Citation Nr: 21071189 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-16 114 DATE: November 30, 2021 ORDER Service connection for a below the right knee amputation (claimed as loss of right foot secondary to right ankle and loss of right foot in surgery) is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance or at the housebound rate is denied. FINDINGS OF FACT 1. The Veteran's below the right leg amputation was not the result of a service-connected disability. 2. The Veteran is not service-connected for any disability that causes the anatomical loss or loss of use of both feet, one hand and one foot, or blindness in both eyes with 5/200 visual acuity; and the preponderance of evidence shows that the Veteran's service-connected disabilities alone do not cause him to be bedridden; necessitate the care or assistance of another person on a regular basis to attend to the activities of daily living to protect him from the hazards or dangers of his daily environment; has a single permanent disability rated 100 percent disabling and separate and distinct service-connected disabilities independently evaluated as 60 percent or more disabling; and do not cause him to be permanently housebound or permanently institutionalized. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran's amputation below the right knee are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for SMC based on the need for regular aid and attendance or at the housebound rate were not met at any time during the pendency of the appeal. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.326, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from May 1993 to August 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran's appeal in a February 2020 decision, which the Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted the parties' joint motion for remand (JMR) and remanded the matter to the Board for action consistent with the JMR. Thereafter, in June 2021, the Board remanded the claims for further development. Amputation Below the Right Knee The Veteran contends his below the right knee amputation is service connected on a secondary basis. Service connection may be established on a secondary basis when the disability is proximately due to, or the result of, a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he injured his right ankle in April or May 1996 when he was involved in a parachuting accident. As a result of his injuries, the Veteran had two screws placed above his right ankle. He recounts that he would often have leg spasms and he attributed these spasms to residual pain from his ankle fracture. In this regard, the Veteran is service-connected for the right ankle. The Veteran maintains that the pain would cause involuntary spasms which resulted in his foot constantly rubbing on his bed. It was this continual rubbing, the Veteran maintains, that ultimately created an ulcer on his heel. According to the Veteran, the ulcer later caused the development of an infection in the bone, whereupon it became necessary for him to undergo a below the knee amputation. See, e.g., VA examination records dated July 2017. In July 2017, the Veteran was afforded a VA examination. The VA examiner stated that the Veteran had a history of a below knee amputation on the "right side secondary to osteomyelitis of the right calcaneus." The VA examiner opined that based on the evidence, the Veteran's below the right knee amputation was less likely than not proximately due to or the result of residuals of a right ankle fracture. The VA examiner further explained that the Veteran's concomitant medical conditions, including diabetes and paraplegia, were the two greatest risk factors for the development and subsequent worsening of the foot ulcer. The VA examiner pointed at the fact that the Veteran also had non-healing foot ulcers on his left foot. In August 2021, a VA examiner offered an addendum opinion concerning the Veteran's amputation. The examiner opined that it is less likely than not that the causes leading to Veteran's amputation were aggravated beyond their natural progression by any inservice injury or event. In support of the examiner's opinion, the examiner stated that the Veteran's diabetic ulcers were related to his spinal cord injury and related paralysis. Moreover, the residuals of the right ankle fracture did not play a role in the development of the ulcers, osteomyelitis, and below the knee amputation. One reason the examiner opined this was because the Veteran has twitching in both ankles and left ankle twitching would not be related to a fracture in the right ankle. The examiner added the ulcers formed due to vascular insufficiency, which limited the ability to treat osteomyelitis. The Board acknowledges the argument by the Veteran's representative, questioning the competency of the VA examiner who provided the unfavorable medical opinions. When challenging a VA examiner's qualifications, a representative must state precisely why he is not qualified to give an opinion on the matter. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (en banc). Here, the representative has not done so. The representative only alleges that the examiner is not competent because he works in obstetrics and gynecology. This is a generalization and offers no particular reason to question the fitness of the examiner to furnish an opinion. The representative did not remark on the physician's training, education, publications, or experience in general practice. The representative did not meet his burden to prove the examiner was not competent to testify. The Board declines to reject the VA examiner's opinion. This medical evidence provides highly probative evidence against this claim that the Board cannot ignore, not only providing evidence against the key contention but also suggesting the probable cause of this problem are two problems that are not service connected. While the Board understands the Veteran's contention, the examinations provide clear evidence against this claim. An extensive review of the Veteran's medical evidence fails to find documentation that would support his claim. While the Veteran believes his below the right knee amputation is related to the right ankle injury suffered while in service, the Veteran does not have the training or credentials to provide a competent nexus opinion in this case. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, the preponderance of the evidence is against a finding that a current diagnosis is related to the Veteran's military service. Consequently, the Board gives more probative weight to the competent medical evidence failing to show a relationship between his currently diagnosed disability and his military service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. SMC The Veteran claims he is entitled to SMC because, in substance, he needs the aid of another person. I. Regular Aid and Attendance A veteran who, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less or is permanently bedridden or so helpless as to need regular aid and attendance under criteria set forth in 38 C.F.R. § 3.352(a) shall receive the provided level of compensation. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under the provisions of 38 C.F.R. § 3.352(a), the criteria to establish a factual need for aid and attendance include the inability of the veteran to dress or undress himself; inability to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances, which, by reason of the particular disability, cannot be done without aid; the inability to feed himself; the inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. An individual who is bedridden meets the criteria for aid and attendance. The regulation provides that being "bedridden" means that the condition which, through its essential character, actually requires that the claimant remain in bed. Determinations 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. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See also, Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). a. Loss/Loss of Use of Both Feet, Loss of One Hand and One foot, and/or Visual Impairment The record indicates that throughout the pendency of the appeal the Veteran has been service-connected for Post-Traumatic Stress Disorder (PTSD) rated as 100 percent disabling, residuals of fracture (right ankle) rated as 20 percent disabling, bilateral tinnitus rated as 10 percent disabling, otitis media (right ear) rated as 10 percent, high frequency hearing loss (left ear) rated as noncompensable, right tympanic membrane perforation with residual scars rated as noncompensable, and residual scar associated with residuals of fracture (right ankle) rated as noncompensable. In this regard, the Veteran clearly has loss of use of both feet, as noted above. The question is what caused the problem and if the problem is related to service. As noted above, the findings have been negative, with significant evidence against the claim that these problems have been caused by service. The Veteran is not service-connected for any disability that causes the anatomical loss or loss of use of both feet, one hand and one foot, or blindness in both eyes with 5/200 visual acuity. Therefore, at all times during the pendency of the appeal, the Board finds that the Veteran cannot prevail on his SMC claim under this part of the criteria. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b) b. Bedridden As to being bedridden, while the Veteran is bedridden, the Veteran does not claim, and the record, including the February 2017 Aid and Attendance examination, does not show that he is bedridden due to his service-connected disabilities. Therefore, the Board finds that the Veteran cannot prevail on his SMC claim under this part of the criteria at any time during the pendency of the appeal. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b) c. Factual Need for Aid and Attendance As to a factual need for aid and attendance, as noted above, in the February 2017 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the physician who filled out the form never categorically opined that the Veteran required the assistance of another person for locomotion; instead, it was indicated that the Veteran utilized a wheelchair as an assist for locomotion. Moreover, while the form indicated that the Veteran needed assistance with dressing, it was also indicated that the Veteran could perform several daily functions of living such as eating, in addition to voiding himself, as he was able to self-catharize and was on a bowel management program. The Board finds that the February 2017 opinion is not probative evidence as to whether the Veteran's service-connected problems cause a factual need for aid and attendance (i.e., caused an inability of the Veteran to dress or undress himself; an inability to keep himself ordinarily clean and presentable; requires frequent adjustment of a special prosthetic or orthopedic appliances; causes an inability to feed oneself; causes an inability to attend to the wants of nature; or cause an incapacity that requires assistance on a regular basis to protect him from hazards or dangers incident to his daily environment). While the Veteran can report on the observable problems caused by the Veteran's service-connected disabilities, the Board does not find he can provide a competent opinion on the service-connected disabilities causing a factual need for aid and attendance because he does not have the required medical experience to provide an answer to this complex medical question. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Based upon the above, the Board finds that the most probative evidence of record shows that the Veteran does not require the care or assistance on a regular basis due to his service-connected disabilities, either with the activities of daily living or to protect himself from hazards or dangers incident to his daily environment, during the entire time frame on appeal. Therefore, the Board finds that the claim for SMC based on the need for aid and attendance is also denied under this part of the criteria during the entire time frame on appeal. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). In the matter before us, the Veteran does not have a single service-connected disability rated 100 percent and a separate service-connected disability or disabilities independently rated 60 percent or more, and the Veteran is not substantially confined to his home or immediate premises due to his service-connected disabilities. Notes from the Cleveland VA Medical Center from April 2019 indicate that the Veteran is able to drive himself to various appointments and functions using a specially outfitted van. II. Housebound As to the housebound claim, if a veteran does not qualify for increased benefits based on the need for aid and attendance, increased compensation benefits may still be payable if the Veteran has a single permanent disability rated 100 percent disabling and has either additional service-connected disability or disabilities independently ratable at 60 percent or more, or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). The "permanently housebound" requirement is met when the veteran is substantially confined to his 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 lifetime. Id. a. 100 Percent Plus 60 Percent As noted above, the Veteran is only service-connected for PTSD rated as 100 percent disabling, residuals of fracture (right ankle) rated as 20 percent disabling, bilateral tinnitus rated as 10 percent disabling, otitis media (right ear) rated as 10 percent, high frequency hearing loss (left ear) rated as noncompensable, right tympanic membrane perforation with residual scars rated as noncompensable, and residual scar associated with residuals of fracture (right ankle) rated as noncompensable. In this regard, even though the Veteran was rated as 100 percent disable for PTSD, he is not independently rated at 60 percent or more for another disability or disabilities. Therefore, because the Veteran does not have a single permanent disability rated 100 percent disabling and separate and distinct service-connected disabilities independently evaluated as 60 percent or more disabling, the Board finds that the claim for SMC based on this part of the housebound criteria are not met for all times applicable to the claim on appeal. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). b. Permanently Housebound and/or Permanently Institutionalized As to being "permanently housebound" by reason of disability or disabilities, the Board finds that nothing in the record, including the findings by the February 2017 VA Form 21-2680, Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance as well as other VA examinations, suggests that the Veteran is permanently housebound or permanently institutionalized due to his service-connected disabilities. As noted above, the Veteran has severe nonservice connected problems that have been noted above. In reaching this conclusion, the Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities neither confine him to his dwelling and the immediate premises, nor require permanent institutionalization at any time during the time frame that is the subject of the appeal. Based upon the foregoing, the Board concludes that the preponderance of the evidence is against a favorable finding in this appeal. The Veteran is not entitled to SMC based upon the need for aid of another person to keep him safe and/or because he is house bound due to his service-connected problems. Conclusions In reaching all of the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 55-56 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Representative for the Board P. Chalker, 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.