Citation Nr: 18159340 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 13-06 721A DATE: December 18, 2018 ORDER Service connection for a heart disorder, to include as secondary to exposure to toxic chemicals, for the purposes of accrued benefits, is denied. Service connection for a gastrointestinal disorder, to include as secondary to exposure to toxic chemicals, for the purposes of accrued benefits, is denied. Service connection for a neurological disorder, including Parkinson’s disease and Parkinson’s-Plus, to include as secondary to exposure to toxic chemicals, for the purposes of accrued benefits, is denied. Special monthly compensation (SMC) based on a need for aid and attendance or on account of being housebound, for the purposes of accrued benefits, is denied. FINDINGS OF FACT 1. The Veteran’s heart disorder was not caused by or related to active duty service to include as secondary to exposure to toxic chemicals. 2. The Veteran’s gastrointestinal disorder was not caused by or related to active duty service, to include as secondary to exposure to toxic chemicals. 3. The Veteran’s neurological disorder was not caused by or related to active duty service to include as secondary to exposure to toxic chemicals. 4. The evidence does not demonstrate that the Veteran was housebound or in need of aid an attendance as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder, to include as secondary to exposure to toxic chemicals, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 5101, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1000. 2. The criteria for service connection for a gastrointestinal disorder, to include as secondary to exposure to toxic chemicals, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 5101, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1000. 3. The criteria for service connection for a neurological disorder, including Parkinson’s disease and Parkinson’s-Plus, to include as secondary to exposure to toxic chemicals, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1110, 5101, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1000. 4. The criteria for entitlement to SMC based on housebound status or the need for aid and attendance as a result of service-connected disabilities for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1155, 1521(d), (e); 38 C.F.R. §§ 3.351, 3.352, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1947 to May 1950, and from September 1951 to November 1968. He died in October 2013. The appellant is his surviving spouse. Accrued Benefits The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Accrued benefits are the monetary sums which the Veteran was legally entitled to receive from VA at the time of his death but were unpaid. Upon the death of the Veteran, all benefits which are properly payable shall be paid to the Veteran’s spouse, if living. 38 U.S.C. § 5121(a), 5121(a)(2); 38 C.F.R. § 3.1000(a). Further, applications for accrued benefits must be filed within one year after the date of death of a purported claimant. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). Similarly, a request for a claimant to be substituted as an appellant for purposes of processing a claim for VA benefits to completion must be filed not later than one year after the date of death of the original claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). At the time of his death, the Veteran had pending claims of service connection for a heart disorder, neurological disorder, gastrointestinal disorder, and SMC. Service Connection 1. Entitlement to service connection for a heart disorder, to include as secondary to exposure to toxic chemicals, for the purposes of accrued benefits 2. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to exposure to toxic chemicals, for the purposes of accrued benefits 3. Entitlement to service connection for a neurological disorder, including Parkinson’s disease and Parkinson’s-Plus, to include as secondary to exposure to toxic chemicals, for the purposes of accrued benefits The appellant asserts that the Veteran’s neurological, heart, and gastrointestinal disorders were related to active service. Specifically, she asserts that they were related to the Veteran’s prolonged exposure to toxic chemicals as a lithographer during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309. However, the Board concludes that while the Veteran had a diagnosis of these disorders, the preponderance of the evidence weighs against finding that these disorders began during service or is otherwise etiologically related to an in-service injury, event, or disease, to include as secondary to exposure to toxic chemicals. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. As an initial matter, the Board concedes that as a military lithographer, it is likely that the Veteran would have been exposed to toxic substances during active service. Further, the service treatment records do not report any signs, symptoms, or a diagnosis of a heart, gastrointestinal, and/or a neurological disorder at any point during service. Of note, the Veteran’s November 1968 separation examination is silent for any symptoms or a diagnosis related to these disorders. Next, the post-service medical evidence does not reflect any symptoms, manifestations, or a diagnosis related to a heart disorder until 1994. Moreover, the earliest symptoms of Parkinson’s disease and a gastrointestinal disorder reported in the medical evidence was in 1997 and 2008, respectively. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes that while the Veteran and appellant are competent to report that he experienced symptoms of his disorders since service, they have not asserted that they have manifested since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In any event, service connection can also be established if there is a relationship between the disorders and active service that may otherwise established by competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran’s symptoms and disorders. In this regard, the Board places significant probative value on the opinions from the VA examiner that performed a detailed review of the Veteran’s service and medical treatment records, as well as a comprehensive physical examination. Specifically, the August 2010 VA examiner opined that the Veteran’s neurological disorder was best characterized as Parkinson’s-Plus (and not idiopathic Parkinson’s disease). Further, he indicated that this disorder was not related to the Veteran’s active service. Of note, the examiner stated that based upon a review of the scientific literature, there is no relationship between the Veteran’s exposure to the toxic chemicals as a lithographer and his specific neurological disorder. Moreover, the Board observes that to the extent the appellant asserts that the Veteran had idiopathic Parkinson’s (as opposed to Parkinson’s-Plus), in a January 2018 VA medical advisory opinion, the examiner opined that both disorders fall within the same neurological category and would have similar etiologies. However, in any event, the examiner agreed with the previous opinion, and stated that the Veteran’s neurological disorder is best characterized as Parkinson’s-Plus. In arriving at this conclusion, the Board notes that the January 2018 examiner did not render any opinions with respect to the relationship between the Veteran’s neurological disorder and service, to include exposure to toxic substances. Nevertheless, the primary purpose of the January 2018 was to establish the correct diagnosis for the Veteran’s neurological disorder – which he opined was Parkinson’s -Plus. Therefore, as the August 2010 VA examiner opined that this exact disorder was not related to service (as previously discussed), the Board finds that the opinions rendered by the August 2010 VA examiner are adequate to adjudicate the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With respect to the Veteran’s heart disorder, diagnosed as coronary artery disease, the January 2018 VA examiner opined that his disorder was not related to service, to include exposure to the hazardous chemicals from lithography and relief painting. In support, he determined that the Veteran’s risk factors, including family history, hypertension, hyperlipidemia, and lifetime exposure to second-hand smoke more likely than not caused his heart disorder. Lastly, regarding the Veteran’s gastrointestinal disorder, the January 2018 VA examiner opined that his disorder, diagnosed as an ulcer, was not related to service, to include as secondary to his exposure to toxic chemicals in his military occupational specialty as a lithographer. Further, he noted that his other gastrointestinal disorders, such as dysphagia and C-difficile, were caused by his neurological disorder and/or antibiotics. The Board also notes that as discussed, the Veteran did not have any symptoms of a gastrointestinal disorder until 2008 – which is almost 50 years after service. Moreover, the appellant has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a relationship between his disorder and active service. Therefore, there is not sufficient evidence, medical or otherwise, to demonstrate a relationship between active service and his gastrointestinal disorder. As part of this claim, the Board recognizes the statements from the Veteran and appellant, regarding the relationship between the Veteran’s disorders and active service. Nevertheless, while they are competent to provide testimony regarding observable symptomatology, they are not competent to provide a nexus opinion in this case. These issues are medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s neurological, heart, and gastrointestinal disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. SMC The appellant asserts that the Veteran was entitled to SMC based on housebound status or the need for aid and attendance. In addition to any benefits already received, a veteran may also be entitled to SMC benefits where there is an established need for regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Requiring aid and attendance means that a person is helplessness or so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if by reason of his service-connected disabilities he (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 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(b), (c). The criteria to be considered in establishing a factual need for aid and attendance include: • The 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 (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 claimant to feed himself through 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 the claimant from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). Being bedridden is a proper basis for the determination. “Bedridden” is that condition which, through its essential character, actually requires that the 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. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. In this case, evidence does not indicate that SMC is warranted based on the need for aid and attendance for purposes of accrued benefits. The evidence does not indicate and the appellant does not assert that the Veteran was blind. In any event, to the extent the Veteran has vision issues, the medical evidence reflects that this is related to his nonservice-connected neurological disorder. Next, although the Board observes that the Veteran may have required hospice or skilled care prior to his death, there is no indication that his admission was related to his service-connected disabilities. Instead, the medical evidence indicates that he required assistance due to cognitive and physical issues related to his nonservice-connected neurological disorder. The evidence also does not demonstrate a factual need for aid and attendance under 38 C.F.R. § 3.352(a). Specifically, after a detailed and comprehensive review of the record at the time of the Veteran’s death, including the Veteran’s prior VA examinations, the Veteran’s service-connected hearing loss, tinnitus, finger scar, stapedectomy scar, and scar from the removal of a cyst, did not cause sufficient limitations to warrant aid and attendance. Of note, the Veteran’s September and November 2009 VA examinations did not find any serious limitations from his service-connected hearing loss and scars. Instead, the medical evidence, including the Veteran’s August 2010 neurological examination, reflects that the Veteran’s nonservice-connected neurological disorder caused him to suffer significant limitations that included muscle weakness, difficulty ambulating, deconditioning, and an increase risk for falls. Although the Board acknowledges the statements from the Veteran and appellant that the Veteran experienced limitations from his service-connected disabilities, the evidence does not indicate that the Veteran’s service-connected disabilities caused significant inference with his daily activities, such as his ability to feed, dress, and take care of his finances, which would require the need for regular aid and attendance of another person. As discussed, the medical evidence indicates that the most significant problems are a result of his nonservice-connected disorders. Moreover, the evidence also does not indicate that assistance is required to protect him from the hazards and dangers of his daily environment as a result of his service-connected disabilities. Therefore, a factual need for aid and attendance has not been established. Lastly, if not in need of regular aid and attendance, a veteran may also be entitled to special monthly compensation for housebound benefits if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the Veteran either: • Has an additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems; or, • Is “permanently housebound” by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Although the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran’s remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings to satisfy the second requirement but not the first). Moreover, in order to be considered “permanently housebound,” the requirement that the Veteran be “substantially confined” to the home or its immediate premises is broadly construed and met when the Veteran is simply unable to leave the home to earn a living, as opposed to requiring that the Veteran be unable to leave the house at all. 38 U.S.C. § 1114(s). Based upon the evidence of record, the Board determines that the requirements for SMC based on housebound status have not been met for any period on appeal. Specifically, the Veteran did not meet the schedular basis. In this case, the Veteran was only assigned a combined 60 percent disability rating. Therefore, SMC on a schedular basis is not warranted. Next, the evidence does not indicate that the Veteran is “permanently housebound” as a result of his service-connected disabilities on a factual basis. As discussed, the Veteran’s service-connected disabilities, including hearing loss and scars, do not interfere with his ability to travel outside his home. Instead, as previously discussed, the Veteran’s limitations and housebound status were exclusively related to his nonservice-connected disabilities. Therefore, SMC is also not warranted on this basis. The Board has also considered the statements from the Veteran and his wife regarding the severity of his symptoms as to warrant SMC for aid and attendance or based on housebound status. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran and the appellant are competent to report symptoms because this requires only personal knowledge as it comes to them through their senses, they are not competent to identify a specific level of disability of his service-connected disabilities or render an opinion as to their effect on his activities of daily living. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities and his ability to live independently has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, the Board finds that the medical evidence, which directly address the criteria under which SMC is evaluated, more probative than the assessments from the Veteran and appellant.   In conclusion, the evidence does not support the appellant’s claim for SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound for accrued benefits purposes. The Board finds that equipoise is not shown, and the benefit of the doubt rule does not apply. As the weight of the evidence is against her claim, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel