Citation Nr: 18147738 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 16-15 006 DATE: November 7, 2018 ORDER As new and material evidence to reopen the claim for service connection for multiple sclerosis (MS) has been received, to this extent, the appeal as to this matter is granted. Entitlement to service connection for multiple sclerosis is granted. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance (A&A) of another person is granted. FINDINGS OF FACT 1. An April 2008 rating decision denied the Veteran’s original claim for service connection for MS; although notified of the denial in a letter dated in May 2008, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 2. New evidence associated with the claims file since the April 2008 rating decision relates to unestablished facts necessary to substantiate the service connection claim for MS, and raises a reasonable possibility of substantiating the claim. 3. Competent, probative evidence, including an opinion provided by the Veteran’s private treating physician, together with the Veteran’s credible statements, indicates that it is more likely than not that the Veteran’s diagnosed MS had its onset during his active service. 4. Although the Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot, and is not service-connected for blindness in both eyes, competent, credible, and probative evidence indicates that, as a result of service-connected MS and peripheral neuropathy of the bilateral upper and lower extremities, requires nursing home care requires care, and is otherwise in need of assistance of another person on a regular basis to protect him from the hazards or dangers inherent in his daily environment and to perform his activities of daily living. CONCLUSIONS OF LAW 1. The April 2008 rating decision in which the agency of original jurisdiction (AOJ) denied service connection for MS is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. As additional evidence received since the April 2008 rating decision pertinent to the multiple sclerosis claim is new and material, the criteria for reopening the claim for service connection for MS are met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for MS are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for an award of SMC based on the need for A&A are met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. This appeal to the Board of Veterans Appeals (Board) arose from an September 2013 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, confirmed and continued the Veteran’s previously denied claim for service connection for MS, and denied entitlement to SMC based on the need for A&A/housebound status. The Veteran disagreed with the RO’s decision and this appeal ensued. In November 2016, the Veteran and his wife testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). Regarding characterization of that portion of the appeal regarding service connection for MS, it is noted that, regardless of the RO’s actions with respect to the claim, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the previously denied service connection claim for MS has been received, the matters has been characterized accordingly—and, in view of the Board’s favorable decision on the request to reopen the claim—the Board has characterized the appeal as to that disability as now encompassing both a request to reopen the claim and the underlying claim for service connection, on the merits. A. Request to Reopen The Veteran’s claim for service connection for MS was previously considered and denied. In an April 2008 rating decision, the AOJ denied the Veteran’s original claim for service connection because there was no evidence of a diagnosis of MS in the Veteran’s service treatment records (STRs) or within the seven-year presumptive period following his separation from service, as provided for within the pertinent regulations for chronic disabilities. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The evidence then of record consisted of the Veteran’s STRs and service personnel records (SPRs), VA treatment records, private medical records, and statements submitted by the Veteran. Although notified of the April 2008 denial in a letter dated in May 2008, the Veteran did not initiate an appeal with respect to the claim. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the AOJ’s April 2008 denial of the claim is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Id. New evidence pertinent to the service connection claim for MS includes ongoing private treatment records (noting progressive symptoms indicative of MS); VA treatment records ( noting the Veteran’s continuing diagnosis of MS since 2007); a March 2015 letter from the Veteran’s private neurologist (offering an opinion that the Veteran’s MS most likely began as far back as 1966, during his active service); and the November 2016 Board hearing transcript (reflecting the Veteran’s description of possible symptoms of MS beginning during his active service and continuing periodically until his diagnosis). The Board finds that the above-described evidence is “new” in that was not previously before decision makers, and is not cumulative or duplicative of evidence previousl7 record. The evidence is also “material” in that it is relevant to the claim for service connection for MS, and collectively indicates a possible nexus of between the Veteran’s MS and service—a . Moreover, given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board also finds that the additionally received provides a reinds that the additional evidence pertinent to the service connection claim for MS, received since the April 2008 decision, is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of the service connection claim for multiple sclerosis. See Justus, 3 Vet. App. at 513. B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether the elements of a claim are met is based on an analysis of all the evidence of record and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006) Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran asserts that he began having symptoms of MS during his active service during the Vietnam Era. He asserted during his November 2016 Board hearing that his symptoms began with periodic episodes falling, and that he first experienced such an episode during service in 1996, when he fell and hit his head on a gun mount. As for the in-service injury or disease requirement for the claimed MS, the Veteran’s STRs are devoid of any specific documentation of treatment for or a diagnosis of MS sclerosis during service. Notably, however, the Veteran’s reported incident of hitting his head on a gun mount appears to be documented in a December 1996 clinical notation, where he was seen for clinical treatment for a laceration above his left eyebrow. The circumstances surrounding the incurrence of the laceration are not noted. Nonetheless, the Board finds the Veteran’s testimony that the first of his periodic falling episodes, which he believed to be the beginning symptoms of his MS, began during service to be credible. As for the matter of a current disability, the Veteran provided a January 2017 MS disability benefits questionnaire completed by his private neurologist, wherein the neurologist noted his diagnosis of progressive, non-relapsing MS, with a confirmed diagnosis in July 2007. Turning, then, to the question of whether there exists a medical nexus between the Veteran’s current disability and his active service, the Board notes that the record contains indication supporting the Veteran’s contention that his MS symptoms have been present for many years. Notably, a February 1976 clinical report from the Veteran employment as a merchant marine, noted that he suffered a fall at that time as a result of losing his balance. He reported that he tried to get up after the fall, and could not and fell again, injuring his knee in the process. He additionally was noted to be suffering from weakness in his left leg in multiple private treatment reports beginning in approximately January 2002. The record additionally includes multiple letters from the Veteran’s private neurologist which he has submitted in support of his claim. A May 2015 letter noted that the Veteran had been under the neurologist’s care for many years, and noted his treatment for multiple neurological conditions, including MS. An additional March 2015 letter provided by the neurologist stated that the Veteran’s MS most likely began as far back as 1966, when he began to have episodes of falling. In support of the opinion, the neurologist noted that the Veteran’s age at that time was typical for onset of MS, and he indicated that it would not have been possible to provide a diagnosis at that time, as the MRI technology was not available for many years later. He further noted that his diagnosis was discovered incidentally when he was seen for an evaluation which necessitated and MRI, and in retrospect, his long diagnosis of primary, progressive MS became clear. The Board finds the private neurologist’s opinion contained in the March 2015 letter to be of significant probative value. The examiner had treated the Veteran’s MS for many years and was intimately familiar with the Veteran’s symptoms and the progress of the disease. The neurologist considered this evidence together with his expertise as to the typical onset of the disease and the Veteran’s earlier reported symptomatology, and concluded that his MS most likely began during his active service. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). To the extent that the neurologist’s opinion relies on the Veteran’s lay reports, the Board emphasizes that VA is not free to ignore a medical opinion or pertinent medical findings (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject such a medical opinion based on its own medical judgment (see Obert v. Brown, 5 Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based, in part, on lay assertions. In the instant case, the Board has determined that the Veteran’s reports are credible. Moreover, there is no evidence to the contrary on this point. Thus, based on the foregoing, the Board finds that the evidence of record is, at least, relatively evenly balanced on the medical nexus question. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and resolving any reasonable doubt on certain elements of the claim in the Veteran’s favor, the Board concludes that the criteria for service connection for a multiple sclerosis are met. C. SMC Based on Need for Aid and Attendance/Housebound Status SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Pursuant to 38 C.F.R. § 3.350(b)(3) and (4), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant 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 aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. “Bedridden” is defined as that condition, which, through its essential character, actually requires that a claimant remain in bed. The fact that a 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. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). In the present case, the Veteran is now service-connected for MS, and service connection is in effect for type II diabetes mellitus and associated peripheral neuropathy of the bilateral upper and lower extremities. Additionally, the Board notes that the Veteran was awarded special monthly pension based on the need for A&A in a July 2015 rating decision, as a result of evidence showing that he required assistance with dressing, bathing, shopping, preparing meals, and cleaning and doing laundry as a result of his diagnosed MS. Indeed, the record contains multiple VA Forms 21-2680, Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance by the Veteran’s private physicians, indicating his need for regular A&A of another person. In the most recent report, dated in August 2016, the Veteran’s private neurologist noted that due to his now service-connected MS and service-connected diabetic peripheral neuropathy, the Veteran suffered from quadriparesis, numbness, weakness and spasms of his extremities. He noted that the Veteran was not able to feed himself or to prepare his own meals, and that he needed assistance in bathing and tending to hygiene needs because of his inability to stand or transfer himself without maximum assistance with a Hoyer lift. Additionally, the neurologist noted that the Veteran required nursing home care due to his quadriparesis and chronic worsening symptoms. The neurologist also noted that the Veteran needed assistance with medication management. In describing the severity of the Veteran’s symptoms, the neurologist noted that the Veteran had moderately weak bilateral hand grips, with poor fine motor movements, and very weak bilateral extensors. While he was able to push/pull levers to steer a scooter, he required assistance with his daily activities. He additionally noted that he Veteran was unable to move either his right or left leg, that he was unable to stand or walk, and that he required a lift to transfer himself. The findings from the August 2016 report are consistent with prior reports of record. Notably, the earliest report, dated in July 2012, noted the Veteran’s required need for A&A in nearly all the same areas as the latter report, though at that time, he was not noted to be in need of nursing home care. The Veteran at that time was similarly found ot have no fine motor ability in the right hand and he had weakness in the left arm. He was not ambulatory without assistance, including balance bars, a walker, and a scooter. Additionally, a May 2014 private report also indicated that the Veteran was bedbound, and needed total care due to his progressing MS. The physician noted that the Veteran was losing control and movement in all four limbs, and that he had 100 percent limitation in his legs, and 80 percent limitation in his arms and hands. The physician further noted that the Veteran had restriction in movement of his spine, trunk, and neck due to progressing MS. Finally, he noted that the Veteran had a lift and power wheelchair, but that he had not been out of the house in months due to his decline. During his November 2016 Board hearing, the Veteran testified that he was confined to a wheelchair, and that he could not attend to anything and he could not feed himself. He further maintained that he could not go to the bathroom himself or dress himself. In sum, the competent, credible, and probative lay and medical evidence of record reflects that that the Veteran needs regular assistance with preparing his meals, dressing, bathing and tending to other hygiene needs to include assistance after using the bathroom, and medication management due to the combined effect of his service-connected disabilities. Evidence of record also indicates that the Veteran may be bedridden and that he is in need of nursing home care. Accordingly, after considering the competent, credible, and probative lay and medical evidence of record, and with resolution of all reasonable doubt in the Veteran’s favor, the Board finds that the evidence indicates that the Veteran is so helpless as to be in need of regular aid and attendance of another person due to the manifestations of his service-connected MS and peripheral neuropathy of the bilateral upper and lower extremities, which require care or assistance on a regular basis to protect him from the hazards or dangers inherent in his daily environment and to perform his activities of daily living. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107(b); Gilbert, supra. Given the evidence cited above, and with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that the criteria for SMC based on A&A are met. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel