Citation Nr: 1754664 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-44 151 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include a nervous disorder. 2. Entitlement to service connection for a low back disability. 3. Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. A. § 1151 for a skin disability of the bilateral buttock. 4. Entitlement to a rating in excess of 20 percent for residuals of fractured jaw, including temporomandibular joint disease. 5. Entitlement to special monthly pension (SMP). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. He served on active duty for training from November 1960 to May 1961. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the RO. The Board remanded the appeal in September 2016 for additional development of the record. The development has been completed and the case has been returned to the Board for appellate consideration. VA has provided all appropriate notification and assistance to the Veteran in the development of the claim. 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 an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The issue of service connection for an acquired psychiatric disorder, to include a nervous disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's current lumbar spine degenerative disc disease with spondylosis is not attributable to disease or injury sustained during his period of service and degenerative arthritis of the lumbar spine was not manifest within one year of separation from service. 2. The Veteran does not have a skin disability of the bilateral buttock. 3. The Veteran has limited motion of the inter-incisal range at most limited to 30 mm. 4. The Veteran is not blind, or nearly blind, is not institutionalized, or in a nursing home on account of physical or mental incapacity, and does not need or rely on the aid and attendance (A&A) of another person to perform the routine activities of daily living. 5. The Veteran is not substantially confined to his home, or otherwise housebound. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for additional disability of a skin disability of the bilateral buttock have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). 3. The criteria for a rating in excess of 20 percent for the service-connected residuals of the fractured jaw have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.150, Diagnostic Code 9905 (2017). 4. The criteria for SMP based on the need for regular A&A or by reason of being housebound have not been met. 38 U.S.C. §§ 1513, 1521, 1541, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. §§ 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, degenerative 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. §§ 1101, 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, degenerative arthritis is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also 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. § 5107(b). Low Back Disability The Veteran claims that he has a lower back disability that onset due to injury sustained in service. A July 1966 service treatment record documents the Veteran's complaint of back pain. He had no history of trauma. On physical examination, he demonstrated tenderness over the lower thoracic spine. The diagnosis was strained back. A June 1988 treatment record reflects that the Veteran had experienced an acute onset of persistent back pain. He had no recollection of a specific injury but noted that he had worked in his yard and the onset of pain occurred on the following day. The assessment was low back strain. A June 1988 treatment record documents the Veteran's complaint that he had experienced lower back pain for two weeks. On examination, the assessment was low back pain. An October 1992 treatment record documents the Veteran's complaint of a long history of low back pain. He denied experiencing any specific trauma. On examination, the diagnosis was low back pain. A June 2012 VA treatment record reflects that the Veteran underwent elective laminectomy, discectomy and osteophytectomy for herniated nucleus pulposus L4-L5 and L5-S1 with right L5 radiculopathy. March 2013 lumbar spine MRI findings showed epidural fibrosis at L4-L5 and surrounding the left S1 nerve root at L5-S1. There was also interval worsening of marrow edema and associated enhancement surrounding the L2-3 and L4-5 disc spaces, possibly degenerative in etiology. The January 2017 Report of VA examination documents a diagnosis of lumbar degenerative disc disease with spondylosis. The Veteran complained of constant low back pain that worsened when he performed any kind of movement. The examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran's single incident of treatment for strained back in service but explained that the Veteran had no further complaints related to his low back for approximately 10 years thereafter. The examiner concluded that there was no evidence to suggest a nexus between the injury sustained during the Veteran's period of service and his current low back disability. The examiner explained that lumbar disc disease with spondylosis is a chronic condition that tends to progressively worsen over time with natural aging and/or due to repetitive trauma. The examiner concluded that the Veteran had not developed degenerative joint disease or degenerative disc disease during his short period of service (from June 1965 to June 1967) as the degenerative process was of long duration. The examiner noted that the Veteran' low back disability likely onset due to his age, obesity and occupational history, all of which predisposed him to develop his low back disability. The examiner observed that the Veteran's current low back disability was diagnosed many years after his period of service and concluded that the Veteran's current low back disability was more likely than not related to the natural process of aging. Though the Veteran has current lumbar degenerative disc disease with spondylosis, the preponderance of the evidence is against a finding of a linkage between the low back disability and a period of service. Rather, the evidence shows that the Veteran's current lumbar degenerative disc disease with spondylosis had no etiological relationship to event or incident of service origin, having onset many years after service, most likely due to the natural aging process (See January 2017 VA examination report). This conclusion is probative as it is based on facts presented by both the service treatment records and the assertions made by the Veteran at the time of the VA examination. There is also no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current degenerative arthritis of the lumbar spine and a period of the Veteran's service. Additionally, there is no evidence of lumbar spine arthritis in service. 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. 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. Further, there is no demonstration of continuity of symptomatology or evidence of arthritis within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Skin Disability of the Bilateral Buttock Compensation may be paid for a qualifying additional disability not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not recently foreseeable. 38 U.S.C. § 1151 (2012). VA regulations provide that benefits under 38 U.S.C. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (2017). If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. See 38 C.F.R. § 3.361(c)(1) (2017). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2017). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran's representative. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a Veteran's additional disability or death was an event not recently foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d) (2017). The December 2016 Report of VA examination documents diagnosis of recurrent right gluteal abscess (by Veteran's history), resolved. The Veteran reported that he underwent lumbar spine surgery at the VA Medical Center in June 2012 and alleged that contracted a bacterial infection. He reported that shortly after discharge from the hospital he developed a painful abscess on the right gluteal area for which he sought emergency care. He alleged that he has continued to have an intermittent formation of gluteal abscess in the right gluteal which requires drainage by his daughter who is a nurse. Reportedly, he experiences five or six flare-ups of the gluteal abscess per year for which he treats himself at home with local care. The physician concluded that there was no evidence of a skin disability of the bilateral buttocks based on physical examination, record review and interview. The physician explained there was no evidence of a residual skin condition of the buttocks or related to past VA treatment or lumbar spine surgery performed. The physician observed that the Veteran had an acute activation of shingles during the hospitalization for his lumbar surgery. The physician explained that shingles was not the result of a bacterial infection but from the herpes zoster virus which can reactivate during stress situations. The physician explained that the reactivation of the herpes zoster occurs in individuals with a history of varicella and was not due to carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Regardless, the physician noted there was no evidence of any skin residual or disability as a consequence of the reactivation of herpes zoster. The physician documented that the first time the Veteran received treatment for a gluteal abscess was in February 2014 which was more than a year after his hospitalization for lumbar spine surgery. They physician found that the elapsed time between the hospital admission for the lumbar spine surgery and the development of the gluteal abscess weighed against an etiological nexus between the two. The threshold question is whether the Veteran has additional disability (i.e., skin disability of the bilateral buttock) that was the result of VA treatment that was characterized by carelessness, negligence, lack of proper skill, error in judgment, other instance of fault on the part of VA prior to and in furnishing treatment, or was an event not reasonably foreseeable. This claim for benefits must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. Here, the Veteran has presented no evidence of, and the more probative evidence establishes that the Veteran does not have skin disability of the bilateral buttocks. Thus, there can be no valid claim for compensation benefits. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that he had experienced an acute activation of shingles during the hospitalization for his lumbar surgery, the physician explained that shingles was not the result of a bacterial infection but rather resulted from the herpes zoster virus which can reactivate during stress situations. The physician further explained that the reactivation of the herpes zoster occurs in individuals with a history of varicella and was not due to carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel and that there was no evidence of any skin disability because of herpes zoster. (See December 2016 report of VA examination). Further, to the extent that the Veteran received treatment for a gluteal abscess in February 2014 (more than a year after his hospitalization for lumbar spine surgery), the physician explained that the elapsed time between the hospital admission for the lumbar spine surgery and the development of the gluteal abscess weighed against an etiological nexus between the two (i.e., it was not due to carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel). The Veteran is not competent to link his low back disability to service or claimed skin disability of the bilateral buttocks to negligence on the part of the VA. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is competent to describe the circumstances and incidents of his period of service and report injuries sustained therein. However, he is a lay person and is not competent to establish that his current low back disability onset as a result thereof or that he has additional disability, manifested by skin disability of the bilateral buttock that was the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA. The Veteran is not competent to offer opinion as to etiology of any current low back disability or claimed skin disability of the bilateral buttock. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claims of entitlement to service connection for a low back disability and compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151 for a skin disability of the bilateral buttock 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating - Residuals of Fractured Jaw Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). Here, the residuals of fractured jaw disability has not significantly changed and uniform evaluation is warranted. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The rating for the Veteran's residuals of fractured jaw disability is rated by analogy pursuant to Diagnostic Code 9905. A 20 percent rating is assigned for limited motion of the inter-incisal range between 21 to 30 millimeters (mm). A 30 percent rating contemplates limited motion of the inter-incisal range between 11 to 20mm. A 40 percent rating is assigned for limited motion of the inter-incisal range between 0 to 10 mm. 38 C.F.R. § 4.150 (2017). The October 2012 report of VA examination documents diagnosis of malunion or nonunion of the mandible. The examiner indicated that the Veteran had sustained injury resulting in malunion or nonunion of the mandible manifested by limited motion of the jaw. The examiner also indicated that the Veteran had sustained an injury resulting in malunion or nonunion of the maxilla with slight displacement. The Veteran demonstrated a maximum opening of his mouth to 30 mm. Right lateral opening was limited to 5 mm and left lateral opening was limited to 6 mm. The January 2014 report of VA examination reflects the Veteran's complaint that he had problems opening his jaw and eating adequately. Range of motion for lateral excursion was greater than 4 mm. There was no objective evidence of painful motion. Range of motion for opening the mouth, measured by inter-incisal distance, was 31 to 40 mm. Objective evidence of painful motion began at 31 to 40 mm. The Veteran was able to perform repetitive testing without additional limitation in range of motion of the jaw. The December 2016 report of VA examination reflects that range of motion for lateral excursion was limited to 3 mm. Range of motion for opening the mouth, measured by inter-incisal distance, was 30 mm. The Veteran was able to perform repetitive testing without additional limitation in range of motion of the jaw. There was no evidence of pain with chewing (mastication) or of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran had mild crepitus over the temporomandibular joint (TMJ). The Veteran's documented range of motion for opening the mouth, measured by inter-incisal distance limited to 30 mm is adequately contemplated by the assigned 20 percent rating. As the Veteran has not demonstrated limited motion of the inter-incisal range between 11 and 20 mm, a rating in excess of 20 percent is not warranted. The malunion or nonunion of the maxilla was manifested by slight displacement. Further, there is no evidence of chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible; loss of the mandible; loss of the ramus; loss of the hard palate; loss of teeth loss due to loss of substance of body of maxilla or mandible without loss of continuity; or, loss of the maxilla (See October 2012 report of VA examination). Thus, a higher rating pursuant to other diagnostic codes contemplating dental and oral conditions is not warranted. The preponderance of the evidence is against a rating in excess of 20 percent and the benefit-of-the-doubt standard does not apply. 38 U.S.C. § 5107(b). SMP The Veteran contends that he is entitled to SMP based on the need for regular A&A or housebound status due to his disorders. VA laws and regulations provide for an increased rate of pension, in the form of an SMP, when an eligible veteran is in need of regular A&A or has a disability rated as permanent and total, and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. See 38 U.S.C. § 1521(d), (e); see also 38 C.F.R. § 3.351(b), (c), (d). A veteran will be considered in need of regular A&A if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for A&A under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Determinations as to the need for A&A on a factual basis must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the Veteran 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 Veteran 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 Veteran from the hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). Bedridden status will be a proper basis for a determination of the need for regular A&A. Bedridden means that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that a veteran 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. See id. It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for A&A or that such eligibility requires at least one of the enumerated factors to be present. The particular personal function which a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular A&A, not that there be a constant need. Id.; Turco v. Brown, 9 Vet. App. 222 (1996). In addition, any determination that a veteran is so helpless as to be in need of regular A&A will not be based solely upon an opinion that a veteran's condition is such as would require him to be in bed. The determination must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). Housebound benefits are warranted if, in addition to having a single permanent disability rated 100 percent disabling under VA's Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 (2017)), 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. The "permanently housebound" requirement is met when a 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 September 2012 report of VA Aid and Attendance or Housebound examination reflects that the Veteran was not permanently bedridden, was not currently hospitalized and could travel beyond his current domicile. On a typical day, the Veteran awoke at 6 am and had to take his pain medication in order to be able to walk with the assistance of a cane. He would walk assisted (with cane) to the bathroom where he took his other medication. He prepared his own breakfast and ate by himself. He reported that the rest of his day was spent sitting and watching television. He took a shower in the afternoon by himself, sitting on a chair and then slept. Noted orthopedic or prosthetic appliances that he used included shower chair, toilet chair and shower handles. He became dizzy more than once per day; experienced occasional mild memory loss; and, experienced imbalance on a weekly basis that affected his ability to ambulate. However, he was able to perform all functions of self-care. He could walk a few hundred yards without the assistance of another person but required the use of a cane for ambulation. He could leave his home for medical care only. Vision in both eyes was better than 5/200 corrected in both eyes. He had constant low back pain with radiation down into his legs. Function of his upper extremities was normal. In his lower extremities, he experienced limitation of joint motion and muscle weakness. He walked with a slow gait and swayed to the right. He reported that he experienced excruciating pain in both legs requiring rest after walking and exercising. The examiner commented that the Veteran, who lived with his wife and daughter, was independent in his activities of daily living. The examiner stated that the Veteran was housebound except for medical appointments due to his persistent low back pain with radiculopathy that limited his ability to walk. A corresponding September 2012 VA neurological disorders examination reflects a diagnosis of mild cognitive impairment. The Veteran complained of memory loss/ cognitive disorder that onset two years earlier. He reported that he forgot medical appointments, misplacing personal objects and forgot names. He was still able to drive and reported that he became disoriented a few times. He also complained that he heard voices at night. He denied a family history of dementia. He lived with his wife and daughter in a home. He reported that his wife performed his house chores and prepared his meals. He was able to eat independently and was independent in his activities of daily living. He handled his financial affairs but admitted that on occasion he had forgotten to do so. On examination, the examiner concluded that the Veteran was not housebound or in need of A&A due to his mild cognitive impairment. SMP based on the need for regular A&A or by reason of being housebound is not warranted. Specifically, there is no indication that the Veteran is blind or nearly blind. The September 2012 VA examination does not show that the Veteran's vision has been 5/200 or worse in either eye. Additionally, there is no indication that the Veteran was hospitalized or was a patient in a nursing home, whether because of mental or physical incapacity, during the appellate period. The evidence shows that the Veteran lives in his own home. Therefore, the only questions to be answered are whether or not a factual need for A&A or housebound status has been established. The Veteran does not need or rely on the A&A of another person to perform the routine activities of daily living. Specifically, the September 2012 VA examination reports show that the Veteran is not bedridden. Moreover, he was not restricted to his home or immediate facilities since he was able to attend his medical appointments. Thus, he is not substantially confined to his home, or otherwise housebound. The September 2012 examination reflects that the Veteran was able to perform all functions of self-care and was independent in his activities of daily living. The VA examiner (in the September 2012 VA neurological examination report) indicated that the Veteran could handle his financial affairs and concluded that he was not housebound or in need of A&A. In sum, the Veteran does not meet the requirements for SMP based on the need for regular A&A of another person or by reason of being housebound because he is not blind, he is not hospitalized or in a nursing home, he does not meet a factual need for A&A, he is not bedridden, and he is not housebound. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. (CONTINUED ON NEXT PAGE) ORDER Service connection for a low back disability is denied. Compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151 for a skin disability of the bilateral buttock is denied. A rating in excess of 20 percent for residuals of fractured jaw, including temporomandibular joint disease is denied. Entitlement to SMP is denied. REMAND Further VA examination is necessary to assess the Veteran's claim of service connection for an acquired psychiatric disorder, to include a nervous disorder, further examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of the claimed acquired psychiatric disorder. The VBMS file must be made available to the psychologist/psychiatrist for review prior to examination. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented psychiatric treatment history. After reviewing the entire record, the psychologist/psychiatrist should provide opinion with supporting explanations as to the following: Does the Veteran have a current acquired psychiatric disorder that onset during service or due to event or injury sustained during his period of service? The psychologist/psychiatrist must provide specific findings regarding whether there has been resolution of the previously documented diagnoses of: Schizophrenic reaction; Schizophrenia, undifferentiated type, with paranoid features/paranoid traits; Depressive disorder, not otherwise specified (NOS); Depression, NOS, with psychotic features If these previously documented diagnosed psychiatric disorders have resolved, the psychologist/psychiatrist should explicitly explain when resolution of the psychiatric disorder occurred. As indicated above, the psychologist/psychiatrist must review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: *An October 1966 service psychiatric evaluation reflects that the Veteran had a pathological personality type and had little in the way of inner resources to make an adequate or even marginal adjustment to military life. The psychiatrist explained that the Veteran's condition was part of a character and behavior disorder due to deficiencies in emotional and personality development and made him unsuitable for further military duty. The psychiatrist concluded that the Veteran had no mental disease or defect sufficient to warrant disposition through medical channels *September 1971 reports of hospitalization documents that the Veteran was hospitalized for schizophrenia, paranoid type and schizophrenic reaction. *September/October 1977 report of hospitalization documents that the Veteran was hospitalized for schizophrenia, undifferentiated type, with paranoid features. *December 1977 report of hospitalization documents that the Veteran was hospitalized for schizophrenia, undifferentiated type, with paranoid traits. *September 1999 report of hospitalization documents that the Veteran was hospitalized for depression, NOS, with psychotic features. *September/October 1999 report of hospitalization documents that the Veteran was hospitalized for depressive disorder, NOS. *The December 2016 Report of VA mental disorders examination documents the examiner's indication that the Veteran was not nor had ever been diagnosed with a mental disorder. The examiner stated that the claims file had been reviewed and the Veteran had been interviewed. The examiner determined that there was no evidence in the records of any psychiatric treatment, hospitalization, or any mental disorder formally diagnosed related to the Veteran. The examiner noted that the Veteran reported that he was hospitalized in 1967 and 1997 but there was no evidence found regarding the hospitalizations. The examiner did note review of the October 1966 service psychiatric evaluation report. The examiner remarked that the Veteran did not fulfill the symptoms criteria for any diagnosis on Axis I according to the DSM-V. Thus, the examiner concluded that the Veteran did not have a mental disorder. A thorough explanation must be provided for the opinion rendered. If the psychologist/psychiatrist cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. THE PSYCHOLOGIST/PSYCHIATRIST IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 2. After completing all indicated development, readjudicate the claim remaining on appeal. Then, if indicated, this 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 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. §§ 5109B, 7112 (2012). ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs