Citation Nr: 21071585 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-05 087A DATE: November 30, 2021 ORDER Service connection for arthritis of multiple joints is denied. Entitlement to specially adapted housing is denied. Entitlement to a special home adaption grant is denied. REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. FINDINGS OF FACT 1. The most probative evidence of record establishes that arthritis of multiple joints was not incurred in service, did not develop to a compensable degree within one year of separation, and is not otherwise causally related to an injury or disease during service. 2. The Veteran's service-connected disabilities do not include or result in loss or loss of use of the lower extremities, blindness in both eyes, loss or loss of use of one lower extremity with residual organic disease or injury affecting balance or propulsion, loss or loss of use of one lower extremity with loss or loss of use of one upper extremity affecting balance and propulsion, loss or loss of use of both upper extremities to preclude use of arms at or above the elbow, or full thickness or subdermal burns. 3. The Veteran's service-connected disabilities do not result in blindness in both eyes with 5/200 visual acuity or less, involve the anatomical loss or loss of use of both hands, certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for arthritis of multiple joints have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107, 7104; 38 C.F.R. §§ 3.102, 3.809, 3.809a. 3. The criteria for entitlement to a special home adaptation grant have not been met. 38 U.S.C. §§ 2101(b), 5107, 7104; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1968 to July 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from August 2010 and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The issues on appeal were previously before the Board in March 2021, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. The Board notes that the issue of entitlement to service connection for bilateral hearing loss was also remanded in March 2021. In July 2021, while the case was in remand status, the AOJ granted service connection for bilateral hearing loss. As such, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to service connection for arthritis of multiple joints. The Veteran contends that he currently suffers from arthritis of multiple joints that is the result of his military service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding arthritisto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's post-service treatment records show that he has been diagnosed with arthritis of various joints during the appeal period, including degenerative joint disease of the knees, shoulders, hips, and hands. See September 2000 treatment record from Dr. T.B.; November 2017 letter from Dr. E.M.; August 2018 VA examination; May 2020 VA treatment record. The Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses of arthritis or joint injury. In the Veteran's June 1970 examination for service separation, he denied bone or joint abnormality, swollen or painful joints, arthritis, bursitis, or rheumatism. Additionally, his musculoskeletal system was found to be normal on clinical evaluation. The Veteran was afforded a VA examination in August 2018. Following examination and review of the claims file, the VA examiner opined that the claimed arthritis conditions were less likely than not service related. In doing so, the examiner noted that the Veteran's service treatment records were silent for any complaints or treatment related to the hips, knees, shoulders, or hands. The examiner further noted that the Veteran's hand and knee conditions had their onset in 2000, while the shoulder condition had its onset in 2007. The Board finds the August 2018 opinion to be probative. The VA examiner clearly reviewed the medical records in the claims folder and provided opinions that were supported by and consistent with the evidence of record. Neither the Veteran nor his representative has presented or identified any contrary medical opinion evidence that supports the Veteran's claim. Moreover, there is no competent and probative evidence that the Veteran's current disability manifested to a degree of 10 percent or more within one year of separation from service. See August 2018 VA examination. As such, service connection on a presumptive basis is not warranted. To the extent that the Veteran has himself asserted that his current disability is related to his active service, such statements lack probative value, as he is not shown to possess the medical expertise necessary to render an opinion relating his disability to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, to the extent his current statements can be interpreted as alleging in-service onset of symptoms, the Board finds that such statements lack credibility as they are inconsistent with what he reported during his service separation examination. Because the preponderance of the evidence is against a finding that the Veteran's arthritis is etiologically related to his active duty service, the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to specially adapted housing. 3. Entitlement to a special home adaption grant. The Veteran contends that specially adapted housing or a special home adaptation grant is warranted because he needs a walk-in bath and shower due to his disabilities. A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service-connected disability due to (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus, the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) the loss, or loss of use, of both upper extremities such as to preclude use of the arms at or above the elbow; and (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. To "preclude locomotion" means that the disability in question requires the need for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). After review of the record, the Board finds that the criteria for specially adapted housing are not met. Service connection is currently in effect for posttraumatic stress disorder, rated 100 percent disabling; sleep apnea, rated 50 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated 0 (zero) percent (noncompensably) disabling. The Veteran's service-connected disabilities do not include or result in loss or loss of use of the lower extremities, blindness in both eyes, loss or loss of use of one lower extremity with residual organic disease or injury affecting balance or propulsion, loss or loss of use of one lower extremity with loss or loss of use of one upper extremity affecting balance and propulsion, loss or loss of use of both upper extremities to preclude use of arms at or above the elbow, or full thickness or subdermal burns. Although the Veteran has a 100 percent, permanent and total disability, he is not shown to have loss or loss of use of any extremity, blindness, or to otherwise meet or approximate the criteria for specially adapted housing. Where entitlement to specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. This benefit requires that the evidence show permanent and total service-connected disability that either results in blindness in both eyes with 5/200 visual acuity or less, or involves the anatomical loss or loss of use of both hands, or certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). The Board finds that the preponderance of the evidence establishes that the criteria for a special home adaptation grant are not met. Although, as noted, the Veteran has a permanent and total service-connected disability, his service-connected disabilities do not result in blindness in both eyes with 5/200 visual acuity or less, nor do they involve the anatomical loss or loss of use of both hands, certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. Therefore, the criteria for a special home adaption grant are not met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal of these issues must be denied. REASONS FOR REMAND Entitlement to SMC based on the need for aid and attendance is remanded. There is evidence of record supporting that the Veteran may be in need of regular aid and attendance. However, it is unclear whether such need is due to his service-connected disabilities, exclusive of other, non-service-connected disabilities which are shown to greatly impact his ability to function independently. In this regard, relevant reports (i.e. VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance Form) dated in March 2014, December 2015, April 2016, and December 2017, submitted in support of the SMC claim, appear to have considered the impact of both service- and non-service-connected disabilities. Additionally, statements from the Veteran and his wife discuss the impact of his non-service-connected arthritis on his ability to function independently, without discussion of his service-connected disabilities. See, e.g., July 2014 buddy/lay statement; November 2017 Veteran statement. Under the circumstances, the Board finds that the Veteran should be provided an examination to determine whether he requires regular aid and attendance due solely to his service-connected disabilities. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to have the Veteran scheduled for a VA aid and attendance examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should provide a clear opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran is need of regular aid and attendance as a result of functional impairment associated with his service-connected disabilities, without regard to non-service-connected impairments. In particular, the examiner should render specific findings as to whether, in light of his service-connected impairments, the Veteran is able to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he is unable to attend to the wants of nature; and whether he suffers from mental or physical incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. A complete rationale for all opinions should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.