Citation Nr: 21008114 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-62 636 DATE: February 11, 2021 ORDER Whether new and material evidence has been received to reopen the previously denied claim for service connection for high cholesterol is dismissed. Whether new and material evidence has been received to reopen the previously denied claim for service connection for sleep apnea is denied. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a thoracolumbar spine disorder is granted. Entitlement to service connection for a thoracolumbar spine disorder is denied. Whether new and material evidence has been received to reopen the previously denied claim for service connection for hypertension is granted. Entitlement to service connection for hypertension is denied. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a neurological disorder is granted. Entitlement to service connection for a neurological disorder is denied. Whether new and material evidence has been received to reopen the previously denied claim for service connection for headaches is granted. Entitlement to service connection for headaches is denied. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired mental disorder is granted. Entitlement to service connection for an acquired mental disorder is denied. Entitlement to special monthly compensation based on Aid and Attendance (A&A) is denied. Entitlement to special monthly compensation based on housebound status is denied. FINDINGS OF FACT 1. On the transcript of the Board hearing, prior to the promulgation of a decision in the appeal, the Board the Veteran asserted that a withdrawal of the claim of entitlement to service connection for hypercholesterolemia was requested. 2. In an August 2010 rating decision, VA denied service connection for sleep apnea. 3. The evidence associated with the claims file subsequent to the August 2010 rating decision either does not relate to any unestablished fact necessary to substantiate either claim; is cumulative and/or redundant of evidence already of record; and/or does not raise a reasonable possibility of substantiating the claim; the evidence also does not include relevant service department records that existed, but were not of record in August 2010. 4. In an unappealed August 2010 rating decision, VA denied service connection for a thoracolumbar spine disorder; at the time of the August 2010 decision, the evidence did not substantiate a nexus between a current thoracolumbar spine disorder and service. 5. The evidence associated with the claims file subsequent to the August 2010 rating decision relates to that unestablished fact; it is neither cumulative nor redundant of evidence already of record; and it does raise a reasonable possibility of substantiating the claim. 6. A thoracolumbar spine disorder is not related to service. 7. In an unappealed August 2010 rating decision, VA denied service connection for hypertension; at the time of the August 2010 decision, the evidence did not substantiate a nexus between a current disability and service. 8. The evidence associated with the claims file subsequent to the August 2010 rating decision relates to that unestablished fact; it is neither cumulative nor redundant of evidence already of record; and it does raise a reasonable possibility of substantiating the claim. 9. Hypertension is not related to service. 10. In an unappealed August 2010 rating decision, VA denied service connection for a neurological disorder. 11. The evidence associated with the claims file subsequent to the August 2010 rating decision relates to that unestablished fact; it is neither cumulative nor redundant of evidence already of record; and it does raise a reasonable possibility of substantiating the claim. 12. A neurological disorder is not related to service. 13. In an unappealed August 2010 rating decision, VA denied service connection for headaches. 14. The evidence associated with the claims file subsequent to the August 2010 rating decision relates to that unestablished fact; it is neither cumulative nor redundant of evidence already of record; and it does raise a reasonable possibility of substantiating the claim. 15. Headaches are not related to service. 16. In an unappealed August 2010 rating decision, VA denied service connection for an acquired mental disorder; at the time of the August 2010 decision, the evidence did not substantiate a nexus between a current disability and service. 17. The evidence associated with the claims file subsequent to the August 2010 rating decision relates to that unestablished fact; it is neither cumulative nor redundant of evidence already of record; and it does raise a reasonable possibility of substantiating the claim. 18. An acquired mental disorder is not related to service. 19. The Veteran does not have any service-connected disabilities to support a claim of entitlement to Special Monthly Compensation (SMC) on any basis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant regarding entitlement to service connection for hypercholesterolemia are met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.205 (2019). 2. The criteria for reopening or reconsideration of the claim of entitlement to service connection for high cholesterol are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), (b), (c), 3.159 (2019). 3. The August 2010 rating decision is final with respect to entitlement to service connection for sleep apnea. 38 U.S.C. § 7105 (West 2014). 4. The criteria for reopening or reconsideration of the claim of entitlement to service connection for sleep apnea are not met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), (b), (c), 3.159 (2019). 5. The August 2010 rating decision is final with respect to entitlement to service connection for a thoracolumbar spine disorder. 38 U.S.C. § 7105 (West 2014). 6. The criteria for reopening the claim of entitlement to service connection for a thoracolumbar spine disorder are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2019). 7. The criteria for entitlement to service connection for a thoracolumbar spine disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 8. The August 2010 rating decision is final with respect to entitlement to service connection for hypertension. 38 U.S.C. § 7105 (West 2014). 9. The criteria for reopening the claim of entitlement to service connection for hypertension are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2019). 10. The criteria for entitlement to service connection for a hypertension are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 11. The August 2010 rating decision is final with respect to entitlement to service connection for a neurological disorder. 38 U.S.C. § 7105 (West 2014). 12. The criteria for reopening the claim of entitlement to service connection for a neurological disorder are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2019). 13. The criteria for entitlement to service connection for a neurological disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 14. The August 2010 rating decision is final with respect to entitlement to service connection for headaches. 38 U.S.C. § 7105 (West 2014). 15. The criteria for reopening the claim of entitlement to service connection for headaches are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2019). 16. The criteria for entitlement to service connection for headaches are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 17. The August 2010 rating decision is final with respect to entitlement to service connection for an acquired mental disorder. 38 U.S.C. § 7105 (West 2014). 18. The criteria for reopening the claim of entitlement to service connection for an acquired mental disorder are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2019). 19. The criteria for entitlement to service connection for an acquired mental disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 20. The criteria for entitlement to SMC based on the need for A&A are not met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352, 4.2, 4.3, 4.6, 4.10, 4.40, 4.45, 4.59 (2019). 21. The criteria for entitlement to SMC based on housebound status are not met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352, 4.2, 4.3, 4.6, 4.10, 4.40, 4.45, 4.59 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from February 1961 to January 1962. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2020, the Veteran and his daughter presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. The record was held open 90 days to submit additional evidence. A transcript of the hearing is associated with the claims file. The Veteran has claimed entitlement to service connection for a low back (lumbar) disorder and for a high back (thoracic) disorder. As these spinal regions are treated and evaluated together under the General Rating Formula for Diseases and Injuries of the Spine, the Board has recharacterized these claims as entitlement to service connection for a thoracolumbar spine disorder. The Veteran has claimed entitlement to service connection for several mental disorders, to include depression, anxiety, and PTSD. As these symptoms/disorders are treated and evaluated together under the General Rating Formula for Mental Disorders, the Board has recharacterized these claims as entitlement to service connection for an acquired mental disorder. The Veteran has claimed entitlement to service connection for “Neuropathy” and a separate claim for “Neurological conditions.” As these claims could encompass any neurological disorder, the Board has characterized them as a single claim for a neurological disorder, to include pain and tremors. The Board has considered whether a claim of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of any current claim in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the holding in Rice applies only to increased rating claims. Here, there are no service-connected disabilities, and the decision on appeal did not adjudicate entitlement to TDIU. Therefore, the issues is not before the Board on appeal. Please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2019). 38 U.S.C. § 7107(a)(2) (West 2014). Withdrawal of Appeal Whether new and material evidence has been received to reopen the previously denied claim for service connection for high cholesterol. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran has withdrawn this appeal on the record of the Board hearing. The Veteran demonstrated that he had a full understanding of the consequences of withdrawal and the basis for the withdrawal, and he showed clear intent to withdraw. DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011); Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2014). As the appeal has been withdrawn, the Board finds that dismissal is appropriate. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Reopening and New and Material Evidence—Law and Regulations VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For claims to reopen decided prior to February 19, 2019, new evidence is defined as evidence not previously submitted to agency decision makers and material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). To reopen a claim, it is not required that new and material evidence be received as to each previously unproven element of a claim. Where a prior denial was based on lack of current disability and nexus, newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The term “service connection” applies to disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Entitlement to service connection requires (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and (3) medical evidence of a nexus between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Whether new and material evidence has been received to reopen the previously denied claim for service connection for sleep apnea. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a thoracolumbar spine disorder. Whether new and material evidence has been received to reopen the previously denied claim for service connection for hypertension. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a neurological disorder. Whether new and material evidence has been received to reopen the previously denied claim for service connection for headaches. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired mental disorder. In an August 2010 rating decision, VA denied the Veteran’s claim of entitlement to service connection for a low back disorder, an upper back disorder, hypertension, aching joints, shaking tremors, headaches, sleep apnea, and an acquired psychiatric disorder. The Veteran filed a Notice of Disagreement in September 2010. A Statement of the Case was issued in March 2013. However, the Veteran did not perfect the appeal within 60 days of the mailing date of the Statement of the Case. Regarding an acquired psychiatric disorder, the Veteran filed a subsequent claim, which was denied in January 2013. The Veteran disagreed with that decision. Thus, the January 2013 decision is the decision on appeal with respect to an acquired psychiatric disorder. Regarding the remaining claims, the decision on appeal is a July 2014 rating decision, which was timely appealed. Regarding the applications to reopen, the August 2010 rating decision is the last denial prior to the decision on appeal. The evidence received since the August 2010 decision includes records from In-Home Supportive Services, which pertains to the SMC claims. A November 2010 letter from T. Scurry MD includes an opinion linking a diagnosis of PTSD to events that occurred while he was imprisoned for going AWOL. The Board finds that this is new and material evidence regarding the claim of entitlement to service connection for acquired mental disorder. Accordingly, that claim is reopened. A July 2020 letter from F. Graft, MD, addresses a relationship between the Veteran’s thoracolumbar spine disorder, hypertension, aching joints (neuropathy), tremors, headaches, and acquired mental disorder, and his service. Accordingly, the Board finds that this is new and material evidence regarding those claims. For the sleep apnea claim, there is no medical evidence received since the August 2010 VA decision that addresses the claim. At the time of that decision, the evidence did not substantiate a nexus between the current disorder and the Veteran’s service. While the additional evidence addresses the Veteran’s claims of being mistreated while under confinement, these assertions were of record at that time of the August 2010 decision. Accordingly, his reiteration of these assertions is cumulative and redundant of evidence previously of record. New and material evidence has not been received. The July 2020 letter also addresses several issues which are not on appeal, such as metabolic syndrome, COPD, overweight, chronic kidney disease, dermatitis, conjunctivitis, tinea versicolor, BPH, urinary retention, DEEP VEINOUS THROBOSIS, ventral hernia, tobacco abuse, etc. The Board may only address claims that have been adjudicated by the Agency of Original Jurisdiction (AOJ). Except for the issues listed on the title page, the Board does not have jurisdiction to address them. The July 2020 letter also does not constitute a claim for benefits. In addition, the Veteran testified at the Board hearing that he was seeking service connection for neck (cervical spine) pain. This issue was not adjudicated, and his testimony does not constitute a claim. Effective March 24, 2015, VA adopted a standardized claims system. 79 Fed. Reg. 57,660, 57,698 (Sept. 25, 2014). VA deleted 38 C.F.R. § 3.157, which allowed for reports of examination or hospitalization to be treated as claims in certain circumstances, and completely rewrote 38 C.F.R. § 3.155, removing the provisions which allowed for the filing of informal claims. The new version of 38 C.F.R. § 3.155 allows for correspondence from appellants to be treated in one of three ways: 1. A complete claim. A completed VA Form 21-526 or 21-526EZ. This is the only way to initiate adjudication of a claim for compensation and/or pension. See 38 C.F.R. § 3.155(d). 2. Intent to file a claim. This is a formal method by which an appellant can notify VA that he or she intends to file a claim for benefits and will preserve an effective date, so long as a complete claim is received within one year of the receipt of the intent to file a claim. See 38 C.F.R. § 3.155(b). An intent to file claim can be made only in one of the following formats: a. Saved electronic application. Essentially, when an appellant begins to fill out a benefits application through eBenefits, does not complete it, and saves it in the system. See 38 C.F.R. § 3.155(b)(1)(i). b. Filing a VA Form 21-0966. See 38 C.F.R. § 3.155(b)(1)(ii). c. Oral intent communicated to designated VA personnel and recorded in writing. Typically, calling a VA representative who will then document the intent. See 38 C.F.R. § 3.155(b)(1)(iii). 3. Request for an application for benefits. This is any indication of a desire to file benefits by any appellant or authorized party that does not meet the requirements of a complete claim. This encompasses everything that used to be considered an informal claim. VA’s response to such a request is to provide the appellant with a copy of the claim application form. These requests do not preserve an effective date. See 38 C.F.R. § 3.155(a). In sum, the Board finds that reopening of the claims is warranted for entitlement to service connection for a thoracolumbar spine disorder, an acquired mental disorder, a neurological disorder, hypertension, and headaches. As this represents the full benefit sought on appeal with respect to reopening, there is no prejudice resulting from any deficiency in the duties to notify or assist. However, the Board finds that reopening of the claim is not warranted regarding entitlement to service connection for sleep apnea. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Entitlement to service connection for a thoracolumbar spine disorder. Entitlement to service connection for hypertension. Entitlement to service connection for a neurological disorder. Entitlement to service connection for headaches. Entitlement to service connection for an acquired mental disorder. Service treatment records reveal that the Veteran was brought before a special court-marital for multiple incidents of AWOL in August and September 1961 (Record 01/03/2011 at 5). A psychiatric evaluation in December 1961 reveals that the Veteran went AWOL on both occasions to earn money. No psychiatric disease was found (Record 01/03/2011 at 43). In January 1962, the Veteran was sentenced to hard labor confinement for six months for AWOL (Record 01/03/2011 at 2). A report of medical examination performed on January 3, 1962 (service separation) reveals normal findings for the spine, neck, vascular system, lower extremities, upper extremities, feet, neurologic functioning, throat, and psychiatric functioning. The Veteran’s blood pressure was 120/80. A physical profile rating was assessed at service separation (PULHES). The Veteran was assigned a rating of “1” at all levels (Record 05/26/2009 at 13). Under PULHES, the P stands for physical capacity or stamina. This factor normally includes conditions of the heart; respiratory system; gastrointestinal system, genitourinary system; nervous system; allergic, endocrine, metabolic and nutritional diseases; diseases of the blood and blood forming tissues; dental conditions; diseases of the breast, and other organic defects and diseases that do not fall under other specific factors of the system. The U stands for upper extremities. This factor concerns the hands, arms, shoulder girdle, and upper spine (cervical, thoracic, and upper lumbar) in regard to strength, range of motion, and general efficiency. The L stands for lower extremities. This factor concerns the feet, legs, pelvic girdle, lower back musculature and lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency. The H stands for hearing and ears. This factor concerns auditory acuity and disease and defects of the ear. The E stands for eyes. This factor concerns visual acuity and diseases and defects of the eye. The S stands for psychiatric. This factor concerns personality, emotional stability, and psychiatric diseases. The rating of 1 indicates that an individual possesses a high level of medical fitness and, consequently, is medically fit for any military assignment. See 9–3(c)(1) Army Regulation 40–501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (Record 05/26/2009 at 13). A report of medical history completed by the Veteran on January 3, 1962, reveals the Veteran’s statement that “my present health is fine.” The Veteran reported that he had no history of, or current, painful joints, frequent or severe headache, shortness of breath, higher or low blood pressure, arthritis, joint deformity, trouble sleeping, depression or excessive worry, or nervous trouble of any sort. He reported that he had never been a patient in a mental hospital, had never had any illness or injury other than those already noted, and had not consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years (Record 05/26/2009 at 11). The Veteran was discharged from active duty service on January 17, 1962. He filed his initial claim for service connection in December 2006, more than 40 years after Service separation. At that time, he claimed a Neurological Condition - Parkinson’s. The Veteran then filed a claim in June 2010, which encompassed all of the issues currently before the Board. A November 2010 from T. Scurry, MD states that she began treating the Veteran in October 2010 for depression, chronic PTSD, and alcohol dependence. She stated that the Veteran has suffered from PTSD for many years as the result of a near fatal beating he suffered while in the stockade stateside. He reported nightmares, flashbacks, reliving, poor sleep, depression, irritability, avoidant behavior, and difficulty interacting with others. He reported that his drinking began as a result of this horrific treatment in the service. Currently, the Veteran is receiving treatment for his PTSD in the form of psychiatric medications and plans to attend trauma education and depression management groups shortly. In Dr. Scurry’s opinion, the Veteran has suffered greatly from the events that occurred in the service and should be granted a service connected pension for his PTSD (Record 11/19/2010). A June 2012 VA PTSD Examination reveals a diagnosis of PTSD, and an opinion relating the diagnosis of PTSD to the Veteran’s incarceration during his service (Record 06/22/2012). A July 2020 opinion from F. Graf, MD, relates the Veteran’s back disorder to an alleged injury during basic training, and additional unspecified injury during military service. The opinion also related hypertension, neuropathy, tremors, and PTSD to service, as well as headaches. The Veteran described an injury to his low back during basic training and being taken to hospital. Dr. Graf stated the Veteran’s “military records document severe physical abuse” (Record 10/09/2020). An August 2020 letter from Q. Small, Ph.D. opines that the Veteran’s mental disorder is related to his imprisonment for AWOL in service, and incorrectly states that a mental disorder is “already determined service connected” (Record 10/09/2020). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for the claimed thoracolumbar spine disorder, hypertension, neurological disorder, headaches, and acquired mental disorder are not met. Most of the Veteran’s claims are based on his claimed exposure to harsh treatment while incarcerated during his active duty service. Dr. Scurry’s November 2010 opinion, and the June 2012 VA opinion are based on this episode. Dr. Graf based the opinion regarding the low back, in part, due to an injury during basic training. This will be addressed in greater detail below. However, he related hypertension, neuropathy, tremors, and PTSD to the Veteran’s incarceration. Dr. Small also related the Veteran’s mental disorder to his treatment while incarcerated. Service connection is established for disability resulting from an injury suffered in the line of duty, but no compensation shall be paid if the disability is the result of the veteran's own willful misconduct. 38 U.S.C. § 1131; see also 38 U.S.C. § 105; C.F.R. § 3.301. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n)(2). Willful misconduct will not be determinative unless it is the proximate cause of the injury. 38 C.F.R. § 3.1(n)(3). Here, the Veteran was incarcerated for being AWOL on two separate occasions. The alleged basis for his AWOL was that he needed to earn money. While he claims this was to help his wife, this does not excuse his dereliction of duty. The Board finds that the fact that he was incarcerated for his misconduct is probative evidence that it was not a mere technical violation of police regulations or ordinances, but was a persistent pattern of misconduct. In essence, the Veteran’s willful misconduct placed him in the position where the alleged abuse occurred. A finding of willful misconduct is not a determination against the character of discharge, which is the province of the service organization. Willful misconduct is an independent basis under VA law for a determination that benefits are not warranted. The Board makes no finding regarding the alleged abuse while he was incarcerated, as such a finding is not necessary under the circumstances in this case. Direct service connection for the Veteran’s current psychiatric disorder is barred as a matter of law, as the Veteran’s diagnosed psychiatric disorder is the result of his own willful misconduct. 38 C.F.R. § 3.301(a). Even acknowledging the medical evidence linking a diagnosis of PTSD to the Veteran’s time under incarceration, the Veteran was incarcerated due to his willful misconduct. Therefore, service connection is not warranted for any disability resulting from this misconduct. As noted above, most of the remaining claims are based on the Veteran’s experience under incarceration, or on the mental disorder claim. The Veteran testified that his hypertension was due to his mental disorder. To that extent, those claims are invalid as service-connected is not warranted for any mental disorder. Regarding direct service connection, the Veteran has asserted that his thoracolumbar spine disorder is due to an injury during basic training. The Board has also considered whether the service treatment records reflect an injury or disease during service that might support any of the claims raised by the Veteran. As noted above, service treatment records reveal no treatment for any back injury at any time during service. More significant, the Veteran’s spine was clinically normal at service separation, and was assigned the highest physical profile rating. The Veteran denied any history of, or current painful joints. In contrast with his post-service assertion that he was hospitalized for back pain, he stated at service separation that he had not consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years. This well encompasses his period of service. In weighing the conflicting statements provided by the Veteran, the point in time in which the statement was made is important because a description of an event which is closer to the time that event allegedly occurred is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the contemporaneous nature of the statement of medical history at discharge is significant. It is also bolstered by the normal examination findings recorded at that time. Furthermore, because that account was presented in the context of routine medical evaluation, it seems likely that he would report events carefully and accurately. The “medical diagnosis or treatment” exception to the hearsay rule (Fed. R. Evid. 803) provides that “statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care.” Recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans’ Appeals’ reasons. Rucker v. Brown, 10 Vet. App. 67 (1997). There is no question that the Veteran is competent to relate events as he remembers them. Thus, his competency is not at issue with regard to recounting the events of service. Rather, it is the accuracy of the Veteran’s recent account which the Board finds is lacking. Simply put, the report of medical history at separation from service is more convincing than the Veteran’s later statements made in support of a claim for monetary benefits, because that report is contemporaneous to service and was not related more than 40 years later, as was the assertion made in the context of the current claim. The Veteran testified that his neurological disorder was secondary to his back disorder. As service-connected is not warranted for a back disorder, a secondary service connection claim cannot be substantiated. The Veteran testified that his headaches began in service. However, the service separation examination reveals normal findings for the head (headaches). More significantly, the Veteran reported that he had no history of, or current, frequent, or severe headaches. For reasons stated above, in the context of his statements regarding a back injury, this contemporaneous evidence is more persuasive than statements 40 years after service. Regarding the other claims, the service separation examination reveals normal findings for the vascular system (hypertension), lower extremities, upper extremities (aching joints), neurologic functioning (neurological disorder), and psychiatric functioning (mental disorder). The report of medical examination at service separation is probative and persuasive evidence that the Veteran did not incur any of the claimed disorders while in service. The report of medical history at service separation is probative and persuasive evidence that the Veteran believed his health was fine, that he had no history of, or current, painful joints, frequent or severe headache, higher or low blood pressure, arthritis, joint deformity, depression or excessive worry, or nervous trouble of any sort. Based on these findings, the Board concludes that there was no injury or disease in service regarding the thoracolumbar spine, hypertension, aching joints, tremors, headaches, or a mental disorder. Accordingly medical opinions are not necessary regarding these claims. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The medical opinions submitted by the Veteran regarding a mental disorder and a thoracolumbar spine disorder are clearly contradicted by the service records, which show that he had no such disorders at service separation, and that he had not been hospitalized or treated in any way for a thoracolumbar spine disorder, and that his claims regarding the mental disorder were due solely to his willful misconduct. In a letter received at the Board in May 2020, the Veteran’s attorney requested information regarding VA examiners credentials to be sent to her before the appeal is adjudicated so that she could seek additional evidence from the Veteran’s private examiners as necessary (Record 05/14/2020). In Francway v. Wilkie, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, although there is a presumption of competency applicable to VA examiners, this presumption is narrow and does not survive a challenge. If a veteran requests information regarding an examiner’s qualifications, VA must, absent unusual circumstances, provide information concerning the examiner’s qualifications as part of the duty to assist. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2010). In this case, however, the Board finds that obtaining the credentials of the VA examiners are not warranted because, as described above, the denial of the benefits sought does not turn on the merits of the VA medical opinion; but rather the Veteran’s own willful misconduct. In sum, the Board finds that the claimed thoracolumbar spine disorder, hypertension, neurological disorder, headaches, and mental disorder are not related to service. In light of these findings of fact, the Board concludes that service connection for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. SMC—Law and Regulations Special monthly compensation is payable at a specified rate if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot; or is blind in both eyes, with visual acuity of 5/200 or less; or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2019). The criteria for determining that a veteran is so helpless as to be in need of “regular aid and attendance” are contained in 38 C.F.R. § 3.352(a) (2019). Those criteria include: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a) Being “bedridden” will also be a proper basis for finding that a veteran is in need of regular aid and attendance. The term “bedridden” means a condition which, through its essential character, actually requires that the claimant remain in bed. However, the fact that someone 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 is not sufficient. Special monthly compensation is payable at a specified rate if a veteran under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i). With regard to the permanently housebound requirement, this is met where a veteran is substantially confined as a direct result of a service-connected disability to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinic areas, and it is reasonably certain that the disability or disabilities and resulting confinement will continue throughout his or her lifetime. Id Entitlement to special monthly compensation based on A&A. Entitlement to special monthly compensation based on housebound status. All types of SMC require that entitlement be based on service-connected disabilities. Where there are no service-connected disabilities, SMC is prohibited as a matter of law. In this case, the Veteran has no service-connected disabilities. Accordingly, the claims must be denied as lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.