Citation Nr: 20002150 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 15-17 497 DATE: January 9, 2020 ORDER Service connection for a cervical spine disability is denied. A temporary total evaluation for July 2011 cervical spine surgery is denied. An initial compensable rating for posttraumatic headaches is denied. Special monthly compensation (SMC) at the housebound rate is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a cervical spine disability began during active service, or is otherwise related to an in-service injury or disease. 2. The July 2011 cervical spine surgery did not treat a service-connected disability. 3. The Veteran failed to appear for an October 2019 VA examination to assess his service-connected posttraumatic headaches. 4. The Veteran has a single service-connected disability rated as 100 percent disabling but his remaining service-connected disabilities do not have a combined rating of at least 60 percent; and he is not shown to be permanently housebound by reason of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a temporary total evaluation for July 2011 cervical spine surgery have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30 3. The criteria for an initial compensable rating for posttraumatic headaches have not been met. 38 U.S.C. §§ 1155; 5103A; 38 C.F.R. §§ 3.321, 3.655. 4. The criteria for SMC at the housebound rate have not been met. 38 U.S.C. §§ 1114(s); 38 C.F.R. §§ 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 2002 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2011 and May 2016 rating decisions. It was previously remanded by the Board in August 2018 and May 2019. 1. Service connection for a cervical spine disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has a diagnosis of cervical stenosis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. In a November 2012 statement, the Veteran’s then-representative asserted that his cervical spine disability was associated with falls incurred in service. Service treatment records, however, are negative for any complaints, treatment or diagnoses of a neck or cervical spine injury. Indeed, several records, including from June 2006 and November 2007, show the Veteran denied any neck-related symptoms, and the November 2007 examination was normal. His service records do, however, show multiple entries related to other medical conditions, including low back pain for which the Veteran is now service-connected. Therefore, it appears that he was actively reporting various health problems, including those related to the lumbar spine, without reporting a neck or cervical spine problem. This strongly suggests that no such problem was present during service. AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). While the Veteran believes his cervical spine disability is related to service, including falls in service, the Board finds that the preponderance of the evidence weighs against findings that any in-service injury, event, or disease occurred, and therefore service connection is not warranted. 2. A temporary total evaluation for July 2011 cervical spine surgery A total rating for a service-connected disability will be granted following hospital discharge, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release if the hospital treatment of the service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 As discussed above, service connection for a cervical spine disability is being denied. Therefore, a temporary total rating cannot be granted. In a November 2012 statement, the Veteran’s then-representative stated, “The basis of his claim for a temporary total evaluation because of treatment, which involved the cervical spine, is that this surgery aggravated or made worse his low back condition.” This is not a valid basis for a temporary total evaluation because the surgery in question, a July 2011 cervical spine diskectomy and fusion, does not relate to the low back. The Board notes that the Veteran is already service-connected for a low back disability, and therefore to the extent that it had worsened, the appropriate remedy is to file a claim for an increased rating for the low back. 3. An initial compensable rating for posttraumatic headaches The Veteran is currently assigned a 0 percent rating for his posttraumatic headaches under 38 C.F.R. § 4.130, Diagnostic Code 8100. He appealed this initial rating assigned to his disability. Pursuant to the May 2019 Board remand, the Veteran was scheduled for a VA examination in October 2019 to assess his headaches. A review of the record shows that the Veteran failed to appear for this examination. He was notified of this in an October 2019 supplemental statement of the case. To date, neither he nor his representative have explained why he did not appear for the examination or otherwise requested that it be rescheduled. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 4. SMC at the housebound rate SMC is payable if a veteran is housebound. 38 U.S.C. § 1114(s). The law provides two avenues through which to receive this benefit: “statutorily housebound,” under 38 C.F.R. § 3.350(i)(1), and “housebound-in-fact,” under 38 C.F.R. § 3.350(i)(2). To be statutorily housebound, a Veteran must first have a single service-connected disability rated as 100 percent disabling, and have additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Here, while the Veteran’s traumatic brain injury with bipolar I disorder and dextromethorphan dependence is rated at 100 percent for the appeal period, his remaining service-connected disabilities do not combine to 60 percent. His lower back condition, tinnitus, and left lower extremity radiculopathy are each rated at 10 percent. His posttraumatic headaches, hypertension and residual abdominoplasty scar are each rated at 0 percent. A veteran will be determined to be permanently housebound-in-fact when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). Here, the evidence does not show such restrictions. VA records from May 2015 show the Veteran reported that he helped his sister with her job delivering newspapers, and sometimes did the deliveries for her. In August 2018, he reported that he recently re-enrolled in school. In November 2018, he reported seeing family, including extended family who did not reside with him, on an almost daily basis. There is no evidence showing that he was substantially confined to his house or premises during the appeal period. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.