Citation Nr: 18143434 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-37 902 DATE: October 19, 2018 ORDER New and material evidence having not been received, the appeal to reopen the claim for service connection for an acquired psychiatric disability is denied. Entitlement to special monthly pension (SMP) based upon the need for regular aid and attendance of another person, or by reason of being housebound, is denied. FINDINGS OF FACT 1. In an October 2015 rating decision, the Regional Office denied the Veteran’s claim for service connection for an acquired psychiatric disability; the Veteran did not appeal the October 2015 rating decision, and no evidence was received within one year of that rating decision. 2. The evidence associated with the claims file subsequent to the October 2015 final decision is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial, i.e., lack of evidence that the Veteran’s acquired psychiatric disability was incurred in, or aggravated by, military service. 3. The Veteran is not shown to be in need of regular aid and attendance by another individual, or that he is confined to his residence. CONCLUSIONS OF LAW 1. Evidence received since a final October 2015 rating decision is not new and material; reopening of the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. The criteria for SMP based on the need for aid and attendance or housebound status are not met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352, 4.3, 4.6, 4.10 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of February 2016 and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) located in Philadelphia, Pennsylvania, and San Juan, Puerto Rico, respectively. On the July 2016 VA Form 9, the Veteran requested a Board hearing via videoconference; however, in February 2017, the Veteran withdrew the hearing request. 38 C.F.R. § 20.704(e) (2017). 1. Reopening service connection for a psychiatric disability VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran seeks to reopen his previously denied claim for service connection for an acquired psychiatric disability. The Veteran’s claim for service connection for a psychiatric disability was previously denied in an October 2015 rating decision on the grounds that the evidence of record did not show that the Veteran’s psychiatric disability was not incurred in, or aggravated by, military service. No appeal was filed, and no evidence or new service records were received within one year of the October 2015 rating decision. The Board therefore finds that the October 2015 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. For the reasons set for below, the Board finds that the evidence submitted since the October 2015 final denial is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial, and does not tend to establish that the Veteran’s acquired psychiatric disability was incurred in service or is otherwise related to service. Evidence received since the October 2015 rating decision includes assertions by the Veteran that his psychiatric disability started in service. Specifically, he contends that he was diagnosed with a psychiatric disability while in service, and that he was hospitalized in 1969 and 1972 for his psychiatric disability. See, e.g., July 2017 notice of disagreement. This evidence is not new because the Veteran’s assertions that his psychiatric disability started in service were of record at the time of the October 2015 rating decision. See, e.g., April 2006 Decision Review Officer (DRO) hearing transcript. The evidence received since the October 2015 rating decision also includes VA treatment records showing psychiatric diagnoses of depression and anxiety. This evidence is not new because the evidence at the time of the October 2015 rating decision includes a May 2015 disability benefits questionnaire (DBQ), which shows that the Veteran’s treating psychiatrist diagnosed him with major depressive disorder and generalized anxiety disorder. The evidence also includes the May 2017 VA examination report, which includes a negative opinion as to the relationship between the Veteran’s current psychiatric disability and active service. The examiner attributed the Veteran’s psychiatric disability to nonservice-connected substance abuse. A negative nexus opinion cannot possibly substantiate the claim. See Villalobos v. Principi, 3 Vet. App. (1992) (noting that evidence that is unfavorable to a claimant, ipso facto, cannot be material). Therefore, the Board finds that, while the May 2017 VA examination is “new,” it is not material. This evidence is also not new because the evidence at the time of the October 2015 rating decision includes an October 2015 VA negative nexus opinion as to the relationship between the Veteran’s current psychiatric disability and active service. Similar to the May 2017 VA opinion, the October 2015 VA examiner attributed the Veteran’s psychiatric disability to nonservice-connected substance abuse. The Veteran has not otherwise provided any evidence purporting to show that his acquired psychiatric disability may be related to service. The Board therefore finds no new and material evidence that is not cumulative to evidence considered in the October 2015 final denial, and the Veteran’s claim for service connection for an acquired psychiatric disability is therefore not reopened. 2. SMP The Veteran asserts that his medical conditions have rendered him either housebound or in need of the aid and attendance of another. Special monthly pension is payable at a specified rate if a VA claimant is helpless or so nearly helpless that he requires the regular aid and attendance of another person. To establish a need for regular aid and attendance, the claimant 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 C.F.R. §§ 3.351(b)-(c), 3.352(a). The criteria to be considered in establishing a factual need for aid and attendance include: Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). The particular personal functions which the veteran is unable to perform should be considered in connection with the claimant’s 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 the 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 the veteran 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 the veteran’s condition does not have to present all of the enumerated disabling conditions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Being “bedridden” will also be a proper basis for finding that a VA claimant is in need of regular aid and attendance. The term “bedridden” means a condition which, through its essential character, actually requires that the claimant remain in bed. However, the fact that someone 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 is not sufficient. 38 C.F.R. § 3.352(a). For the reasons set forth below, the Board finds that the evidence weighs against a finding that the Veteran is in need of regular aid and attendance by another individual, or that he is confined to his residence. The Veteran provided a December 2015 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The private examiner indicated that the appellant has been diagnosed with lumbar disc displacement, major depressive disorder, obstructive sleep apnea, knee arthralgia, chronic prostatitis, and renal cyst. It was assessed that the appellant is not blind or bedridden, is not a patient of a nursing home, and does not require assistance with bathing, dressing, tending to personal hygiene needs, preparing his meals, or feeding himself. The appellant had full use of the upper extremities. With respect to the lower extremities, the Veteran was noted be unable to lift, was only able to sit for short periods of time, and had trouble walking because of back pain, bilateral knee pain, and left ankle pain. It was further assessed the Veteran was not confined to his residence, and is competent to manage his affairs. It was noted that the Veteran was using Canadian crutches because of fall risk, and that he could leave his home as needed, but with difficulty due to pain. The Veteran underwent a VA aid and attendance or housebound examination in June 2016. The examiner noted diagnoses of hypertension, lumbar disc displacement, bilateral knee osteoarthritis, status-post torsion trauma with fracture of left ankle, hepatitis C positive without chronic liver disease, benign prostate hypertrophy and chronic prostatitis, glaucoma without legal blindness, and major depression with past history of substance abuse. Upon examination, it was assessed that the Veteran is not blind or bedridden, is not a patient of a nursing home, does not require assistive devices for ambulation, and does not require assistance with bathing, dressing, tending to personal hygiene needs, preparing his meals, or feeding himself. The Veteran had full use of the upper and lower extremities, and was noted as able to protect himself from the hazards of his daily living environment. It was further noted the Veteran can leave his home without restrictions, and is competent to manage his affairs. It was indicated that the Veteran’s best corrected vision was not 5/200 or worse in both eyes. The examiner opined that, based on history and current findings upon examination, the Veteran does not fulfil the criteria for aid and attendance and is not housebound. In light of the above, the Board finds that the evidence weighs against a finding that SMP is warranted based on the need for aid and attendance under 38 C.F.R. § 3.351 or 3.352. First, the Veteran is not shown to have a corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less. Further, the evidence also does not indicate that the Veteran was a patient in a nursing home because of mental and physical incapacity. The evidence does not otherwise indicate that a factual need for aid and attendance has been established under 38 C.F.R. § 3.352(a). Specifically, while the Veteran has been diagnosed with hypertension, lumbar disc displacement, bilateral knee osteoarthritis, status-post torsion trauma with fracture of left ankle, hepatitis C positive without chronic liver disease, benign prostate hypertrophy and chronic prostatitis, glaucoma without legal blindness, obstructive sleep apnea, and major depression with past history of substance abuse, there is no indication that he relies upon another in order to sustain himself. While the Board would not dispute the fact that the Veteran has many problems he must address on a day to day basis, overall, the evidence does not indicate an inability by the Veteran to feed or dress himself, nor was there any demonstrated inability to maintain his own hygiene. Finally, the evidence also does not indicate that assistance is required to protect his from the hazards and dangers of his daily environment. Therefore, a factual need for aid and attendance under 38 C.F.R. § 3.352(a) has not been established. The Board has also considered whether SMP may be warranted on the basis of being housebound. In this regard, an appellant will be found to be “permanently housebound” when he or she is substantially confined to his or her house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. §§ 1502(c), 1311(d); 38 C.F.R. § 3.351(f). The Board finds that the evidence weighs against a finding that the appellant is “permanently housebound.” The evidence does not establish that the appellant is substantially confined to his house or immediate premises due to disability or disabilities which are reasonably certain to remain throughout his lifetime. While the December 2015 private examiner indicated that the Veteran could leave his home, albeit with difficulty due to pain, the examiner did not indicate that the Veteran is substantially confined to his house. In fact, the June 2016 VA examination report noted that the Veteran can leave his home without restrictions. Therefore, SMP is also not warranted by reasons of being housebound. The Board acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant SMP for aid and attendance or based on housebound status. However, as discussed above, the Board finds that the medical evidence, to include the December 2015 private examination provided by the appellant, which directly addresses the criteria under which SMP is evaluated, are more probative than the Veteran’s own assessment. In reaching this conclusion, the Board also finds that the June 2016 VA opinion is highly probative with respect the issue of entitlement to SMP, and is adequately based on objective findings as shown by the record; accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran’s history, and provided a rationale for the opinion given. See Stegall v. West, 11 Vet. App. 268 (1998); Barr, 21 Vet. App. 303; Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In conclusion, the evidence does not support the Veteran’s claim for SMP by reason of the need for regular aid and attendance of another person or by reason of being housebound. The Board finds that equipoise is not shown, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the preponderance of the evidence is against the Veteran’s claim of entitlement to SMP, the appeal is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel