Citation Nr: 1804260 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-19 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disability, to include as secondary to service-connected disability. 2. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person or housebound status. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Heath A. Hixson, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1977 and from January 1980 to July 1984, with additional service on active duty for training from August 1979 to November 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2009 and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office, and were remanded in December 2016. In July 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The probative, competent evidence is against a finding that a back disability is related to service or is caused or aggravated by his service-connected left ankle disabilities. 2. The probative, competent evidence demonstrates that the Veteran has been in need of the regular aid and attendance of another person since January 9, 2012, by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for SMC based on the need for the regular aid and attendance of another person have been met from January 9, 2012. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350(b), 3.352(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability that is shown to be either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran asserts that he has a back disability related to service. Alternatively, he has asserted that his back disability may be caused or aggravated by his service-connected left ankle disabilities. Preliminarily, the Board notes that the record reflects diagnoses of degenerative disc disease (DDD), mechanical low back pain, and lumbar spondylosis during the period on appeal. Accordingly, the remaining question for resolution is whether such disabilities are related to service or are caused or aggravated by service-connected disability. The Veteran underwent VA examination in connection with his claim in May 2017. The examiner diagnosed DDD, mechanical low back pain, and lumbar spondylosis, and indicated that the Veteran reported that his back did not bother him until a motor vehicle accident approximately ten years prior. The examiner further related that the Veteran reported going to sick call while in service for low back pain, and that he had been taken off his ship and transferred to shore duty. Following review of the file and examination of the Veteran, the examiner ultimately opined that the Veteran's back disability was less likely than not incurred in or caused by service. In support of that opinion, the examiner noted that the Veteran's service treatment records revealed only a single complaint related to the back, after which the Veteran was diagnosed with lumbosacral strain, but that the evidence did not support that a chronic back condition began during military service. The examiner further noted that the records were silent for any back-related issues until the motor vehicle accident in March 2006. Finally, the examiner stated that DDD is a condition related to genetics and chronic use, and that current medical literature does not support causation of degenerative changes in the discs due to muscle strain in the back. The examiner also opined that the Veteran's back disability was less likely than not caused or aggravated by service-connected disability, specifically the Veteran's service-connected left ankle disabilities. In support of that opinion, the examiner stated that the evidence of record, as well as current medical literature, did not support a finding that a condition of the ankle could cause degenerative changes of the lumbar spine. The examiner again stated that such degenerative changes are related to genetics and wear and tear and will normally and naturally worsen over time. In addition, the examiner noted that the expected, normal or natural progression of degenerative disc disease is to worsen with time and this is reflected with review of the Veteran's spine imaging studies from 2006 to 2014. Review of the record, according to the examiner, did not support that the service-connected ankle condition had altered the expected normal progression of degenerative disc disease. It was further noted that temporary flare-up of symptoms at any given time is not uncommon and was reasonably expected. Upon review, and considering all of the evidence, the Board finds that the most probative evidence is against a finding that any low back disability is related to the Veteran's service, manifested in or within one year of service, or is caused or aggravated by service-connected disability. In that regard the Veteran has asserted that he has experienced back pain since service, but did not complain or seek treatment until after his March 2006 motor vehicle accident. However, while lay persons are competent to report on what they have experienced or witnessed, the diagnosis of a specific disability requires medical testing and expertise to determine. Thus, as a lay person, the opinion of the Veteran as to the onset of his back disability is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the Board finds the May 2017 VA opinion to be of greater probative value than the lay contentions of record, and finds that the most probative and credible evidence is against a finding that any back disability is related to service, manifested during service or within one year of the Veteran's separation from service, or is caused or aggravated by his service-connected disability. Thus, for all the foregoing reasons, the claim for service connection for a back disability is denied. In reaching the decision to deny this claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule, but it is not for application because the most probative evidence of record is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. SMC Special monthly compensation is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, a veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). "Bedridden" is defined as a condition in which the claimant is required to remain in bed; the fact that a claimant has chosen to remain in bed or bedrest is prescribed for part of a day is not sufficient. 38 C.F.R. § 3.352(a). The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person as determined under criteria enumerated in 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the veteran was in need of regular aid and attendance of another person: (1) inability of a veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of a veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. It is not required that all of 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 was unable to perform should be considered in connection with his former condition as a whole. It is only necessary that the evidence establish that the veteran was so helpless as to need regular aid and attendance, not that there was a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). The Veteran contends that he is entitled to SMC because he requires the regular aid and attendance of another person, specifically his wife. He contends that the functional impairment caused by his service-connected disabilities render him unable to care for himself without his wife's assistance. Service connection is currently in effect for a traumatic neuroma of the left ankle with superficial peroneal nerve disability, status post neuroma resection, as well as a tender post-operative scar of the left ankle. In June 2009, the Veteran stated that he depended on someone to help with everything that he needed to do, otherwise he would just spend his time lying around in pain. In August 2009, he submitted a VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The Board notes that this examination focused solely on the impairment caused by the Veteran's lumbar disc disease; as service connection for a back disability has been denied above, the level of impairment caused by this disability is not particularly relevant for consideration of whether or not the Veteran is entitled to SMC based on the need for the aid and attendance of another. In June 2011, the Veteran reported that he walked with a cane and could only stand or walk for about 15 minutes at a time due to pain from his service-connected ankle disability. He stated that his ankle stayed swollen and in pain. In December 2011, the Veteran underwent VA General Medical examination, and the examiner addressed the Veteran's left ankle disability. Range of motion testing of the ankle was essentially normal and there was no objective indication of painful motion. The examiner noted no additional limitation in range of motion of the ankle following repetitive-use testing, and opined that the Veteran did not have any functional loss or impairment of the ankle. Strength testing was normal, but there was pain or tenderness on palpation. The examiner described a palpable lump on the dorso-lateral left foot that resulted in pain, swelling, and tingling worse with prolonged standing or pressure from external sources such as a tight-fitting sock of high top shoes, and noted that the Veteran regularly used a cane. The examiner opined that the left ankle neuroma would prevent the Veteran from securing and maintaining substantially gainful employment requiring prolonged standing. The examiner further noted that the Veteran has a 5 centimeter by 6 millimeter scar on the left ankle which was not painful, did not result in skin breakdown, did not result in limitation of motion, and did not impact his ability to work. The record demonstrates that the Veteran underwent left ankle surgery on January 9, 2012. Records from a rehabilitation facility which provided the Veteran with physical therapy following the surgery reflect that he had a high level of pain. On an intake form, he reported quite a bit of difficulty with his usual work, housework or school activities, with getting into or out of the bath, walking two blocks, and going up or down ten steps. He indicated that he had a little bit of difficulty with walking between rooms, putting on shoes or socks, squatting, lifting an object like a bag of groceries from the floor, performing light activities around his home, and getting into or out of a car. He reported that he was unable or had extreme difficulty in performing usual hobbies, recreational, or sporting activities, performing heavy activities around his home, and walking one mile. Furthermore, in March 2012 he was noted to have severe limitation in walking, and could only climb stairs by "scoot[ing] on [his] bottom." The Veteran reported that he had left ankle pain, loss of range of motion, impaired strength, and impaired balance. He was advised to discontinue physical therapy after two sessions due to severe nerve pain. The Veteran again underwent VA examination of his left ankle in November 2012. The examiner noted that the Veteran had no range of motion in the left ankle and no muscle movement on left ankle plantar flexion or dorsiflexion due to nerve impairment. He also had functional loss due to pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. He used bilateral forearm crutches on a constant basis, and the examiner opined that the Veteran's functioning was so diminished that amputation with a prosthesis would equally serve the Veteran. The Veteran reported constant pain, numbness, and paresthesias, worse at night without identified precipitating or relieving factors. He described an aching sensation with weight bearing or ambulation, and indicated that he was unable to wear a sock or shoe. Ankle reflexes were hypoactive, and the left ankle demonstrated decreased sensation. The examiner opined that the Veteran's left ankle condition would impact his ability to work because it hindered or prohibited weight-bearing, ambulation, and the wearing of a sock of shoe, which would leave the foot vulnerable to injury, infection, and changes in temperature. In November 2013, the Veteran reported that his disability prevented him from performing any daily activities, and that he stated in bed all day every day except for going to medical appointments. He stated that his wife had to help him get dressed, take a bath, and prepare meals. He related his impairment to his service-connected left ankle disability as well as his non-service-connected back disability. The Veteran further indicated that his wife had to help him keep track of his medication because it left him feeling sedated. In December 2013, the Veteran underwent VA Aid and Attendance or Housebound Examination. The examiner noted that the Veteran was not permanently bedridden or currently hospitalized, and was able to travel beyond his domicile. The Veteran reported that he stayed in bed most of the day and that his wife brought his meals to him in bed. The Veteran's wife also assisted him with bathing and toileting. The examiner noted that there were body parts or system impairments that would affect the Veteran's ability to protect himself from his daily environment because, due to his chronic neuropathic pain and difficulty ambulating, he would be unable to evacuate his home in the event of a fire or other emergency. The examiner noted that the Veteran could only walk without the assistance of another within the home, and required a brace and two crutches for ambulation. The examiner further indicated that the Veteran could leave the home for medical care only, and that his functional impairments were permanent. The Veteran's propulsion was ataxic, very slow, and deliberate, and he was unable to fully bear weight on the left lower extremity. The Veteran's podiatrist, Dr. J.B., provided several statements following the January 2012 surgery indicating that the Veteran's nerve entrapment prevented him from working. Treatment records throughout the period on appeal reflect a level of impairment consistent with that noted above. Upon review, the Board finds that, for purposes of determining entitlement to SMC, the Veteran has required the regular aid and attendance of another person since January 9, 2012. In that regard, the Board notes that the evidence demonstrates that the Veteran's January 9, 2012, surgery for his ankle disability resulted in severe pain and the inability to bear weight on the left lower extremity. The December 2013 VA examiner noted that the Veteran was only able to ambulate with crutches, and could only walk unassisted within the home. Since January 2012, the Veteran has required his wife's assistance for the basic activities of daily life, including eating, dressing, bathing, and toileting. Furthermore, as the December 2013 VA examiner noted, the Veteran is vulnerable to accident or injury due to his inability to ambulate without assistance. Accordingly, the Board finds that entitlement to SMC based on the need for the aid and attendance of another person is warranted from January 9, 2012. The Board does not find, however, that SMC is warranted at any time prior to January 9, 2012. Prior to the Veteran's surgery on that date, he had essentially full range of motion of the left ankle, and many of his complaints, while severe, were related to his non-service-connected back disability, which is not relevant in this determination. While the Veteran did have left ankle pain and some limits on ambulation as a result, his impairment did not rise to the level of requiring the need of the aid and attendance of another or render him bedridden. Accordingly, SMC may not be granted prior to January 9, 2012. ORDER Entitlement to service connection for a back disability, to include as secondary to service-connected disability, is denied. Entitlement to SMC based on the need for the aid and attendance of another is granted from January 9, 2012. REMAND While further delay is regrettable, the Board finds additional development is necessary before a decision may be rendered on the remaining issue on appeal. The Veteran asserts that he is unable to work due to his service-connected disabilities and should be awarded a TDIU. Additionally, the evidence strongly suggests that the Veteran's service-connected left ankle disability has a serious impact on his ability to work. Upon review, the Board finds that the Veteran does not currently meet the schedular requirements for the assignments of a TDIU. However, 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) (2017). Rating boards are required to submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Director of Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Given the strong evidence that the Veteran's service-connected left ankle disabilities affect his ability to secure and follow gainful employment, the Board concludes that the facts of this case meet the criteria for submission of the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. Therefore, remand is warranted. Accordingly, the case is REMANDED for the following actions: 1. Refer the claim to the Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a copy of this remand as well as a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 2. After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate consideration, if in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs