Citation Nr: 18161028 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-18 783 DATE: December 28, 2018 ORDER 1. The application to reopen the claim for entitlement to service connection for a left knee contusion with degenerative joint disease (left knee disability) is granted. 2. The reopened claim of entitlement to service connection for a left knee disability, to include degenerative joint disease, is denied. 3. Entitlement to a compensable rating for chronic headaches is denied. 4. Entitlement to an effective date of June 30, 2010, but not earlier, for the award of service connection for cervical spine strain is granted. 5. Entitlement to an effective date of June 30, 2010, but not earlier, for the award of service connection for lumbar spine strain with degenerative disc disease and facet arthropathy (lumbar spine strain) is granted. 6. Entitlement to special monthly compensation (SMC) based upon the need for aid and attendance is denied. FINDINGS OF FACT 1. In a January 2009 rating decision, the application to reopen the claim for service connection for a left knee disability was denied. The Veteran was notified of the decision and her right to appeal. The Veteran did not appeal the rating decision, and it became final. 2. Evidence submitted since the January 2009 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a left knee disability. 3. The Veteran’s left knee disability did not have its onset in service, degenerative joint disease was not manifested to a compensable degree within one year of service discharge, and a left knee disability is not otherwise related to service. 4. The Veteran’s chronic headaches are not prostrating attacks averaging one in two months over the last several months. 5. In a January 2009 rating decision, the applications to reopen the claims for service connection for a cervical spine strain and a lumbar spine strain were denied. The Veteran was notified of these determinations and her right to appeal. The Veteran did not appeal the January 2009 rating decision, and it became final. 6. The Veteran filed an informal claim to reopen the previously-denied claim for service connection for cervical spine strain on June 30, 2010. 7. The Veteran filed an informal claim to reopen the previously-denied claim for service connection for a lumbar spine strain on June 30, 2010. 8. During the appeal period, the Veteran has not been blind, or nearly blind; institutionalized in a nursing home on account of service-connected disabilities; and her service-connected disabilities have not rendered her unable to care for most of her daily personal needs without regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The January 2009 rating decision denying reopening the claim for service connection for a left knee disability is final. New and material evidence has been received to reopen the claim for service connection for a left knee disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). 2. The criteria for entitlement to service connection for a left knee disability, to include degenerative joint disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.307, 3.309(a) (2017). 3. The criteria for entitlement to a compensable rating for chronic headaches have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017). 4. The criteria for an effective date of June 30, 2010, but not earlier, for the award of service connection for cervical spine strain have been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 5. The criteria for an effective date of June 30, 2010, but not earlier, for the award of service connection for lumbar spine strain have been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 6. The criteria for SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107(b) (2012); 38 C.F.R. §§ 3.350(b), 3.352(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to September 1992. The Board notes that additional VA treatment records and a new VA examination for housebound status were added to the Veteran’s claim file since the August 2016 Supplemental Statement of the Case. In November 2018, the Veteran’s representative submitted a waiver of AOJ consideration of these issues, and the Board will proceed with review. New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability Prior unappealed decisions of the RO are final. 38 U.S.C. §§ 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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 prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117–20 (2010). The Veteran’s claim for entitlement to service connection for left knee disability was previously considered and denied by the RO in a January 2009 rating decision. The Veteran was notified of that decision and of her appellate rights. The Veteran did not appeal the decision. In December 2010, the Veteran requested to reopen her claim for entitlement to service connection for a left knee disability. The RO denied service connection for a left knee disability in August 1998, as the Veteran’s service treatment records (STRs) did not document a current disability, there was no in-service injury to the Veteran’s left knee (other than an acute injury), and the Veteran’s claims file did not show continuity of symptomatology since discharge from active duty service, nor did the Veteran’s claims file include evidence demonstrating that a left knee disability was incurred in or aggravated by military service. In the January 2009 rating decision, the RO found that new and material evidence had not been submitted to reopen the Veteran’s claim for service connection for a left knee disability. Since the January 2009 rating decision, the Veteran’s claims file documents a diagnosis of degenerative joint disease of the Veteran’s left knee, which was diagnosed at a VA examination in August 2011. The Board finds this evidence is new and material as it relates to one of the reasons for the August 1998 denial of service connection for a left knee disability and raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim is reopened. Service Connection 2. The reopened claim of entitlement to service connection for a left knee disability 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. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. In this case, the disorder at issue, degenerative joint disease, is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active duty, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. A lay person is competent to report to the onset and continuity of symptomatology. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. The first question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has degenerative joint disease in her left knee, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree within one year following service discharge, and continuity of symptomatology is not established. VA treatment records show the Veteran was not diagnosed with degenerative joint disease until approximately January 2009, approximately 17 years after her separation from service and many years outside of the applicable one-year period. Service connection for degenerative joint disease of the left knee may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s current left knee disability and an in-service injury, event, or disease. The March 2013 VA examiner opined that the Veteran’s left knee disability is not at least as likely as not related to an in-service injury, event, or disease. At the examination, the Veteran reported that she experienced left knee pain while serving in Germany and was in a motor vehicle accident that resulted in a left knee injury. The examiner noted the findings made in the STRs, which documented the accident, but opined that these were not incidents of a chronic left knee disability as the Veteran’s STRs did not document ongoing pain. The Board notes that the Veteran’s STRs document a motor vehicle accident in June 1986, resulting in knee pain. The Veteran continued to receive treatment for the left knee in 1986, but the Veteran’s injury was noted to be a superficial abrasion and she maintained good range of motion in the left knee at that time. At the Veteran’s January 1989 examination, the clinical evaluation of the lower extremities was normal. Furthermore, the Board notes that the Veteran’s claims file documents that the Veteran had a left knee arthroscopy in 2001 after the Veteran injured her knee at work for the United States Postal Service. The Veteran did not mention this injury to the VA examiners in August 2011 and March 2013. The Board finds this adds probative value to the opinion of the March 2013 VA examiner, as the preponderance of the evidence in the Veteran’s claims file does not show complaints of knee pain between the Veteran’s discharge from service and the 2001 injury to the Veteran’s knee at work. Since the Veteran’s 2001 injury and subsequent arthroscopy, the Veteran has reported left knee pain on a regular basis and was diagnosed with degenerative joint disease in 2009. While the Veteran believes her left knee disability is related to an in-service injury, event, or disease, she is not competent to provide a nexus opinion in this case. Consequently, the Board gives more probative weight to the competent medical evidence, which does not support a nexus between the Veteran’s in-service injury and the Veteran’s current degenerative joint disease of the left knee. As such, service connection on a direct basis is denied. Increased Rating 3. Entitlement to a compensable rating for chronic headaches Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire appeal period from the initial assignment of the disability rating to the present time. While the veteran’s entire history is reviewed when making a disability determination, where service connection has already been established an increase in the disability rating is at issue, it is the present level of disability that is the primary concern. The U.S. Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under Diagnostic Code 8100, which contemplates the criteria for rating migraines, a 10 percent rating is appropriate with characteristic prostrating attacks occurring on an average of one in two months over the last several months. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is appropriate with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A noncompensable rating is warranted when attacks are less frequent than as required for a 10 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran’s private treatment records from January and March 2010 show that she was reporting daily headaches, which were becoming more severe. The Veteran reported that she occasionally had nausea and blurred vision, but she did not have loss of consciousness or seizures. At a VA examination in August 2011, the Veteran reported a history of migraines since 1981 after she hit her head on a pole during her active duty service. The Veteran reported that medication assisted her symptoms, but her headaches, which she experienced on a weekly basis, were becoming progressively worse. The examiner noted that the Veteran’s headaches were not prostrating. The Veteran was provided another VA examination in March 2013. At this examination, the Veteran was diagnosed with chronic headaches, and she reported that she has a constant, dull headache daily. The Veteran did not report any non-headache symptoms, such as light sensitivity or nausea, and the examiner documented that, though there was some impact on her work, the Veteran’s headaches were not characteristic of prostrating attacks of migraine headaches. The Board acknowledges that the Veteran experiences chronic headaches. However, as the Veteran’s headaches do not rise to the level of prostrating headaches averaging one every two months over several months, a compensable rating is not warranted. Effective Date 4. – 5. Entitlement to an earlier effective date for the award of service connection for cervical spine strain and lumbar spine strain Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez pointed out that for purposes of establishing the requirements and procedures for seeking veterans’ benefits, a claim, whether “formal” or “informal” must be “in writing” in order to be considered a “claim” or “application” for benefits, and that the provisions of 38 C.F.R. § 3.1 (p) define "claim," informal as well as formal, as a “communication in writing.” Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to “an informal claim,” it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a “communication in writing.” The Federal Circuit also pointed out that the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication “indicat[e] an intent to apply for one or more benefits under the laws administered by the Department,” and “identify the benefits sought.” Rodriguez, 189 F.3d. 1351. However, medical evidence reflecting treatment for and diagnosis of a disorder does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a), “because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek” service connection for that disorder. MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). The Veteran’s representative filed claims for a cervical spine strain and a lumbar spine strain, which was received on December 30, 2010, and in an April 2013 rating decision, service connection for both disabilities was granted from that date. However, upon review of the file, the Board finds the Veteran’s file includes a VA Form 21-4138, “Statement in Support of Claim,” which was received on June 30, 2010, that constitutes an informal claim to reopen the claims for service connection for “cer[v]ical/back disability.” As such, the Veteran’s claims for service connection for both the cervical spine strain and the lumbar spine strain, should be granted effective June 30, 2010, as this is the date on which VA received an informal claim to reopen these claims after the most recent final disallowance of service connection for cervical spine strain and lumbar spine strain. The Veteran contends that service connection should be granted from October 1992, the date upon which the Veteran first filed claims for service connection for a cervical spine strain and a lumbar spine disability. However, the Board finds an effective date prior to June 30, 2010 is not warranted. The Veteran initially filed claims for a cervical spine strain and a lumbar spine strain in October 1992. The claims were denied in a May 1993 rating decision. The Veteran filed an appeal of these claims, and a Statement of the Case was issued in September 1993. However, the Veteran did not continue her appeal for service connection for a cervical spine strain or a lumbar spine strain at that time, and the May 1993 rating decision became final. Since the initial denial of the Veteran’s cervical spine strain and lumbar spine strain in September 1993, the Veteran has filed numerous applications to reopen her claims for service connection for a lumbar and cervical spine strain. The most recent application to reopen the claims, prior to June 30, 2010, was received in June 2008 when the Veteran filed an informal claim, which indicates an intent to file a claim for both the lumbar and cervical spine strain. The Veteran’s claims were denied in the January 2009 rating decision. The Veteran did not appeal that decision and no new and material evidence was received in regard to the claim within one year of the decision. As such, the decision became final. As the decisions prior to the Veteran’s June 30, 2010 informal claims were final, the earliest possible effective date for the award of service connection for cervical spine strain and lumbar spine strain is June 30, 2010, as noted above. SMC 6. Entitlement to SMC based upon the need for aid and attendance Compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss of use of both feet or one hand and one foot or is blind in both eyes, is permanently bedridden, or is so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the veteran to dress or undress herself, or to keep 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; the inability of the veteran to feed herself or herself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a veteran from hazards or dangers incident to the daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. The particular personal functions that the veteran is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the veteran be so helpless as to be in need of regular aid and attendance, not that there is a constant need. “Bedridden” constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a veteran has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352 (a). In Turco v. Brown, the Court held that eligibility for SMC by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the veteran was so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran’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. The Veteran is service connected for the following disabilities: sarcoidosis with bilateral hilar adenopathy and obstructive sleep apnea, hypertension, hypertensive heart disease, chronic dacryoadenitis and bilateral iridocyclitis, hypersensitivity of the bilateral feet with calluses, cervical spine strain, lumbar spine strain, erythema nodosum, peroneal neuropathy of the bilateral lower extremities, acne, surgical scars of the bilateral feet, biopsy scars associated with sarcoidosis, and chronic headaches. Following a review of the evidence of record, and as discussed below, the Board finds that the preponderance of the evidence is against a finding that the Veteran meets the requirements for entitlement to SMC based on the need for aid and attendance. In November 2015, the Veteran received a VA examination in connection for her claim for SMC benefits. The Veteran stated that she was able to feed herself and prepare her meals, did not need help bathing or attending to hygiene needs, was not legally blind, did not require nursing home care, did not need assistance with medication management, and was able to manage her finances. The Veteran did report she was soon to have a lung transplant and would require a caregiver at that time. The Veteran received a lung transplant in May 2016, and for a period of time after the surgery, the Veteran did require assistance with her medications, traveling to and from appointments, and food preparation. However, the Veteran was provided another VA examination in connection with her SMC benefits in January 2017, approximately seven months after the Veteran’s lung transplant. At that examination, it was noted that the Veteran was able to feed herself and prepare meals. She did not require assistance with bathing or other hygiene needs. The Veteran was not blind, and she did not require nursing care, assistance with medication management, or assistance with her finances. As noted above, the Board finds the more probative evidence of record is against a finding that the Veteran is in need of regular aid and attendance. Both the November 2017 and the January 2017 examination results show that the Veteran does not have anatomical loss of her hands, legs, or an arm, and the Veteran is not blind. Finally, the Veteran is not permanently bedridden or so helpless as to be in need of regular aid and attendance. The Veteran’s examinations document she is able to feed and bathe herself, prepare her meals, and she is able to attend to her medications, hygiene needs, and finances. The Board acknowledges that in a February 2017 statement the Veteran reported that she required around the clock care due to a kidney complication and she was unable to bathe and eat on her own or manage her medications. However, the Board finds the VA examination for housebound status, conducted less than one month prior to the Veteran’s statement, to be more probative of the Veteran’s physical status. Thus, the Board finds that SMC based on a regular need for aid and attendance of another person is not warranted, and the Veteran’s claim for SMC based on aid and attendance is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel