Citation Nr: 1754883 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-10 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a cervical spine disability, for accrued benefits purposes. 2. Entitlement to service connection for peripheral neuropathy of the right and left upper extremities, for accrued benefits purposes. 3. Entitlement to service connection for a heart disability, for accrued benefits purposes. 4. Entitlement to service connection for right and left shoulder disabilities, for accrued benefits purposes. 5. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status, for accrued benefits purposes. ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1955 to June 1957. He died in June 2017. The appellant who is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A cervical spine disability is not related to the Veteran's active service, nor was it manifested by arthritis within one year of separation from service. 2. Peripheral neuropathy of the right and left upper extremities is not related to the Veteran's active service. 3. A heart disability is not related to the Veteran's active service, nor was it manifested by cardio-vascular renal disease within one year of separation from service. 4. A right and left shoulder disability is not related to the Veteran's active service, nor was it manifested by arthritis within one year of separation from service. 5. The Veteran was not, as the result of service-connected disability, with such significant disability as to be in need of regular aid and attendance and was not, by reason of service-connected disability, permanently housebound. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 5121 (West 2012); 38 C.F.R. §§ 3.303, 3.310, 3.1000 (2017). 2. The criteria for service connection for peripheral neuropathy of the right and left upper extremities, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 5121 (West 2012); 38 C.F.R. §§ 3.303, 3.310, 3.1000 (2017). 3. The criteria for service connection for a heart disability, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 5121 (West 2012); 38 C.F.R. §§ 3.303, 3.310, 3.1000 (2017). 4. The criteria for service connection for a right and left shoulder disability, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 5121 (West 2012); 38 C.F.R. §§ 3.303, 3.310, 3.1000 (2017). 5. The criteria for SMC based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114 (l), (s), 5121 (West 2012); 38 C.F.R. §§ 3.350, 3.352, 3.1000 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In various correspondence of record, the appellant was notified of the evidence not of record that was necessary to substantiate the claims. She was told what information that she needed to provide, and what information and evidence that VA would attempt to obtain. She was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service treatment records are unavailable, having been destroyed in a fire at the National Personnel Records Center records center in 1973. There is a heightened obligation to assist a claimant in the development of the case, a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). When a claimant dies while a claim is pending, an eligible person may be substituted. A person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121 (a) (West 2012). 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 RO from which the claim originated. 38 U.S.C. § 5121A (West 2012). In this case, the Veteran died in June 2017, and in August and October 2017, the appellant requested that she be substituted. Accordingly, the Board recognizes the substitution of the surviving spouse as the appellant in this case. 38 U.S.C. § 5121A (West 2012). When a properly qualified substitute claimant "continues the pending claim in the footsteps of the Veteran" after his or her death, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim. The record is not closed on the date of death of the original claimant, but rather, remains open for the submission and development of any pertinent, additional evidence. Because the appellant is a substitute claimant in this case, the Board will consider all evidence submitted in this case, to include evidence submitted both prior to and after the Veteran's death. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as arthritis and cardiovascular-renal disease, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran has asserted that he had a cervical spine disability, peripheral neuropathy of the right and left upper extremities, a heart disability, and a right and left shoulder disability that are the result of his period of active service. As indicated above, the Veteran's service treatment records are not available for review. Following service, a VA examination report dated in July 1974 shows a diagnosis of malabsorption syndrome, but no evidence of symptoms associated with the cervical spine, the right and left upper extremities, the heart disability, or the right and left shoulder. A private medical record from in December 2013, shows, in pertinent part, that the Veteran had a diagnosis of hypertensive cardiovascular disease. The private physician noted that he had chest discomfort secondary to hypertension, and concluded that the Veteran presented severe sensorial, musculoskeletal and neuro-psychiatric conditions more probably than not secondary to his military service performance. VA outpatient treatment records dated from November 1999 to February 2016 shows that the Veteran was treated intermittently for symptoms associated with dementia, diabetes mellitus, hyperlipidemia, hypothyroidism, ulcer, chronic kidney disease, onychomycosis, elevated liver enzymes, and hypertension. He was also noted to be wheel chair bound. There was no indication any of the listed diagnoses were etiologically related to active service. Having carefully considered the evidence of record, the Board finds that preponderance of such evidence fails to show that the Veteran had a cervical spine disability, peripheral neuropathy of the right and left upper extremities, a heart disability, and a right and left shoulder disability that are the result of his period of active service. As indicated above, as the service treatment records are unavailable, there are no records to suggest that the Veteran had any of the asserted disability during active service. None of the asserted disabilities were shown to have manifested within one year following separation from service, nor were any shown on VA examination in July 1974. None of the VA outpatient treatment records identify any of the asserted disabilities. While the VA outpatient treatment records and the opinion of the private physician show a diagnosis of hypertension, there is no evidence of a diagnosis of a heart disability. Additionally, while the private physician concluded that the Veteran had severe sensorial, musculoskeletal, and neuro-psychiatric conditions more probably than not secondary to his military service performance, the opinion is of limited probative value as it is not accompanied by a detailed rationale or explanation as to the reasons for reaching the conclusion. A rationale in support of a medical assessment is critical to the probative value of that impression. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). . The Board recognizes the competent assertions of the Veteran and the appellant. Lay evidence is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. See Buchanan v. Nicholson, 451 F.3d 1331,1336 (Fed. Cir. 2006); Jandreau, 492 F.3d at 1377; Davidson, 581 F.3d. at 1313. The lay evidence is certainly competent as to the events and symptoms of which there was personal knowledge; and in this regard the Board finds these accounts credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, with regard to direct service connection through chronicity, no chronic disease is shown during service or after service. Given the medical evidence against the claim, for the Board to conclude that the Veteran's asserted disabilities were incurred during service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2017); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, the claims of entitlement to service connection for a cervical spine disability, peripheral neuropathy of the right and left upper extremities, a heart disability, and a right and left shoulder disability for accrued purposes, must be denied. Although the appellant is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is not helpful to a claimant where, as here, the preponderance of the evidence is against the claims. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 56. SMC Based on the Need for Aid and Attendance or Housebound Status If a Veteran has a single service-connected disability rated as 100 percent disabling, he is entitled to compensation benefits at the "housebound" rate if he: 1. has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or 2. is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s) (West 2012); 38 C.F.R. § 3.350 (i) (2017). The "permanently housebound" requirement is met when the Veteran is substantially confined, as a direct result of service-connected disabilities, to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. A higher level of compensation is payable to eligible Veterans who, by reason of service-connected disability, require the regular aid and attendance of another person. See 38 U.S.C. § 1114 (l) (West 2012); 38 C.F.R. § 3.350 (b) (2017). The following criteria are accorded consideration in determining the need for aid and attendance: 1. The inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; 2. The frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; 3. The inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness; 4. The inability of the Veteran to attend to the wants of nature; or 5. The presence of incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352 (a) (2017). Under applicable regulations, "bedridden" will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the Veteran remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. Rather, the particular personal functions which the Veteran is unable to perform are to be considered in connection with his condition as a whole. It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless as to be in need of regular aid and attendance must be based on the actual requirement of personal assistance from others. Id. In the present case, there is no dispute that the Veteran was bound to a wheelchair during the final years leading to his death, or that he required regular aid and attendance. The record clearly shows that he needed help with activities of daily living. However, service connection was only established for bilateral hearing loss, rated as 10 percent disabling. The evidence shows that the Veteran had other disabling, non-service-connected conditions prior to death, including dementia, sepsis, kidney disease, and dehydration. (July 2017 Death Certificate). A February 2016 VA examination for Housebound Status of Permanent Need for Regular Aid and Attendance reflects that the Veteran's condition was related to diagnoses of Alzheimer's Disease, hypothyroidism, diabetes mellitus, and arterial hypertension. There is no evidence of record that the Veteran was housebound or in need of the regular aid and assistance of another as a result of his service-connected bilateral hearing loss. Based on a review of the relevant evidence in this case, the Board is unable to conclude that the Veteran's housebound status and/or his need for regular aid and attendance can properly be attributed to a service-connected disability. There is also no evidence of anatomical loss or loss of use due to service-connected disabilities nor the records sufficiently showed his need for regular aid and attendance was due to service-connected disabilities. Simply put, there is no sound evidentiary basis in the available record to support such a finding. The weight of the evidence is against the Appellant's claim for SMC, for purposes of accrued benefits, and must be denied. ORDER Service connection for a cervical spine disability, for accrued benefits purposes, is denied. Service connection for peripheral neuropathy of the right and left upper extremities, for accrued benefits purposes, is denied. Service connection for a heart disability, for accrued benefits purposes, is denied. Service connection for right and left shoulder disabilities, for accrued benefits purposes, is denied. SMC based on the need for aid and attendance or housebound status, for accrued benefits purposes, is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs