Citation Nr: 21025927 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-04 064 DATE: April 29, 2021 ORDER Entitlement to service connection for a deviated septum is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed as moot. Entitlement to special monthly compensation (SMC), to include on the basis of being housebound, is denied. FINDINGS OF FACT 1. The Veteran’s has a current diagnosis of deviated nasal septum, but the preponderance of the evidence is against a finding that this disorder was incurred in or otherwise related to active service. 2. The Veteran is in receipt of a 100 percent schedular rating for an acquired psychiatric disorder; his only other service-connected disabilities (postoperative residuals of left ring finger and surgical scar of the left ring finger) are noncompensable. 3. The preponderance of the evidence is against a finding that the Veteran has required the regular aid and attendance of another or been permanently housebound by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a deviated septum have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). 2. The grant of a total (100 percent) disability rating for an acquired psychiatric disorder renders moot the appeal for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 3. The criteria for SMC based on the need for regular aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114(l), (s), 5107 (2012); 38 C.F.R. §§ 3.350(b), 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from May 1981 to December 1981. In March 2020, the Veteran testified before the undersigned at a Board of Veterans’ Appeals (Board) hearing held at the St. Petersburg, Florida Regional Office (RO). A transcript of the hearing is of record. The Board previously remanded these matters for evidentiary development in June 2020 and again in December 2020. 1. Entitlement to service connection for a deviated septum The Veteran contends that he suffered a deviated septum as a result of an in-service assault. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally 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 link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). At the outset, the Veteran’s post-service medical records reflect that he underwent a procedure to repair a deviated septum in 2014 and has since been diagnosed with deviated septum in a September 2020 VA examination report. As such, the “current disability” element of the Veteran’s claim has been met. See 38 C.F.R. § 3.303(a). As to in-service incurrence, the record shows that the Veteran was treated in service for injuries which the Board has characterized as being consistent with an assault. These records specifically show that he presented in September 1981 with trauma to his right elbow and left ring finger; a subsequent medical report noted the finger injury was related to “boxing.” The Veteran has since alleged these injuries occurred when he was assaulted by multiple servicemen. In an October 2014 statement, he reported that he was punched in the nose multiple times and thereafter had a hard time breathing through his nose; he believed these symptoms were indicative of a deviated septum. (The Veteran reiterated these contentions at his March 2020 Board hearing.) The Board accepts the Veteran’s contentions of an in-service nose injury; the “in-service incurrence” element has been satisfied, as well. See id. The question on appeal is whether the Veteran’s current deviated septum is related to his in-service injury. To that end, the Veteran was afforded a VA examination in September 2020. After reviewing the claims file, the examiner provided a negative nexus opinion. However, the Board determined in its December 2020 remand that the September 2020 opinion was inadequate, as the examiner did not substantively discuss the Veteran’s specific assertions of being punched in the nose and having difficulty breathing out of his nose. Thereafter, a second opinion was provided by a different VA examiner in March 2021. The examiner agreed with the first examiner that it was less likely than not that the Veteran’s current deviated septum was incurred in service or otherwise related to service. By way of rationale, the examiner stated: While the Veteran’s lay statements have been taken into account, they are not consistent with the evidence, or lack of evidence found in file. The Veteran reported an assault occurring in 1981, causing his deviated septum. While the Veteran reported his septal deviation was secondary to his assault in 1981, the evidence does not support this relationship. A blow to the nose does not always result in a deviated septum. Records during [active duty] do not show a nasal fracture or[] nasal injury. Post separation, the Veteran did have septoplasty in 2014 but the records indicating why this septoplasty was done are not contained in the cfile. It would be less likely than not that this Veteran sustained an injury severe enough to cause a deviated septum, but not seek medical care. In addition, the Veteran did seek care for his hand during [active duty], without mention of his nose. While the Veteran is competent enough to report an assault to the nose, he does not have the medical knowledge to claim that assault resulted in a deviated septum. The Veteran has not offered any evidence calling this opinion into question. The Board notes that there are no medical opinions of record linking the Veteran’s current deviated septum to his in-service injury. In this case, the positive evidence of record consists primarily of the Veteran’s reports of being punched in the nose multiple times during his in-service assault, and thereafter struggling to breathe through his nose. As indicated above, the Board accepts these reports as competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran has never reported being told by any medical professional that his deviated septum was incurred in service or is secondary to his in-service assault. See id. at 1377. Moreover, none of his care providers have specifically linked his diagnosis of deviated septum to his in-service assault. Conversely, a VA medical professional has reviewed the record and opined that the Veteran’s deviated septum was not at least as likely as not caused by the in-service assault. The examiner thoroughly addressed the Veteran’s medical history, to include his lay contentions of being punched in the nose, and acknowledged that he was competent to report these details. Notwithstanding, the examiner concluded that, in her professional opinion, the Veteran could not have suffered a deviated septum in service without seeking treatment shortly thereafter. The Board is aware that medical opinions based solely on the lack of contemporaneous medical records are not probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n.1 (Fed. Cir. 2006). In this case, the March 2021 VA examiner’s opinion was based on a finding that the nature and severity of a deviated septum was such that, had it occurred as a result of the Veteran’s in-service assault, the Veteran would have had to seek medical care. Thus, the examiner determined the lack of objective evidence of treatment was not the sole fact under consideration but rather was crucial to consider in conjunction with the remaining evidence of record, to include the Veteran’s lay descriptions of the event and of his in-service symptoms. In light of the detailed, fact-specific, and logical nature of the March 2021 VA opinion, the Board finds that it is entitled to significant probative weight. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). For the reasons discussed above, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s current deviated septum is related to his in-service assault. In so finding, the Board notes that the March 2021 VA examiner’s opinion substantially complied with the matters raised in the December 2020 Board remand, to include discussing the specifics of the Veteran’s medical history and his descriptions of his symptoms following the in-service assault. The examiner addressed each of these issues and determined that it was not at least as likely as not that the Veteran’s deviated septum occurred as a result of the assault. This opinion constitutes the most probative evidence on this question; there is no credible evidence of record calling the examiner’s findings into question. Accordingly, the claim for service connection for obstructive sleep apnea must be denied. 2. Entitlement to a TDIU A TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In this case, the RO awarded the Veteran a 100 percent schedular rating for his acquired psychiatric disorder, effective June 25, 2012, the date of the claim on appeal. The Board finds that the grant of a total rating for this disorder, which results in the Veteran having a “total” (100 percent) rating for the entire appeal period, renders the TDIU claim moot, and therefore it must be dismissed. See Green v. West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period). The Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that a situation may arise where a veteran has a schedular total rating for a particular service-connected disability, but could nevertheless establish a TDIU rating for other service-connected disabilities in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an additional disability of 60 percent or more. See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C. § 1114(s). Thus, per Bradley, in certain situations, a TDIU claim may not be rendered moot even where, as here, a total disability evaluation is assigned for a given disability for the entire period on appeal. However, having reviewed Bradley, the Board concludes that the facts of that case are sufficiently distinguishable from the facts of this one, rendering the Bradley holding inapplicable. Specifically, the Veteran in Bradley was in receipt of a 100 percent schedular rating for service-connected disabilities other than his PTSD, which was rated as 70 percent disabling. In contrast, the Veteran in this case is in receipt of two other service-connected disabilities, both of which are rated as noncompensable. There is, therefore, no basis for a finding of TDIU based on service-connected disabilities other than the Veteran’s acquired psychiatric disorder (for which, again, a 100 percent rating is already in effect). As such, the Board finds Bradley inapplicable. The grant of a total schedular rating for an acquired psychiatric disorder renders the claim of entitlement to a TDIU moot. 3. Entitlement to SMC The Veteran seeks additional compensation in the form of SMC. Implicit in this claim is his contention that his service-connected disabilities, to include primarily his acquired psychiatric disorder, have been so debilitating as to render him in need of the regular aid and attendance of another or permanently housebound. Under 38 U.S.C. § 1114(l), SMC is payable if, as the result of service-connected disability, a veteran (in pertinent part) is permanently bedridden; or is so helpless as to be in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Under 38 C.F.R. § 3.352(a), the criteria for establishing such need include the following factors: (1) inability of the veteran to dress or undress himself, or to keep himself 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 such aid; (3) inability of the veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. It is not required that all 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. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether a veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the 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. 38 C.F.R. § 3.352(a). In this case, the Veteran is service connected for an acquired psychiatric disorder, which is rated as 100 percent disabling. He is also in receipt of service connection for postoperative residuals of left ring finger and surgical scar on his left ring finger, both of which are rated as noncompensable. The Veteran has never specifically alleged that his left ring finger disabilities render him in need of the regular aid and attendance of another or permanently housebound. The Veteran’s most recent psychiatric evaluation, from May 2020, reflects that his acquired psychiatric disorder rendered him “totally disabled emotionally and unable to function in any job.” The evaluation notes that the Veteran’s symptoms included intrusive recollections of traumatic events, depression, anxiety, auditory and visual hallucinations, diminished frustration tolerance, psychomotor retardation, difficulty thinking/concentrating, decreased energy, insomnia and nightmares, suicidal ideation, change in personality, mood disturbance, and feelings of guilt and worthlessness. The evaluation further noted that the Veteran had been hospitalized on many occasions due to suicide attempts (the Veteran has confirmed this). However, the evaluation acknowledged that the Veteran was alert and oriented and did not indicate the need for a care provider or that the Veteran was unable to leave his home. Prior pertinent medical records include a December 2014 VA PTSD examination report, as well as private treatment records from the Veteran’s physician. Again, although these records are consistent with severe psychiatric impairment, they do not indicate the need for regular aid and attendance or that the Veteran has ever been housebound. The December 2014 VA PTSD examination report reflects that the Veteran’s psychiatric symptoms resulted in occupational and social impairment with occasional decrease in work efficient and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The report further shows that the Veteran lived with his father; that he had a friend with whom he liked to go out to eat on occasion; and that he liked to read and draw. The examiner noted that the Veteran had a long history of paranoid thinking, hallucinations, delusions, and suicide attempts with multiple hospitalizations. The examiner observed that the Veteran was adequately groomed and dressed appropriately; that he was cooperative; that his speech was coherent and easily understood; that his memory was intact; and that he exhibited average intellectual functioning. The Veteran denied any problems with his activities of daily living aside from going extended periods without showering. The Veteran stated that he would drive his father’s car when he had the need, and the examiner opined that the Veteran was capable of managing his financial affairs. The remaining pertinent evidence, including treatment records and lay statements from the Veteran’s friends and family members, does not reflect a need for regular aid and attendance, and there is no evidentiary basis to conclude that the Veteran has ever been housebound due to his service-connected acquired psychiatric disorder. Recent records from the Veteran’s treating physician, dated in September 2020, indicate the Veteran is living alone in an apartment and is “doing much better now” financially. The Board finds that SMC based on the need for regular aid and attendance is not warranted in this case. While the record demonstrates that the Veteran’s acquired psychiatric disorder has at times significantly hampered his ability to function, his psychiatric symptoms alone have not been shown to render him so helpless as to require the regular aid and attendance of another to help with activities of daily living. See 38 C.F.R. § 3.350(b). In particular, there is no probative evidence suggesting that the Veteran’s mental health symptoms resulted in his inability to dress and undress himself, feed himself, tend to the wants of nature, or that his symptoms have resulted in a general incapacity, physical or mental, which requires care and assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). On the contrary, the weight of the evidence (including the Veteran’s own lay reports regarding his activities) demonstrates that he is able to dress and undress himself, feed himself, tend to the wants of nature, and generally protect himself from the hazards incident to daily life, notwithstanding his psychiatric problems. (The Board reiterates that there is no evidence to suggest, and the Veteran has not alleged, that his service-connected left ring finger disabilities impact his ability to perform activities of daily living.) The Board has considered the lay assertions from the Veteran and his family members in support of his claim; however, these statements mainly involve linking the Veteran’s acquired psychiatric disorder to his in-service assault. They do not purport to establish that the Veteran has ever been in need of constant care, nor that he has been deemed housebound. In short, there is no lay or medical evidence indicating that the Veteran’s mental health symptomatology has resulted in the type of impairment contemplated by the statute and regulations discussed above with respect to SMC. In addition, the Veteran has not asserted, and the evidence does not reflect, that he has ever been bedridden as a result of his service-connected acquired psychiatric disorder. Accordingly, the Board finds that the weight of the evidence preponderates against a finding that the Veteran’s service-connected acquired psychiatric disorder has ever caused him to be so helpless as to require the regular aid and attendance of another person. None of the factors listed in 38 C.F.R. § 3.352(a) have been conclusively demonstrated. See Turco, 9 Vet. App. at 224. As alluded to above, the Veteran and his representative also seek entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s). SMC is payable under 38 U.S.C. § 1114(s) if a veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of a service-connected disability or disabilities. The second requirement is met when the veteran is substantially confined, as a direct result of service-connected disabilities, to his dwelling and the immediate premises, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Here, the Veteran is in receipt of a 100 percent rating for his acquired psychiatric disorder and separate, noncompensable ratings for left ring finger disabilities. Thus, he cannot satisfy the criteria for “separate and distinct” disabilities independently ratable at 60 percent. Furthermore, as detailed above, the lay and medical evidence of record does not show that the Veteran has been housebound due to his service-connected acquired psychiatric disorder. Conversely, the most probative evidence of record demonstrates that the Veteran has been able to leave his house on a regular basis. As such, the criteria for SMC under 38 U.S.C. § 1114(s) are not met. The Board is grateful for the Veteran’s honorable service, and this decision in no way is meant to detract from that service. The Board is constrained by law, however, and unfortunately there is no basis on which to award the benefits sought. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.