Citation Nr: 21002750 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-03 075 DATE: January 14, 2021 ORDER Service connection for a back disability (herniated disks) is denied. Service connection for a dental disability, to include missing teeth with loss of mandible and burning mouth disease, is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance for the Veteran is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance for the Veteran’s spouse is denied. FINDINGS OF FACT 1. The Veteran’s back disability, including but not limited to herniated disks, did not have its onset during service, arthritis or organic disease of the nervous system did not manifest to a compensable degree during service or within one year after service; and the current disability is not otherwise related to in-service injury or disease. 2. The Veteran’s current dental disabilities, to include loss of teeth and loss of substance of the maxilla or mandible and burning mouth disease, are not the result of dental trauma or disease such as osteomyelitis during service. 3. Although the Veteran needs regular aid and attendance from another person, this status is not due to service-connected disabilities as required for SMC. 4. The Veteran’s spouse is now deceased, and she was not the Veteran’s surviving spouse prior to her death as required for SMC, as the Veteran is still living. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a dental disability, to include missing teeth with loss of mandible and burning mouth disease, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. 3. The criteria for SMC based on the need for aid and attendance for the Veteran are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 4. The criteria for SMC based on the need for aid and attendance for the Veteran’s spouse are not met. 38 U.S.C. §§ 1311, 1315, 1115; 38 C.F.R. §§ 3.4, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1953 to February 1955. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision. The Veteran was proposed and found incompetent for VA purposes in 2020, and his daughter ([REDACTED]) was appointed as his custodian or fiduciary, as reflected in October 2020 notification letters and other documents in the claims file. Additionally, Ms. [REDACTED] applied to act as the Veteran’s one-time representative for this appeal under 38 C.F.R. § 14.630. At an October 2020 Board hearing, the Veteran’s daughter testified on his behalf before the undersigned Veterans Law Judge via virtual videoconference. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires: (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). Certain presumptions and limitations apply, which are discussed below as relevant. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran and his daughter have asserted that service treatment records are missing because the National Personnel Records Center (NPRC) responded requests in 2018 and 2020 that any records that were at their facility in 1973 were likely destroyed by fire. However, the Veteran’s service treatment records had already been associated with his VA claims file in May 1955, prior to that fire. Moreover, the Veteran submitted a VA Form 13055 to attempt to reconstruct any potentially missing records, and no additional relevant records were found. 1. Service connection for a back disability, to include herniated disks The Veteran contends that his current back disability is related to falling hard on his back during service in Germany. See, e.g., October 2020 Board hearing. The evidence establishes a current disability. The Veteran has been diagnosed with herniated discs throughout the spine, to include a compression deformity on T12, and a cyst on L4-5 that was surgically removed in 2016. See, e.g., June 2018 VA Form 21-2680 (Aid and Attendance examination form). In November 2015, a private treatment record diagnosed lumbar radiculopathy related to a left L4-5 synovial cyst. X-rays noted multilevel disc space narrowing with accelerated degenerative changes throughout the lumbosacral spine, with an age-indeterminate anterior wedge compression deformity at T12. An MRI noted multilevel degenerative disc disease and facet joint degenerative joint disease with multilevel spinal and neural foraminal stenosis, including a large left subarticular synovial cyst at L4-5 which resulted in severe central and left lateral recess stenosis. A May 2016 record reflects that the Veteran underwent open L4-5 decompression and removal of an epidural mass. A February 2019 record noted that the Veteran’s current problems included degenerative disc disease of the lumbar spine. Concerning the in-service incurrence element and the timing of a diagnosis or symptoms, the Veteran reports that he injured his low back when he fell on a patch of snow or black ice on his way to his duty station while in Germany. He states that after that injury he had numerous incidences of back and tailbone or buttock pain, including pain while working as a rural mail carrier. He provided a photograph that appears to be him in uniform in the 1950s on his back in a patch of snow, which could be from Germany. The Veteran reports that in January 2015 he had horrendous back pain and had to stop working as a barber, and he was diagnosed with a large cyst on L4-5 that was removed in May 2016. The Veteran and his daughter testified that he could not work on the farm as he had done previously when he returned from service, but he did not complain due to him being a soldier. The Veteran’s daughter recalled that he was always “laid out” on the couch due to pain when she was little, which she thought was for a nap but later realized was due to back pain. In the last five years an MRI had shown a cyst at L4-5 and a compression deformity at T12. The Veteran’s daughter testified that he did not complain or go to sick call during service or seek treatment from a doctor after service, but she now realizes from being his caregiver currently that he was in pain while she was growing up because he was grumpy. See, e.g., October 2019 statement with notice of disagreement (NOD); October 2020 Board hearing. The Veteran’s DD Form 214 confirms that he served in Germany, and he may have slipped on snow or black ice as he reports. However, there is no documentation of treatment for a low back injury or other relevant injury or symptoms during service. Despite the lack of documentation, the Veteran is competent to report suffering an injury and having low back symptoms at that time. He may have had such an injury or symptoms. Nevertheless, the Veteran’s subsequent service evaluation for discharge in February 1955 showed no clinical abnormality of the spine and did not reference any back injury or relevant symptoms. This points to there being no ongoing low back symptoms or disability after any injury. The Veteran has not identified post-service treatment for his back disability until many years after service. Instead, as noted above, the Veteran and his daughter report that he did not seek treatment for many years, and he was first diagnosed in 2015. Contemporary medical evidence is not required to show a disability or incurrence during service. However, the lack of treatment or corroborating medical evidence for many years may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). Additionally, post-service treatment records reflect that the Veteran reported chronic low back pain without specifying a date of onset, but he identified his left lower extremity symptoms that were diagnosed as radiculopathy as having an onset in 2015. Notably, the Veteran reported being a mail carrier and a barber for many years, both of which involve significant time on the feet or use of the back for weightbearing as a matter of common knowledge. The Veteran did not mention any prior injury or symptoms related to service or having significant or frequently recurring symptoms for years. Instead, in a September 2015 private treatment record, the Veteran denied having significant back pain and stated that he had back pain “from time to time.” This contrasts with the reports by the Veteran and his daughter for his claim as having significant and frequent pain for many years. In November 2015, a private treatment record noted a history of chronic low back and left leg pain that radiated down to the left foot with numbness in the foot. The impression was lumbar radiculopathy related to a left L4-5 synovial cyst. X-rays and an MRI were conducted with results as noted above. A December 2015 record noted that the Veteran reported left-sided sciatica for 3 to 4 months, reflecting that those symptoms were of recent onset. The provider stated that the large L4-5 left synovial cyst was “probably the biggest synovial cyst” he had ever seen upon review of the MRI. The provider explained how the cyst can cause nerve root compression, much like a ruptured disk does, and that it is the most likely candidate for the Veteran’s source of pain. There was no reference to any relationship to an injury or any potential back symptoms during or service. A May 2016 record reflects that the Veteran underwent open L4-5 decompression and removal of an epidural mass. A June 2016 record noted that the Veteran was back to cutting hair with a cane for balance, and his back was sore every once in a while, but his leg pain was gone since the synovial cyst was removed. A February 2019 record noted that the Veteran’s current problems included degenerative disc disease of the lumbar spine that was diagnosed in August 2014. These records again reflect occasional pain a chronic diagnosis in 2014, many years post-service. The Veteran is competent to report the nature and timing of his observable symptoms, and the Veteran’s daughter is competent to report what she recalls personally observing. However, their assertions that he had continuous or significant back symptoms since service are not credible due to inconsistency with the other available evidence, as summarized above. The records during service and for treatment after service are more probative than the more recent statements for the Veteran’s VA claim because they were contemporaneous in time to the events and symptoms when his recollection was fresh. His reports for post-service treatment were also made under circumstances when he had an incentive to give an accurate history as to the nature and timing of his symptoms to receive proper medical care. These reports were all several years prior to his 2018 claim. Additionally, an October 2018 private treatment record notes that the Veteran’s daughter first noticed him having memory problems in 2015, and those problems had been very apparent since late 2017. He has severe Alzheimer’s disease now. For the foregoing reasons, even assuming that the Veteran had a low back injury or symptoms as he has reported while in Germany, the evidence establishes that he did not have ongoing back symptoms or disability until many years after service. Concerning the nexus element, the Veteran and his daughter are not competent to provide an opinion as to the cause of his claimed disability or whether he had a disability, as opposed to temporary symptoms during or after service. These are medically complex questions that requires knowledge of the interactions between the musculoskeletal and neurologic systems in the body, as well as interpretation of the Veteran’s complex medical history and any required testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no medical evidence indicating that a current low back disability may be related to service, to include the reported in-service injury in Germany. As discussed above, the more probative and credible evidence does not establish a chronic condition or persistent and recurrent symptoms since service. The broad conclusory statements by the Veteran and his daughter as to the cause of his current disability is insufficient to trigger the need for a VA examination or medical opinion. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010). The Veteran’s current diagnoses include arthritis or degenerative joint disease of the lumbar spine, degenerative disc disease, and neurologic impairment or lower extremity radiculopathy associated with his lumbar spine disability. Arthritis and organic disease of the nervous system are considered chronic diseases that will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). However, as summarized above, the evidence reflects that the Veteran’s lumbar spine and associated lower extremity neurologic symptoms did not manifest during service, and they were not diagnosed until many years after service. Therefore, the chronic disease presumption does not apply to establish service connection. In summary, the preponderance of the evidence is against service connection for a current back disability under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied. 2. Service connection for a dental disability, to include missing teeth with loss of mandible and burning mouth disease The Veteran contends that service connection is warranted for a dental disability of loss of teeth and poorly fitting dentures due to loss of the mandible or bottom jaw, as well as burning mouth disease. He believes his current conditions are related to his teeth being pulled during service through February 1955 and at a VA facility after service in December 1955. See, e.g., October 2020 Board hearing. Only the following dental disorders are subject to service connection for compensation purposes: chronic osteomyelitis or osteoradionecrosis, loss or malunion of the mandible or maxilla, limited motion of temporo mandibular articulation, loss of ramus, loss of condyloid or coronoid process, loss of hard palate, and loss of teeth due to loss of substance of the body of the maxilla or mandible. Such bone loss must be due to service trauma, meaning a wound during service due to combat or otherwise, or due to disease such as osteomyelitis. 38 C.F.R. § 4.150, Diagnostic Codes (DCs) 9900-9916. Treatable carious teeth (or cavities), replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will not be considered for service-connected compensation purposes. 38 C.F.R. § 3.381 (concerning service connection for dental treatment purposes). There is no argument or indication of dental trauma or a qualifying dental disease during service, either in service records or the Veteran’s lay assertions. Service treatment records reflect several restorable carious teeth and missing natural teeth, for which the Veteran received dental treatment on multiple occasions. Missing teeth were noted in his February 1955 separation examination, and he was assigned Class 1 dental. After service, there is a May 1955 request for a determination of service connection and outpatient treatment about dental conditions, with no specifics given. There was no suggestion of a wound during service due to combat or otherwise, or of bone loss due to disease such as osteomyelitis. A dental rating sheet in June 1955 from a VA facility in Winston Salem granted authorization for VA outpatient dental treatment for conditions of several identified teeth, finding that dental conditions of several identified teeth were “incurred or aggravated in service.” A December 1955 dental rating amended the covered conditions to include additional teeth, but this was again for outpatient treatment, not service connection for compensation purposes. A post-service dental treatment record in March 1992 noted that his initial dental placement was in July 1987, or more than 32 years after service. He was provided new complete upper and lower dentures for worn out or ill-fitting dentures. Private dental records in June 2015 noted that retention of the Veteran’s lower teeth was bad and he wanted to know if new dentures would help. The corners of his mouth hurt, and the provider noted that he appeared to have angular cheilitis. Upon review of Panorex images taken that day, the provider stated that there was a fair amount of bone present on the maxilla (upper jaw), but the mandible (lower jaw) had minimal bone present or was significantly reabsorbed to the point that there was no retention of the mandibular denture. The Veteran also had apparent lichen planus on the cheek areas, and the provider noted that he was a smoker. A February 2019 private treatment record noted a history of dental mouth syndrome diagnosed in October 2013, and that the Veteran was a current smoker and had smoked for approximately 79 years of up to one pack per week. In an October 2019 statement with his notice of disagreement (NOD), the Veteran specified that he had been having pain and problems with ill-fitting dentures since his teeth were pulled at a dental office in Winston Salem. This would be consistent with the authorizations for outpatient treatment for several teeth by the Winston Salem VA facility in June 1955 and December 1955. Similarly, in a February 2020 NA Form 13055, the Veteran identified dental treatment during service and at the Winston Salem VA facility through December 1955. Therefore, the Veteran primarily complains of problems related to post-service dental treatment. In summary, although private dental treatment records in 2015 noted loss of bone in the mandible, there is no suggestion that this was due to dental trauma or disease such as osteomyelitis during service. Therefore, service connection is denied. Special Monthly Compensation (SMC) 3. SMC based on aid and attendance for the Veteran Special monthly compensation is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran 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)(3). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. As noted above, VA found the Veteran incompetent to handle his financial affairs in March 2020, and his daughter was appointed as his fiduciary. The evidence also clearly establishes that he needs regular aid and attendance from another person through medical records and several aid and attendance examination forms. However, the Veteran’s claims for service connection for his back and dental disabilities are denied. He also has multiple other nonservice-connected medical and mental health conditions that result in the need for aid and attendance, including but not limited to severe Alzheimer’s disease. As there are no service-connected disabilities, the claim for aid and attendance cannot be granted. Therefore, the criteria for SMC based on the need for regular aid and attendance for the Veteran are not met. The appeal is denied. 4. SMC based on aid and attendance for the Veteran’s spouse An additional amount of disability compensation may be payable for a spouse, child, and/or dependent parent where a Veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). For example, increased compensation is payable by reason of the Veteran’s spouse being in need of aid and attendance. Alternatively, increased dependency and indemnity compensation (DIC) is payable to the surviving spouse of a deceased Veteran by reason of being in need of aid and attendance. 38 U.S.C. §§ 1311(c), 1315(h), 1115(1)(E); 38 C.F.R. § 3.351(a)-(c). The Veteran’s spouse passed away in February 2019. Prior to her death, the Veteran did not have any service-connected disabilities, as his claims for service connection were denied, and his appeals of those issues are now denied. Additionally, as the Veteran was and is still living, she was not a surviving spouse. Therefore, as the Veteran does not have service-connected disabilities at least 30 percent disabling, and he is still living, the criteria for SMC based on the need for aid and attendance for the Veteran’s spouse are not met. The appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.