Citation Nr: 1761193
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 15-18 570 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for a heart disorder, claimed as heart murmur.
3. Entitlement to service connection for a skin disorder manifested by rashes.
4. Entitlement to service connection for a cervical spine disorder.
5. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance.
6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 12, 2017.
Appellant represented by: J. Michael Woods, Attorney-at-Law
ATTORNEY FOR THE BOARD
The Veteran had honorable active military service from November 2006 to July 2008.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
In a rating decision issued in September 2009, the RO initially denied service connection for high blood pressure, which denial the Veteran did not appeal. In a supplemental claim (VA Form 21-526b) received in May 2011, the Veteran filed a claim for service connection for hypertension. In a February 2013 rating decision, the RO denied reopening the prior finally denied claim for service connection for hypertension on the basis that new and material evidence had not been received. However, in its July 2016 decision, the Board determined that new and material evidence had been received within one year of the initial rating decision that denied the Veteran’s claim and, therefore, that decision did not become final pursuant to 38 C.F.R. § 3.156(b) and this issue must be considered on its merits. Thus, the rating decision issued in September 2009 is the decision on appeal as to the issue of service connection for hypertension.
Furthermore, in the rating decision issued in September 2009, the RO denied service connection for a cervical spine condition, which denial the Veteran did not appeal. In a July 2011 supplemental claim (VA Form 21-526b), the Veteran again sought service connection for “neck pain,” which the RO took as a claim to reopen the previously denied claim of service connection for a cervical spine condition, but denied doing so in the February 2013 rating decision finding that the Veteran had not submitted new and material evidence. However, in its July 2016 decision, the Board found new and material evidence had been received and reopened the claim. However, it remanded the claim for further development. This claim has now been returned to the Board for final adjudication.
In addition, in the February 2013 rating decision, the RO denied the Veteran’s original claims of service connection for a heart murmur and for rashes, as well as his claim for SMC based on the need for regular aid and attendance of another person and/or being housebound. In its July 2016 decision, the Board remanded these claims for further development or because they were inextricably intertwined with other issues that were remanded. They have now been returned to the Board for final adjudication.
In a September 2010 rating decision, the RO denied entitlement to a TDIU rating. The RO readjudicated the issue in the February 2013 rating decision continuing the previous denial. It is with this rating decision that the Veteran disagreed. Although the Veteran did not appeal the September 2010 rating decision, the RO has clearly treated the Veteran’s appeal as if that is the rating decision on appeal obviously on the basis that he submitted new and material evidence within one year of that rating decision. Consequently, the September 2010 rating decision is the decision on appeal as to this issue. In its July 2016 decision, the Board remanded this issue as inextricably intertwined with the other issues remanded. It has now been returned to the Board for final adjudication.
Furthermore, in its July 2016 decision, the Board also denied service connection for arthritis, muscle spasms, flatfeet, sleep apnea, ulcers, liver pain secondary to service-connected irritable bowel syndrome (IBS), kidney and bladder problems secondary to service-connected IBS, and seizures, as well as denied reopening a previously denied claim for service connection for hearing loss. The Board further denied claims for increased disability ratings for service-connected sinusitis with nasal polyps and headaches and service-connected tinnitus. Finally, it granted reopening of previously denied claims of service connection for posttraumatic stress disorder (PTSD) (which included anxiety, panic attacks and depression) and bipolar disorder and remanded the merits of those claims for further development along with a claim to reopen a previously denied claim for service connection for a lumbar spine disorder and those claims previously mentioned. Subsequently, in June 2017, the RO issued a rating decision in which it (1) granted service connection for generalized anxiety disorder (claimed as PTSD, bipolar, depression, panic attacks, paranoia, and stress) and awarded a 50 percent disability rating effective December 23, 2009, and a 100 percent disability rating effective January 12, 2017; (2) granted service connection for lumbosacral strain (claimed as low back and scoliosis) evaluated as 10 percent disabling effective May 17, 2011; and (3) granted special monthly compensation at the housebound rate effective January 12, 2017 based upon the Veteran have a single disability rating evaluated as 100 percent disabling with the remaining service-connected disabilities combining to 60 percent. The Board notes that, as entitlement to special monthly compensation at the housebound rate has been granted, the Board need not consider that issue as it is no longer at question. Further, as a 100 percent schedular rating has been granted from January 12, 2017, the issue of entitlement to TDIU from that date is moot, and the TDIU issue has been recharacterized above accordingly. The Board further notes that the Veteran’s has disagreed with and perfected appeals as to the downstream issues of higher ratings and earlier effective dates assigned in the June 2017 rating decision. However, the appeal has not been certified to the Board. Consequently, it does not appear that the appeal is ready for appellate review. Thus, those issues will not be discussed in the present decision.
Finally, as to the prior remand in July 2016, the Board finds there has been substantial compliance with the actions requested. Although the records from St. John Medical Center were not obtained, the Board finds that appropriate efforts were made to obtain those private treatment records, as requested in the remand. However, the Veteran failed to assist the RO in obtaining them by providing the necessary release form. He was asked for a release form twice in letters sent to him and his attorney in August and November of 2016. The RO did not receive a response to either letter. Thus, the Board finds that the RO complied with its duty to assist in obtaining these private records and no further efforts are necessary to get them. The RO completed the remaining development requested. Consequently, the Board finds that substantial compliance with the prior remand has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran’s claims without prejudice to him. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008).
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDINGS OF FACT
1. The Veteran’s hypertension, not diagnosed until September 2015, is not related to his active military service.
2. The Veteran is not diagnosed to have a heart disorder, to include a heart murmur.
3. The Veteran is not diagnosed to have any skin disorder, to include one manifested by rashes.
4. The Veteran is not diagnosed to have a chronic cervical spine disorder, but rather his neck pain is show to be due to an acute cervical strain without a identified underlying pathology and that is not shown to be related to his military service.
5. The Veteran is not in need of regular aid and attendance in performing his activities of daily living as a result of his service-connected disabilities.
6. The Veteran’s service-connected disabilities combined cause him to be unable to obtain and sustain a substantially gainful occupation from December 23, 2009.
CONCLUSIONS OF LAW
1. Hypertension was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
2. A heart disorder, to include a heart murmur, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
3. A skin disorder, to include rashes, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
4. A chronic cervical spine disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).
5. The criteria for special monthly compensation based on the need for regular aid and attendance of another person are not met. 38 U.S.C. §§ 1114(l), 1502, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.350(b), 3.352 (2017).
6. The criteria for a TDIU rating have been met since December 23, 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection Claims
The Veteran is seeking service connection for hypertension, a heart disorder claimed as a heart murmur, a skin disorder claimed as rashes, and a cervical spine disorder.
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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247 (1999). For chronic diseases listed in 38 C.F.R. § 3.309(a) the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir. 2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service.
38 U.S.C.A. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011).
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2).
The Veteran is seeking service connection for hypertension. No specific statements have been provided setting forth the Veteran’s contentions. Unfortunately, the Board finds the evidence does not support the Veteran’s claim.
Service treatment records are silent for complaints related to or a diagnosis of hypertension or high blood pressure. Except for one blood pressure reading of 165/87 in February 2008, the remaining blood pressure readings seen in the service treatment records had a systolic pressure of 137 or below and 88 or below, which are below the 160 systolic pressure and 90 diastolic pressure noted in the VA rating schedule as definitive for hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (defining hypertension as a pattern of sustained elevated pressure readings, shown on different days, of diastolic pressure of predominately 90 or more, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or more with a diastolic pressure of less than 90).
Post-service VA treatment records show the Veteran was initially seen at VA in Tulsa, Oklahoma, in December 2008. No history of hypertension was reported. His blood pressure at that time was 148/93. The assessment was “elevated blood pressure reading without diagnosis of hypertension.” At a Primary Care visit in September 2015, he was assessed by his treating VA primary care physician to have hypertension and was prescribed medication and advised to go on a low fat, low salt diet.
Manila VA treatment records show the Veteran was seen initially as a walk-in in February 2010 due to injuries from being hit by a motorcycle three days before. He reported a history of hypertension and that he was on medication for it. Thereafter, the Manila VA continued a diagnosis of hypertension and prescribed him medication for it based solely on the Veteran’s reported history.
The Veteran underwent an initial VA examination in July 2009. However, the examiner stated that he denied a history of claiming hypertension, and that, based upon a review of the record, he does not have a history of hypertension. Furthermore, in rendering a diagnosis, the examiner reported that the condition was not found on examination because no pathology was found for the condition.
Pursuant to the Board’s July 2016 remand, the Veteran was reexamined in January 2017 as a result of which a diagnosis of hypertension was given (notably this was after the September 2015 diagnosis of hypertension rendered by the Veteran’s VA primary care physician). In providing a medical nexus opinion, the VA examiner opined that the Veteran’s hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness because service treatment records are silent regarding his elevated blood pressure. His July 2009 examination states that he had never been diagnosed, and his blood pressure readings were well within normal limits (110/80, 110/78, and 110/78) at that time. The November 2014 diagnosis at the Tulsa VA Clinic was “elevated blood pressure reading without diagnosis of hypertension.” The Veteran is now diagnosed with essential hypertension unrelated to service. The examiner found it noteworthy that the Veteran weighed 184 pounds in July 2009 and now weighs 240 pounds at the time of this examination. He also commented that the Veteran’s BMI (body mass index) was 33.5 under Other Pertinent Findings.
The Board initially notes that, although hypertension is a chronic disease under 38 C.F.R. § 3.309(a), the Veteran does not contend, nor does the evidence show, that his hypertension manifested to compensable degree within one year after his discharge from service. Consequently, presumptive service connection for a chronic disease under 38 C.F.R. § 3.307(a)(3) is not warranted. Further, there are many years between discharge from service in July 2008 and the first diagnosis of hypertension based upon a pattern of sustained elevated pressure readings (the Board finds that the diagnosis of hypertension seen in the Manila records in 2010 is based upon a history given by the Veteran and not actual blood pressure readings and, therefore, is not a valid initial diagnosis of hypertension for VA purposes). The absence of a continuity of symptoms from active service until many years later, including negative findings at the time of the 2009 VA examination, is persuasive evidence against continuity of symptomatology. Consequently, service connection on this basis is also not warranted.
Furthermore, the Board finds that the totality of the evidence is against finding that the Veteran’s currently diagnosed hypertension is otherwise related to his active military service. The VA examiner’s medical opinion is against such a finding and the Board finds that opinion to be highly probative evidence as it is clearly based upon the clinical data and supported by sound, fully articulated reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”).
The Veteran has not provided an opposing opinion, not even his own, in support of his claim. The medical evidence is clear that he did not have a diagnosis of hypertension while in service and, although he may have had an occasional elevated blood pressure reading since service, such was not believed to be enough to warrant a diagnosis of hypertension by his treating VA primary care physician at the Tulsa VA until September 2015. The VA examiners agree that a diagnosis of hypertension was not seen during the Veteran’s service. Nor was a diagnosis of hypertension warranted at the time the Veteran was examined in July 2009. Thus, it appears the diagnosis of hypertension in 2010 seen in the Manila VA treatment records is based solely on the Veteran’s report of a history of hypertension and the treatment with medication was based upon his report of being prescribed such medication rather than based upon any objective indications of hypertension.
Finally, insofar as the Veteran may have alleged a secondary service connection claim, he has not prosecuted such a claim. After reviewing the evidence, the Board finds that there does not appear to be anything in the record that would suggest that the Veteran’s currently diagnosed hypertension is secondary to any of his service-connected disabilities, meaning either that it is caused or aggravated thereby. This finding is supported by the January 2017 VA examiner’s medical opinion in which he states that the Veteran has essential hypertension and that it is noteworthy that the Veteran’s weight has increased since 2009 from 184 to 240 pounds, suggesting that his increased weight is more likely a factor in his diagnosis of hypertension than anything else.
After considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for hypertension is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Heart Disorder (Heart Murmur)
The Veteran claimed service connection for a heart murmur, which claim the Board has expanded pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), to include any heart disorder that he may have. The Veteran has not submitted any statements of contentions relating to this claim except for a statement made on a VA Form 21-4142 in June 2011 identifying private treatment records on which the Veteran stated that, when he was born, he had a heart murmur, and this private medical facility has “a lot of treatment service records dating back to my birth.”
After a review of all the medical records in the claims file, to include the service treatment records and post-service treatment records, the Board finds there is no evidence to demonstrate that the Veteran has a current heart disorder, to include a heart murmur. The Veteran’s service treatment records do not show he was noted on examination upon either entry or separation from service so have a heart murmur or any other abnormality of the heart. The post-service medical evidence does not establish that he is currently diagnosed to have any heart disorder. Furthermore, examinations of the Veteran’s heart consistently show comments of “no murmur.” The Board acknowledges that there are some indications that he occasionally has had tachycardia, which is an elevated heart rate. However, the Veteran has never been given a cardiac work-up to evaluate this and there is no indication in the records that it is thought to be of cardiac origin. Rather, the medical records show the Veteran has panic and anxiety attacks that cause his heart to race. He reports his heart races with elevated anxiety or stress levels, thereby intimating his tachycardia is a symptom of his service-connected generalized anxiety disorder.
Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current heart disorder, to include a heart murmur, for which service connection can be granted as there is no medical or lay evidence to support a finding of the presence of such a current disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, service connection for a heart disorder, to include a heart murmur, is denied because the evidence fails to establish the Veteran has a current disability for which service connection may be granted.
Skin Disorder (Rashes)
The Veteran filed a claim in June 2011 on which he stated he was filing for “chronic CS gas, tropical disease rashing, rashing due to too much herbicidal CS gas.” The Veteran has not submitted any additional statements in support of his claim to explain further his contentions.
Nevertheless, the Board finds that the Veteran’s claim must be denied because there is no evidence of a current disability. A review of the service treatment records and the post-service medical records fails to demonstrate that the Veteran has any chronic skin disorder, to include any manifested by rashes. His skin was without abnormality on his separation examination in April 2008. Examination of his skin on VA examination in July 2009 showed his skin was clear of rashes and lesions.
VA treatment records do not show any treatment for skin rashes or any other skin diseases. However, they do show the Veteran’s report of getting rashes as a reaction to certain medications he has been prescribed such as Lortab 7.5 mg tablets, Zoloft, and Paxil. Also, the Manila VA treatment records show the Veteran was treated in September 2010 in Urgent Care for ant bites over his upper and lower extremities that were very itchy and he was prescribed Gentamicin, Clobetasol, and Diphenhydromine for that. However, there is no evidence that these incidents have resulted in a chronic skin condition or that he continues to receive treatment for them.
Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran has a chronic skin disorder, to include one manifested by rashes, for which service connection can be granted as there is no medical or lay evidence to support a finding of the presence of such a current disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, service connection for a skin disorder, to include one manifested by rashes, is denied because the evidence fails to establish the Veteran has a current disability for which service connection may be granted.
Cervical Spine Disorder
The Veteran contends he has neck pain that is due to his active service. The Veteran has not provided any statements setting forth his specific contentions relating to this claim although there are statements in some of the medical records where he appears to relate it to carrying heavy equipment.
Service treatment records show the Veteran was treated a few times in March 2007 for complaints of neck pain secondary to extensive wearing of a Kevlar helmet. He was initially seen in the Emergency Department (record not available) and then at the Primary Care Clinic for follow up (record available). He had tenderness to palpation to the right trapezius muscles and limitation of motion of the cervical spine with pain. The assessment was cervicalgia. Four days later, he was transported by ambulance to the Emergency Department again with complaints of severe neck pain. A PT note that same day indicates his neck pain had been improving until the day before when he was forced to do some physical activity and his neck started hurting again. He again had tenderness to palpation in the upper right trapezius and scalenes and limitation of motion due to pain of the cervical spine. He was given heat and passive range of motion and stretching exercises with improvement. The assessment was muscle spasms. No further treatment of the cervical spine is seen throughout the remainder of the Veteran’s service. The Veteran’s spine was noted to be normal on examination for separation in April 2008.
Post-service VA treatment records from the Tulsa VA are silent for complaints of neck pain until May 2009 at which time he was seen in the Emergency Room with complaints of neck, back and tailbone pain. He related that he had been the victim of a hit and run accident in December 2008 while checking his mail and then later fell on black ice (notably the VA treatment records confirm treatment for these two incidents). He had been living in a cramped house and his pain was getting worse. The assessment was neck and back pain. See May 7, 2009 Emergency Room Nurse Note. His VA treatment records also show he was involved in another motor vehicle accident in December 2014 in which his car was totaled and subsequently he had increased neck pain with a shot in his neck and physical therapy given to him by non-VA providers. See February 6, 2015 Afterhours Telephone Triage note. Despite the Veteran’s complaints of neck pain seen in the VA treatment records, the only assessment generally seen is “neck pain.”
At the Manila VA, the Veteran was initially seen as a walk-in in February 2010 for injuries after being hit by a motorcycle. Although he did not report hurting his neck at that time, he later came into the Clinic in March 2010 complaining of neck pain. He underwent an Orthopedic Surgery consultation later that month for his complaints of neck and upper back pain, especially a painful nodule on the right posterior neck area. He was observed to have good neck motion in conversing with ease in nodding and shaking his head. The physician noted that it took him a long time to find the alleged tender nodule with his fingers and, when he did, he gave no sign of tenderness when he was pressing his fingers over it. However, when the physician put his finger on it, the Veteran stated it was very tender and painful to touch and withdrew his neck and upper back. The physician noted, therefore, that there was a positive Waddell’s test. Other than the extreme tenderness, guarding and painful motion on examination, the physician did not find any other abnormal findings. His assessment was neck pain and nodule of the right posterior aspect of the neck, possible lymphadenopathy. In August 2011, the Veteran underwent a Rheumatology consultation because of his complaints of constant pain in his lower back and neck, which he described as sharp, stabbing and pricking. He also reported having muscle spasms in his back. Objectively, only tenderness of the cervical and lumbosacral spines was noted. The assessment was cervical and back strain.
In conjunction with his claim for service connection, the Veteran underwent VA examinations in July 2009 and June 2017. On VA examination in July 2009, the Veteran reported he was diagnosed with lower back and cervical spine conditions that had existed for 12 months and that these conditions had occurred as the result of a motor vehicle accident. He also reported experiencing pain that began in 2008. However, in identifying where his pain is located, he stated it is located on the low back. Thus it appears that the Veteran only describes low back pain, not neck pain. On examination, range of motion of the cervical spine was within normal limits except rotation was limited to 45 degrees bilaterally (normal is 80 degrees). There was no evidence of pain on movement, muscle spasm, tenderness, guarding, weakness, or ankylosis. Joint function of the cervical spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Cervical spine X-rays were within normal limits. When rendering a diagnosis of a cervical spine condition, the VA examiner stated there is no diagnosis because there is no pathology to render one.
In June 2017, the Veteran was reexamined. The Veteran gave a history that his neck began to be painful while in the Army in 2007 and the condition has gotten worse. He reported he has pain and discomfort in his neck. On examination, he had limitation of motion of his neck but no pain was noted on examination. Moreover, the examiner stated that there was no objective evidence of localized tenderness or pain on palpation, and no guarding or muscle spasms. The diagnosis was cervical strain. In rendering a medical nexus opinion, the VA examiner stated that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in service injury. The examiner noted that she had reviewed all of the Veteran’s claims file and specifically noted his military service period; the July 2009 VA examination findings, specifically his lack of a cervical spine diagnosis; and the in-service treatment notes from March 2007. She stated her rationale is that her diagnosis is of an acute cervical strain, but not chronic. The service records in 2007 show acute neck condition without evidence of injury. On her examination, the Veteran’s examination of the neck is without pain and the diagnosis is acute cervical strain.
Based upon the foregoing, the Board finds that the evidence fails to demonstrate that the Veteran has a chronic cervical spine disorder upon which service connection can be granted. The June 2017 VA examiner assessed the Veteran to have an acute, not chronic, cervical strain. She further stated that the in-service treatment was also for an acute neck condition. Therefore, her opinion is that the current acute cervical spine condition is not related to the in-service acute cervical spine condition because both conditions are acute rather than chronic. Her opinion is support by the July 2009 VA examiner’s failure to diagnosis the Veteran to have a cervical spine disorder.
Furthermore, the Veteran’s treating physicians at the Tulsa VA have merely diagnosed him to have “neck pain” without diagnosing an underlying cause. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, as the Veteran’s pain may be due to various etiologies, he is not competent to say what is causing his pain, only that he has pain.
The Manila VA treatment records show a diagnosis of cervical strain but there is no indication of whether it is acute or chronic. The nursing notes, however, show the Veteran reported on pain assessment that his neck pain was intermittent.
Moreover, the Veteran’s service treatment records from March 2007 until his separation in July 2008 are silent for further complaints of neck pain. Significantly, his separation examination in April 2008 was negative for any cervical spine disorder. His VA treatment records are also silent for any complaints of neck pain until May 2009, six months after he was injured in a motor vehicle accident in which he was “sideswiped” by a vehicle and he was knocked over and hit his head on his mailbox leaving a bump on his left forehead and injuring his left hip, left side of the head, ankle and shoulders. See December 24, 2008 Primary Care note from the Tulsa VA Medical Center. About a month later, he fell on the ice and reportedly hit the back of his head on the ice. See January 28, 2009 Primary Care note from the Tulsa VA Medical Center. Moreover, the Veteran has reported that he has to strain so hard when he has a bowel movement and is constipated because of his IBS that the muscles and veins in his neck “stick out,” see June 27, 2011 VA Form 21-4138. These sound like situations that suggest strain and pain in the neck on an intermittent and acute basis.
Consequently, the Board finds that the preponderance of the evidence fails to establish the presence of a chronic cervical spine disorder upon which service connection may be granted as the medical and lay evidence fails to support a finding of the presence of such a current disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, service connection for a chronic cervical spine disorder is denied because the evidence fails to establish the Veteran has a current disability for which service connection may be granted.
II. SMC Based Upon the Need for Aid and Attendance
Special monthly compensation is payable to a veteran whose service-connected disabilities leave him/her so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to 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: inability of the veteran to dress or undress himself/herself or to keep himself/herself ordinarily clean and presentable, frequent need to adjust prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, inability to feed himself/herself 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 and assistance on a regular basis to protect the veteran from hazards or dangers incident to his/her daily environment. 38 C.F.R. § 3.352(a).
In determining the need for aid and attendance, it is not required that all of the disabling conditions enumerated 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, and the need for aid and attendance must only be regular, not constant. Id. The Board must specifically consider whether the enumerated factors are present, and the factors must be considered in connection with the veteran’s condition as a whole; for a favorable rating, at least one of the enumerated factors must be present. Turco v. Brown, 9 Vet. App. 222, 224-5 (1996).
“Bedridden” will also be a proper basis for the determination of aid and attendance. “Bedridden” 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. Determinations that the person 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 to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.351(a).
The Veteran is currently service-connected for generalized anxiety disorder, IBS, chronic sinusitis and nasal polyps with headaches, lumbosacral strain and tinnitus. The Veteran has not submitted any specific contentions as to why he needs aid and attendance of another person due to his service-connected disabilities. In a June 2011 statement, he filed a claim for a “caregiver.” In a different June 2011 statement seeking an increased disability rating of his service-connected IBS, the Veteran related that he needed help from his fiancé and her family to get up out of the bathroom because he will sometimes not be able to walk after going. In recent lay statements received from the Veteran’s mother and wife dated in August 2017, they relate that the Veteran has memory loss and he needs reminders to take his medications and when to go to his doctor appointments. His wife also stated that she has to help the Veteran put his shoes on because he has difficulty bending over because of back pain. However, she did not say anything about helping the Veteran with toileting or walking from the bathroom after toileting as he previously reported in 2011.
The Veteran underwent an Aid and Attendance VA examination in May 2011 while he was in the Philippines visiting his fiancé and daughter. He reported that he stayed in his room at home most of the time and would go out to get the mail three times a month and to get money from Western Union from his mother. He complained of having stomach pain almost daily associated with headaches, migraines and dizziness. He claimed he needed assistance in bathing. He related he oftentimes isolated himself because he would not want to mingle or talk to his other companions at home, which included his fiancé’s family. His daily activities included showering, going back and forth to the comfort room for bowel movements, and watching movies in his room. He claimed his IBS bothered him most of the time.
Although it was noted he constantly had dizziness, it was not noted to cause an imbalance that affected his ability to ambulate. He was noted to have moderate memory loss. Other impairments noted to affect the ability to protect himself from the daily environment were depression, sleep disturbance, back pain, IBS, tinnitus, sinusitis, and migraine (not service-connected unless related to sinusitis and nasal polyps). The examiner’s statements as to how these impairments cause the Veteran to be unable to protect himself from his daily environment are vague and unclear. However, his narrative portion under the Comment section of the report does not support the examiner’s findings in the questionnaire portion of the examination report. In his comments, the VA examiner did not make a finding that the Veteran was unable to protect himself from his daily environment, but rather found that the Veteran was essentially housebound most of the time due to his service-connected IBS because he would need to be in the “comfort room,” which is presumably the bathroom. He also found that the Veteran’s depression and lack of sleep secondary to his migraines (which is questionably service-connected as the report is unclear whether these are related to his service-connected sinusitis) often resulted in poor quality of life and that he would need somebody on occasions of severe depression and on occasions where he would engage in misunderstandings and fight. However, the examiner stated that the Veteran could keep himself clean and presentable and could attend to the wants of nature.
The report of a February 2015 private psychological evaluation (received in October 2017 from the Veteran’s attorney) indicates the Veteran’s wife does the food shopping (although he goes with her), prepares the meals, maintains the household chores and reminds him to attend to his personal hygiene. It was noted that he showered approximately three times a week. However, he managed the household finances. The examiner included in his list of symptoms neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. However, on VA examination in May 2015, no such symptoms were found by the VA examiner.
As to any other medical evidence of record, the Board notes that the additional evidence does not appear to present findings concerning this issue that significantly expands upon, revises, or contradicts the findings in the most detailed evidence discussed by the Board in this decision.
Initially, the Board notes that nothing of record suggests, nor does the Veteran allege, that he is bedridden due to his service-connected disabilities. Furthermore, none of the evidence of record indicates that he is generally unable to feed, dress, or groom himself or attend to the wants of nature. Although his wife prepares most of his meals, the evidence does not show he is unable to feed himself due to loss of coordination of upper extremities or extreme weakness. Furthermore, although the Veteran reported at the May 2011 VA examination he needed assistance with bathing, there is no explanation for this and the VA examiner found that he can keep himself clean and presentable, as well as attend to the wants of nature despite the diarrhea and constipation caused by his IBS. There does not appear to be any other evidence of record to suggest he is unable to do so. The Board acknowledges the Veteran’s June 2011 statement that he needed help from his fiancé and her family to leave the bathroom due to sometimes not being able to walk (presumably after a bowel movement) but that appears to have been a temporary situation as he did not stay in the Philippines where he was at the time he made that statement and his wife (previously his fiancé) did not mention assisting him in such a manner in her August 2017 statement. Also, although his wife states that she has to help the Veteran put on his shoes because he has difficulty bending over because of back pain, the Board notes the Veteran underwent VA examination of his lumbar spine in May 2017 as a result of which his forward flexion was found to be only lacking in five degrees of normal motion (85 degrees out of 90 degrees) without additional limitation of motion with repetitive use testing. The examiner did, however, record the Veteran’s report of the functional impact that, when he has a flare-up of pain, he has to stop walking and he cannot bend over. Thus, it appears that it is only when he has severe flare-ups that he requires such assistance. Moreover, the Veteran could use alternatives to requiring someone to help him put on his shoes, such as wear slip on shoes that do not need to be tied and use a long-handled shoe horn so he would not have to bend over to slip his shoes on. Finally, although the private physician who completed the February 2015 found that the Veteran had neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, the remainder of the evidence is inconsistent with such findings as the May 2015 VA examiner did not find such symptoms present and the VA mental health treatment records consistently showed the Veteran has presented with adequate hygiene. Consequently, the Board finds that the evidence seems fairly consistent in showing that, while not without difficulty, the Veteran is fairly independent in his activities of daily living.
Similarly, there is no evidence suggesting he requires frequent adjustment of special prosthetics or orthopedic appliances that cannot be done without aid. Although he occasionally uses a back brace, there is no indication it is one that requires the aid of another for him to use.
With regard to the Veteran being unable to protect himself from his daily environment, although the VA examiner appeared to indicate the Veteran’s service-connected disabilities have caused problems with this, the Board finds that his statements are insufficient to establish that they have caused the Veteran to require the regular need of the aid and attendance of another person. In fact, the examiner only indicated the Veteran would need the occasional assistance of another at times of severe depression or when he engaged in misunderstandings and fought. Occasional is not frequent enough to be consistent with regular and, therefore, the Board finds that the VA examiner did not find that the Veteran required the regular need of aid and attendance of another person to protect him from his daily environment. Furthermore, although the examiner stated the Veteran had moderate memory loss, he failed to indicate how such caused him to be unable to protect himself from his daily environment as the remainder of the evidence of record shows no more than mild memory loss without evidence of such things like forgetting how to get home or the names of streets or people he should know, or forgetting to turn off the stove or other safety hazards. At most, the evidence shows he has difficulty in remembering to take his medications and keeping appointments, and focusing enough to complete tasks (although not enough detail was shared to understand what kind of tasks he has failed to complete). In addition, the Board acknowledges that the evidence shows the Veteran has sleep difficulties that he relates to his service-connected disabilities and, therefore, his lack of sleep likely makes him tired during the daytime, which can affect his alertness and focus. However, the mere fact that the Veteran is tired alone is insufficient to establish that he needs the regular aid and attendance of another person.
Furthermore, while the Board acknowledges the February 2015 private psychologist’s report that the Veteran’s wife prepares his meals, maintains the household chores and reminds him to shower, it does not directly indicate the Veteran is incapable of performing self-care tasks. On the contrary, there does not appear to be any medical evidence showing that the Veteran is physically incapable of doing such tasks.
In summation, while the evidence shows that the Veteran does have some impairment of certain functions, the preponderance of the evidence is against a finding that he is so helpless that he requires the regular aid and attendance of another person due to his service-connected disabilities. Therefore, the preponderance of the evidence is against finding entitlement to special monthly compensation based on the need for regular aid and attendance. The Veteran’s claim must, therefore, be denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert, 1 Vet. App. at 57-58; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
The Veteran is seeking entitlement to a TDIU based upon the combined effect of all of his service-connected disabilities. See correspondence from Veteran’s attorney received October 19, 2017.
Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).
To establish a total disability rating based on individual unemployability, there must be an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (2008).
The Veteran is service-connected for the following disabilities:
1. IBS evaluated as 0 percent disabling from July 25, 2008, and 30 percent disabling from March 28, 2011;
2. Bilateral persistent tinnitus evaluated as 10 percent disabling from July 25, 2008;
3. Chronic sinusitis and nasal polyps with headaches evaluated as 30 percent disabling from December 23, 2009;
4. Generalized anxiety disorder evaluated as 50 percent disabling from December 23, 2009, and 100 percent disabling from January 12, 2017;
5. Lumbosacral strain evaluated as 10 percent disabling from May 17, 2011.
The Veteran’s combined evaluation for compensation has been as follows:
10 percent from July 25, 2008
70 percent from December 23, 2009
80 percent from March 28, 2011
100 percent from January 12, 2017
Thus, he met the minimum schedular requirements for a TDIU rating under 38 C.F.R. § 4.16(a) as of December 23, 2009 when service connection for generalized anxiety disorder was established at 50 percent disabling and added to the already service-connected disabilities of IBS evaluated at 0 percent, chronic sinusitis and nasal polyps with headaches evaluated at 30 percent and tinnitus evaluated at 10 percent. The increase in the combined evaluation to 80 percent in March 2011 was the result of the increase to 30 percent for service-connected IBS. The grant of service connection for lumbosacral strain and the assignment of a 10 percent disability rating effective May 17, 2011 did not affect the combined evaluation, which remained at 80 percent until January 12, 2017 when a single 100 percent was assigned for service-connected generalized anxiety disorder.
Although the schedular criteria for a TDIU were met as of December 23, 2009, the evidence must still show that the Veteran has been unable to pursue a substantially gainful occupation due to his service-connected disability or disabilities in order to be entitled to a TDIU rating. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).Factors to be considered are the veteran’s education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).
In October 2017, the Veteran’s attorney submitted additional evidence and argument in support of this claim arguing that the combination of his service-connected disabilities cause sufficient impairment such that a TDIU should be awarded from December 23, 2009. The additional evidence consisted of lay statements from the Veteran’s wife and mother dated in August 2017, a Mental Disorders Disability Benefits Questionnaire dated in February 2015 completed by a private psychologist with attachments, a private physician’s medical examination report dated in October 2017 with attachment, and a vocational expert’s report dated in October 2017.
The lay statements from the Veteran’s wife and mother detail the problems the Veteran has daily with his service-connected disabilities. They both relate that the Veteran has tried to work over the years, but that he never stays at a job long because of his anxiety as the pressure and stress of the job are too much for him and he quits. They also relate he has issues with his focus and memory that make it difficult for him to complete tasks, as well as he has difficulties in communicating and interacting with others, as a result of his service-connected disabilities.
The private psychologist who performed the February 2015 mental disorders evaluation opined that the “Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder secondary to medical condition.”
In his October 2017 medical opinion, the private physician opined that, based upon his review of the Veteran’s records and interview with him, the “Veteran is more likely than not unable to maintain substantially gainful employment due to his service-connected generalized anxiety disorder, [IBS], chronic sinusitis and nasal polyps with headaches, bilateral persistent tinnitus and lumbosacral strain.”
In her October 2017 opinion, the vocational expert found that, based upon the evidence she found in the Veteran’s records and the various studies cited, the “Veteran is totally and permanently precluded from performing work at a substantially gainful level due to the severity of his service-connected generalized anxiety disorder, IBS, chronic sinusitis and nasal polyps with headaches, bilateral persistent tinnitus and lumbosacral strain and the record support this finding as far back as 12/23/2009.”
Based on the foregoing evidence, the Board finds that entitlement to a TDIU is established effective December 23, 2009 as this new evidence shows the Veteran has been unable to obtain and sustain a substantially gainful occupation as a result of the combined effect of his service-connected disabilities since that date. Consequently, the Veteran’s claim for a TDIU is granted.
Entitlement to service connection for hypertension is denied.
Entitlement to service connection for heart disorder (claimed as heart murmur) is denied.
Entitlement to service connection for a skin disorder manifested by rashes is denied.
Entitlement to service connection for a cervical spine disorder is denied.
Entitlement to SMC based on the need for regular aid and attendance is denied.
Entitlement to a TDIU is granted from December 23, 2009, subject to controlling regulations governing the payment of monetary benefits.
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs