Citation Nr: 1624771 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 13-25 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a kidney disorder, to include as due to service-connected diabetes mellitus. 2. Entitlement to service connection for cerebral vascular accident (CVA or stroke), to include as due to service-connected diabetes mellitus. 3. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another person. REPRESENTATION Appellant represented by: Michael J. Hofrichter, Attorney WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army from April 1968 to November 1969. His service included service in the Republic of Vietnam. He earned two Purple Hearts for wounds received in combat, among other awards. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 (kidney disorder) and June 2014 (CVA and SMC) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In May 2016, the Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) during a Board hearing. A transcript of this hearing is contained in the record. The Veteran's attorney waived RO review of any additional evidence added to the file after certification to the Board, on the record. The Board notes that during the May 2016 hearing, the Veteran's attorney and the VLJ discussed the Veteran's claim for total disability based on individual unemployability (TDIU). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, a claim for an increased rating is not currently on appeal. Although a claim for SMC benefits is a claim for additional compensation beyond the basic rate, it is treated as an original claim (not a claim for increase) by the VA with respect to earlier effective date claims. As such, the Board will not take jurisdiction of the claim for TDIU under Rice in this case. Although it appears that the RO is already working on the claim for TDIU, the Board will refer the issue as it was specifically brought up during the recent hearing. The issue of entitlement to TDIU has been raised by the record in a February 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue(s) of entitlement to service connection for a kidney disorder secondary to diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his CVAs were the result of his service-connected diabetes mellitus. 2. The Veteran is so helpless due to his service-connected disabilities as to be in need of the regular aid and attendance of another person. 3. In addition to SMC (l) for aid and attendance, the Veteran has an independent 50 percent rating for PTSD, such that he meets the requirements for SMC (p). 4. The evidence shows that the Veteran has erectile dysfunction as a result of his now service-connected CVAs. CONCLUSIONS OF LAW 1. The criteria for service connection for CVAs, to include as secondary to diabetes mellitus, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 2. The criteria for special monthly compensation at the SMC (l)(1) rate based on the need for the regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114, 5107, 5121; 38 C.F.R. §§ 3.350, 3.352(a), 3.1000. 3. The criteria for special monthly compensation at the SMC (p) rate based on compensation at the SMC(l) rate plus an independent disability rated at 50 percent (PTSD) have been met. 38 U.S.C.A. §§ 1114, 5107, 5121; 38 C.F.R. §§ 3.350, 3.352(a), 3.1000. 4. The criteria for special monthly compensation at the SMC (k) rate based on loss of use of a creative organ have been met throughout the period on appeal. 38 U.S.C.A. §§ 1114(k), 5107; 38 C.F.R. §§ 3.102 , 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The Veteran received appropriate notice in March 2010 and November 2013 letters. Given the Board's favorable disposition of the claims of entitlement to service connection for CVAs and entitlement to SMC based on the need for aid and attendance, the Board finds that failure to discuss VCAA compliance will result in harmless error to the Veteran. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected condition. See 38 C.F.R. § 3.310. Service connection is possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Special monthly compensation (SMC) at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or 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). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350(b), 3.352(a). Although the veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, it is logical to infer there is a threshold requirement that at least one of the enumerated factors be present. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding the Veteran's claim for service connection for strokes, he was provided a VA examination in May 2014. The Veteran was diagnosed with cerebral vascular accidents (plural). It was noted the condition started two years prior. He was then unable to talk when finishing a sentence, and unable to perform simple tasks like working remote controls. His current (as of the examination) symptoms included not being able to perform simple tasks, an inability to find common household items, problems feeding himself, an inability to use remote controls, not answering the phone, becoming confused, not knowing when not to touch a hot pan, and needing help with medication and hygiene. He had trouble finding words and spelling them out, so he was seeing a speech therapist. He had abnormal speech with difficulty finding words on occasions, but he was audible and understandable. He had mental health manifestations as a result of the CVA. The examiner opined that it was less likely than not that the Veteran's CVAs were the result of his diabetes. The examiner explained that a stroke may be caused by a blocked artery or a leaking or burst blood vessel, and that some people have a temporary disruption of blood flow to their brains. There were "many factors" that could increase the risk of stroke, such as obesity, physical inactivity, heavy or binge drinking, drug use, high blood pressure, cigarette smoking, high cholesterol, diabetes, sleep apnea, cardiovascular disease, heart defects, heart infection or abnormal heart rhythm. "There is no direct pathophysiology to link the Veteran's stroke to his [diabetes]." The examiner noted that his diabetes was "only one of many risk factors but not a direct etiology." In April 2016, the Veteran's private internist, Dr. S.M.H. responded to medical inquiries regarding the Veteran's stroke and his service-connected diabetes. He affirmed that the Veteran had suffered a CVA/stroke, which caused significant cognitive impairment requiring continuing medical care. He also affirmed that having diabetes mellitus was a known risk factor for developing strokes, and opined that, given treatment and examination of the Veteran, it was at least as likely as not that his strokes were caused by, or contributed by, his diabetes mellitus. He did not provide a rationale for this positive opinion. In May 2016, the Veteran had a VA diabetes examination. Under "does the veteran have any of the following conditions that are at least as likely as not due to diabetes mellitus" the examiner selected 1) erectile dysfunction and 2) stroke. The examiner remarked that the Veteran had recent "mini strokes" and additionally had three "ischemic strokes" in the past five to six years, and was hospitalized for 13 days recently for ketoacidosis. The record contains conflicting medical opinions regarding whether the Veteran's service-connected diabetes mellitus caused or contributed to his CVAs/strokes. Resolving reasonable doubt in the Veteran's favor, the evidence suggests that the Veteran's CVAs/strokes are related to his service-connected diabetes mellitus, and, therefore, the criteria for a grant service connection for CVAs/strokes have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. Regarding the Veteran's claim for SMC based on the need for aid and attendance, the record contains a July 2013 aid and attendance examination questionnaire filled out by the Veteran's treating physician. Dr. S.M.H. noted that the Veteran was able to feed himself, but unable to prepare his own meals. He needed assistance with shaving, and with the medical management of his diabetes and stroke-prevention medication. He was noted to not have the ability to manage his own financial affairs. He had no specific restriction of movement, but had had clumsiness and dysdiadokenesis (an impaired ability to perform rapid, alternating movements), and a broad-based gait. He had significant problems with speech, recognition, and recall. When asked how often the Veteran was able to leave the home, it appears Dr. S.M.H. answered "can go to care twice per week." Dr. S.M.H provided a letter in December 2013 that the Veteran's strokes had caused significant cognitive impairment. "Due to his cognitive impairment, his wife must aid him in most, if not all, of his activities of daily living." The Veteran "essentially has multi-infarct dementia, which [Dr. S.M.H.] deem[ed] as moderate to severe. She indicated that this letter was pertaining to the Veteran's need for an attendant at all times. She noted the Veteran also had "significant diabetes" which required the assistance of his wife for medical management. In December 2013, the Veteran's wife provided a statement that the Veteran's ability to properly care for himself or communicate his needs had "diminished severely." She noted a VA neurologist gave no encouragement that his condition would improve. He had "significant trouble using eating utensils and becomes frustrated to the point of not wanting to eat at all." He had "extreme difficulty" in forming sentences. Simple tasks such as changing batteries are now "too hard to complete" and he was unable to operate remote controls. He also found it difficult to stay still, with "continuous repetitive motion." A May 2014 VA Aid and Attendance examination noted the Veteran was able to feed himself and was able to prepare his own meals, "however, his wife does so for he states that he simple lacks the knowledge and skills to prepare great tasting meals." He did not need assistance in bathing and tending to other hygiene needs. He did need assistance with medication management. The Veteran reported that he was "fully functional" and was "able to take care of himself, get up and out of bed, get cleaned up, get dressed and feed himself." He stated he spent time tending to his garden. He was very active and did not describe any limitations to his activities of daily living. His CVA caused him to have a difficult time speaking; finding words, and spelling them out were difficult. He stated he felt like his memory was not like it used to be. A February 2016 VA speech pathology record noted the Veteran had subjective complaints of cognitive difficulties. A January 2013 evaluation of his cognitive and linguistic skills was noted to reveal moderate attention and memory deficits, severe executive function deficits and mild visuospatial deficits. His written language skills were severely impaired and complicated by laborious fine motor skills resulting in malformed letters. His reading ability was inconsistently impaired. A May 2016 VA genitourinary examination indicated that the Veteran had a voiding dysfunction as a result of his CVAs, which caused urine leakage, but without the need for absorbent materials. A central nervous system examination noted that the Veteran's speech was "often not intelligible," and was also described as "slurred, drools." He had occasional involuntary bowel movements. His gait was normal. These symptoms were attributed to his CVA/strokes. There is no statutory or regulatory requirement that the service-connected disability resulting in the need for aid and attendance be rated as 100 percent disabling. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.352; compare with 1114(s) (requiring the service connected disability be rated as total in order to grant benefits based upon being permanently housebound). Rather, the evidence must show only that the Veteran is so helpless as to need regular aid and attendance and not there be a constant need. 38 C.F.R. § 3.352(a). The evidence in this case illustrates that the service-connected CVA, diabetes mellitus, and diabetic neuropathy result in his need of personal assistance to perform at least some activities of daily living. The Veteran is unable to care for himself and requires the assistance of his wife. Although the Veteran is able to dress himself, keep himself ordinarily clean and presentable, and is able to feed himself and attend to the wants of nature, both VA and his private treatment providers have indicated that he requires care and assistance to protect him from the hazards or dangers incident to his daily environment such that he is unable to communicate his needs, is clumsy with his movements, and was noted to not recognize the hazards of a hot pan. A neighbor provided a statement that the Veteran was attempting to mow his lawn and had to ask for help because he forgot how to start the mower. In terms of the criteria for aid and attendance benefits, the Board notes that his newly service-connected CVAs/strokes were the primary cause of his inability to attend to his activities of daily living. The Board finds that the Veteran requires the aid and attendance of another person on a regular basis to protect him from the hazards or dangers incident to his daily environment. Thus, special monthly compensation based on the need for regular aid and attendance of another person is warranted and the benefit sough on appeal is granted. Additional SMC considerations The different types of SMC available are commonly referred to by their alphabetic designations, such as SMC (k), SMC (l), etc., which correspond to the paragraphs of 38 U.S.C.A. § 1114 which provides the statutory authority for SMC. These same paragraphs are codified in VA regulation predominantly at 38 C.F.R. § 3.350(a) - (i). In the above decision, the Board has found that he is entitled to compensation based on Aid and Attendance (SMC (l)). Although the Veteran sought SMC for Aid and Attendance, all veterans are presumed to be seeking the maximum benefit possible, AB v. Brown, 6 Vet. App. 35, 38 (1993), and as SMC entitlements are both factually and legally complex, the Board does not expect the Veteran to specify the exact nature and bounds of the benefit sought. While the Board has considered all possible avenues for entitlement to a higher level of SMC , only four are discussed below. SMC at the (k) rate is provided for loss or loss of use of certain body parts. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). The examinations indicate that the Veteran has loss of use of a creative organ (erectile dysfunction) as a result of his now service-connected CVA. The Board, therefore, finds that the Veteran has loss of use of a creative organ, and is eligible for benefits under SMC (k). SMC at the (l) rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). As of this decision, the Veteran now is in receipt of SMC at the (k) rate (for loss of use of a creative organ) and the (l) rate (for required aid and attendance). Paralysis of both lower extremities together with the loss of anal and bladder sphincter control will entitle a veteran to the "o" rate of SMC, through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350(e)(2). Although the record does indicate some urinary and fecal incontinence, it does not demonstrate paralysis of the lower extremities. SMC (p) may be awarded - among other reasons - for the presence of additional disabilities, not involved in other SMC determinations, which are rated as 50 percent or 100 percent disabling. Such an award creates "entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114." 38 C.F.R. § 3.350(f)(3). Put another way, SMC (p) affords "a half-step" or "full step" increase in the level of compensation. The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under38 U.S.C.A. 1114 (l) through (n). Here, the Veteran's PTSD is rated 50 percent disabling, and his PTSD was not used to determine that he should be afforded SMC at the "l" rate due to the need for aid and attendance. As such, his PTSD disability may be used for a grant of a higher SMC rating at the "p" level. Based on the foregoing, benefits as SMC (p) is warranted. Additional SMC benefits based on a rating provided for the now service-connected CVAs or the possibility of entitlement to TDIU (currently referred and being addressed by the RO), will be remanded as intertwined. ORDER Entitlement to service connection for cerebral vascular accidents, claimed as strokes, is granted. Entitlement to the payment of special monthly compensation (SMC (l)) based on the need for aid and attendance, is granted. Entitlement to the payment of special monthly compensation (SMC(k)) based on loss of use of a creative organ, is granted. Entitlement to the payment of special monthly compensation (SMC(p)) for the rating intermediate between (l) and (m) due to aid and attendance and an additional disability independently ratable at 50 percent (PTSD) is granted. REMAND Kidney In May 2016, the Veteran and his wife testified at a Board hearing regarding his claim for service connection for recurring kidney infections as a result of his service-connected diabetes mellitus. The Veteran's wife testified that "a long time ago, [the Veteran] was having problems and he was hurting." She took him to the VA and he reported a "dull pain" and he was sent home with Metamucil. About a year later, the Veteran was doubled over by pain, "in the same spot." He went to an urologist and was found to have had a "kidney infection for a very long time." She indicated he had that kidney infection for "at least a year. Maybe more, maybe longer." He was treated with "heavy" antibiotics and the kidney infection was "knocked out." A few years later, the Veteran's wife was unsure of the exact amount of time, the Veteran was again doubled over with severe pain and a fever, and he was again diagnosed with a kidney infection. During his second kidney infection, he was placed on antibiotics and kept in the hospital. She indicated these infections occurred about 15 years prior (roughly 2000). From her testimony, it sounded as though after his kidney infections he was afforded an Agent Orange examination, which revealed diabetes mellitus. She believed that after he started treatment for his diabetes, he stopped having further kidney problems. The Veteran's representative indicated that the Veteran's physician, Dr. S.M.H. had not treated the Veteran for kidney problems. Medical records show diagnosis for kidney infections in May 2003 and February 2009. An April 2010 VA diabetes examination noted that the Veteran did not have any renal complications of diabetes. After blood and urine tests, the examiner found that there was no diagnosis of a kidney condition, as "there is no pathology to render a diagnosis." A June 2010 addendum included the opinion that the Veteran's kidney condition was not caused by or a result of his diabetes mellitus because the medical records and labs did not show any significant renal condition that was caused or aggravated by the Veteran's diabetes. A January 2011 fee-basis VA general medical examination noted the Veteran's complaints of recurrent kidney infections, but did not provide a diagnosis of a kidney condition. August 2014 VA laboratory results showed normal creatinine and BUN levels. His BUN/CR ratio was at the upper end of the normal range. A November 2015 CT scan with contrast noted a 3 mm non-obstructing calculus in the lower pole of the right kidney. The remainder of the genitourinary system was unremarkable. The impression was of no morphologic evidence of cirrhosis or mass, non-obstructing 3 mm right upper pole calculus, mild colonic diverticulosis and pulmonary emphysema. A May 2016 diabetes examination included that the Veteran had the "onset of diabetes symptoms 12 years prior beginning with a serious kidney infection." The examiner had the option to select that the Veteran's diabetes had resulted in renal disease (kidney dysfunction), but the examiner did not select that option. A May 2016 genitourinary examination noted the Veteran had voiding dysfunction, secondary to his CVAs. Renal dysfunction was not indicated. Notably, the Veteran's most recent kidney infection was in February 2009. This kidney infection was within one year of his claim for service connection for a kidney disorder; however, the Veteran's wife has indicated that his kidney infections stopped with treatment for his diabetes mellitus. Indeed, there are no indications of kidney infections after 2009, with diagnosis of diabetes mellitus in 2009/10. In 2014, a CT scan showed calculus in the right kidney. There is no indication in the record regarding whether the Veteran's diabetes mellitus may have caused this kidney stone. The 2016 evaluations do not include a diagnosis of renal/kidney disorders related to the Veteran's diabetes mellitus, but they also do not consider this indication of a kidney stone in 2014. ON remand, an addendum opinion regarding whether the Veteran has a current kidney disorder as a result of his diabetes mellitus is warranted. Higher SMC rates Currently, the Veteran is newly service-connected for CVAs and has not yet received a rating for his disability determination. Also, his claim for TDIU is currently being addressed by the RO, and has been referred by the Board for good measure. The outcome of the rating for CVA and entitlement to TDIU may affect a determination of additional SMC ratings. Additional single permanent disability or combinations of permanent disabilities independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher intermediate rate, or if already entitled to the next-higher intermediate rate, then to the next-higher statutory rate under 38 U.S.C.A. § 1114, but not above the "o" rate. The disability or disabilities independently ratable at 100 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C.A. § 1114(l) through (n) or the intermediate rate provisions of 38 U.S.C.A. § 1114(p). 38 C.F.R. § 3.350(f)(4). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an addendum opinion from the May 2016 VA examiner regarding the Veteran's service-connection kidney claim. After a review of the record, the examiner should state whether the Veteran has a current kidney disorder. The examiner should opine whether the Veteran's 2014 CT finding of a kidney stone is at least as likely as not (50/50 probability or greater) a result of his diabetes mellitus. If the Veteran has an additional kidney disorder, the examiner should opine whether it is at least as likely as not (50/50 probability or greater) a result of his diabetes mellitus. The examiner should provide an explanation for every opinion offered. 2. After a rating is assigned for the Veteran's newly service-connected CVAs, and after a determination is made regarding his referred issue of TDIU, the RO should determine whether additional SMC rates are warranted. 3. After the above is complete, readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC). The Veteran and his representative should be given an opportunity to respond, before the case is returned to the Board. 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 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs