Citation Nr: 1806275 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-27 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of first and second degree burns on fingertips of the bilateral hands. 2. Entitlement to special monthly pension. ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1973 to March 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of November 2009 (bilateral hands) and January 2010 (special monthly pension) rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO). In a February 2015 Board decision, the Board reopened the Veteran's claim of entitlement to service connection for residuals of first and second degree burns on fingertips of the bilateral hands and remanded entitlement to service connection for residuals of first and second degree burns on fingertips of the bilateral hands, service connection for posttraumatic stress disorder (PTSD), as well as entitlement to special monthly pension for further development. In an October 2017 rating decision, the RO granted the Veteran's claim of entitlement to service connection for PTSD. As this was a grant of full benefits sought, the issue is no longer on appeal. FINDINGS OF FACT 1. The Veteran's diagnosed acquired sensory neuropathy of the bilateral hands did not manifest during active duty service or the first post-service year, nor is it otherwise shown to be related to service. 2. The Veteran does not have disabilities that render him unable to adequately attend to the needs of daily living without the regular aid and attendance of another person and/or leave him unable to protect himself from the hazards and dangers inherent in his daily environment. CONCLUSIONS OF LAW 1. The Veteran's acquired sensory neuropathy of the bilateral hands was not incurred during service, and may not be presumed to have been incurred during such service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for special monthly pension benefits based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C. §§ 1502(b), 1521(d) (2012); 38 C.F.R. §§ 3.23, 3.351(b) and (c), 3.352(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran has not 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 duty to assist argument). II. Service Connection Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system are among the listed conditions, subject to a one year presumptive period. opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49(1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis The Veteran contends that he has a bilateral hand disability as a result of an injury in service. He reported that his hands were "melted" aboard the ship he was assigned to while working in the engine room when he was called upon to close an emergency shut-off valve containing 2,000 degrees of super-heated steam. See September 2009 VA Form 21-526. Regarding the first element of service connection, current disability, the Board notes that the Veteran was afforded a December 2015 VA scars examination and the examination report indicated that the Veteran did not have one or more scars anywhere on the body, or disfigurement of the head, face, or neck; did not have any scars on the trunk or extremities (regions other than the head, face or neck); and did not have any scars or disfigurement of the head, face, or neck. The examiner indicated that the Veteran did not have any scars to his hands from the burns he incurred during military service. The Veteran was also afforded a December 2015 VA peripheral nerves conditions examination and the examination report indicated that the Veteran has a current diagnosis of acquired sensory neuropathy of bilateral hands with the date of diagnosis in April 2010. Accordingly, the Veteran has satisfied the first element of service connection. Turning to the second element, incurrence or aggravation of a disease or injury in service, the Veteran's service treatment records (STRs) indicate that in July 1973 within his command/work, he sustained injury when he was handling the main steam line stop valve. The Veteran was diagnosed with first and second degree burns, finger tips, left and right hand. Treatment included furacin with gauze roller dressing. STRs indicate that the diagnosis sustained by the Veteran as reported was not likely to result in disability. Thus, the second element of service connection has been met. Finally, with regard to third element, nexus, the December 2015 VA examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had a documented steam burn injury to his bilateral fingertips in 1973 and according to his STRs, this area was cleaned and dressed with furacin dressing. The examiner indicated that there are no further notes about this injury until he noted in a narrative that his palms had severe itching, tingling, stiffness, numbness, severe pain and burning, and over the years his hands would close up and prevent him from doing his daily activities of daily living (ADLs). The examiner indicated that an electromyogram (EMG) test showed sensory neuropathy of the bilateral hands in 2010. The examiner indicated that it was her opinion first and second degree burns to the fingertips are less likely as not the cause of neuropathy. The examiner explained that the hands should have developed signs of neuropathy earlier and would not be expected to have lapses of almost symptom free days a few days a month to being totally unable to use the hand for the rest of the month. The examiner further explained that these symptoms are not consistent with the burns he sustained in the military. The Board finds the VA examiner competent and credible and affords probative weight as the examiner performed a review of the claims and examination of the Veteran as well as provided a thorough rationale for her findings. Consideration has been given to the lay evidence of record relating the Veteran's bilateral hand condition to the burns he sustained in service. The Veteran is competent to describe his hand symptoms. However, he is not competent to relate his symptoms to service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard it is noted that the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Moreover, as discussed above, the most probative evidence of record does not support the Veteran's contentions. Sensory neuropathy was not present during the one-year presumptive period following service that would allow for service connection pursuant to 38 C.F.R. §§ 3.307, 3.309. Also, there is no medical evidence suggesting that the current sensory neuropathy is related to service. In sum, the weight of the evidence shows that the Veteran's acquired sensory neuropathy of the bilateral hands is unrelated to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim of service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b). III. Special Monthly Pension Legal Criteria VA's governing laws and regulations direct that special monthly pension at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he or she requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502(b), 1521; 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, a veteran must (1) be 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; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. §§ 3.351(c). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself through loss of coordination of the upper extremities or through extreme weakness, or attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). Bedridden is defined as a condition that, 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. 38 C.F.R. § 3.352(a). The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the veteran's condition requires him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The veteran must be unable to perform one of the enumerated disabling conditions, but his condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). A veteran receiving nonservice-connected pension may receive the housebound-rate of special monthly pension if he has a single disability rated as permanent and total (but not including total rating based upon unemployability under 38 C.F.R. § 4.17) and (1) has additional disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1521(e); 38 C.F.R. § 3.351(d). Factual Background and Analysis The Veteran contends that he is in need of aid and attendance because he is unable to use his hands. See June 2011 Buddy/Lay Statement and October 2012 VA Form 9. Having reviewed all the evidence of record, the Board finds that entitlement to special monthly pension benefits based on the need for the regular aid and attendance of another person is not warranted. The record includes a February 2010 VA treatment record that noted bilateral hand pain and impaired ADLs due to bilateral hand deformity and advised the Veteran should follow up with his primary care physician. An October 2013 VA emergency department note indicated that the Veteran was seen for injury as a result of slipping off of a diving board and striking his hip on the board. The Veteran was afforded a November 2015 VA PTSD examination and the examination report indicated that the Veteran lived with his mother; had contact with his siblings; and was going to church, but did not participate in any of the activities. The examination report indicated that he smoked about one pack of cigarettes a day and drinks one cup of coffee a day. He reported that he drinks no more than a six pack of beer per week. Upon examination the Veteran was observed as casually dressed, calm and cooperative, and with mild psychomotor retardation. His thought processes were organized and goal-directed. He had no hallucinations or delusions, but described hypervigilance, increased startle, inability to trust people (particularly people in authority), social withdrawal and isolation, and emotional numbing. His mood was depressed and his affect had restricted range. The Veteran was in control of his impulses without current suicidal or homicidal ideation, plan, or intent. The Veteran showed fair insight and his judgment was impaired at the time. The examiner indicated that the Veteran was capable of managing his own financial affairs. The Veteran was afforded a December 2015 VA aid and attendance or housebound examination. The Veteran described his typical daily activities as getting up early due to back pain. He reported that if his hands were flaring, a certified nursing assistant (CNA) came to assist with bathing, dressing, brushing his teeth, and spoon fed him during a flare. The Veteran reported that he paid for the CNA himself. He reported that he watches television, reads, and walks around the house. The Veteran indicated that he lives with his mom. He reported occasionally experiencing equilibrium problems and would fall. He indicated that on days when he does not have a flare he can use his hands, but reported it is over a period of time that he develops enough strength to feed himself with spoon. He reported that he can put his pants on and bathe himself. He reported that he cannot put his socks on most days. The examination report indicated that the Veteran was not bedridden, not currently hospitalized, could travel beyond his current domicile, and his mode of transportation to the examination was in a private vehicle accompanied by a friend. The Veteran was noted as not using an orthopedic or prosthetic appliance. Regarding his ability to protect himself from daily hazards/dangers, the Veteran experienced dizziness less than weekly, had no memory loss, and imbalance occasionally (less than weekly) affected his ability to ambulate. The examination report indicated that the body parts or system impairments that affected the Veteran's ability to protect himself from the daily environment included both hands, which the Veteran stated lock up most of the month and during that time he was unable to perform ADLs. The Veteran reported that approximately five days a month he can do mostly all of his ADLs except he might have difficulty putting on his socks. He reported that during the flare, he had great difficulty wiping his butt. Additionally, degenerative disc disease (DDD) of the lumbar spine with radiculopathy affected the Veteran's ability to protect himself from the daily environment described by the Veteran as causing lots of muscle spasms and difficulty bending over most days. The Veteran also reported experiencing radicular pain. The Veteran stated he walked in the neighborhood for a block or so when he felt like it. The examination report indicated that the effects of his service-connected PTSD on performing his ADLs were addressed in his November 2015 PTSD examination report. With respect to the mental competency of the Veteran, the December 2015 examination report indicated that he knew the amount of his benefit payment; he prudently handled payments; he knew the amounts of his monthly bills; he did not personally handle money or pay bills; and he was capable of managing his financial affairs. The December 2015 VA examination report also indicated that the Veteran was able to perform all self-care functions. His general appearance was noted as normal posture, lanky build, good current nutritional status, and normal gait. Regarding his limitations, the Veteran could walk up to a few hundred yards without the assistance of another person; he did not need aid for ambulation; he was unrestricted in the circumstances in which he could leave his home; his functional impairments were not permanent; and his cervical spine did not have limitation of motion or deformity. The examination report revealed that the Veteran had thoracolumbar spinal limitation of motion or deformity noted as DDD with sensory motor neuropathy of the lower extremities with unknown etiology that did not interfere with breathing. The examination report also revealed that the function of the upper extremities was not normal and there was no an upper extremity amputation. Upper extremity strength and coordination findings included mild or moderate impairment bilaterally and some difficulty in the ability for self-feeding, ability to dress and undress, ability to self-bathe, ability to self-groom, and toileting ability. The examination report also revealed that the function of the lower extremities was not normal and there was no lower extremity amputation. Bilateral lower extremity functional limitations were noted as muscle weakness, normal weight bearing, and normal propulsion. The examination report indicated that upon current examination, the Veteran could perform tasks with both hands and he had normal appearing hands with no atrophy, no drawing of the hands, and his hands opened and closed well voluntarily. The examination report further indicated that the Veteran demonstrated decreased grip strength, but did not appear to put forth much effort. He was able to oppose each finger pad with thumb and there was no gap when he closed his hands. He was able to fully use his hands. He stated that on days when he had flares, he was unable to fully use his hands. The examiner indicated that she did not witness that and with observing and examining the Veteran's hands upon current examination in the clinic, he would be able to do his ADLs today. There was no muscle or joint damage to the hands on current examination. It was the examiner's opinion that the Veteran's sensory neuropathy (claimed as residuals of burns) and lumbar disc disease did not render him unable to perform his ADLs. The examiner referred to the November 2015 VA PTSD examination for the effects of his PTSD on his ADLs. The Board finds that the weight of the evidence does not establish that the Veteran is unable to protect himself from the hazards and dangers inherent in his daily environment. The evidence of record demonstrates that the Veteran was not bedridden, not currently hospitalized, could travel beyond his current domicile, and was noted as not using an orthopedic or prosthetic appliance. The Board acknowledges the Veteran's reports that he uses a private CNA during flare ups and that his occasional loss of equilibrium render him physically and mentally unable to protect himself from the hazards and dangers inherent in his daily environment. However, the evidence reflects that the Veteran experienced dizziness less than weekly, had no memory loss, and imbalance only occasionally (less than weekly) affected his ability to ambulate. See December 2015 VA examination report. The Veteran was able to perform all self-care functions; his general appearance was noted as normal posture, lanky build, good current nutritional status, and normal gait; he could walk up to a few hundred yards without the assistance of another person; he did not need aid for ambulation; he was unrestricted in the circumstances in which he could leave his home; and his functional impairments were not permanent. Id. The Board notes that the Veteran was indicated as having mild or moderate impairment of the bilateral upper extremities with some difficulty in the ability for self-feeding, ability to dress and undress, ability to self-bathe, ability to self-groom, and toileting ability; however upon VA examination, the Veteran could perform tasks with both hands and had normal appearing hands with no atrophy, no drawing of the hands, and his hands opened and closed well voluntarily. Id. He was able to oppose each finger pad with thumb and there was no gap when he closed his hands; was able to fully use his hands; and there was no muscle or joint damage to the hands on current examination. Accordingly, the examiner opined that the Veteran's sensory neuropathy (claimed as residuals of burns) and lumbar disc disease did not render him unable to perform his ADLs. With regard to his PTSD disability, the VA examinations of record support that the Veteran is not in need of the aid and attendance of another person. While the Veteran was noted as living with his mother, this was not indicated out of necessity. See November 2015 VA PTSD examination report. Further, his November 2015 VA PTSD examination report indicated that he was going to church. Upon November 2015 examination the Veteran was observed as casually dressed, calm and cooperative, and with mild psychomotor retardation. His thought processes were organized and goal-directed. The Veteran showed fair insight and his judgment was not impaired at the time. The December 2015 VA aid and attendance examination report indicated that he did not personally handle money or pay bills; however, the report noted that the Veteran knew the amount of his benefit payment; he prudently handled payments; he knew the amounts of his monthly bills; and he was capable of managing his financial affairs. For these reasons, the Board finds that a preponderance of the evidence is against the claim for special monthly pension benefits based on the need for the regular aid and attendance of another person. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for residuals of first and second degree burns on fingertips of the bilateral hands is denied. Entitlement to special monthly pension is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs