Citation Nr: 1235771	
Decision Date: 10/16/12    Archive Date: 10/23/12

DOCKET NO. 01-04 481	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Newark, New Jersey



THE ISSUES

1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for urinary bladder stricture and urinary incontinence.

2. Entitlement to special monthly compensation based on the need for aid and attendance or at the housebound rate.

3.  Entitlement to special monthly pension (SMP) based on the need of aid and attendance or at the housebound rate.



REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran served on active duty from May 1943 to January 1946.

This appeal initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2001 rating decision of the RO.

In June 2003 and September 2004, the Board remanded the case to the RO for development of the record.  

In July 2009, the Board remanded the issue involving a bladder disorder for further development.

The Veteran requested a hearing before the Board. The Veteran and his representative were notified of the date of the hearing in October 2011. The Veteran, however, failed to report for the hearing without explanation and the hearing request is deemed withdrawn.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a) (2) (West 2002).

The issue of entitlement to SMP benefits is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1. The Veteran is not shown to have suffered additional disability manifested by a urinary bladder stricture or urinary incontinence following hospitalization and treatment at VA facilities in 1997 and 1998 due to carelessness, negligence, lack of proper skill, error in judgment, or some other incident or fault on the part of the VA, nor as the result of an event that was not reasonably foreseeable.

2. The Veteran is service connected for disabilities that include: amputation, traumatic, of the right great toe, rated as 10 percent disabling; for dermatitis, nasal with the PO residuals of excision of rhinophyma rated as 10 percent disabling; and for right heel bursitis and biomechanical strain rated as 10 percent disabling for a combined rating of 30 percent.

3. The Veteran is not shown to have a single service-connected disability rated as 100 percent disabling or other service-connected disabilities independently ratable as 60 percent disabling or to meet the criteria for being "permanently housebound."

4. The Veteran is not shown to be blind or nearly blind, to have the anatomical loss or loss of use of both feet or one hand and one foot, and is not permanently bedridden due to his service-connected disabilities. 


CONCLUSIONS OF LAW

1. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for urinary bladder stricture or urinary incontinence are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2011).

2. The criteria for the assignment of special monthly compensation at the housebound rate or as being permanently housebound are not met. 38 U.S.C.A. §§ 1114(s), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.350(i) (2011).

3. The criteria for the assignment of special monthly compensation based on being helpless or in the need of the aid and attendance of another person are not met. 38 U.S.C.A. §§ 1114(l), 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.350(b), 3.352(a) (2011).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. Duties to Notify and Assist

VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326.

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.

Prior to the initial adjudication of the Veteran's 1151 claim for urinary bladder stricture and urinary incontinence construed as an issue on appeal by the Board in July 2009 and SMC, he was provided notice of VCAA in November 2010. 

The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. 

The Veteran also received notice pertaining to the downstream disability rating and effective date elements of his claim, and was furnished a Supplemental Statement of the Case in April 2011. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran also was afforded a VA examination in April 2009 with an addendum submitted in September 2009.  The Board also obtained a medical opinion.  This evidence is thorough in nature and adequate for the purposes of deciding this claim. 

The reports reflect that the examiner reviewed the Veteran's past medical history, current complaints, conducted an appropriate physical examination and rendered an appropriate diagnosis and opinion consistent with the evidence of record. The VHA medical opinion also was based on a thorough review of the record.

Further, VA examination substantially complied with the Board's prior remand and that the record is sufficient for deciding this claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). 

Also, of significance is that neither the Veteran nor his representative has raised questions about the adequacy of the examinations or opinion.

With regard to SMC benefits, the Veteran was not afforded a VA examination because he does not meet statutory criteria for such benefits.  A medical examination under the circumstances presented in this case is not necessary to decide the claim and would serve no useful purpose.  38 C.F.R. § 3.159(c)(4); cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

All relevant evidence necessary for resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's service treatment records (STRs), the service personnel records, the private medical records, the VA outpatient treatment reports, a VA examination, and a June 2012 VHA medical opinion, as well as the statements of the Veteran and his representative presented in connection with the claims. 

A remand for SSA records in this case also would result only in an unnecessary delay. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

First, the Veteran does not assert that his SSA records are relevant. 38 U.S.C. §§ 5103A(a),(b),(c)(3); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (affirming the Board's decision, and stating that "[t]he appellant does not argue-and the record does not indicate-that the SSA records will provide any potentially relevant evidence relating to the appellant's mental health.").

There is no reasonable possibility that the SSA records would substantiate the claim for SMC benefits.  

In other words, any records created for the purpose of establishing SSA disability status would not contain any more current or more probative findings on the question of current severity of symptoms.

The Veteran does not assert, nor does the record show that any additional development is needed in connection with these matters. The Veteran and his representative also have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103.


II. 1151 Compensation

The Veteran requested compensation under 38 U.S.C.A. § 1151 for additional disability claimed due to VA hospital treatment in the form of radiation therapy for prostate cancer in 1997 and 1998. (March 2000 Written Statement).

Under § 1151, a claimant must show an additional disability proximately due to VA hospital care, medical or surgical treatment, or VA examination. For claims filed on or after October 1, 1997, a claimant must show that the proximate cause of the additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. 

For claims filed on or after October 1, 1997, a claimant may show that he/she suffers from additional disability or death which was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the additional disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151 (a)(1)(A) and (B) (West 2002 & Supp 2011); 38 C.F.R. § 3.361 (2011); VAOPGCPREC 40-97.

In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b).

It is necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. 

The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1).

The claimed disabilities to be addressed in this decision are radiation urinary bladder stricture and urinary incontinence. The Board must discuss whether this represents additional disability and if so, whether it is due to VA hospitalization or medical treatment and not merely coincidental. 

If additional disability is shown, then the Board must determine whether the proximate cause of additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination, or, whether the proximate cause of the additional disability was an event that was not reasonably foreseeable.

The Veteran underwent VA radiation treatment for prostate cancer beginning in August 1997. 

In July 2003, P. G., M.D., performed cytoscopy because of gross hematuria and urine blockage (see claims file, Vol 3). The doctor noted a dense fibrotic stricture in the urethra and stated, "[t]his [was] certainly the cause of his problems. It [was] a sequela of radiation." This problem had persisted according to a February 2004 VA urology report. 

The Veteran was examined by a VA nurse practitioner in April 2009. He reported having "continued urinary incontinence, among other symptoms."

As noted, the first requirement for § 1151 compensation is that the claimant must show an additional disability proximately due to VA hospital care, medical or surgical treatment, or VA examination that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination; or, that the proximate cause of the additional disability was an event which was not reasonably foreseeable.

In April 2009, a VA nurse practitioner reviewed the case and examined the Veteran for the purpose of addressing the medical questions presented in this appeal. In September 2009, in an addendum to the April 2009 VA examination report, she opined that the Veteran's bladder condition was not caused by or a result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. She further noted that the Veteran did not have urinary incontinence. 

The VA nurse practitioner stated that the Veteran had developed recurrent hemturia and a bladder sphincter stricture in 2004 that were secondary to radiation cystitis (inflammation of the urinary bladder) and well known as a common complication of radiation therapy for prostate cancer. 

The VA nurse practitioner stated that radiation cystitis was practically an unavoidable complication of radiation therapy for prostate cancer and did not represent carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on part the VA medical staff.

Significantly, this health professional's opinion is persuasive in that it was based on the Veteran's clinical history and supported by an reasonable explanation (that is not contradicted by other competent evidence in the file). 

Thus, the next question to be addressed in claims filed on or after October 1, 1997, is whether any additional disability was caused by an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151 (a)(1)(A) and (B); 38 C.F.R. § 3.361; VAOPGCPREC 40-97.

According to 38 C.F.R. § 3.361 (d) (2) an event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 

In April 2009, the VA health care professional specifically addressed this question. As noted, the occurrence of the noted radiation bladder complications were "common and unavoidable." Thus, the residuals shown are deemed to be a reasonable risk of radiation treatment.

The Board also obtained a VHA medical specialist's opinion in June 2012. The specialist concluded that it was at least as likely as not that the stricture of the urethral identified in 2003 was the proximate result of the VA radiation therapy performed in 1998. 

There was noted to be no evidence that the stricture was due to carelessness, negligence, lack of proper skill, an error in judgment on the part of the VA in rendering the radiation therapy in 1998. 

The VHA medical reviewer explained that urethral strictures could occur many years after treatment in 2 to 5 percent of patents. The Veteran was noted to have had many other procedures, including transurethral resection of the prostate and multiple catheterizations, between the time of his radiation treatment and the diagnosis of this stricture that increased his risk significantly to over 10 percent. The specialist agreed with the other medical opinions of record.

In determining foreseeability, VA must also consider whether a risk is of the type that a reasonable health care provider would have disclosed in connection with the informed consent procedures set forth in § 17.32. See § 3.361 (d) (2). 

According to 38 C.F.R. § 17.32 (a), (c), where sedation, anesthesia, or narcotic analgesia is used, VA must obtain informed signature consent on a VA-authorized consent form. 

An attempt was made in June 2004 to locate any consent form pertinent to the radiation treatment (see claims file Vol 4). That consent form has not been found. However, there is no showing that the Veteran underwent sedation, anesthesia or narcotic analgesia during radiation therapy. Thus, written consent to radiation therapy does not appear to have been necessary.

Because the competent medical evidence establishes that radiation therapy entails an ordinary, foreseeable risk of radiation induced bladder complications, the Board must conclude that these additional disabilities that the Veteran suffered are events that are reasonably foreseeable and not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination.

Accordingly, the benefit of the doubt doctrine is not for application as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Compensation under § 1151 for urinary bladder stricture and urinary incontinence must be denied.


III. SMC

The Veteran is seeking SMC benefits based on being housebound as set forth under 38 U.S.C.A. § 1114(s) or based on the need for regular aid and attendance at the higher rate as set forth under 38 U.S.C.A. § 1114(l). 

A Veteran may receive SMC either at the housebound rate or at the rate based on the need for regular aid and attendance, but may not receive both simultaneously. That is, regular aid and attendance is the greater monetary award. Compare 38 U.S.C.A. § 1114(l) with 38 U.S.C.A. §1114(s).


Housebound Benefits

Special monthly compensation benefits by reason of being housebound are payable if the Veteran has a single permanent disability rated 100 percent disabling, and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1).

Subsection 1114(s) for housebound benefits requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling.

Regardless, the Court has held that 38 U.S.C. § 1114(s) for housebound benefits does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and that 38 C.F.R. § 3.350(i) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). 

The TDIU rating based on a single disability that satisfies the total (100 percent) rating requirement must be separate and distinct from the additional disability or disabilities independently ratable at 60 percent or more for purposes of housebound benefits. Id. The Bradley decision also declared that the direction to treat multiple disabilities as one under 38 C.F.R. § 4.16(a) was specifically limited to TDIU ratings. 

A TDIU rating based on multiple service-connected disabilities does not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C.A. § 1114(s). Id. at 290-91.

A Veteran is "permanently housebound" when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to service-connected permanent disability or disabilities, and it is reasonably certain that the disability of disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i)(2).

For purposes of housebound benefits, the Court held that being "substantially confined" to the home means an inability to leave to earn an income. Absent a regulation by the Secretary defining the term "substantially confined," the Court emphasized that the term may conceivably be more broadly construed. 

It found that Congress intended to provide additional compensation for Veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income, as opposed to an inability to leave the house at all. Hartness v. Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (substantially confined means the inability to leave the house except in instances of seeking medical treatment).

A review of the claims folder shows that the Veteran currently has the following service-connected disabilities: amputation, traumatic, of the right great toe rated at 10 percent disabling; dermatitis, nasal with PO residuals of excision of rhinophyma rated at 10 percent disabling; and right heel bursitis and biomechanical strain rated at 10 percent disabling.  The combined rating is 30 percent.

With regard to housebound status, the threshold statutory requirement is that the Veteran must have a single permanent disability rated at 100 percent. In the present case, the Veteran does not have a single service-connected disability rated as 100 percent disabling. 

In addition, the Veteran does not have additional service-connected disabilities independently ratable at 60 percent or more when combined. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).


Aid and Attendance Benefits

Based on a careful review of the evidence, special monthly compensation based on the need for regular aid and attendance must be denied on this record.

Special monthly compensation under 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person.

"Loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63.

Examples under 38 C.F.R. § 3.350(a)(2) and 38 C.F.R. 4.63 which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent foot drop. 

The following will be accorded consideration in determining the need for regular aid and attendance: Inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). 

"Bedridden," i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination. The fact that a Veteran 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.

It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. See generally Turco v. Brown, 9 Vet. App. 222, 224 (1996) (eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met, but not all). 

The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. 

A determination 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 Veteran's condition is such as would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a).

The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c).

The medical and lay evidence of record does not establish anatomical loss or loss of use of both feet, or of one hand and one foot; or blindness in both eyes with visual acuity of 5/200 or less; or the Veteran being permanently bedridden. See 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b). 

Here, to the extent that the Veteran was a patient in the Cranford Hall Nursing Home and recently sent to a Jersey City Medical Center Psychiatric Ward. (See November 2011 Written Statement from Representative, there is no indication that this status is due to his service-connected disabilities. See 38 U.S.C.A. § 1114(l). 

The Veteran is competent and credible in all his statements, but the need for regular aid and attendance of another person due to his service-connected problems is not supported when considering all the evidence of record. There is no specific assertion by the Veteran that his service-connected disabilities alone have necessitated regular aid and attendance.

Consequently, the basic requirements for special monthly compensation on the account of regular aid and attendance are not met. 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350, 3.352. 

Therefore, the preponderance of the evidence of record is against the claim for special monthly compensation based on the need for aid and attendance of another person. 38 U.S.C.A. § 5107(b).




ORDER

Compensation under the provisions of 38 U.S.C.A. § 1151 for urinary bladder stricture or urinary incontinence is denied.

Special monthly compensation based on regular aid and attendance of another person or at the housebound rate is denied.


REMAND

Because the Veteran filed a timely NOD under 38 U.S.C.A. § 7105, appellate review of the RO's September 2011 rating decision was properly initiated, and the RO was then obligated to furnish him a SOC with respect to the issue of entitlement to SMP.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 19.26 (2011).  A remand is warranted since the Veteran has not been furnished an SOC.  See Manlicon v. West, 12 Vet. App. 238 (1999).  

Accordingly, the remaining claim for SMP is REMANDED for the following action:

The RO should take all indicated action in order to furnish a fully responsive Statement of the Case to the Veteran and representative addressing the issue of entitlement to SMP benefits based on the need for regular aid and attendance or at the housebound rate.  The RO should return this issue to the Board only if the Veteran timely files a Substantive Appeal.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  


The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals


Department of Veterans Affairs