Citation Nr: 20026074 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 14-20 961 DATE: April 15, 2020 ORDER Entitlement to service connection for residuals of a stroke, to include as secondary to service-connected hypertension, is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) is denied. FINDINGS OF FACT 1. The Veteran’s stroke was a result of a head injury, and is not caused or aggravated by his service-connected hypertension. 2. The Veteran’s need for regular A&A is a result of his nonservice-connected stroke. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a stroke, to include as secondary to service-connected hypertension, have not been met. 38 U.S.C. §§ 1110, 1112,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to SMC based on the need for regular A&A have not been met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350,3.351, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981 to July 1997. 1. Entitlement to service connection for residuals of a stroke, to include as secondary to service-connected hypertension Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders, including brain hemorrhage, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” such as brain hemorrhage shown in service (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service-connected disorder that is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). Compensation may be provided for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran is currently service connected for hypertension. Private treatment records dated April 2007 show that the Veteran fell from a horse and sustained a head injury with loss of consciousness. After being admitted for treatment, he was found to have an intraparenchymal hemorrhage in the posterior pons, also identified as a pontine hemorrhage. These records diagnosed the condition as secondary to a closed head injury. A July 2010 VA neurologist concluded that the hemorrhage was not due to the Veteran’s hypertension. He noted that the Veteran had sustained a head injury, and the treating physicians at the time diagnosed the hemorrhage as secondary to that injury. The examiner also noted that the Veteran’s blood pressure on admission was 140/80, which suggested that it was not very high. At no time could the examiner find markedly elevated hypertension to explain the hemorrhage. In August 2010, a VA internal medicine physician noted that the Veteran’s blood pressure readings from February 2007, two months prior to his hemorrhage, ranged from 159 to 173 systolic and 114 to 122 diastolic. He stated that it seemed that the pontine hemorrhage was a traumatic hemorrhage, but that it was equally possible that it was a stroke secondary to hypertension. In a March 2011 addendum, the July 2010 VA examiner noted that the August 2010 examiner did not offer any proof or evidence to show that hypertension was recorded when the Veteran was admitted to the trauma center. Rather, records show that his blood pressure was 140/80 when he was admitted, and 112/77 on later reading. He reiterated that the treating physician mentioned the cause of the hemorrhage as trauma. The Board determined that these opinions were inadequate for rating purposes, and remand the issue to the Agency of Original Jurisdiction (AOJ), and the AOJ obtained a March 2019 addendum VA opinion. The March 2019 VA examiner determined that the stroke was not caused or aggravated by service-connected hypertension. The examiner reviewed the claims file, noting specific treatment records regarding the Veteran’s stroke. The examiner noted that the Veteran fell from a horse and had a pons hemorrhage secondary to a closed head injury. The examiner reasoned that “it is not possible to attribute the Veteran’s pontine hemorrhage to hypertension” without disregarding the physician who treated the Veteran for the head injury. See also September 2019 Addendum Opinion. The Veteran has stated that his stroke is a result of his service-connected hypertension. See, e.g., January 2013 Notice of Disagreement. While the Veteran is competent to report symptoms (see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), the Veteran is not competent to determine the etiology of his stroke. The Veteran is not competent because he lacks the requisite medical training necessary to formulate an opinion in this regard and the medical matters here are not susceptible to lay observation (unlike a broken leg). Id. Therefore, the Veteran’s medical opinion linking a stroke to service-connected hypertension has no probative value. Based on the medical evidence of record, the Veteran’s stroke was not etiologically related to service, and was not caused or aggravated by service-connected hypertension. A VA physician has opined that, based on blood pressure readings two months prior to the accident, that it was equally possible that the hemorrhage was due to the head trauma versus hypertension. However, the Board finds greater probative weight to the March 2019 VA examiner determined that the stroke was not caused or aggravated by service-connected hypertension as this opinion was based upon review of the entire claims folder, including blood pressure readings before and at the time of the hemorrhage, the proximity of the hemorrhage to the head injury, and the impression of the attending physician at the time of the hemorrhage. Overall, the March 2019 VA examiner had a more thorough review of the facts of this specific case. The Board has also considered the Veteran’s stroke as a “chronic disease” under 38 C.F.R. §§ 3.307 and 3.309. The Veteran was discharged from service in July 1997. His brain injury, which led to his brain hemorrhage and stroke, occurred in April 2007. Therefore, entitlement to service connection for brain hemorrhage as a “chronic disease” is not warranted. 2. Entitlement to SMC based on the need for regular A&A Entitlement to SMC based on the regular need of aid and attendance is based on a showing that due to service-connected disability, the claimant is (1) blind, or (2) a patient in a nursing home, or (3) requires the regular assistance of another person for most of the activities of daily living and for protection against the hazards or dangers incident to daily life. 38 C.F.R. §§ 3.350, 3.351. The Veteran does not allege, and the record does not suggest, that he is blind. Nor does the evidence show that the Veteran is a resident of a nursing home. The Veteran’s statements show that he has lived in his own home. See, e.g., May 2014 Substantive Appeal. The remaining question in this case is whether the Veteran required regular assistance of another person for most of the activities of daily living and for protection against the hazards or dangers incident to daily life due to service-connected disability. 38 C.F.R. §§ 3.50, 3.351. The elements considered in making a determination regarding the third basis for establishing entitlement to aid and attendance benefits include the inability, due to service-connected disability, to perform such tasks as to dress and undress oneself, to maintain ordinary cleanliness, adjust prostheses, to feed oneself, to attend to the wants of nature, or to have such physical or mental incapacity that the care or assistance on a regular basis of another person to protect the veteran from hazards or dangers incident to his daily environment is necessary. 38 C.F.R. § 3.352 (a). A finding that the veteran is “bedridden” provides a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran 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 disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. 38 C.F.R. § 3.352 (a). The particular personal functions that the veteran is unable to perform must be considered in connection with the veteran's condition as a whole. The evidence need only establish that the veteran is so helpless as to need regular aid and attendance, not that there be 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 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. 38 C.F.R. § 3.352. In this case, the Veteran’s application for A&A is based on the residuals of his stroke, among other things. See March 2012 A&A Examination. VA Treatment records indicate that the Veteran is in need of A&A to help with dressing, cooking, cleaning, taking medication, bathing, and dealing with bills because of his brain hemorrhage and ataxia. Based on the decision above, the Veteran’s residuals of a stroke are a result of a brain hemorrhage and are not service connected. Therefore, the Veteran’s claimed need for A&A is not due to service-connected disability. 38 C.F.R. §§ 3.50, 3.351, 3.352. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.