Citation Nr: 21004003 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 20-22 150 DATE: January 25, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to a higher rate of special monthly compensation (SMC) beyond P-1 is denied. Entitlement to an effective date prior to April 10, 2015 for the award of SMC for loss of use of bilateral lower extremities is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has tinnitus. 2. The preponderance of the evidence is against a finding that the Veteran requires the aid and attendance of another person due to his service-connected disabilities other than those resulting in loss of use of the lower extremities. 3. The Veteran filed his claim for SMC for loss of use of bilateral lower extremities on April 10, 2015; there is no showing that loss of use of the lower extremities was present prior to that date. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a higher rate of SMC beyond P-1 have not been met. 38 U.S.C. § 1114 (r)(1); 38 C.F.R. §§ 3.350 (h), 3.352. 3. The criteria for an effective date prior to April 10, 2015 for the award of SMC for loss of use of bilateral lower extremities have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to March 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the tinnitus issue on appeal has been characterized as a petition to reopen a previously denied claim, because new and material evidence was received within one year of the March 2004 rating decision it is best characterized as an original service connection claim through the operation of 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015). The RO considered the claim on the merits in the April 2020 statement of the case, thus there is no prejudice to the Veteran in the Board’s consideration of the claim on that basis. Service Connection 1. Entitlement to service connection for tinnitus Generally, to establish service connection, a claimant 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules for presumptions for chronic disease, such as tinnitus. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303 (b). In addition, for veterans who have served 90 days or more active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The service treatment records show that in July 1968 it was noted that the Veteran had had acoustic trauma 40 days prior and had tinnitus. He was provided with ear plugs. On the report of medical history completed by the Veteran in March 1969, he denied ear trouble. The March 1969 separation examination noted normal ears. On VA examination in December 1996 the Veteran reported that he served in Vietnam from 1968 to 1969 with the mobile artillery, and that he had experienced constant ringing in the ears at that time. At a June 1997 hearing, the Veteran testified that after he was discharged from service he had no ringing in the ears. On a February 2001 VA audiologic evaluation consultation, the Veteran reported periodic tinnitus. A June 2004 private audiologist’s letter noted that the Veteran reported having constant tinnitus that started in Vietnam after loud artillery fire and explosions. On VA examination in June 2015, the Veteran denied having recurrent tinnitus. The Board notes that the Veteran was noted to have tinnitus on one occasion in service. He then denied ear trouble at the service separation examination. After service, he testified in June 1997 that he had no ringing in the ears after service. While in February 2001 he reported periodic tinnitus, and in 2004 he reported having constant tinnitus that started in Vietnam, on the June 2015 VA examination he again denied having tinnitus. While the Veteran is certainly competent to report the presence of tinnitus, his statements over time have been inconsistent. He has alternated between claiming tinnitus since service and that he has not experienced tinnitus since service. For this reason, the Board cannot find that his occasional reports of tinnitus since service persuasive evidence of continuity of symptoms since service. Most recently, the Veteran denied having tinnitus on the June 2015 VA examination. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Thus, service connection for tinnitus is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a higher rate of SMC beyond P-1 SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). The rate of SMC varies according to the nature of the Veteran’s service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability. The RO has already awarded the Veteran SMC at the following levels: K-1 - Under 38 U.S.C. § 1114 (k) and 38 C.F.R. § 3.350 (a) on account of loss of use of a creative organ, effective from June 10, 2004; L-1 - Under 38 U.S.C. § 1114 (l) and 38 C.F.R. § 3.350 (b) on account of loss of use of both feet, effective from April 10, 2015; P-1 - Under 38 U.S.C. § 1114 (p) and 38 C.F.R. § 3.350 (f)(3) at an intermediate rate between subsections (l) and (m) on account of loss of use, bilateral lower extremities (peripheral vascular disease, left lower extremity residuals of stroke, and left great toe amputation) with additional disabilities, Type II diabetes mellitus, with bilateral early nuclear sclerotic cataractous change, and left heel ulcer (formerly Type II diabetes mellitus), posttraumatic stress disorder (PTSD), nephropathy with hypertension, bilateral hearing loss, coronary artery disease independently ratable at 50 percent or more from Apri 10, 2015. However, the Veteran seeks an even higher award of SMC based on the need for regular aid and attendance under 38 U.S.C. § 1114 (l), due to service-connected disabilities independent of the service-connected lower extremity disabilities. The Board finds that the evidence of record does not establish that the Veteran requires the aid and attendance of another person. The RO has already established that the Veteran is entitled to SMC at the L-rate based on the loss of use of both feet, due solely to his service-connected lower extremity disabilities. However, the Veteran also requests a separate award of SMC at the L-rate based on the need for regular aid and attendance due to his other service-connected disabilities, independent and without consideration of his service-connected lower extremity disabilities. This would entail consideration for aid and attendance purposes of his service-connected coronary artery disease, hearing loss, PTSD, neuropathy with hypertension, residuals of cardiovascular accident effecting the left upper extremity, and diabetes mellitus. In turn, based on the award of these two separate L-rates of SMC (both loss of use of the feet and aid and attendance), the Veteran believes he is entitled to a higher level of SMC, namely at the R-1 rate. In determining the need for regular aid and attendance of another person, the following will be accorded consideration: Inability of a claimant to dress or undress him or herself, or to keep him or 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 aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). Bedridden, i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination. 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. 38 C.F.R. § 3.352 (a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (providing that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is 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 requirements of personal assistance from others. 38 C.F.R. § 3.352 (a). The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352 (c). The medical evidence of record shows that the Veteran attended a VA Adult Day Care (ADHC) program for a number of years. A November 2013 record noted that the Veteran drove himself to ADHC three to four times per week for recreation and socialization. In November 2013 it was noted that he used ADHC regularly; that a nurse came to his house three days per week for in-home care; that he went to a senior center once per week; that he visited his son in prison every other week; that he had an electric scooter; and that he used a wheelchair. In December 2013 it was noted that the Veteran was not dependent for any activities of daily living. In March 2014 the Veteran reported he liked to be out and about, doing things and seeing people. In July 2014 he was noted to be able to walk around and to perform all activities of daily living without any issues. In February 2015, it was noted that the Veteran lived with his spouse. His spouse was noted as a caregiver that provided assistance with activities of daily living, including preparing meals, moving around in bed, help or supervision with transfers, and help or supervision to move around indoors. It noted that he “exhibits psychiatric symptomatology that interferes with ability to function and maintain independence in the community.” A February 2019 VA medical center discharge summary noted that the Veteran had been treated for nonservice-connected conditions of acute kidney injury and right wrist osteoarthritis. It was noted that he had been hospitalized because he was unable to care for himself at home due to the right wrist splint with reduced dexterity and painful arthritis of the right wrist. It noted that the Veteran’s wife had multiple medical issues and could not care for him. A February 2019 addendum noted that the Veteran had received a new removable short arm splint for his right wrist that had substantially improved his dexterity and ability to self-administer insulin and check his blood glucose levels. Physical therapy and occupational therapy were recommended two to three times per week for several weeks to assist with dexterity, strength, and functional independence. A May 2019 VA medical center discharge summary noted that the Veteran had undergone right carpal tunnel release. On discharge, the Veteran reported he was confident he could perform his usual activities of daily living. The evidence of record does not establish that the Veteran is bedridden or that he requires the aid and attendance of another person for service-connected disabilities other than those that result in loss of use of the lower extremities. The Veteran has been shown to be active and able to leave his house several times per week to attend ADHC and other activities. He has been noted to be able to handle most activities of daily living. While the record contains one notation in February 2015 that the Veteran “exhibits psychiatric symptomatology that interferes with ability to function and maintain independence in the community,” there is no other documentation in the record of such severity of psychiatric symptoms. The Veteran participated in regular group activities at ADHC both before and after February 2015 and was not noted to exhibit serious psychiatric symptoms. There are no recent treatment records for psychiatric disability. A February 2006 VA examination described his PTSD as mild, and the Veteran has not submitted a claim since 2006 for increase in the 30 percent rating assigned for his service-connected PTSD. In July 2018, the Veteran reported his mood as “somewhat low” but he denied suicidal ideation. The preponderance of the evidence is, thus, against finding that the Veteran is entitled to a higher level of SMC based on the need for aid and attendance of another person. Accordingly, entitlement to a higher level of SMC under 38 U.S.C. § 1114 (r)(1) is not warranted. 3. Entitlement to an effective date prior to April 10, 2015 for the award of SMC for loss of use of bilateral lower extremities The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. In this regard, an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested.” Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The criteria for establishing entitlement to SMC based on the “loss of use” of both feet is defined by 38 C.F.R. § 3.350 (a)(2) as that condition where no effective function remains other than that which would be equally well-served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made based on the actual remaining function and whether functions such as balance and propulsion of the foot could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. § 3.350 (a)(2) which would constitute loss of use of a foot include extremely unfavorable ankylosis of the knee; complete ankylosis of two major joints of an extremity; shortening of the lower extremity of 3.5 inches or more; and, complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. In the August 2015 rating decision on appeal, the RO granted service connection and SMC for the loss of the use of both lower extremities, effective April 10, 2015, the date of the Veteran’s claim for that benefit. The grant was based on May 2015 VA examiner’s opinion that the Veteran had loss of use of both lower extremities as a result of service-connected peripheral vascular disease. The Veteran contends that he is entitled to an earlier effective date based on VA treatment records demonstrating that he required the use of assistive devices for walking. The Board finds that an earlier effective date is not warranted. A December 2013 VA treatment record noted that the Veteran could walk 50 feet with a cane. For longer distances, he used a scooter. In February 2014 it was noted that he tried to walk as much as he could; he used a power scooter for longer distances. In June 2014 it was noted that he walked around some, about two days a week, and used the motorized scooter the other days of the week. in July 2014 it was noted that he is able to walk around. An October 2014 podiatry note indicated that the Veteran walks about two to three days per week and used a scooter for the other days. A November 2014 treatment record noted he was fully ambulatory, used a cane for long distances, and had a scooter. In January 2015 he was noted to be ambulatory. In February 2015 it was noted that he tried to walk as much as he can. The Board also notes that, while the RO found that the Veteran had loss of use of bother lower extremities, the May 2015 VA examination report upon which that finding was based noted that the Veteran’s functional impairment in the lower extremities was not so diminished that amputation with a prothesis would equally serve the Veteran. Prior to April 10, 2015, the medical evidence overwhelming shows that the Veteran had actual remaining function in his lower extremities and functional impairment in the lower extremities was not so diminished that amputation with a prothesis would equally serve the Veteran. There is no basis for an effective date earlier than the currently assigned April 10, 2015 for the award of SMC for loss of use of both lower extremities. The benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7. As such, the claim is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.