Citation Nr: 18157822 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 14-07 177A DATE: December 13, 2018 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. Entitlement to service connection for diabetes mellitus, to include as due to exposure, is denied. Entitlement to special monthly pension based on the need for regular aid and attendance or by reason of being housebound is denied. FINDINGS OF FACT 1. The Veteran does not have hypertension that manifested in service or within one year thereafter or that is otherwise related to his military service, to include any herbicide exposure therein. 2. The Veteran does not have diabetes mellitus that manifested in service or within one year thereafter or that is otherwise related to his military service, to include any herbicide exposure therein. 3. The Veteran does not have a single disability rated as 100 percent disabling, and he is not housebound due to his disabilities; he is not blind or nearly blind, is not institutionalized in a nursing home on account of physical or mental incapacity, is not bedridden, and does not require the regular aid and assistance of another to perform the routine activities of daily living. CONCLUSIONS OF LAW 1. Hypertension was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. Diabetes mellitus was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 3. The criteria for special monthly pension based on the need for regular aid and attendance or by reason of being housebound have not been met. 38 U.S.C. §§ 1521 (2014); 38 C.F.R. §§ 3.3, 3.23, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2008 and November 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran testified before the undersigned at a hearing in April 2018. A transcript of the hearing is of record. Service Connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection is presumed for certain diseases if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). If a Veteran had active service between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, the veteran shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange. 38 C.F.R. § 3.307(a)(6)(iv). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension and Diabetes Mellitus In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hypertension and diabetes mellitus. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of hypertension or diabetes mellitus. The evidence also does not show that he had either disorder manifest to a compensable degree within one year of his separation from service. In fact, VA treatment records note in a problem list that he was first assessed as having hypertension in 2001 and diabetes mellitus in 2009. Therefore, the Board finds that the Veteran does not have hypertension or diabetes mellitus that manifested in service or for many years thereafter. In addition to the lack of evidence showing that hypertension and diabetes mellitus manifested during active service or within close proximity thereto, the evidence of record does not link the current disorders to the Veteran's military service. As noted above, the record shows that there were no complaints, treatment, or diagnosis of hypertension or diabetes mellitus in service. As such, there is no injury, disease, or event to which a current disorder could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Therefore, the Board finds that hypertension and diabetes mellitus have not been shown to be causally or etiologically to an event, disease, or injury in service. The Board acknowledges the Veteran’s claim that he developed hypertension and diabetes mellitus as a result of herbicide exposure at the Korean DMZ. His military personnel records do show that he served in Korea from October 1, 1971, to November 23, 1972. However, even if he served in the Korean DMZ at that time, service connection cannot be granted on a presumptive basis because he served after the period for which herbicide exposure may be presumed. As previously noted, a veteran who had active service between April 1, 1968, and August 31, 1971, in a unit that operated near the Korean DMZ, is presumed to have had such exposure. 38 C.F.R. § 3.307, 3.309. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claims of service connection for hypertension and diabetes mellitus. Because the preponderance of the evidence is against the claims, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for is not warranted. Special Monthly Pension Under 38 U.S.C. § 1521 an increased rate of pension is available, in the form of a special monthly pension, when an otherwise eligible veteran is in need of regular aid and attendance or has a disability rated as permanent and total and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. 38 U.S.C. §§ 1521(d), (e); see also 38 C.F.R. §§ 3. 351(b), (c), (d). For pension purposes, a claimant will be considered to be in need of regular aid and attendance if he or she exhibits helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A claimant will be considered in need of regular aid and attendance if he or she: (1) is 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) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(b), (c). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the 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 a claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to special monthly pension. The Veteran was provided a VA aid and attendance or housebound examination in May 2008. He reported at that time that he uses a wheelchair because he has metal in his right leg, which causes him pain on ambulation. He also indicated that he lived alone and that his daughter visits him every day, cooks for him, washes his clothes, cleans his house, and buys his groceries. However, he stated that he paid his own bills and attended medical appointments alone. The examiner noted that the Veteran was not hospitalized, attended the examination alone, was not permanently bedridden, and had adequate vision with eyeglasses. He also stated that the Veteran is capable of managing his benefits payments alone. With regards to regular activities, the Veteran reported that, on a typical day, he watches television, goes to the to the beach to swim and fish, listens to music, and visits friends. The examiner concluded that there were no functional restrictions of the upper extremities. With regards to functional restrictions of the lower extremities, the examiner indicated that the Veteran has limitation upon standing only; however, the Veteran was able to ambulate for an hour. It was noted that the Veteran used a walking can as a mechanical aid. The examiner opined that the Veteran could leave home without restriction. A January 2011 examination report for housebound status or permanent need for regular aid and attendance noted that the Veteran could feed himself and prepare his own meals. He also did not need assistance in bathing and attending to other hygiene needs, and he was not legally blind. It was noted that the Veteran did not require nursing home care or medication management, and he had the ability to manage his own financial affairs. Upon examination, the Veteran had good posture. The restrictions of the upper extremities were described as “ok,” and the restrictions of the lower extremities were described as “bad.” There were no restrictions of the spine. The physician noted that he Veteran used a cane and could travel one block. During the April 2018 hearing, the Veteran testified that a VA doctor told him that he was supposed to be permanently housebound, but he stated that he is not a person to stay home. He denied having ever been in a nursing home, although he had been in psychiatric ward for a week. The Veteran indicated that he could feed himself and cook his meals, but he had someone who assisted him. He further noted that that he could do chores, but had pain afterwards. He stated that he could bathe and clean himself and had never been placed on bedrest. The Veteran indicated that he goes shopping at places where they have motorized carts. He also reported that he is able to drive, but does not have a driver’s license. With regards to housebound status, the threshold statutory requirement is that the Veteran must have a single permanent disability rated at 100 percent. However, in this case, the Veteran does not have a single nonservice-connected disability rated as 100 percent disabling. Absent a single disability rated as 100 percent disabling, based on the applicable statute and regulation, the basic requirements for special monthly pension on the account of being housebound have not been met. 38 U.S.C. § 1521(e); 38 C.F.R. § 3.351(d). Moreover, the evidence of record shows that the Veteran is not “permanently housebound,” in that he is not substantially confined to his house or immediate premises due to permanent disability or disabilities. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351 (d)(2). Instead, the record consistently shows that the Veteran is able to leave his home. Although the Veteran asserted that a VA doctor had told hm that he was supposed to be permanently housebound, he testified at the April 2018 hearing that he does not like to stay at home. Notably, during the May 2008 VA examination, the Veteran stated that his activities on a typical day included going to the beach to swim and fish and visiting friends. He has also reported to VA appointments alone. Consequently, the preponderance of the evidence is against the claim for special monthly pension by reason of being housebound. 38 U.S.C. §§ 1502(c), 1521(e), 5107; 38 C.F.R. § 3.351(d). The Board also concludes that the criteria for special monthly pension due to a need for regular aid and attendance have not been met. Initially, the Board notes that the Veteran is not a patient in a nursing home, and he is not blind or nearly-blind. Moreover, the record does not show that the Veteran is in need of regular aid and attendance of another person because of helplessness. Although the evidence indicates that the Veteran receives assistance from his daughter and a friend, the Veteran has admitted that he can feed himself, cook his meals, do chores, and bathe and clean himself. See April 2018 hearing transcript. In short, the Veteran is not housebound and is not in need of regular aid and attendance. Hence, the preponderance of the evidence is against the Veteran’s claim for entitlement to special monthly pension based on aid and attendance or housebound status, and this claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel