Citation Nr: 18145048 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-23 646 DATE: 1. Entitlement to service connection for diabetes mellitus, type II, for accrued benefits purposes. 2. Entitlement to service connection for ulcerative colitis, for accrued benefits purposes. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), for accrued benefits purposes. 4. Entitlement to special monthly compensation based on the need for aid and attendance, for accrued benefits purposes. October 26, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, for accrued benefits purposes, is denied. Entitlement to service connection for ulcerative colitis, for accrued benefits purposes, is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), for accrued benefits purposes, is denied. Entitlement to special monthly compensation based on the need for aid and attendance is denied. FINDINGS OF FACT 1. The Veteran died in August 2013. 2. At the time of the Veteran’s death, claims for service connection for diabetes mellitus, type II, ulcerative colitis and GERD, as well as special monthly compensation based on aid and attendance were pending on appeal. 3. For accrued benefits purposes, the competent evidence of record at the time of the Veteran’s death does not show that the Veteran’s diabetes mellitus, type II, ulcerative colitis, or GERD were etiologically related to service. 4. For accrued benefits purposes, the competent evidence of record at the time of the Veteran’s death does not show that the Veteran was in need of regular aid and attendance by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, for purposes of accrued benefits have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107, 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.1000 (2017). 2. The criteria for entitlement to service connection for ulcerative colitis for purposes of accrued benefits have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107, 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.1000 (2017). 3. The criteria for entitlement to service connection for GERD for purposes of accrued benefits have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107, 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.1000 (2017). 4. The criteria for establishing special monthly compensation for aid and attendance for purposes of accrued benefits have not been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1960 to May 1962. The Veteran passed away in August 2013 and the appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. These matters were last before the Board in January 2018, at which time they were remanded for further development. The Board finds there has been substantial compliance with its remand directives. See, D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to accrued benefits based on service connection. The claimant maintains that she is entitled to service connection for the Veteran’s claimed disabilities of ulcerative colitis, GERD, and diabetes mellitus, type II, for accrued benefits purposes. Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will upon the death of such person, be paid as follows: (1) Upon the death of a Veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the Veteran's children. (3) Upon the death of a child, to the surviving children of the Veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial of the Veteran. See 38 C.F.R. § 3.1000 (a). At the time of the Veteran's death, he had claims pending for service connection for ulcerative colitis, GERD, and diabetes mellitus, type II. Service connection was denied in an April 2012 rating decision. The Veteran filed a timely Notice of Disagreement (NOD) the following month and these matters are now properly before the Board. For accrued benefits purposes, the appellant takes her husband's remaining claims as they stand at the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a s claim, is pending, a living person who is eligible to receive accrued benefits under 38 U.S.C. § 5121A may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A. In this case, the appellant filed a claim for accrued benefits in November 2013, clearly within one year of the Veteran's death in August 2013. As noted above, only evidence contained in the claims file at the time of the Veteran's death, or certain VA and service department records considered constructively in the claims file at that time, may be considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000 (d)(4); Hayes v. Brown, 4 Vet. App. at 360-361 (1993). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 1. Entitlement to service connection for diabetes mellitus, type II, for accrued benefits purposes. In his March 1962 separation physical, the Veteran described himself as being in “good health”. No medical problems were noted. The Veteran’s DD Form 214 reflects that his active service was from May 1960 to May 1962. There is no evidence that the Veteran served in Vietnam. The Veteran and his spouse have both endorsed that the Veteran’s overseas service was spent in Germany, and neither has alleged service in the Republic of Vietnam. In a May 2012 statement in support of claim, the Veteran’s spouse stated that “[i]t is her belief that the beginnings of these medical conditions occurred during [the Veteran’s] years in the army.” She stated that the Veteran was involved in a jeep accident, washed dishes for his entire company by himself, which led to his having to sleep for 20 hours to recover, and fell into water during a march and had to continue marching in wet clothing. Additionally, she stated that the Veteran was attacked by a German man while stationed in Germany. In an October 2012 statement of support of claim, the Veteran stated that he believed his ulcerative colitis, diabetes mellitus type II, and GERD had their origins while in the military due to his jeep accident and falling into water while on a march. In March 2018, a VA medical opinion regarding the etiology of the Veteran’s diabetes mellitus, type II, was obtained. A VA examiner reviewed the Veteran’s claims file and noted that the Veteran was diagnosed with diabetes mellitus, type II, in 2013. The examiner noted that the Veteran’s claims file showed he had no service in Southeast Asia. The examiner further noted that the Veteran’s service treatment records were silent as to complaints, diagnoses or treatments for hyperglycemia or diabetes and opined that it is less likely than not that the Veteran’s diabetes mellitus, type II, was related to his service. The examiner noted that the May 2012 statement in support of claim regarding a jeep accident and assault “do not provide any plausible pathophysiologic link to his conditions which developed decades later.” While the Veteran and the appellant believe his diabetes mellitus, type II, is directly due to the Veteran’s military service, they are not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the March 2018 VA examiner. At the time of the Veteran's death, there was an absence of competent evidence of record to show that the Veteran's diabetes mellitus, type II, manifested in service or is etiologically related to service. The preponderance of the evidence is against the Veteran's claim and service connection for ulcerative colitis is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). 2. Entitlement to service connection for ulcerative colitis, for accrued benefits purposes. In his March 1962 separation physical, the Veteran described himself as being in “good health”. No medical problems were noted. A January 2003 treatment record form Memorial Hospital in Colorado Springs notes the Veteran had suffered from severe ulcerative colitis for the prior two years which the Veteran attributed to the stress of being in bible college. In a May 2011 statement in support of claim the Veteran’s spouse stated that the Veteran had been through “a great deal of health crises in the past 18 years.” She further stated that the Veteran had been coping with ulcerative colitis since 1992. In a May 2012 statement in support of claim, the Veteran’s spouse stated that “[i]t is her belief that the beginnings of these medical conditions occurred during [the Veteran’s] years in the army.” She stated that the Veteran was involved in a jeep accident, washed dishes for his entire company by himself, which led to his having to sleep for 20 hours to recover, and fell into water during a march and had to continue marching in wet clothing. Additionally, she stated that the Veteran was attacked by a German man while stationed in Germany. In an October 2012 statement of support of claim, the Veteran stated that he believed his ulcerative colitis, diabetes mellitus type II, and GERD had their origins while in the military due to his jeep accident and falling into water while on a march. In March 2018, a VA medical opinion regarding the etiology of the Veteran’s ulcerative colitis was obtained. A VA examiner reviewed the Veteran’s claims file and noted that the Veteran was diagnosed with ulcerative colitis in the 1990s. The examiner opined that it was less likely than not that the Veteran’s ulcerative colitis was related to his military service, noting that the service treatment records are silent as to complaints, diagnoses or treatments suggestive of ulcerative colitis. The examiner further noted that the Veteran did not report such symptoms at discharge or within one year thereof. The examiner noted that the May 2012 statement in support of claim regarding a jeep accident and assault “do not provide any plausible pathophysiologic link to his conditions which developed decades later.” The examiner further stated that, as to stress experienced by the Veteran, it can aggravate, but not cause, inflammatory bowel disease. The examiner concluded that it is far less likely than not that the Veteran would have had occult inflammatory bowel disease for many decades without significant manifestations leading to more intensive evaluation, only to be diagnosed in the 1990s. While the Veteran and the appellant believe his ulcerative colitis is directly due to the Veteran’s military service, they are not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the March 2018 VA examiner. At the time of the Veteran's death, there was an absence of competent evidence of record to show that the Veteran's ulcerative colitis manifested in service or is etiologically related to service. The preponderance of the evidence is against the Veteran's claim and service connection for ulcerative colitis is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). 3. Entitlement to service connection for GERD, for accrued benefits purposes. In his March 1962 separation physical, the Veteran described himself as being in “good health”. No medical problems were noted. In a May 2012 statement in support of claim, the Veteran’s spouse stated that “[i]t is her belief that the beginnings of these medical conditions occurred during [the Veteran’s] years in the army.” She stated that the Veteran was involved in a jeep accident, washed dishes for his entire company by himself, which led to his having to sleep for 20 hours to recover, and fell into water during a march and had to continue marching in wet clothing. Additionally, she stated that the Veteran was attacked by a German man while stationed in Germany. In an October 2012 statement of support of claim, the Veteran stated that he believed his ulcerative colitis, diabetes mellitus type II, and GERD had their origins while in the military due to his jeep accident and falling into water while on a march. In March 2018, a VA medical opinion regarding the etiology of the Veteran’s GERD was obtained. A VA examiner reviewed the Veteran’s claims file and noted a diagnosis of GERD in 2013. The examiner opined that it was less likely than not that the Veteran’s GERD was related to his service, noting that the Veteran’s service treatment records were silent as to complaints, diagnoses or treatments for GERD. The examiner further noted that no stomach problems were reported at discharge. The examiner noted that the May 2012 statement in support of claim regarding a jeep accident and assault “do not provide any plausible pathophysiologic link to his conditions which developed decades later.” While the Veteran and the appellant believe his GERD is directly due to the Veteran’s military service, they are not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the March 2018 VA examiner. At the time of the Veteran's death, there was an absence of competent evidence of record to show that the Veteran's GERD manifested in service or is etiologically related to service. The preponderance of the evidence is against the Veteran's claim and service connection for ulcerative colitis is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). 4. Entitlement to special monthly compensation based on the need for aid and attendance. Special monthly compensation is payable to a Veteran who is, as a result of his or her service-connected disabilities, so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114 (l) (2012); 38 C.F.R. § 3.350 (b)(3) (2017). The following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself 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 such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a) (2017). It is not required that all 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 claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352 (a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996). For the purposes of 38 C.F.R. § 3.352 (a), "bedridden" will be a proper basis for the determination of whether the claimant is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant 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). In a May 2011 statement in support of claim the appellant stated that the Veteran had been coping with ulcerative colitis since 1992 and had led to his needing “round the clock” care from her. In a September 2011 statement in support of claim, the appellant stated that she was the full-time provider of aid and attendance for the Veteran. She further stated that he required daily assistance for wound care, prevention of small bowel blockages, ordering and application of medical supplies, transportation, bathing, cooking and cleaning, shopping. She listed the conditions requiring this aid and attendance as ulcerative colitis with ileostomy, GERD, diabetes mellitus, type II, chronic diarrhea and incontinence. In a March 2018 VA opinion, a VA examiner reviewed the Veteran’s claims file and noted that the Aid and Attendance form was not completed. The examiner stated that the Veteran’s primary cause for disability was complications due to his ulcerative colitis. At the time of the Veteran’s death he was service connected only for tinnitus a 10 percent disabling. There is no competent medical evidence, nor assertion by the Veteran, his representative, or his surviving spouse, that his service-connected tinnitus resulted in the regular need for the aid and attendance of another person. As such, the Board finds the preponderance of the evidence is against the claim of entitlement to special monthly compensation for accrued benefits purposes, and the appeal must be denied. See 38 U.S.C. § 5107 (2012). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel