Citation Nr: 21025436 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-33 724A DATE: April 28, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for special monthly compensation for the need for regular aid and attendance or housebound status is denied. FINDINGS OF FACT 1. The Veterans cervical spine disability is not a result of his military service. 2. The Veteran is not in need of regular aid and attendance, nor housebound by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for special monthly compensation for the need for regular aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1131, 1521, 5107; 38 C.F.R. §§ 3.102, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1986 to June 1990. These matters was previously remanded by the Board in December 2020 for additional development. As there has been substantial compliance with prior remand directives, these matters are properly before the Board for adjudication. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for a cervical spine disability The Veteran contends that his cervical spine disability is a result of his military service. Specifically, he states that he fell down his ships ladder while in the Navy in 1987. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of a cervical spine disability, the preponderance of the evidence weighs against finding that the Veteran’s current cervical spine disability began during service or is otherwise related to an in-service injury, event, or disease, including that in-service accident. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Service treatment records show that the Veteran reported an in-service accident in which he fell down a ladder in October 1989. The treating physician noted no cervical tenderness, numbness, or tingling. Indeed, there is no evidence of any complaints, symptoms, or treatment of his neck at any time during service, including following the reported in-service incident. Moreover, the Veteran’s separation examination in June 1990 was silent for complaints of neck pain. There is no evidence of neck pain or other symptoms within one year of separation from service. The first evidence of a cervical spine disability was not until 2010, which the Board notes is more than 20 years after separation from military service. In fact, the Veteran reported in a February 2011 that his neck injury from service improved, but in 2001 his pain became so severe that it interfered with his work. He further reported that he never sought treatment for this condition. Therefore, continuous symptoms have not been shown based on the clinical evidence of record. While the Veteran is competent to report having experienced symptoms involving the neck during or since service, the Board finds that service connection cannot be granted purely based on any assertions of continuous symptoms since active duty. Specifically, he did not report any additional neck symptoms during the remainder of his service, including upon separation examination, or for many years thereafter. Moreover, it is crucially important that he was specifically examined at separation from active duty in June 1990, but did not mention any neck disorder. The fact that he was given the explicit opportunity to discuss such disorders and did not, despite mentioning other disorders at that time, undermines the credibility of any statements that he has had symptoms since active duty. Next, the evidence also does not indicate that the Veteran’s neck disability is otherwise related to service. Specifically, the Veteran underwent a VA examination in February 2011 for his cervical spine disability. The claims file was reviewed, and the examiner diagnosed the Veteran with cervical strain with mild degenerative disc disease at C5-6. The examiner noted an August 1987 clinical note that stated that the Veteran complained of pain in the right side of neck. He had been involved in a motor vehicle accident the previous afternoon. The impression was contusion due to trauma. The examiner opined that the Veterans cervical spine disability was not caused by or a result of the motor vehicle accident that he was involved in during active service. In support of this opinion, the examiner stated that based upon review of the medical records, medical literature, and clinical experience, the Veteran has no evidence of a chronic neck condition, during service and following separation. Therefore, a nexus cannot be made. An addendum opinion was provided in October 2011. The examiner again opined that the Veterans cervical spine disability was not caused by his in-service motor vehicle accident. The examiner supported his opinion by stating that in his experience as a neurologist there is absolutely no evidence of a chronic neck condition during service and during the early years following separation. Thus, a chronic condition cannot be established, and a nexus cannot be made. The appellant was afforded a new VA examination for his cervical spine in October 2017. The claims file was reviewed. The examiner noted that the appellant did not have a diagnosable cervical spine disorder, nor had he ever been diagnosed with such. The Veteran reported constant, chronic pain in the body, including the neck, since 2009. The examiner observed that Dr. Q. found the Veteran to be complaining of cervical myofascial pain, but with no cervical spine diagnosis. The Veteran denied flare-ups and endorsed functional loss or impairment in his entire body. The examiner was unable to perform range of motion testing, as the Veteran was in too much pain. Upon examination, the Veteran did not exhibit guarding, spasm, or muscle atrophy. There was no radiculopathy, ankylosis, or intervertebral disc syndrome (IVDS) noted. Additionally, imaging studies were performed, and arthritis was not shown. The examiner did not provide an opinion on the etiology of the Veterans cervical spine disability because he noted that the Veteran did not have a distinct cervical spine disorder. He was noted to have diagnoses of fibromyalgia and chronic pain syndrome. The examiner observed that the appellant experienced falls in service, but he also was involved in a motor vehicle accident two years prior. Several VA opinions were provided in October 2018, August 2019, September 2020, and February 2021 regarding the Veteran’s cervical spine disability. The October 2018 VA examiner provided a negative nexus opinion as to whether the Veteran’s cervical spine disability was related to his military service. The examiner noted that the Veteran was involved in a motor vehicle accident two years prior and reported to the VA neurosurgeon that he had a back injury in 2008 while driving a dump truck. The examiner noted that the Veteran’s diagnosis of degenerative disc disease of the cervical spine was made after his non-service- connected motor vehicle crashes and he did not have neck pain on separation examination. Additionally, the examiner noted that the Veteran’s separation examination and medical board examination showed no evidence of a cervical spine or neck condition. Further, the examiner stated that the Veteran’s lay statements of continuity of symptoms were not medically consistent with the injuries described in his service treatment records. An August 2019 VA examiner opined the Veteran is less likely as not to have a neck condition caused by or a result of neck condition during service. In support of this opinion, the examiner stated per review of the Veteran’s service treatment records no evidence of chronic neck condition was found. The examiner noted the Veteran’s complaints of pain in the left side of his neck in August 1987 after an auto accident, which was treated with aspirin and an assignment of light duty and the Veteran’s diagnosis of cervical strain with mild degenerative disc disease in 2011. However, as noted above, no evidence of a chronic neck condition was found, therefore, a nexus cannot be established. In September 2020, the VA examiner again stated that the Veteran’s cervical spine disability was less likely than not related to his military service. In support of this opinion, the examiner stated that the record review goes against the onset of current neck diagnosis having onset during service. Specifically, the Veteran’s October 1989 X-ray revealed a normal cervical spine and his June 1990 evaluation revealed a normal neck. The February 2021 VA examiner opined that the Veterans cervical spine disability was less likely than not related to the Veterans service -connected condition. In support of this opinion, the examiner cited the Veterans report of medical history and examination on June 4, 1990 for separation, which did not reveal a history or physical exam findings for ongoing acute or chronic treatment of cervical spine disability. The examiner also stated that the medical record review did not reveal continuous ongoing medical treatment or aggravation of acute or chronic cervical spine condition during time of discharge from active military service to present day. Further, cervical spine degenerative joint disease and cervical strain is secondary to joint aging and chronic overuse of the neck over duration of many years and is independent from claimant’s service-connected fibromyalgia. Therefore, it is less likely than not that the cervical spine disability was caused by the service-connected fibromyalgia. The Board finds these opinions, when taken as a whole, to be persuasive in this matter. The opinions were rendered by a medical specialist in contemplation of the Veteran’s complete medical history. They applied known medical principles to the facts of the case and included well-reasoned explanations for the conclusions reached. The Board has reviewed the evidence of record, but finds no competent medical evidence or opinions which would overcome those of the multiple VA examiners. The Board acknowledges the Veteran’s own firmly held belief that his cervical spine disability is related to active service. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his cervical spine disability, especially in light of the multiple VA examiners’ conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of a cervical spine disability service. See id. Finally, to the extent that the Veteran’s cervical spine disability falls under the diagnostic umbrella of “arthritis,” the evidence does not support a conclusion that the Veteran’s disability was diagnosed in service, or that it manifested to a compensable degree until many years after service. There is no competent and credible evidence of continuity of symptoms from the time of service. As such, service connection on a presumptive basis is not supported. Given the lack of competent and credible evidence in support of the claim, the evidence is against a finding of a nexus between the Veteran’s current cervical spine disability and in-service accident or injury. Accordingly, the claim is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107 (b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for special monthly compensation for the need for regular aid and attendance or housebound status The Veteran is seeking service connection for special monthly compensation for regular aid and attendance or housebound status. The Board finds that the claim should be denied. Special monthly compensation is a statutory award, in addition to awards based on the schedular evaluations provided for service-connected disabilities in the Rating Schedule. Special monthly compensation based on need for aid and attendance is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352 (a). “Housebound” status implies a Veteran has a single, permanent service-connected disability rated 100 percent disabling with additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling (separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems); or, a Veteran is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350 (i). The need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A person will be considered in need of regular aid and attendance if he: (1) is 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 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or, (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). 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 was unable to perform should be considered in connection with his former condition as a whole. It is only necessary that the evidence establish that the veteran was so helpless as to need regular aid and attendance, not that there was a constant need for aid and attendance. 38 C.F.R. § 3.352 (a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (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 claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). It is not required that all of the disabling conditions noted above 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 due to service-connected disabilities as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Aid and attendance can also be awarded if a veteran is bedridden, which means a condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant 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. Id. The Board initially notes that the Veteran does not meet the criteria for special monthly compensation at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. Indeed, the Veteran’s maximum combined rating is 90 percent, with no individual disabilities meeting a 60 percent rating. In addition, the evidence of record does not demonstrate that the Veteran is unable to engage in activities outside of his home. Indeed, while he may require assistance with some activities of daily living, the record shows that the Veteran is able to attend VA treatment appointments regularly outside of his home. Additionally, the Board notes that evidence of record does not show that the Veteran’s service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C. § 1114 (l) by showing his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352 (a) set forth above. Here, the Board observes the medical evidence demonstrates that the Veteran requires some degree of aid and attendance. However, the Board finds that his need for aid and attendance is primarily due to his non-service-connected disabilities, to include his cervical spine disability, lumbar spine disability, and bilateral shoulder disability. The Veteran’s March 2020 examination for housebound status indicates that the Veteran is unable to perform dressing, undressing, bathing, grooming, and toileting without assistance. The Veteran’s wife does the shopping, cooking, cleaning, laundry, and assists with his care. Further, the Veteran experiences some difficulty with self-feeding, self-grooming, and toileting. He experiences marked difficulty with dressing and bathing. During his examination, the Veteran reported that he is not able to walk or stand for more than 5-10 minutes and his pain is the reason he spends the majority of the day in bed. In the examination he reported being able to ambulate with a walker or rollator at home, and utilized an electric scooter to safely navigate from the waiting area to the examination room and back. Despite asserting significant discomfort in his cervical spine, he demonstrated full neck range of motion while navigating his scooter, to include full rotation to observe a person who was approaching from behind. Generally speaking, his muscle strength was 4+/5 and he showed normal muscle tone and bulk in all areas. An addendum was provided in April 2020 regarding the Veterans need for aid and attendance. The examiner stated that a review of the Veterans medical treatment records finds that his need for aid and attendance is multifactorial but seems to be weighted more on non-service connected conditions of neck, low back, and bilateral shoulder pain as there seems to be more visits for these conditions. The examiner also noted that the Veteran suffered from obesity and type-2 diabetes, which are also not service connected and contributed to his need for aid and attendance. As discussed above, the disabilities which have been found to primarily interfere with the Veterans daily life and require need of aid and attendance, specifically the cervical spine, lumbar spine, and bilateral shoulder pain disabilities, are not service-connected disabilities, and therefore do not qualify for consideration for need of aid and attendance or housebound status for compensation purposes. Based upon a review of the medical evidence of record, there is inadequate medical evidence to support a conclusion that the Veteran’s service-connected disabilities alone render the Veteran in need of aid and attendance. Therefore, the Board must conclude that this does not support a finding of need for aid and attendance or housebound status. In sum, the Veteran has not established a factual need for aid and attendance, or a finding of housebound status based on service-connected disabilities. As such the claim for special monthly compensation is denied. As such, the claims are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Vample, Erica 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.