Citation Nr: 21022032 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-19 946A DATE: April 14, 2021 ORDER Service connection for a back disability is denied. Special monthly compensation (SMC) based on the need for aid and attendance or at the housebound rate is denied. FINDINGS OF FACT 1. The Veteran does not have a back condition that began in or was otherwise caused by his active military service. 2. The Veteran is not shown to be in need of regular aid and attendance, or permanently housebound, by reason of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for special monthly compensation (SMC) based on the need for aid and attendance or at the housebound rate have not been met. 38 U.S.C. §§ 1114, 1502, 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 January 1988 to January 1992. He was scheduled for a VA videoconference hearing September 2017. However, in August 2017, the Veteran withdrew his request for a hearing. The Board will therefore proceed. See 38 C.F.R. § 20.702 (e). In February 2018, the Board remanded these claims for additional development. 1. Service connection, back disability. The Veteran asserts that he is entitled to service connection for a back disability, which he believes is the result of a fall of approximately six to seven feet from a helicopter. The Veteran reported that he has experienced ongoing back symptoms since his service, and that he intermittently sought treatment with private chiropractors following separation from service, without pain relief, until he started receiving treatment through VA in 2011. See Veteran’s statement in support of claim (VA Form 21-4138), received in January 2011; Veteran’s statement, received in September 2011; Informal Hearing Presentation, received in March 2021. In January 2011, the Veteran filed informal claims for service connection for a back condition, “fanny bone,” and “spinal cord.” See Veteran’s statement in support of claim (VA Form 21-4138), received in January 2011 (accepted as informal claim for service connection). In June 2011, he filed formal claims. See Veteran’s claim (VA Form 21-526), received in June 2011. In July 2012, the RO denied the claims. The Veteran has appealed. The Board has interpreted the Veteran’s claim broadly, as stated on the cover page of this decision. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Arthritis can be service connected on such a basis. The Veteran’s service treatment records show that in July 1989, he reported falling six to seven feet off a helicopter while he was climbing up the side, and that his right hip and buttocks struck the tire. He complained of right hip and low back pain on the right side. On examination, he had good sensation and movement of all extremities. He walked to sick bay with assistance. He was noted to have moderate muscle spasms at the low back on motion, but to have a good range of motion in all directions. The assessment was right hip contusion and right lower back strain. He was provided with Motrin and told to take moist heat soaks as needed. The Veteran’s separation examination report, dated in November 1991, shows that his spine was clinically evaluated as normal. In the associated report of medical history, the Veteran indicated that he did not have a history of recurrent back pain, and that his health was good, and that he was not taking any medications. There was a notation of “no medical problems.” See also annual flight examinations dated in February, April, and July of 1990 and their associated reports of medical history, (showing that his spine was clinically evaluated as normal, and that the Veteran indicated that he did not have a history of recurrent back pain). As for the post-service medical evidence, VA progress notes, dated beginning in 2011, note that the Veteran reported that he was an electrician, that he has a 20-year history of back pain, and that his back pain began after he fell off of a helicopter in 1991. This evidence includes notations of chronic low back pain. Thereafter, he received ongoing treatment for back pain. A 2015 report shows that the Veteran reported that he had worked for his family’s electrical contracting company for about 25 years. VA reports, dated in 2015, include an MRI report which notes a broad-based disc bulge with a focal annular tear causing moderate bilateral neural foraminal narrowing at L4-5, and a disc bulge at L5-S1 causing mild bilateral neural foraminal narrowing. An X-ray showed a broad-based disc bulge with a focal annular tear causing moderate bilateral neural foraminal narrowing at L4-5. There was a disc bulge at L5-S1 causing mild bilateral neural foraminal narrowing, with mild malalignment at L4-5. A VA aid and attendance examination disability benefits questionnaire (DBQ), dated in July 2012, contains diagnoses that include lumbar strain. A VA back DBQ, dated in July 2012, shows that the Veteran reported the following: During service he fell while climbing onto a helicopter. He fell about six feet. He landed on the right side of the back. He was treated with nonsteroidal anti-inflammatory medication. Following service, he has seen chiropractors “off and on.” He has been coming to VA since early 2011. A March 2011 X-ray report was noted to contain an impression of straightening of lumbar spine from muscular spasm. A May 2011 magnetic resonance imaging study was noted to show normal disc heights, configurations, and signal, with minor loss of signal and minor posterior loss at L5-S1. The diagnosis was minor posterior annular bulge at L5-S1 causing minor spinal stenosis and majority foraminal encroachment, and right paramedian arachnoid cyst at S2. The examiner concluded that the Veteran’s current lumbosacral strain is not related to his inservice involving the right hip contusion and right lower back strain noted in July 1989. The examiner explained that the Veteran had one treatment for right lower back strain a long time ago, in July 1989, with no chronic back problems documented in his service medical records or afterwards up until recently, in 2011. Private treatment reports from Harmony Wellness and Rehabilitation, dated in 2013, show treatment for back pain, with notations of nonallopathic lesions of the lumbar region, lumbar, disorders of the sacrum, and thoracic or lumbosacral neuritis or radiculitis, unspecified. In November 2019, a VA medical opinion was obtained. The opinion shows that the Veteran reported having back pain since a fall in service. The examiner summarized the Veteran’s relevant medical history. The examiner concluded that the Veteran’s back disability was less likely than not incurred in, or caused by, his service. The examiner explained that there is no indication of an injury that is chronic in nature from his fall, as there are numerous records which show that the Veteran reported a negative history of back pain. A 2015 X-ray of the lumbar spine showed a new anterolisthesis of L4 relative to L5 that was not present on prior X-rays, including the 2011 X-rays that came after the claimed injury. The October 2015 lumbar spine MRI shows broad-based disc bulge with a focal annular tear causes moderate bilateral neural foraminal narrowing at L4-5, and a disc bulge at L5-S1 causing mild bilateral neural foraminal narrowing, and mild malalignment at L4-5T. These are also new findings. There were additional, new findings in 2015 that are not related to the Veteran’s acute muscle spasm after his 1989 fall, which did not result in any chronic conditions. A VA DBQ, dated in December 2020, shows that the examiner concluded that the Veteran’s back disability was less likely than not incurred in, or caused by, his service. The examiner essentially explained that the Veteran was treated for a fall onto his back in July 1989, and that he was to follow up for any issues that would interfere with flying duties. He denied recurrent back pain in 1990 and upon separation from service 1991. Following service, the earliest medical evidence of a back condition is dated in March 2011. The Veteran asserts that he has had ongoing back pain since he fell off a helicopter during service in 1989. However, a back disorder was not shown during service, and he repeatedly indicated that he did not have a history of recurrent back pain. Following his discharge, a back disorder is not shown until 2011. This was about 19 years after separation from service. The evidence shows that the Veteran has a history of arrests for driving under the influence of alcohol and leaving the scene of an accident involving an injury after he struck and killed a motorcyclist. See e.g., September 2020 VA hospital report. He was initially sentenced to ten years in prison. He was discharged from prison in about May 2019, after serving about four years. See e.g., state department of corrections report, received in February 2020. His Axis I diagnoses include bipolar depressed with psychosis, severe alcohol dependency, and cannabis dependence. His Axis IV diagnoses include “legal issues.” His symptoms have been noted to include auditory hallucinations. He has been noted to have a history of six psychiatric hospitalizations since 2014 and being in eight private substance abuse rehabilitation programs since 2008, to include a 2017 report that a treatment center refused to accept him back because he violated their rules “by using illicit substances on the premises.” See e.g., April 2015 VA discharge summary; VA reports dated in May and November of 2015, and February 2017. A September 2019 VA hospital report indicates that he was hospitalized secondary to a psychosis. An October 2020 VA mental disorders DBQ notes that he has persistent delusions or hallucinations. This is evidence of poor character, and that he has been responding to internal stimuli during at least part of the time period on appeal. Accordingly, the Veteran is found not to be a credible historian. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran was treated for residuals of a fall on one occasion in July 1989. There is no evidence of complaints or treatment for back symptoms during his remaining service, a period of about 2½ years. He denied having recurrent back pain on three occasions in 1990 (during examinations) and during his separation examination in November 1991. A back disorder was not found during any of these examinations. Accordingly, a chronic back condition is not shown during service. See 38 C.F.R. § 3.303. There is no evidence of arthritis of the back within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309(a). Following separation from service, he worked as an electrician for many years. The earliest medical evidence of a back disorder is dated in 2011. This is about 19 years after separation from service. There is no competent opinion of record in favor of the claim. The only competent opinions of record are the three VA opinions, and these opinions all weigh against the claim. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. 2. Special monthly compensation (SMC) based on the need for aid and attendance. The Veteran asserts that he is entitled to special monthly compensation (SMC) based on the need for aid and attendance. In June 2011, the Veteran filed his claim. In July 2012, the RO denied the claim. The Veteran has appealed. “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 herself, or to keep him or herself 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 him or herself 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 or her 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). The critical question to be determined in this case is whether the Veteran’s service-connected disabilities have resulted in the need for regular aid and attendance of another person because of resultant helplessness due to mental and/or physical impairment. Service connection is currently in effect for an acquired psychiatric disorder, to include bipolar disorder, alcohol abuse disorder, and posttraumatic stress disorder (PTSD), migraine headaches, intervertebral disc syndrome, radiculopathy of the right upper extremity, bilateral hearing loss, and tinnitus. Special monthly compensation has been granted under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i). A VA aid and attendance or housebound examination report, dated in July 2012, shows that the Veteran reported that he does not need aid or attendance examination, and that he was only claiming service connection for back and neck disabilities. Nevertheless, the examiner indicated that the examination had been scheduled and would be performed. The report notes the following: The Veteran is not hospitalized or permanently bedridden. He denies any visual problems, memory problems, or bladder or bowel incontinence. He is capable of managing his benefit payments. He does not need assistance performing self-care. He has balance problems affecting his ability to ambulate when his back goes out. On examination, gait was normal. There were no functional restrictions of his upper or lower extremities, and no deficits in weightbearing, balance or propulsion, except as reported supra. He is able to walk without the assistance of another person. He does not need any mechanical aids. No restrictions were noted requiring the need for aid and attendance. A VA headache DBQs, dated in April 2017, and July 2020, shows that the examiners indicated that the Veteran’s headaches do not impact his ability to work; a VA headache DBQ, dated in December 2019, notes that the Veteran’s ability to work was impacted to the extent that not able to report to work twice a month, because he was unable to complete assigned tasks. VA progress notes, dated between 2017 and 2019, include notations that the Veteran is independent with ADL’s (activities of daily living). A VA mental disorders DBQ, dated in November 2019, shows that the examiner indicated that the Veteran does not have near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and that he is capable of managing his financial affairs. A VA progress note, dated in December 2019, indicates that the Veteran has an active driver’s license. See also September 2020 VA progress note. A VA aid and attendance or housebound examination DBQ, dated in July 2020, shows that on examination, the Veteran’s gait was normal. He was not restricted from activities or functions due to disability. He is able to feed himself and prepare his own meals. He does not need assistance in bathing or tending to other hygiene needs. He is not legally blind. He does not require medication management, or nursing home care. He is able to manage his own financial affairs. He does not have any restrictions of his upper or lower extremities. He does not have any documented restrictions of his spine, trunk, or neck. There are no restrictions on leaving his home or immediate premises. The Veteran is able to perform self-care, ambulate or travel beyond the premises of the home, or if hospitalized, beyond the ward of the clinic area. He is not currently driving. He does not use assistive devices for locomotion. A VA medical opinion, dated in December 2020, shows that the examiner indicated that the medical evidence is insufficient to support a determination that the Veteran has any disabilities that render him unable to do the following: dress or undress himself, keep himself ordinarily clean and presentable, feed himself due to loss of coordination in the upper extremities or extreme weakness, or attend to the wants of nature. He does not frequently need to adjust any prosthetic or orthopedic appliances. He is not physically or mentally incapacitated. He does not require care or assistance on a regular basis to protect himself from the hazards incident to his daily environment. The Board finds that the claim must be denied. The evidence is insufficient to show that he met the criteria under 38 C.F.R. § 3.352. The evidence is insufficient to show that the Veteran 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. He is not shown to be institutionalized. He is not shown to have restrictions on any of his extremities or that otherwise limit his ability to independently perform the activities of daily living due to service-connected disability. He appears to have had an active driver’s license and to have been able to drive, at least up until July 2020. There is no competent opinion of record in favor of the claim. The only competent opinions are the VA opinions, and they all weigh against the claim. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.