Citation Nr: 21007194 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-56 662 DATE: February 8, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as due to asbestos exposure, for substitution or accrued benefits purposes is denied. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status, for substitution or accrued benefits purposes is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that COPD began during active service, or was otherwise related to an in-service injury or disease to include any exposure to asbestos. 2. The Veteran was not in need of regular aid and attendance on account of service-connected disability and he was not entitled to SMC (housebound rate) because he did not have at least one disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more, and he was not shown to be permanently housebound by reason of service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for COPD including as due to asbestos exposure, for substitution or accrued benefits purposes, are not met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for special monthly compensation, for substitution or accrued benefits purposes, are not met. 38 U.S.C. §§ 1114 (l), (s); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1960 to July 1962. He died in January 2013 while the above claims were pending. His surviving spouse, the appellant, was properly substituted as the claimant for his pending claim. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board remanded this case to the AOJ in March 2020 for additional development. On remand, the AOJ granted service connection for tinnitus and service connection for hearing loss for substitution and/or accrued benefits purposes. See September 2020 and October 2020 rating decisions. Thus, those issues are no longer on appeal and before the Board. Also, on remand, the AOJ took action to substantially comply with the Board remand directives; the remaining issues on appeal have been returned to the Board for appellate review. 1. Entitlement to COPD The appellant contends that the Veteran’s COPD was caused by exposure to asbestos. The Veteran’s military occupational specialty (MOS) was a medical specialist. The Board notes that the Veteran had a duty assignment with the engineering core. Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s VA treatment records indicates that the Veteran had a diagnosis of COPD. The Veteran’s service treatment records do not indicate any diagnosis, treatment, symptom, or complaint of any breathing condition to include COPD. In March 2020, the appellant’s representative argued that the appellant contends that the Veteran was exposed to asbestos while in service. The appellant noted that asbestos exposure was a known consequence with engineer duties due to asbestos being the primary ingredient within brake pads and thermal insulation applications. The appellant explained that the friction-caused brake dust is especially dangerous due to inhalation of microscopic asbestos fiber dust. In June 2020, VA issued a formal finding as to the likelihood the Veteran was exposed to asbestos in service. VA requested asbestos related records from the National Personnel Records Center (NPRC). Records received from NPRC were review and the formal finding noted that the Veteran’s MOS was a medical specialist. VA requested information from the appellant and her representative related to any exposure to asbestos. No response was provided. The formal finding concluded that based on the Veteran’s MOS, the likelihood to exposure to asbestos was minimal. In November 2016, the Veteran’s daughter stated that the Veteran had rheumatic fever as a child. She stated that the Veteran’s lungs were compromised prior to entering service and that his lungs were compromised. The Veteran’s daughter stated that his service aggravated his lungs. The Board finds that Veteran had a current disability of COPD. The Board finds that there was no in-service event, injury, or illness which occurred that is related to the Veteran’s COPD. The evidence in the record does not indicate the Veteran had any lung or respiratory issues while in service. Further, VA found that the likelihood the Veteran was exposed to asbestos was minimal. The Board takes note of the appellant’s argument that the Veteran served with an engineer unit. However, the Veteran was a medical specialist and there is no evidence that the Veteran was exposed to any asbestos. Further, the Board finds that the Veteran’s daughter’s statement that the Veteran had compromised lungs and his service aggravated his lungs is not competent. The record does not reflect that the Veteran’s daughter has the requisite medical training or credentials to be able to render a competent medical opinion concerning whether diagnosed COPD was related to the Veteran’s service. The issue is medically complex, as it requires knowledge of the pulmonary system and interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms) Therefore, the Board finds that service connection for COPD for substitution and/or accrued benefits purposes must be denied. Regarding a VA medical opinion for the Veteran’s COPD, in disability compensation claims, VA must provide a VA medical examination/opinion when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran’s active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case there is no evidence of an in-service injury or event that would cause the claimed COPD. Therefore, despite the low bar set by McLendon, a VA opinion is not warranted. 2. Entitlement to SMC Special monthly compensation is payable if, as the result of service-connected disability, the Veteran is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). SMC benefits by reason of being housebound are payable if the Veteran has a single disability rated as 100 percent disabling, and has either an 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. § 3.350 (i). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime. Id. Determinations as to need for aid and attendance based on service-connected disability must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of claimant to dress or undress himself or to keep himself 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; inability of 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. “Bedridden” will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. 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 which the claimant is unable to perform should be considered in connection with his 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). Service connection has been established for bilateral hearing loss (rated 20 percent) effective June 21, 2012 and tinnitus (rated 10 percent) effective June 21, 2012, for substitution and/or accrued benefits purposes. See September 2020 and October 2020 rating decisions. The Veteran’s combined disability rating was 30 percent from June 21, 2012. During the Veteran’s lifetime, he had not established any other service-connected disabilities; the claims for service connection for hearing loss and tinnitus had been pending before VA at the date of the Veteran’s death. The critical question to be determined in this case is whether the Veteran’s service-connected disabilities resulted in the need for regular aid and attendance of another person because of resultant helplessness due to mental and/or physical impairment. Affidavits submitted by a home in-service aid company indicates demonstrate that from June 20112 to October 2012 the Veteran received services of in-home personal care. The company indicated they provided assistance with bathing, standing and sitting; getting in and out of bed; eating; walking; dressing and undress; and taking medication. The Veteran’s VA treatment records include an October 2012 home-health aid initial assessment. The Veteran reported that he was unable bathe, dress, or transfer himself. The Veteran had an aide come 2 to 3 times a week to help him bathe and do housekeeping. The Veteran was able to walk on his own with a cane or walker. The Veteran did not drive, shop, or do housekeeping. Based on its review of the record, the Board concludes that the criteria for a SMC have not been met. The Board finds that the Veteran’s service-connected hearing loss or tinnitus did not result in the need for regular aid and attendance of another person because of resultant helplessness due to mental and/or physical impairment. Although the evidence shows that the Veteran required assistance, to include assistance with bathing, standing and sitting; getting in and out of bed; eating; walking; dressing and undress; and taking medication, this is not shown to be due to impairment from service-connected hearing loss or service-connected tinnitus, the Veteran’s only service-connected disabilities. Hearing loss and tinnitus were not shown to restrict such activities. SMC based on the need for aid and attendance, requires a finding that the service-connected disabilities cause very specific types of limitations; the evidence of record indicates that to the extent that the Veteran had these specific limitations they were due to non-service connected disabilities. As such, the evidence of record weighs against a finding that the service-connected hearing loss and tinnitus resulted in one of the enumerated factors needed for an award of SMC based on a need for regular aid and attendance. The Board has also considered entitlement to SMC pursuant to 38 U.S.C. § 1114 (s); however, the criteria have not been met. SMC provided by 38 U.S.C. § 1114 (s) is payable where the Veteran has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently rated as 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 by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350 (h)(3)(i)(1)(2). As indicated above, the Veteran’s hearing loss was rated 20 percent disabling, tinnitus was 10 percent disabling. The Veteran did not have any other service-connected disability or disabilities independently rated 100 percent and 60 percent. 38 C.F.R. § 4.25. In light of these factors, the Veteran was not eligible for SMC under 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350, as a matter of law. Further, the evidence does not indicate that the Veteran was substantially confined to his dwelling and the immediate premises due to either service-connected disability. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the appellant’s claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.