Citation Nr: A21020034 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 190727-42004 DATE: December 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for tremor is denied. Entitlement to service connection for dementia is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status is denied. FINDINGS OF FACT 1. The evidence of record does not indicate that the Veteran has a current bilateral hearing loss disability for VA purposes. 2. The evidence of record does not indicate that the Veteran has a current tinnitus disability for VA purposes. 3. The evidence of record does not indicate that the Veteran has a current hypertension disability for VA purposes. 4. The evidence of record does not indicate that the Veteran has a current tremor disability for VA purposes. 5. The evidence of record does not reflect an in-service event, injury, or incurrence for which to relate the Veteran's diagnosed dementia. 6. The Veteran is not service-connected for any disability; VA regulations do not provide for SMC when there are no service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for bilateral tinnitus have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for tremor have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for dementia have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. The criteria for entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status have not been met. 38 U.S.C. § 1141(s); 38 C.F.R. §§ 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Air Force from November 1948 to September 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Agency of Original Jurisdiction (AOJ) denied the Veteran's service connection claims, which the Veteran timely appealed under the modernized review system of the Appeals Modernization Act (AMA) directly to the Board. The Veteran requested a hearing with a Veterans Law Judge, with the opportunity to submit additional evidence in support of his appeal within 90 days after the hearing. However, in a July 2021 correspondence, the Veteran's representative notified VA that the Veteran would be unable to attend the scheduled hearing due to his dementia with Alzheimer's and directed that the hearing be cancelled. Therefore, the Board notes that due to the cancellation, the Board's decision will be based on a review of the evidence of record and any evidence submitted by the Veteran within 90 days following receipt of the hearing withdrawal. 38 C.F.R. § 20.302(b). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. The Veteran contends that he currently has bilateral hearing loss and bilateral tinnitus that are directly related to his active duty service. Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Certain "chronic diseases" may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). As an initial matter, the Board notes that the Veteran's service treatment records (STRs) are unavailable for review, and all efforts by the VA to obtain such records were deemed unsuccessful. Additionally, the National Personnel Records Center (NPRC) of St. Louis Missouri reported that the records may have been destroyed in a fire at the Records Center in 1973, and NPRC could not confirm the existence of such records. Moreover, in a March 2019 correspondence sent to the Veteran, VA requested the Veteran to complete the enclosed NA Form 13055 so that a more thorough request search may be made, however, to date, the Veteran has not completed such form. The Board further notes that the Veteran was scheduled a VA examination to assess the current nature and etiology of his claimed conditions. However, a review of the file reflects the Veteran cancelled these examinations without good cause. Therefore, the claim will be considered based on the evidence of record. 38 C.F.R. § 3.655. After a review of the evidence of record, the Veteran does not have a current bilateral hearing loss and/or bilateral tinnitus disability for VA purposes. The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The record is void of any medical evidence for review regarding any treatment or diagnosis of a bilateral hearing loss or bilateral tinnitus disability at any time since or proximate to when the Veteran filed the present claim. Therefore, the Board finds that in the absence of a confirmed diagnosis of a bilateral hearing loss or bilateral tinnitus disability or symptoms arising to the level of functional impairment related to the Veteran's ears, either during or post service, service connection for that disability cannot be established. As previously noted, there is no objective medical evidence of a current bilateral hearing loss or bilateral tinnitus disability since the Veteran filed his claim. Moreover, the evidence of record does not show that there is any reported ear pain, to include pain that amounts to a functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The record is essentially void of competent and credible medical evidence of a current disability. As such, the Board concludes that the preponderance of the competent evidence of record is against the Veteran's claims, and service connection for bilateral hearing loss and bilateral tinnitus is not warranted; and the claims are denied. While the Veteran believes he has a bilateral hearing loss and/or bilateral tinnitus disability he has not shown to have the requisite medical knowledge and expertise to be deemed competent to provide any diagnoses in this case. The issue of providing a diagnosis is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He has not provided, nor does the claims file include, evidence of a current disability upon which to grant the claims. In reaching its determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for tremor. The Veteran contends that he currently has hypertension and tremors that are directly related to his active duty service. Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Certain "chronic diseases" may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). As previously noted, NPRC informed VA that the Veteran's STRs may have been destroyed in a fire at the Records Center in 1973, and NPRC could not confirm the existence of such records. The Veteran has not completed and returned NA Form 13055 so that a more thorough request to search for the missing records could be undertaken. After a review of the evidence of record, the Veteran does not have a current hypertension and/or tremor disability for VA purposes. The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The record is void of any medical evidence for review regarding any treatment or diagnosis of hypertension or a tremor disability at any time since or proximate to when the Veteran filed the present claim. Therefore, the Board finds that in the absence of a confirmed diagnosis of hypertension and/or tremor disability or symptoms arising to the level of functional impairment related to the Veteran's hypertension and/or tremor, either during or post service, service connection for that disability cannot be established. As previously noted, there is no objective medical evidence of a current hypertension or tremor disability since the Veteran filed his claim. Moreover, the evidence of record does not show that there is any reported hypertension or tremor pain, to include pain that amounts to a functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The record is essentially void of competent and credible medical evidence of a current disability. As such, the Board concludes that the preponderance of the competent evidence of record is against the Veteran's claims, and service connection for hypertension and tremor is not warranted; and the claims are denied. While the Veteran believes he has hypertension and/or a tremor disability he has not shown to have the requisite medical knowledge and expertise to be deemed competent to provide any diagnoses in this case. The issue of providing a diagnosis is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He has not provided, nor does the claims file include, evidence of a current disability upon which to grant the claims. In reaching its determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). 5. Entitlement to service connection for dementia. The Veteran contends that he currently has dementia that is directly related to his active duty service. Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). The record reflects the Veteran has a current diagnosis of dementia, as shown in a credible June 2018 VA examination for housebound status or permanent need for regular aid and attendance. However, the record does not reflect, or otherwise suggest, an in-service event, injury/disease, or incurrence for which to relate the Veteran's dementia to. Therefore, as the Veteran has not provided any in-service event, injury, or incurrence for which to relate his condition to, the Board finds that the preponderance of the evidence of record is against the Veteran's claim; and the claim is denied. To the extent the Veteran's lay statements assert that his dementia is related to his active duty service, the Board finds that a lay person is not competent to opine as to medical etiology or render medical opinions. Additionally, the Veteran has not demonstrated that he has the requisite specialized knowledge and training to provide a medically complex opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching its determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). 6. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound. The Veteran contends that SMC is warranted based on housebound status and/or his need for regular aid and attendance. Regarding housebound status, under 38 U.S.C. § 1114(s), SMC is payable if the Veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound due to service-connected disability or disabilities. The second requirement is met when the Veteran is substantially confined, as a direct result of service-connected disabilities, to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Regarding aid and attendance, SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, is bedridden or so helpless as to be in need of regular aid and assistance. 38 U.S.C. § 1114(1); 38 C.F.R. § 3.350(b). Aid and attendance is appropriate if the record establishes a factual need for the benefits under the criteria set forth in 38 C.F.R. § 3.352(a). The criteria to establish a factual need for aid and attendance are listed under 38 C.F.R. § 3.352(a). Aid and attendance is warranted if the following criteria are met: the inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any specific prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include adjustment of appliances which normal persons would be unable to adjust without such aid, such as supports, belts, lacing at the back, etc.); the inability of a claimant to feed himself through loss of coordination of 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 the claimant from hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. A review of the record reveals the Veteran is not service connected for any disability. As noted above, entitlement to SMC requires that any condition described be due to a service-connected disability. While the Board acknowledges that the evidence clearly establishes that the Veteran is in need the aid and attendance of another person in order to safely or adequately perform most all activities of daily living (see A Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, August 2018), it does not establish that this need is the result of service-connected disabilities. (Continued on the next page) Therefore, there is no legal basis for the Veteran's SMC, and therefore, SMC must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.