Citation Nr: 1440596	
Decision Date: 09/11/14    Archive Date: 09/18/14

DOCKET NO.  13-16 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Manila, the Republic of the Philippines


THE ISSUES

1. Entitlement to service connection for arthritis.

2. Entitlement to service connection for cataracts.

3. Entitlement to special monthly compensation (SMC) based on need for aid and attendance or housebound status.

4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability.

5. Legal entitlement to nonservice-connected pension benefits.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The appellant had service in the Philippine Scouts from April 1946 to January 1949.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO. The appellant testified in a hearing at the RO before the undersigned in January 2014; a transcript of the hearing is of record. This appeal was processed using the VBMS paperless claims processing system.

The Veteran's appeal originally included the issue of entitlement to service connection for bilateral hearing loss. During the pendency of the appeal, the RO, in a January 2014 decision, granted service connection for bilateral hearing loss (and tinnitus) and assigned a 30 percent rating effective on May 14, 2013. Therefore, his appeal concerning the issues of service connection for bilateral hearing loss has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

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).


FINDINGS OF FACT

1. It has not been credibly demonstrated that the appellant's arthritis was manifest in service or within a year of separation. Arthritis is not attributable to service.

2. Cataract of the eyes and dry eye syndrome, both eyes are not attributable to service.

3. The Veteran does not have anatomical loss, or loss of use, of both feet, or of one hand and one foot, or blindness in both eyes with visual acuity of 5/200 or less, as a result of his service-connected disability.
 
4. The Veteran is not permanently bedridden, or so helpless as to be in need of regular aid and attendance of another person as a result of his service-connected disability.
 
5. The Veteran does not have a single service-connected disability rated as 100 percent disabling, and he is not permanently housebound by reason of his service-connected disability.

6. The appellant's documented service was only in the Philippine Scouts from April 1946 to January 1949. 


CONCLUSIONS OF LAW

1. Arthritis was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2013).

2. Cataract of the eyes and dry eye syndrome was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).

3. The criteria for SMC based on aid and attendance and/or housebound status have not been met. 38 C.F.R. § 1114(l) and (s) (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2013).

4. The claim for nonservice-connected pension benefits lacks legal merit. 38 U.S.C.A. §§ 101(2), 107, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.1, 3.7, 3.40, 3.102 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In May 2011, October 2011 and August 2013 letters issued prior to decisions on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. The letter advised him of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Hence, the May 2011, October 2011 and August 2013 letters, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).    

In addition, the duty to assist the appellant has also been satisfied in this case.  All identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The appellant has not identified any other outstanding records that are pertinent to the issues herein decided.  

In summary, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Finally, during the hearing the VLJ clarified the issues, explained the concepts of service connection and pension, identified an evidentiary deficit, suggested the submission of additional evidence to support the Veteran's claims and addressed the Veteran's contentions. It was clear from the hearing that the parties understood the issues. Such actions supplement VCAA and complies with 38 C.F.R. § 3.103.

Laws and Regulations- Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

 That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013). As noted, arthritis is a chronic disease. 38 U.S.C.A. § 1101. The appellant does have arthritis of the knees. 

Service connection may be granted for any injury or disease diagnosed after discharge, 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). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).

Analysis

As an initial matter, with regard to the claim of service connection for arthritis, the Board notes that the Veteran filed his initial claim for service connection for arthritis in September 2003. The claim for service connection for arthritis was denied in December 2003 and the Veteran did not appeal this decision. However, the record indicates that a full set of the Veteran's service personnel file was not available for review. 

The Board observes that the Veteran's service personnel file was requested and received in 2009. The Board has no reason to believe that these records were received prior to 2009. Thus, this claim for service connection for arthritis must be considered on a de novo basis without the restrictions imposed on claims previously considered and denied to which finality attaches. 38 C.F.R. § 3.156(c).

Additionally, the Board notes that the Veteran's service treatment records are not available for review, and were likely destroyed in a fire at the National Personnel Records Center in 1973. The Board is aware that in such cases, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claims has been undertaken with these heightened duties in mind.

The appellant does not assert that his claimed arthritis or cataracts are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this matter.

In this case, the Veteran generally seems to assert that his arthritis of the knees and cataract of the right eye was manifest in service or within a year of his discharge or otherwise onset due to disease or injury sustained therein.

Private treatment record documents a diagnosis of osteoarthritis beginning in July 2002. April 2004, May 2006 and March 2011 records confirm a diagnosis of osteoarthritis. An August 2012 private treatment record reflects diagnoses of senile mature cataract of the eyes (right and left) and dry eye syndrome of the eyes.

Given its review of the record, the Board finds that service connection for the claimed arthritis and cataract of the eyes is not warranted.  While the appellant contends that his arthritis and cataracts manifest in service or within a year of his separation or are otherwise due to disease or injury sustained therein, the Board points out that there is simply no credible evidence of a relationship, or nexus, between the current disorders and the appellant's active service.  Here, there are no complaints of arthritis or disorders of the eyes until many years after service.  The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 

The Board notes that arthritis is an enumerated chronic disease and section 3.303(b) is applicable. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.303(b). To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339.  Here, no competent evidence establishes that there were characteristic manifestations of the disease process during service.  No examiner in service, or since, has established chronicity or an underlying chronic disease process in service.  In sum, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted during service. Additionally, there is no evidence of arthritis within one year of separation from service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. To the extent that there is an allegation of diagnosis in service and continuity thereafter, this post service assertion is simply not supported by the evidence of record.  The allegation of on-going symptoms since service is not credible (In his May 2011 claim for service connection the veteran asserts that his arthritis onset in July 2002). Regarding his eyes, the Board notes that cataracts and/or dry eye syndrome is not a chronic disability within the meaning of the regulation, therefore38 C.F.R. § 3.303(b) is not applicable to that claim.
 
The only evidence of record supporting the Veteran's claims are his various general lay assertions. The appellant is competent to assert that his arthritis and cataracts started during service or as a result of disease or injury sustained therein. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the assertions are not found to be credible for the purpose of establishing that his current arthritis and cataracts were incurred in service. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The appellant has not offered any evidence to support the assertion that his arthritis and vision problems started during service. Further, there is no indication that the appellant is repeating what he was told by a trained professional.  Simply, the appellant makes no intelligible argument to support the assertion the Veteran had arthritis in service or within a year of discharge and the evidence does not otherwise serve to link the arthritis or cataracts to the appellant's service.  His testimony was remarkably general in nature and fails to establish the presence of a disease process in service or otherwise linking the remote diagnoses to service.

The Board acknowledges the Veteran was not afforded a VA examination.  On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the claims simply do not meet these requirements for obtaining a VA medical opinion.   

For the foregoing reasons, the Board finds that the claims of entitlement to service connection for arthritis and cataracts must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

SMC 

Under 38 U.S.C.A. § 1114(l) , SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). 

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: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 

It is not required that all 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 section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). 

For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that 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. 38 C.F.R. § 3.352(a) .

In addition, SMC at the housebound rate is warranted if, in addition to having a single permanent disability rated 100 percent disabling under the VA's Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the veteran: (1) has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or, (2) is "permanently housebound" by reason of disability or disabilities. 

This requirement is met when the veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.351(d) .

The Veteran contends that he is entitled to special monthly compensation based on need for aid and attendance or housebound status, as he claims that he needs assistance with activities of daily living. 

The Veteran is service-connected for bilateral hearing loss, rated as 30 percent disabling and tinnitus, rated as 10 percent disabling.

Private treatment record documents a diagnosis of osteoarthritis beginning in July 2002. April 2004, May 2006 and March 2011 records confirm a diagnosis of osteoarthritis. An August 2012 private treatment record reflects diagnoses of senile mature cataract of the eyes (right and left) and dry eye syndrome of the eyes.

On VA audiology examination in November 2013, the examiner indicated that the Veteran's hearing loss impacted his ordinary conditions of daily life, in that he has difficulty during communication (he could not understand spoken words). His tinnitus did not impact his ordinary conditions of daily life.

Based on the foregoing, the Board finds that SMC based on the need for aid and attendance or housebound status is not warranted

The evidence of record demonstrates that, as the result of his service-connected disabilities, the Veteran does not have anatomical loss or loss of use of both feet, or of one hand and one foot, or that he has blindness in both eyes with visual acuity of 5/200 or less. In addition, the record does not reflect that the Veteran is bedridden. 

Moreover, while the Board notes that the Veteran has some service-connected disabilities (bilateral hearing loss and tinnitus), the evidence does not demonstrate that his service connected-disabilities cause him to be in need of another person to help with his activities of daily living. 

The Veteran has not specifically asserted that he is unable to attend to his own needs or that he meets any of the criteria associated with an award of aid and attendance. Rather, the Veteran has merely indicated that he could use assistance for standing and walking distances. In this case, the Board finds that the evidence preponderates against a finding that the Veteran's service-connected disabilities cause him to be so helpless as to require regular aid and attendance of another person. There is nothing in the record which establishes that the Veteran needs aid and attendance due to his service-connected bilateral hearing loss and tinnitus. As such, the Board concludes that SMC based upon need for aid and attendance is not warranted.

Regarding SMC based on housebound status, the Board notes that the Veteran does not have a single disability rated at 100 percent; therefore, he does not meet the requirements for SMC under 38 U.S.C.A. § 1114(s) . (Even if were to be awarded a TDIU attributed to a single disability, he would not have a separately rated 60 percent disability.) 

For all the foregoing reasons, the Board finds that SMC based on need for aid and attendance or housebound status is not warranted. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Nonservice-connected pension benefits

The term "veteran" means a person who served in the active military, naval or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2013). The term "veteran of any war" means any veteran who served in the active military, naval or air service during a period of war. 38 C.F.R. § 3.1(e) (2013). 

Generally, persons with service in the United States Army Forces in the Far East (USAFFE), including service with the recognized guerrillas, the Commonwealth Army of the Philippines, or service with the "New" or "Special" Philippine Scouts under Public Law 190, 79th Congress, shall not be deemed to have been in active military service with the Armed Forces of the United States for the purpose of establishing entitlement to nonservice-connected disability pension. See 38 U.S.C.A. § 107 (West 2002); 38 C.F.R. § 3.40(b),(c),(d) (2013).

To establish entitlement to the nonservice-connected pension benefits, the evidence must show that the Veteran had service in a "regular" component of the United States Armed Forces, also referred to as the "Old Philippine Scouts" or the "Regular Philippine Scouts." See 38 C.F.R. § 3.40(a) ("Regular Philippine Scouts" are eligible for pension, compensation, dependency and indemnity compensation, and burial benefits). 

By contrast, 38 C.F.R. § 3.40(b) provides that "Other Philippine Scouts," to include all those who served during the period from October 6, 1945 to June 30, 1947 (i.e., New or Special Philippine Scouts), are eligible for compensation and dependency and indemnity compensation benefits, but does not provide for eligibility for pension benefits. See 38 U.S.C.A. § 107(b) (West 2002); 38 C.F.R. § 3.40(b) (2013); Manlincon v. West, 12 Vet. App. 238, 240 (1999) (widow of veteran of New Philippine Scouts not entitled to nonservice-connected death pension because veteran's service is not considered qualifying active service for VA pension benefits). 

The United States Court of Appeals for Veterans Claims (Court) has held that findings by a United States service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 

In this case, the service department has certified that the appellant served in the Philippine Scouts from April 12, 1946 to January 27, 1949. 

As a matter of law, the appellant's documented Philippine service in the Philippine Scouts from April 1946 to January 1949 does not satisfy the statutory or regulatory service requirements necessary to establish entitlement to nonservice-connected pension. See 38 U.S.C.A. § 107 ; 38 C.F.R. § 3.40. The existing regulations clearly do not provide for the payment of VA pension benefits to those who served exclusively in the New Philippine Scouts during the Veteran's period of active duty. Having failed to demonstrate basic eligibility, he has no legal entitlement to nonservice-connected pension benefits and his appeal is denied. As the disposition of this claim is based on the law and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

  
ORDER

Entitlement to service connection for arthritis is denied.

Entitlement to service connection for cataracts is denied.

Entitlement to SMC based on need for aid and attendance or housebound status is denied.

Legal entitlement to nonservice-connected pension benefits is denied.


REMAND

In the November 2013 VA examination, the examiner reported that the Veteran's hearing loss impacted his ordinary conditions of daily life, including his ability to work. He has difficulty during communication; he could not understand spoken words. As noted, in the January 2014 rating decision, the RO granted service connection for bilateral hearing loss (30 percent disabling) and tinnitus (10 percent disabling). The Board notes that it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b). Under the circumstances, RO should reconsider the Veteran's entitlement to a TDIU taking into account the recently service-connected disabilities.

Accordingly, the case is REMANDED for the following action:

1. Adjudicate the Veteran's TDIU claim.  If the benefit sought remains denied, the Veteran should be provided a supplemental statement of the case that contains notice of all relevant actions taken on the claim. An appropriate period of time should be allowed for response. 
 
Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs