Citation Nr: 1418942 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 13-04 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for nerve damage. 2. Entitlement to service connection for right arm numbness. 3. Entitlement to service connection for reduced leg strength. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for an acquired psychiatric disorder. 6. Entitlement to service connection for Parkinson's disease, claimed as a nervous disorder. 7. Entitlement to a rating in excess of 50 percent for thoracolumbar degenerative disc disease with a history of fracture of T12, L5. 8. Entitlement to special monthly compensation based on the need for regular aid and attendance. ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to January 1955. The Veteran died in January 2013 and the surviving spouse has been substituted as the appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. On his October 2010 claim, the Veteran requested entitlement to service connection for "a nervous disorder due to possible nerve damage, headaches, numbness in the right arm, leg strength loss." The RO interpreted the Veteran's indication of a "nervous disorder" to be a claim of entitlement to service connection for a psychiatric disorder, and the claim has progressed under such interpretation throughout the appeal. The Board feels, however, that the Veteran intended that claim to encompass the issue of entitlement to service connection for Parkinson's disease. The Board has considered whether referral of a new claim of service connection for Parkinson's disease is warranted. However, given that the issue on appeal was characterized very generally, and somewhat vague, as a "nervous disorder," the Board concludes that it is permissible to bifurcate the issue of entitlement to a "nervous disorder" into two claims-one focusing on the Veteran's mental health and one on the Veteran's Parkinson's diagnosis. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue(s) of issues of entitlement to service connection for a psychiatric disorder, Parkinson's disease, nerve damage, right arm numbness, reduced leg strength, and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran died in January 2013. 2. The appellant is the Veteran's surviving spouse, and she filed a request for substitution within one year of his death. 3. The evidence of record does not demonstrate that the Veteran has a current diagnosis for any claimed psychiatric disorder throughout the appeal period. 4. The evidence of record does not show that the Veteran's thoracolumbar spine disorder resulted in unfavorable ankylosis of the entire spine or that the Veteran had at least six weeks of incapacitating episodes within a twelve month period. 5. The Veteran was so helpless due to his thoracolumbar spine disorder as to be in need of the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.309 (2013). 2. The criteria for a rating in excess of 50 percent for thoracolumbar degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a , Diagnostic Code 5237 (2013). 3. Resolving reasonable doubt in the appellant's favor, the criteria for special monthly compensation based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114 , 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.352(a), 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Substitution The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section 5121A under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title...." An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant may file a request for substitution with the VA regional office (RO) from which the claim originated. In this case, the Veteran died in January 2013. In an April 2014 determination, the RO found that the claimant is the surviving spouse of the Veteran, as she was married to the Veteran for at least one year at the time of his death, and thus she is a dependent eligible to seek substitution regarding his pending claim. The Board concurs that the appellant has met the requirements for substitution in the case of death under 38 U.S.C.A. § 5121A. The Director of Compensation and Pension Service issued a Fast Letter in August 2010 that provided guidance on processing claims involving the substitution of parties. See Fast Letter 10-30 (Aug. 10, 2010). The letter noted that, unlike prior accrued benefits claims, the record is not closed on the date of death of the original claimant, but remains open for the submission and development of any additional pertinent evidence. The letter provided guidance on specific procedures to follow, noting that any eligible survivor submitting a claim for accrued benefits will automatically be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. In addition, VA has published a proposed new regulation for inclusion in 38 C.F.R. Parts 3, 14 , and 20 to address the issue even further. See 76 Fed. Reg. 866 -8674 (February 15, 2011). Both the Fast Letter and proposed regulations indicate that this type of claim differs from an accrued benefits claim, in part, as evidence can be added to the record. In most accrued benefits cases, a decision is based on the evidence that is on file at the time of the Veteran's death. In cases involving substitution, additional evidence can be added to the file. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. An August 2011 letter provided notice of the evidence required to substantiate the claims. This letter also notified the Veteran of what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The letter included provisions for disability ratings and effective dates. Because this is a case in which the appellant substituted for the Veteran, the valid VCAA notice was only required to be provided to the Veteran for the issues that are on appeal. See VBA Fast Letter 10-30 (Aug. 10, 2010) (Veterans Benefit Administration (VBA) has indicated that a new VCAA notice letter will not be provided to an individual requesting substitution if an adequate VCAA notice letter was previously sent to the original claimant). With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, and has provided VA examinations. The information and evidence that has been associated with the claims file includes treatment records and statements of the Veteran and his wife. A VA mental health examination was conducted, which appears thorough and consistent with the other evidence of record. A VA spine examination was also conducted, which provides sufficient information on which to evaluate the severity of the service-connected disability. Accordingly, the Board finds that VA's duty to assist with respect to the issues decided herein has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101 , 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A review of the Veteran's service treatment records does not reveal complaints of psychiatric symptoms or diagnosis of a psychiatric disorder. VA examinations in 1955 and 1960, provided based on Veteran's thoracolumbar spine disorder claims, did not include complaints of psychiatric symptoms or diagnosis of a psychiatric disorder. As noted in the introduction, in October 2010, the Veteran filed a claim of entitlement to service connection for a "nervous disorder due to possible nerve damage." This statement was interpreted by the RO as a claim for an acquired psychiatric disorder. January 2011 lay statements from the Veteran's wife and children described the Veteran's physical limitations, including back pain, tingling sensations, blackouts, headaches, and leg weakness/instability. No statements pertained to any psychiatric symptoms. In March 2011, the Veteran was afforded a VA mental health examination, and he was accompanied by the appellant. He endorsed medical or psychiatric symptoms in the past year, but denied treatment for a mental disorder. He reported back pain, leg pain, and a recent diagnosis of Parkinson's disease. He also noted that he had "blackouts" but that he had not been provided with a medical diagnosis regarding this symptom other than "changes in blood pressure." The examiner noted that the Veteran "did not have difficulties with his mental status, but for normal age-related small memory problems." The examiner also noted that the appellant was "a very supportive person and that they maintain a good relationship." The examiner deferred providing an Axis I or Axis II mental disorder, and noted that the Veteran and his wife "both confirmed the absence of any behavioral, mental and/or psychiatric problems." The examiner felt that the Veteran's physical and memory problems were consistent with his age. He noted that there was no mental disorder that met the DSM-IV diagnostic criteria. Based on the foregoing evidence, the Board finds that service connection for a psychiatric disorder is not warranted. After a review of the evidence in this case, the Board notes that there is no current diagnosis of an acquired psychiatric disorder in the claims file. Indeed, it appears that the Veteran was not seeking entitlement to service connection for an acquired psychiatric disorder as both he and his wife denied mental health treatment or diagnosis. His singular complaint to the VA examiner was that he had "black outs" of an unknown origin, but that had been noted to be associated with changes in blood pressure. In short, there is no lay or medical evidence of record which demonstrates that the Veteran was diagnosed as having any current psychiatric disorder throughout the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). Accordingly, the Board finds that it must deny service connection for a psychiatric disorder, as there is no current diagnosis of such in the claims file throughout the appeal period. See 38 C.F.R. §§ 3.102, 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2009). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 ; see also 38 C.F.R. §§ 4.45, 4.59. The regulations for rating disabilities of the spine were revised prior to the Veteran's current October 2010 claim for an increased rating. Effective September 26, 2003, revisions set forth a General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease as follows: Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Codes 5235-5243. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Alternatively, ratings under the Formula for Rating Intervertebral Disc Syndrome Based Upon Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) of that Diagnostic Code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Prior to his death, the Veteran's thoracolumbar spine disorder was rated 50 percent, from August 15, 2003, based on the old spine rating criteria. Under the rating criteria for Diagnostic Code 5237, prior to September 23, 2003, a 50 percent rating was provided for severe limitation of motion of the lumbar spine with demonstrable deformity of a vertebral body from fracture. As the Veteran's new claim for an increased rating was filed in 2010, the Board can only look at the new spine rating criteria (the General Formula above) to determine if the Veteran was entitled to an increased rating. The General Formula only provides for a rating in excess of 50 percent for ankylosis of the entire spine or six weeks of physician-prescribed bedrest (incapacitating episodes) in a 12-month period. A review of the claims file and Virtual VA records does not show that the Veteran was ever prescribed bedrest by a physician. He did undergo surgery for an abdominal aortic aneurism in 2012 which limited his movement, but he was not prescribed bedrest. Additionally, the Veteran was afforded a VA spine examination in March 2011. After repetitive testing, the Veteran's forward flexion was reduced to 25 degrees, which was certainly a severe limitation of motion. However, the Veteran was not diagnosed with ankylosis and his cervical spine is not service-connected. The Veteran's wife and children indicated that the Veteran suffered horrible back pain throughout the years, and particularly after 2010. His back pain partially contributed to his inability to walk far distances, and did not allow him to participate in household chores, such as mowing the lawn. While the Board is sympathetic to the Veteran's pain level due to his back prior to his death, he simply did not meet the criteria for a rating in excess of 50 percent. He continued to have some motion, although limited, of his spine, and he did not have physician-prescribed bedrest. The Board also considered if additional separate ratings should be provided for neurological disorders; however, the evidence of record does not show that the Veteran was diagnosed with radiculopathy or any other neurological disorder associated with his thoracolumbar spine. The records clearly show that the Veteran was diagnosed with Parkinson's disease in roughly 2007. In June 2012, the Veteran's treating VA physician noted that the Veteran's falls secondary to leg weakness were a result of his Parkinson's disease. The Board has also considered whether the Veteran's lumbar spine disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Indeed, his complaints regarding pain, limitation of motion, and functional limitations are addressed by the rating criteria. Although the Veteran had significant spine symptoms, his rating was one of the highest ratings available for a lumbar spine disorder. He did not require frequent hospitalizations due to his lumbar spine disorder, and the Veteran was not working during the period on appeal. His neurological abnormalities have been associated with his diagnosis of Parkinson's disease, and the Board is remanded a claim of entitlement to service connection for such symptoms. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Special Monthly Compensation Special monthly compensation (SMC ) at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b), 3.352(a). Bedridden is that condition, which, through its essential character, actually requires that a claimant remain in bed, is a proper basis for this determination. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). Although the veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, it is logical to infer there is a threshold requirement that at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). In July 2012, the Veteran was afforded a VA aid and attendance examination. The examiner noted that the Veteran was restricted to his home and the immediate vicinity. He was driven to appointments by his wife. He was noted to not be bedridden, although his mobility was severely limited. He generally used a wheelchair, but at home he could ambulate with a walker or cane. He was found to not be able to protect himself from the hazards of his daily environment. He had some short-term memory impairment, and some dizziness and impaired balance. He reported that he did not go anywhere by himself. He also reported that he was able to feed himself, but that dressing, bathing, grooming and toileting required help. The Veteran was unable to stand for the examiner to check the range of motion of his spine. The examiner determined that it was at least as likely as not that the Veteran's aid and attendance was required due to his service-connected degenerative disc disease due to impaired balance, impaired bending and stooping activities, impaired standing, impaired ambulation, and requiring assistance for the day-to-day activities of life. He was also unable to drive and leave his home without the assistance of another person. Although VA physicians have indicated that the Veteran's balance and leg weakness were associated with his Parkinson's disease, the appellant has noted that she had to care for her husband, and help him with dressing in 2011 statements. The Board will resolve reasonable doubt in the appellant's favor and grant entitlement to special monthly compensation. Resolving reasonable doubt in favor of the claimant, the Board finds that SMC due to the need for aid and attendance of another person is warranted for accrued benefits or substitution purposes. Therefore, the claim is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to a rating in excess of 50 percent for thoracolumbar degenerative disc disease with history of fracture to T12, L5 is denied. Special monthly compensation based on the need for regular aid and attendance is granted, subject to the criteria governing the payment of monetary benefits. REMAND The Board has determined that the Veteran's October 2010 claim can be construed as encompassing a claim of entitlement to service connection for Parkinson's disease. The Veteran was noted to have a diagnosis of Parkinson's disease, and as such, entitlement to service connection for Parkinson's disease should be addressed by the RO. The claims file and virtual records should be provided to a VA examiner for review, and he/she should provide a nexus opinion for the Veteran's Parkinson's disease claim. He indicated in his 2010 claim that his Parkinson's disease may be related to his history of a thoracolumbar fracture. The Veteran's additional service connection claims for nerve damage, right arm numbness, reduced leg strength, and headaches are inextricably intertwined with the claim for Parkinson's disease. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the appellant to identify and provide a release of records for any private providers who treated the Veteran for his Parkinson's disease. Then, obtain any records that are adequately identified, and obtain any VA treatment records after June 2012. 2. Then, arrange for the Veteran's claims file and virtual records to be reviewed by a qualified VA physician for a nexus opinion. The examiner should opine whether it is at least as likely as not that the Veteran had a nerve disorder, to include Parkinson's disease, that was caused by or the result of his active service. Additionally, the examiner should opine whether it is at least as likely as not that the Veteran had a nerve disorder, to include Parkinson's disease, which was caused or aggravated by his service-connected thoracolumbar spine disorder. The examiner should provide a list of symptoms associated with any diagnosed nerve disorder, to include Parkinson's disease. The examiner must provide a detailed explanation/rationale for all opinions expressed. 3. Then readjudicate the claims. If the decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs