Citation Nr: 1758047 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 15-05 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a cognitive disorder secondary to his service-connected neurasthenia with mood disorder. 3. Entitlement to an increased rating for neurasthenia with mood disorder. 4. Entitlement to special monthly compensation (SMC) due to the need for aid and attendance (A&A). REPRESENTATION Appellant represented by: Amy B. Kretkowski, Attorney ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from September 1951 to March 1954. He passed away in February 2017. The Appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) is from a February 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In January 2016, the Board remanded these issues for additional development. FINDINGS OF FACT 1. The Veteran entered service without any back abnormalities noted on his entrance examination. He was diagnosed with scoliosis and back pain in service, which persisted since service. 2. In resolving all doubt in his favor, his dementia was caused by his service-connected neurasthenia and mood disorder. 3. His neurasthenia, mood disorder, and dementia manifested with total social and occupational impairment. 4. His neurasthenia, mood disorder, and dementia caused him to be in need of regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for service connection are met for scoliosis and for dementia. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303(a), 3.310 (2017). 2. The criteria for a 100 percent rating are met for neurasthenia, mood disorder, and dementia. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126-4.130, DC 9411 (2017). 3. The criteria for SMC A&A have been met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303(a), 3.304 (2017). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Scoliosis Prior to his death the Veteran had a diagnosis of scoliosis, which was found during his service. A veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service; or, where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2014); 38 C.F.R. § 3.304(b) (2015). This "presumption of sound condition" only arises when a currently claimed disability was not detected and noted on an entrance examination report. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). To rebut this presumption, VA must show, by clear and unmistakable evidence, both that the injury or disease preexisted entrance into the service and that the injury or disease was not aggravated by service. See VAOPGCPREC 3-2003; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the presumption of sound condition is rebutted, then a veteran's claim for service connection must be denied. Wagner, 370 F.3d at 1096. If the presumption of sound condition is not rebutted, then the VA proceeds with analyzing the veteran's service connection claim under the steps described in Shedden, supra. As noted above, the Veteran was diagnosed with scoliosis in September 1953, while still in service. This was not noted upon entrance to service. On his entrance examination, his spine was found to be normal. The X-ray report in September 1953 noted that the scoliosis "probably" existed prior to enlistment. The December 2014 VA examiner appeared to rely on the September 1953 X-ray but did not specify that the scoliosis clearly and unmistakably preexisted the Veteran's entrance into service. He indicated there was no evidence that the scoliosis was aggravated by service. The Board does not find this opinion is sufficient to overcome the presumption of soundness. Accordingly, he is considered to have entered service with a normal spine. Wagner, supra. The record shows the Veteran fell on his back while in service. He had immediate pain that resolved in a few days, but that started again within a few months. He was hospitalized while in service for the back pain, at which time his scoliosis was diagnosed. No other source was found for his back pain, and it was attributed to a psychogenic reaction. In July 1954, a few months following separation, he had a VA examination, at which time he complained of chronic back pain. He again complained of chronic pain at the September 1959 VA examination. In October 1963 and November 1965, he was diagnosed with facet syndrome of the lumbar region. In April 1968, his pain continued, and his scoliosis was again noted, as well as a possible herniated disk. In January 1979, his facet syndrome continued, as well as scoliosis, and possible herniated disk. He was also diagnosed with chronic lumbosacral strain. He had continued problems into the 1980s. How wife submitted a statement that he had back pain and associated problems from his service. More recent treatment records show that he continued to have scoliosis in 2010, and at the VA examinations. In considering that the Veteran's pain began in service, and was accompanied by a diagnosis of scoliosis, as well as the evidence that shows persistent symptoms since service, the Board finds that the evidence sufficiently shows that his scoliosis is related to his service. Service connection is therefore granted for lumbar scoliosis. 38 C.F.R. § 3.303(a). Cognitive disorder The Veteran was diagnosed with Alzheimer's dementia prior to his death. He asserted that it was related to his service. He separated from service with neurasthenia, which is now rated as somatization and mood disorder. The December 2014 VA examiner noted that there are medical studies that have found a correlation between depression and the onset of dementia, but that the Veteran's dementia was not likely related to his service-connected symptoms. The examiner cited to nine medical treatise articles to support his opinion. In response, the Veteran argued that the articles cited by the examiner actually supported his argument. Specifically, the article cited as number 245 concluded that depression prior to the onset of Alzheimer's dementia is associated with the development of the dementia, even when the depression began more than 25 years prior to the dementia. Article 246 concluded that there was a positive relationship between depression and Alzheimer's. Articles 249, 250, and 251 concluded that depression is associated with an increased risk for dementia. He argued that the examiner did not provide sufficient rationale for his opinion that it was not as likely as not that his mood disorder resulted in dementia. The Board agrees, but does not find that an additional medical opinion must be obtained. Medical articles cited can be considered competent medical evidence. 38 C.F.R. § 3.159(a)(1). Here, the Board finds that the Veteran has adequately argued and sufficiently shown that there is a 50 percent probability that his dementia was caused by his neurasthenia. Service connection for dementia is granted, and will be rated along with his neurasthenia. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's neurasthenia and mood disorder is rated as 50 percent disabling under 38 C.F.R. § 4.130, DC 9421. He has appealed for a higher rating. As of this decision, his dementia is considered part of his neurasthenia. The record shows that his dementia was severe. He was unable to discuss his medical history at all during the February 2013 VA examination. The July 2015 A&A examination noted that he was dependent upon others for all activities of daily living, and that he was in need of constant supervision. The Board finds that this evidence shows that he had total social and occupational impairment due to his neurasthenia, mood disorder, and dementia. Accordingly, a 100 percent rating is warranted. 38 C.F.R. § 4.130, DC 9421. SMC A&A A veteran shall be considered to be in need of a regular aid and attendance if he or she has the anatomical loss or loss of use of both feet, one hand and one foot, or is so helpless or blind or permanently bedridden as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). In determining whether there is helplessness such as to require the regular aid and attendance of another person, the following circumstances (among others not applicable here) will be considered: inability to dress or undress self, or to keep self ordinarily clean and presentable; inability of the veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or, physical incapacity which requires care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). As mentioned above, the Veteran was totally reliant on others for all activities of daily living, and he was unable to protect himself from the dangers incident to his daily environment. Indeed, prior to his death, the Veteran was found entitled to special monthly pension on the basis of the need for aid and attendance. Accordingly, SMC A&A is granted. ORDER Service connection is granted for lumbar scoliosis and cognitive disorder (dementia). A 100 percent rating is granted for neurasthenia, mood disorder, and dementia. SMC A&A is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs