Citation Nr: 21013915 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-34 074 DATE: March 10, 2021 ORDER Service connection for a cervical spine disability is denied. Special monthly compensation (SMC) based on housebound status on the basis of accrued benefits is denied. SMC based on the need for regular aid and attendance on the basis of accrued benefits is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran’s degenerative disc disease (DDD) of the cervical spine was the result of his active duty service; or is otherwise secondary to any of his service-connected disabilities. 2. The Veteran’s service-connected disabilities did not cause him to be housebound. 3. Resolving reasonable doubt in favor of the Veteran, the weight of the evidence supports finding that the evidence of record establishes that the Veteran was in need of regular aid and attendance by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for SMC housebound status have not been met. 38 U.S.C. §§ 1114, 1134, 5107; 38 C.F.R. § 3.102, 3.350, 3.352. 3. The criteria for SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 1134, 5107; 38 C.F.R. § 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1955 to April 1959. He regrettably passed away in November 2014, during the pendency of this appeal. The Veteran’s surviving spouse is the appellant in this case. She additionally filed a substitution request in December 2014. In an April 2015 letter, she was informed that she was a valid substitute for the appeals stemming from the September 2013 rating decision that were on appeal at the time of the Veteran’s death. Since the Veteran’s death, this appeal has come before the Board in October 2018 and more recently in July 2020. The claim was remanded for further development in October 2018, as the Board found that a medical opinion had not addressed the VA examination, with regard to the cervical spine claim. A medical opinion regarding both direct and secondary service connection was obtained in February 2020. However, the July 2020 Board decision explained that the February 2020 examiner had not addressed whether the Veteran’s cervical spine disability was caused or aggravated by any falls he may have had due to his service-connected disabilities. The Board notes that the Veteran’s SMC claim was remanded in both October 2018 and in July 2020, as inextricably intertwined with the service connection claim. See Henderson. West, 12 Vet. App. 11, 20 (1998). A VA addendum opinion was provided in August 2020. The VA examiner provided both direct and secondary opinions, to include an opinion that addressed whether the Veteran’s cervical spine disability was caused or aggravated by any falls he may have had due to his service-connected disabilities. As such, the Board finds that there has been substantial compliance as to the July 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection requires competent evidence showing: (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). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for a cervical spine disability is denied. The Veteran has asserted that his cervical spine disability was due to the 1958 in-service automobile accident; and in the alternative, due to his service-connected disabilities. The Board has reviewed the Veteran’s service treatment records (STRs) and it contains information of the July 1958 automobile accident. The medical officer reported that the car rolled over three times, but the Veteran was not thrown from the car and the accident did not render him unconscious. The medical officer indicated that the only apparent injury was to the lumbar spine, with radiation to the left hip. The Veteran’s separation examination showed a normal clinical evaluation of the spine. The only notes were related to tattoos on the right arm and right leg, hydrocele, and osteochondrosis of the right tibia. The Veteran’s post-service VA treatment records show that he has been diagnosed with DDD of the cervical spine with foraminal stenosis in December 2010. See VA Treatment Record dated November 7, 2012. As such, the Board concedes that the Veteran had a cervical spine disability during the period on appeal. Based on the Veteran’s diagnosed cervical spine disability, a VA medical opinion was provided in February 2020. The examiner provided a negative nexus opinion regarding direct service connection and explained that the STRs were silent for complaints, diagnosis, and treatment of the neck during service. The examiner noted that the post-service medical records showed that he complained of neck pain in 2009 and was diagnosed with cervical spine DDD and stenosis in 2010. The examiner noted the data gap in chronic progressive complaints, diagnosis, and treatment from 1959-2009 and concluded that the Veteran’s neck pain and DDD and stenosis was a new and separate condition that is not related to his service, to include the motor vehicle accident therein. Regarding secondary service connection, the examiner also provided a negative nexus opinion. The examiner reported that the Veteran’s cervical spine disability was not caused or aggravated by the service-connected lumbar spine, right lower extremity radiculopathy, and/or left foot disabilities. The examiner explained that there is no evidence based medical data to support a nexus between a lumbar spine disability, right lower extremity radiculopathy, and/or left foot disabilities to the development of cervical spine DDD and stenosis. However, as previously stated, the July 2020 Board decision found that the February 2020 examiner did not address whether the Veteran’s cervical spine disability could have been caused or aggravated by any falls he may have had due to his service-connected disabilities. An addendum opinion was provided in August 2020. After a review of the record, the examiner provided a negative nexus opinion. The examiner acknowledged the severe fall causing compression fractures of the thoracic spine in 2014 and explained that there were no complaints of neck pain or imaging of the neck at this time, so without speculation, there cannot be a nexus determined that is related to falls causing or aggravating the neck condition. Here, the only competent medical opinions of record, have been provided by the February 2020 and August 2020 VA examiners. The only opinions supporting the Veteran’s and appellant’s assertions are their lay opinions. To the extent that the appellant believes that the Veteran’s cervical spine disability was caused by the in-service automobile accident, or is secondary to any of his service-connected disabilities, such an opinion requires medical expertise to have weight. Such a determination cannot simply be made by lay observation alone; and the appellant is not considered competent (meaning medically qualified by training or experience) to provide the medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The VA examiner’s opinions are afforded great probative weight because they were able to review the Veteran’s claims file and provided a sufficient rationale to explain their opinions. On the other hand, the Veteran’s and the appellant’s lay assertions are afforded little probative weight because they are not medically qualified to provide such a nexus opinion. Without a medical opinion from a medically competent source, the Board cannot resolve reasonable doubt in her favor because the weight of the evidence is not in relative equipoise. The Board would like to express that it is extremely sympathetic toward the appellant’s claim and is deeply appreciative of the Veteran’s military service. The Board acknowledges the appellant’s assertions and does not wish to minimize them; however, the February 2020 and August 2020 VA examiners provided medical opinions that addressed both direct and secondary theories to entitlement. The examiner explained that neither the Veteran’s in-service automobile accident, nor the service-connected lumbar spine disability, left foot disability, or right lower extremity radiculopathy, to include falls due to the service-connected disabilities, caused him to develop or aggravate the cervical spine disability. Unfortunately, the weight of the evidence is against the claim that the Veteran’s cervical spine disability was due to his active duty service or any of the service-connected disabilities. Accordingly, service connection for a cervical spine disability is denied. SMC Housebound SMC is warranted if a veteran’s service-connected disabilities render him housebound. SMC is granted if either a veteran meets the statutory criteria or is housebound in fact. To be statutorily housebound, the veteran must have at least one 100 percent rating and at least one separate and distinct disability independently ratable at 60 percent. The requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime. If a single disability is determined to cause unemployability and the grant of a total disability rating for individual unemployability (TDIU), it qualifies as a total rating even if the underlying rating is less than 100 percent. To qualify for housebound in fact, the veteran must have a 100 percent disability and a factual determination that the veteran is permanently housebound because of service-connected disabilities. The record shows that during the period on appeal, the Veteran was service connected for posttraumatic stress disorder (PTSD) rated at 50 percent, a lumbar spine disability rated at 40 percent, a left foot disability rated at 20 percent, and right lower extremity radiculopathy rated at 20 percent. The Veteran was awarded a TDIU from November 18, 2009, based on both mental and physical disabilities. See Rating Decision dated September 23, 2011. The Veteran’s claim was denied because the agency of original jurisdiction (AOJ) found that the evidence failed to show the criteria for SMC were met on either a statutory or factual basis. Although the Veteran has been assigned a TDIU, he did not meet the statutory requirement because his TDIU rating was not based on a single disability. Further, there has been no assertion that the Veteran was housebound in fact. Neither he, nor the appellant, has, or had, asserted that he was substantially confined to his house or immediate premises due to a service-connected disability or disabilities. See Statement in Support of Claim dated February 7, 2013. As such, the Veteran does not meet the requirements for SMC on a housebound basis. There is no argument to the contrary. Accordingly, the Veteran is not entitled to SMC housebound status based on the statutory criteria or on a facts-found basis. SMC Aid and Attendance The next question is whether the Veteran qualified for SMC based on the need for aid and attendance under 38 U.S.C. § 1114 (l) due to his service-connected disabilities. “Special monthly compensation” is payable to a person who is permanently bedridden or so helpless as a result of service-connected disability that he is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The following will be accorded consideration in determining the need for regular aid and attendance: Inability of a claimant to dress or undress him, 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 (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed himself through loss of coordination of the 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 a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). 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 the veteran 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 veteran is so helpless as to need regular aid and attendance, not that there is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). In February 2013, the Veteran provided a written statement that he needed the aid and attendance of another person for everyday living. He reported that he required his home to be adapted (doors widened, tub replaced, counters adapted when his wheelchair was used). He reported that he had trouble dressing, that he could not button or bend to put on pants or shoes. The Veteran also provided a VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, authored by his private physician. The physician reported that the Veteran was able to feed himself, but could not prepare his own meals because he could not stand, his foot caused him to fall. The physician also reported that he needed help bathing and getting on the toilet. He was also noted to require medication management. He was noted to not have the ability to manage his own financial affairs due to the inability to write checks because he would shake too much, and could not go to the bank because he had fallen on many occasions. The physician reported that the Veteran had a difficult time ambulating and used a cane and had a difficult time bending because of his low back condition. Based on its review of the record, the Board concludes that the criteria for SMC based on aid and attendance were met. Here, the Veteran had a history of falls, related to his service-connected low back, left foot, and right lower extremity disabilities. He also reported that he had trouble dressing himself, specifically his pants, socks, and shoes because he could not bend over, due to his low back condition. Further, his private physician noted that although he could feed himself, he could not prepare his own meals because of the risk of falling. Similarly, the physician found that he needed help bathing and using the bathroom. The physician also noted that the Veteran required medication management. The Veteran was service-connected for PTSD; however, it was unclear if his cognitive decline was due to PTSD. A January 2011 VA medical opinion reported that he may have been showing some cognitive decline, but the examiner was unsure whether it was secondary to long-term excessive alcohol use, depression, or physical deterioration and that further neuropsychological assessment would be necessary to determine the cause. After a review of the post-service treatment records, it does not appear that further neuropsychological assessment was conducted. The Board also notes that the Veteran reported that in addition to using a cane, he started using a wheelchair. The Board is unsure as to whether the Veteran’s cognitive decline is due to his service-connected PTSD. However, the Board notes that it is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board notes that the Veteran was not afforded a VA examination specifically regarding housebound status, or the need for regular aid and attendance. However, there are multiple findings of record which indicate that the Veteran required aid and attendance. To the extent that these symptoms may not be service-connected, and may have contributed to his need for aid and attendance, there is an insufficient basis upon which to dissociate any of those symptoms from his service-connected disabilities. Id. Here, there is one competent examination regarding the need for regular aid and attendance, provided by the Veteran’s private physician. The Veteran was thus shown to have been in the need of regular aid and attendance due to his inability to dress, an inability to prepare meals for himself, and an inability to attend to the wants and needs of nature. Further, the Veteran had a history of falls, due to his service-connected disabilities. Although not all of the disabling conditions, enumerated under 38 C.F.R. § 3.352 (a), have been shown, it is not required. See Turco v. Brown, 9 Vet. App. 222 (1996). (Continued on the next page)   Accordingly, the criteria for SMC based on aid and attendance are shown to have been met. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate 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.