Citation Nr: 21001608 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-02 993 DATE: January 11, 2021 ORDER Entitlement to service connection for degenerative disc disease, C5-C6 (neck disorder) is denied. Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or due to housebound status is denied. FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that the appellant’s neck disorder is not shown to have been present in-service, or for many years thereafter, nor is it shown to be related to active duty training. 2. The preponderance of the evidence of records does not show that the appellant has chronic, clinically diagnosed residuals of TBI. 3. The appellant has no service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative disc disease, C5-C6 (neck disorder) have not been met. 38 U.S.C. §§ 101, 106, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for residuals of traumatic brain injury (TBI) have not been met. 38 U.S.C. §§ 101, 106, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or due to housebound status have not been met. 38 U.S.C.§ 1114(l), (s) (2012); 38 C.F.R.§ 3.350 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active duty for training from June 1989 to November 1989. In February 2018, he testified at videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2018, the Board remanded the appeal for evidentiary development. It has since been returned to the Board for further consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated by active military service or active duty training. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To prevail on the issue of service connection there must be evidence of a current disability, in service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. Here as there is no qualifying service, this provision is not for application. 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, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. 1. Entitlement to service connection for degenerative disc disease, C5-C6 (neck disorder). Initially, the Board observes that the appellant’s service records are silent as to any complaints or treatment for a neck injury. Significantly, a post-training reserve exam in March 1993 is without pertinent history, complaints or physical findings. The Board further observes that the appellant was diagnosed with degenerative disc disease of the cervical spine in May 2012. The appellant has received ongoing VA and private treatment for complaints of neck pain. In February 2018, he testified that he injured his neck during a training incident where he was struck in the head with a pugil stick and/or telephone pole in July 1989. The Board observes that the appellant was hospitalized around that time period for a viral syndrome, but no neck injury was noted. The appellant stated that he suffered from additional neck pain ever since the alleged incidents. Pursuant to the Board’s May 2018 remand, the Agency of Original Jurisdiction (AOJ) obtained a medical opinion in July 2018, wherein the appellant was diagnosed with degenerative arthritis of the spine. The examiner provided the following remarks: Post separation EHR Problem list to date is SILENT for a chronic, disabling Neck/Cervical Spine condition/dx. Post separation available medical records to date are SILENT for functional deficits/limitations associated with a chronic, disabling Neck/Cervical Spine condition/dx. As prior noted, STRs were silent for an acute or chronic, disabling Neck/Cervical Spine condition/dx. Therefore, the Veteran’s Cervical Spine MILD DDD at C5-6, C6-7-per Xrays Cervical Spine-11/14/2011, at 41yo, is LESS LIKELY as not (LESS than 50% probability) “manifested in service or is otherwise causally or etiologically related to his active duty for training”. The appellant also received a VA neck examination in April 2019, wherein his diagnosis of degenerative arthritis of the spine was confirmed and degenerative disc disease was also diagnosed. Ultimately, the examiner determined that the claimed condition is less likely than not attributable to training. The examiner provided the following rationale: Degenerative Disc Disease, C5-C6: The current exam is consistent with diagnoses of Degenerative Arthritis of the Spine and Degenerative Disc Disease. These findings can be related to age alone, or prior trauma can cause or increase the speed and degree of development. However, there is no documentation of degenerative joint or degenerative disc disease found while in service. There is no evidence of complaints, treatment, or diagnoses related to the neck during service. Without documentation of complaints or an injury, it is less likely than not that the claimed condition was incurred in or caused by training / active duty service. After weighing the evidence, the Board concludes that the more probative evidence is against the claim. In light of the above, the Board determines that a preponderance of the evidence shows that the appellant’s neck disorder was not incurred in or aggravated by active duty training. In particular, the Board finds the reasoning of the VA examiners highly probative as each indicated a detailed review of the evidence, provided fully supported rationale consistent with the evidence, and considered the appellant’s claims regarding his condition and onset. In particular, the examiners noted that the appellant’s service records were silent for any neck condition and the April 2019 examiner attributed the condition the normal aging process. The Board emphasizes that there are no opinions to the contrary of record. As noted, a post training examination was without pertinent complaints or findings. In sum, the most probative evidence of record is against showing that the appellant’s neck disorder is related to active duty training. In making this decision the Board notes that the appellant is competent to report neck pain and the circumstances surrounding such. However, he is not competent to provide an etiological opinion, as this requires complex medical knowledge and training. There is otherwise no evidence indicating degenerative arthritis until many years after training, nor is there evidence, aside from the appellant’s assertions. As such there are no medical records documenting a clinical diagnosis until many years later, without a continuity of symptomatology since training. 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for residuals of traumatic brain injury (TBI). Initially, the Board observes that the appellant’s service treatment records are silent as to any complaints or treatment for a TBI. Significantly, a post-training reserve exam in March 1993 is without pertinent history, complaints or physical findings. The Board further observes that the he has provided a subjective history of TBI to both his VA and private providers. His medical treatment reports suggest diagnoses of TBI, and his Social Security Administration records also suggest this as well. In February 2018, the appellant testified that he suffered a TBI during a training incident where he was struck in the head with a pugil stick and/or telephone pole in July 1989. Again, the Board acknowledges that he was hospitalized around this time period, but no residuals of TBI or other evidence of traumatic injury were noted. Pursuant to the Board’s May 2018 remand, the AOJ arranged for a medical opinion in July 2018, wherein the examiner determined the appellant does not meet the criteria for a diagnosis of TBI. The examiner also provided a comprehensive history of the appellant’s pertinent treatment records. The appellant later received a VA TBI examination in April 2019, wherein the examiner confirmed that the appellant does not have and has never had a TBI or any residuals of TBI. The examiner provided the following remarks: Although the veteran reports residual memory complaints and an injury with loss of consciousness, there is no objective evidence in the available records during service which supports this injury. Without documentation of the injury and/or the reported loss of consciousness, there is no objective evidence to support a diagnosis for the claimed Traumatic Brain Injury at this time. Therefore, the claimed residuals of traumatic brain injury was less likely than not incurred in or caused by the training incident where he was struck in the head with a pugil stick and/or telephone pole in July 1989 during service. Importantly, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). In essence, the evidence of a current diagnosis of residuals of TBI is limited to statements from the appellant and his general complaints. The Board finds that diagnosing a TBI requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the appellant is competent to report his experience and symptoms during training and thereafter, his reports are not competent to relate such to his service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Furthermore, as noted by the VA examiners, there is no evidence that the appellant currently has a TBI or any residuals. The Board finds that the clinical evidence does not support the appellant’s contentions. Again, it is significant that the March 1993 reserve exam was negative for any pertinent complaints or findings. In light of the absence of any competent evidence of chronic, clinically diagnosed residuals of TBI, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. 3. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance and/or due to housebound status. SMC is payable at a specified rate if, as the result of service-connected disability, the veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.§ 1114(l); 38 C.F.R.§ 3.350(b). SMC at the housebound rate requires a single service connected disability at 100 percent disabling with additional disabilities rendering the Veteran housebound. 38 U.S.C.§ 1114(s). Unfortunately, the appellant does not currently have any service-connected disabilities. As a result, he does not meet the criteria for SMC based on aid and attendance or housebound status and the Board must deny the claim. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.