Citation Nr: 21068231 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-51 804 DATE: November 9, 2021 ORDER The claim of entitlement to service connection for tinnitus is denied. The claim of entitlement to special monthly compensation (SMC) based on a need for aid and attendance is denied. The claim of entitlement to SMC based on a need for housebound status is denied. The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of tinnitus and does not have manifestations of tinnitus that had its onset in service and subsequent manifestations of tinnitus during the appeal period. 2. The Veteran's service-connected disabilities do not require regular aid and attendance of another person. 3. The Veteran is not housebound as a result of service-connected disabilities. 4. The Veteran does not meet the schedular requirements for a TDIU as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection of tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for special monthly compensation by reason for the need of regular aid and attendance have not been met. 38 U.S.C. §§ 1114, 1502, 1521, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.350, 3.352. 3. The criteria for special monthly compensation by reason of being housebound due to service-connected disabilities have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty in the United States Army from August 1953 to August 1955. This matter comes before the Board of Veterans' Appeals on appeal of a September 2018 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran's claims were previously remanded by the Board in March 2019 and again in January 2021. The RO issued a supplemental statement of the case (SSOC) in September 2021. This matter is now properly before the Board under the Legacy appeal stream. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is currently diagnosed with recurrent tinnitus. Tinnitus is considered a chronic disease. See Fountain v. McDonald, 27 Vet. App. 258 (2016) (holding that tinnitus is a chronic disease under 38 C.F.R. § 3.309 (a)). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. 1. Service connection for tinnitus. The Veteran contends that tinnitus should be service connected. In a September 2018 VA examination, the Veteran denied having tinnitus or ringing in the ears. In a September 2019 VA examination the Veteran denied having symptoms of tinnitus. In an April 2021 VA examination, the VA examiner reported that the Veteran did not report recurrent tinnitus. The Board finds that the Veteran does not have a current diagnosis of tinnitus. The only evidence of a diagnosis of tinnitus in the Veteran's records was made in a May 20, 2017 private treatment note which noted that the Veteran has complained of tinnitus due to the noise exposure since during military operations. The Veteran was diagnosed with tinnitus in May 2017 by a private physician over 50 years after separation from military service. The September 2019 VA examiner indicated that the Veteran is not service connected for hearing loss and current hearing loss does not appear to be related to acoustic trauma from noise exposure while in service, but most likely from combined etiologies of post-service occupational and or recreational noise exposure, and or presbycusis effect due to progressive inner hair cell dysfunction. Although tinnitus may be associated to different etiologies, in the absence of hearing loss induced by military noise exposure and/or documentation of tinnitus in the Veteran's service treatment records or VA records up to 2017, the etiology of any reported tinnitus so many years after service is less likely as not related to acoustic trauma during military service. The Board acknowledges that the Veteran is competent to report symptoms of tinnitus. However, there is no evidence of the Veteran making lay statements regarding ringing in the ears or other symptoms of tinnitus. In fact, the Veteran reported an absence of symptoms at the last three VA examinations for tinnitus. The Board finds the lack of report of symptoms and the fact that there is no current diagnosis of tinnitus, the preponderance of the evidence is against granting the Veteran's claim for entitlement to service connection for tinnitus. The benefit of the doubt doctrine is therefore not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. SMC based on need for aid and attendance. The Veteran claims entitlement to special monthly compensation on the basis of a need for aid and attendance. A Veteran will be considered in need of regular aid and attendance if he or she: (1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) Is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance. 38 C.F.R. § 3.350(c)(3). The following criteria are to be considered for determining whether a veteran is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). "Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant 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. §§ 3.350(b)(4), 3.352(a). In addition, any determination that the Veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. It must be based on the actual requirement of personal assistance from others. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his/her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). In November 2017, the Veteran was afforded an examination for housebound status or permanent need for regular aid and attendance. The examiner found that the Veteran required medication management, needs assistance in bathing and tending to other hygiene needs, and that the Veteran is partially able to prepare meals. The examiner determined that the Veteran is able to eat without assistance, is not blind, does not require nursing home care, and does have the ability to manage financial affairs. The examiner also determined that the Veteran leaves the house two times per week. The preponderance of the evidence indicates that the Veteran was normally able to manage most things without aid and attendance and the Veteran is not service connected for disabilities that would require aid and attendance. The Board finds that the Veteran was not regularly unable to attend to the wants of nature; and that there was not a factual need for aid and attendance. For the reasons stated above, entitlement to SMC based on need for aid and attendance is not warranted. The Board finds that the preponderance of the evidence is against the claim of entitlement to SMC based on housebound status. The benefit of the doubt doctrine is therefore not applicable here. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. SMC based on housebound status. The Veteran contends entitlement to SMC based on housebound status. A Veteran may be entitled to special monthly compensation for housebound benefits if, in addition to having a single permanent disability rated 100 percent disabling under the VA Schedule for Rating Disabilities (not including ratings based upon unemployability under 38 C.F.R. § 4.17 of this chapter), the Veteran either: Has an additional disability or disabilities independently ratable at 60 percent or more, separate, and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems; or Is "permanently housebound" by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Although the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran's remaining disabilities. Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings to satisfy the second requirement but not the first). Moreover, "section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100%, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." Id. at 293. Moreover, in order to be considered "permanently housebound," the requirement that the Veteran be "substantially confined" to the home or its immediate premises is broadly construed and met when the Veteran is simply unable to leave the home to earn a living, as opposed to requiring that the Veteran be unable to leave the house at all. 38 U.S.C. § 1114(s). Here, the Veteran is service connected for a skin condition rated at 0 percent disabling. The Veteran is not service connected for any other disabilities, and therefore does not meet the criteria for a schedular rating of 100 percent. The Veteran does not have additional service-connected disabilities that would total to 60 percent disabling. Further, there is no evidence within the record indicating that the Veteran is permanently housebound as there is no indication that the Veteran is unable to leave the home to earn a living. Additionally, the Veteran was afforded an examination for housebound status in November 2017. The examiner determined that the Veteran does leave his house two times per week. Furthermore, the Veteran is not housebound as a result of a service-connected disability. For the reasons stated above, entitlement to SMC based on housebound status is not warranted. The Board finds that he preponderance of the evidence is against the claim of entitlement to SMC based on housebound status. The benefit of the doubt doctrine is therefore not applicable here. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 4. Entitlement to a TDIU. The Veteran claims entitlement to a TDIU. A total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board has sympathetically reviewed the Veteran's claims file. The Board finds that the Veteran is service connected for one disability, a skin condition rated at 0 percent disabling. The Board finds that the Veteran does not have sufficient disability rated at 60 percent disabling or more as required under 38 C.F.R. § 4.16. In the Veteran's application for increased compensation based on TDIU, the Veteran noted that employment ended in 1995. The Veteran noted that last employment was with the Department of Agriculture from 1965 to 1995. The Veteran also reported receipt of federal retirement compensation. The Board finds that the Veteran is unemployed due to retirement rather than the Veteran's disability. There is no additional evidence of record indicating that the Veteran is unemployable due to service-connected disabilities. The Board finds that a preponderance of the evidence is against finding that the Veteran is entitled to a TDIU. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, Associate 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.