Citation Nr: 21013432 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-24 564A DATE: March 9, 2021 ORDER Service connection for torticollis, claimed as secondary to spondylolisthesis L4-5 with degenerative disc disease (a low back disability) is denied. Special monthly compensation (SMC) based on the Veteran’s need for aid and attendance is denied. FINDINGS OF FACT 1. The Veteran’s diagnosed torticollis was not etiologically related to her service-connected low back disability. 2. The Veteran was not blind, or nearly blind, was not institutionalized, or in a nursing home on account of physical or mental incapacity due to her service connected disabilities, and did not need or rely on the aid and assistance of another person to perform the routine activities of daily living. CONCLUSIONS OF LAW 1. The criteria for service connection for torticollis, secondary to the service-connected low back disability, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). 2. The criteria for entitlement to SMC based on the Veteran’s need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 1115, 5107(2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to December 1977 and from August 1979 to February 1980. Unfortunately, she died in September 2016. The appellant is her surviving adult daughter and has been properly substituted as claimant in the claim addressed herein. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this case has a complicated procedural history. For clarity, the Board will briefly summarize herein the relevant procedural history. At the time of her September 2016 death, the Veteran, in pertinent part, had a pending appeal as to the issues of entitlement to service connection for torticollis and SMC based on the Veteran’s need for aid and attendance. In December 2016, H.M. requested to be recognized as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. In a January 2017 decision, the RO recognized H.M. as the substitute claimant. In March 2017, the Veteran’s surviving adult daughter, the appellant, also requested to be recognized as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. In an August 2018 decision, the Board remanded the issue of entitlement to recognition of the appellant as substitute claimant, to include whether VA’s recognition of H.M. as substitute claimant was proper. The Board also found that the Veteran’s pending claims on appeal were intertwined with this substitution issue, and remanded the pending claims on appeal. In a May 2020 decision, the RO recognized the appellant as the substitute claimant to continue the Veteran’s pending claims on appeal to completion, thereby removing H.M. as the substitute claimant. That same month, H.M. appealed this decision. In a separate decision, the Board has found that H.M. is not entitled to recognition as the substitute claimant to continue the Veteran’s pending claims on appeal to completion. Therefore, the present appeal is no longer considered a contested claim. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for torticollis, claimed as secondary to a low back disability. The appellant contends that the Veteran had a diagnosis of torticollis that was etiologically related to her service-connected low back disability. As an initial matter, the Veteran had a diagnosis of torticollis during the pendency of this appeal. See December 2012 and March 2014 VA treatment records. Turning to the issue of etiology, the Veteran was afforded a VA examination in December 2013. The VA examiner opined that the Veteran’s torticollis was less likely than not proximately due to or the result of the Veteran’s service-connected low back disability. The VA examiner explained that the Veteran had been diagnosed with torticollis in December 2012 and that the torticollis resolved without residuals. The VA examiner further explained that, per literature review, torticollis is a testing of the neck to one side that results in abnormal carriage of the head and is usually caused by muscle spasms. Lumbar spondylolisthesis is forward displacement of one of the lower lumbar vertebrae over the vertebra below it or over the sacrum and is usually associated with degenerative joint disease. The VA examiner noted that the cervical spine is anatomically separate from the lumbar spine, and there is no clinical, medical, or significant research to support the Veteran’s contention that her claimed torticollis was secondary to her spondylolisthesis condition. Thus, the VA examiner concluded that the torticollis was less likely than not proximately due to or the result of the Veteran’s service-connected low back disability. The Board finds this nexus opinion to be adequate and highly probative, as it included a thorough discussion of the Veteran's medical history and a detailed rationale. The remaining evidence of record, to include post-service private and VA treatment records, does not suggest that the Veteran's torticollis was etiologically related to, or aggravated by, the Veteran's service-connected low back disability. Neither the Veteran, prior to her death, nor the appellant has not submitted any medical evidence in support of a nexus. For these reasons, the Board finds that the competent and probative evidence of record does not establish a link between the Veteran's diagnosed torticollis and her service-connected low back disability. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to SMC based on the Veteran’s need for aid and attendance. VA's governing laws and regulations direct that special monthly compensation at the aid and attendance rate is payable by reason of the Veteran being helpless or so nearly helpless that she requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502(b); 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, the Veteran must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. §§ 3.351(c). Determinations as to a factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the inability to dress and undress, the inability to keep ordinarily clean and presentable, the inability to feed oneself through loss of coordination of the upper extremities or through extreme weakness, or the inability to attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). Bedridden is defined as a condition that, through its essential character, actually requires that the veteran remain in bed. The fact that the Veteran 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 will not suffice. 38 C.F.R. § 3.352(a). The particular personal functions which the Veteran is unable to perform should be considered in connection with her condition as a whole. The evidence need only establish that she is so helpless as to need regular aid and attendance, not constant need. Determinations that she is so helpless as to need regular aid and attendance will not be based solely upon an opinion that her condition requires her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The Veteran must be unable to perform one of the enumerated personal functions, but her condition does not have to manifest in an inability to perform all the enumerated personal functions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The Veteran was in receipt of service connection for a low back disability and bilateral lower extremity radiculopathy. The Veteran was neither blind nor nearly blind, and was not a patient in a nursing home or bedridden due to her service-connected disabilities at any point during the pendency of this appeal. See March 2016 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, received by VA in April 2016. Therefore, the facts must establish that the Veteran was in need of aid and attendance in order to establish eligibility for SMC benefits. Turning to the evidence, September 2013 VA treatment records indicated that the Veteran reported falling while in the tub due to slippery surfaces, so VA had a walk-in bathtub installed in her home. A November 2013 VA treatment record indicated that VA had a stair glide installed in the Veteran’s home as she demonstrated decreased ability to safely navigate stairs due, in part, to her low back disability. An October 2014 VA treatment record indicated that the Veteran reported that carrying heavy grocery bags had aggravated her back pain. She reported inability to ambulate, clean, and “eat properly.” However, the treating physician noted that the Veteran had been observed walking to the bathroom without any issues. A September 2015 VA treatment record indicated that the Veteran reported having three falls in the past month. The March 2016 VA Form 21-2680, completed by the Veteran’s treating physician, indicated that she had non-service connected diagnoses of fibromyalgia and cervical degenerative joint disease, as well as her service-connected low back disability. The physician indicated that the Veteran’s neck and shoulder pain restricted her abilities and functioning. The Veteran was able to feed herself, but had difficulty standing to prepare her meals. She had difficulty with bathing, putting on clothes, carrying heavy loads such as groceries and laundry. She sometimes used a cane for support due to her low back pain. She was able to ambulate without much difficulty. The Board finds this opinion to be highly probative, as it was based on examination of the Veteran, considered the Veteran’s lay statements, and specifically addressed whether the Veteran regularly needed the aid and attendance of another to conduct numerous activities. After a review of the evidence, both lay and medical, the Board finds that the Veteran did not have a factual need for aid and attendance due to her service-connected disabilities. While there is some evidence that the Veteran had difficulty with basic activities of daily living, including dressing, preparing meals, bathing, and carrying heavy loads, the evidence does not reflect that the Veteran was unable to do these things. To the contrary, the March 2016 VA Form 21-2680 reflected that the Veteran was able to ambulate well, feed herself, keep herself clean and presentable, and attend to the wants of nature, and this evidence is considered highly probative. For these reasons, the Board finds that the weight of the evidence supports a finding that the Veteran did not have a factual need for the aid and attendance of another due to her service connected disabilities. Therefore, the claim for SMC based on the Veteran need for aid and attendance is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED