary as a result of the nonservice-connected MJD. Hence, the Board finds that the evidence reflects that the Veteran's only service-connected disability of tinnitus does not cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance of another. Consequently, the criteria for SMC based on the need for the regular aid and attendance of another person are not met. See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). ORDER Service connection for bilateral sensorineural hearing loss is denied. Service connection for MJD is denied. Special monthly compensation (SMC) based upon the aid and attendance of another is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs