Citation Nr: 1337676 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-25 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for erectile dysfunction (ED) claimed as secondary to service-connected prostate cancer. 3. Entitlement to special monthly compensation (SMC) based upon the aid and attendance of another. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from June 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008, February 2009, and September 2011 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. In October 2009, the Veteran requested a Travel Board hearing before a Veterans Law Judge at the RO. In August 2011, the Veteran withdrew his request for a Board hearing. FINDINGS OF FACT 1. The Veteran did not sustain a low back injury or disease of the lumbar spine in service, but experienced back pain in service, diagnosed as left paravertebral muscle spasm. 2. The Veteran did not experience chronic symptoms of a lumbar spine disorder during service. 3. The Veteran did not experience continuous symptoms of a lumbar spine disorder after service, including no arthritis manifest to 10 percent within one year of service. 4. The Veteran's current degenerative joint/disc disease of the lumbar spine is not causally or etiologically related to his service. 5. Erectile dysfunction is etiologically related to the service-connected prostate cancer. 6. The Veteran has service-connected disabilities of bilateral hearing loss, rated as 100 percent disabling; prostate cancer, rated as 100 percent disabling; PTSD, rated as 30 percent disabling; dermatophytosis of the feet, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling, that do not render him unable to care for his daily needs without requiring the regular aid and attendance of another person. 7. The non-service-connected back and knee disorders render the Veteran unable to care for his daily needs without requiring the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder are not met, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. Resolving reasonable doubt in favor of the Veteran, ED was aggravated by the service-connected prostate cancer. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2013). 3. The criteria for an award of SMC based on the need for regular aid and attendance are not met. 38 U.S.C.A. § 1114(l) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350(b), 3.352(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As it relates to the issue of service connection for erectile dysfunction as secondary to service-connected prostate cancer, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, as it relates to this issue, further assistance is not required to substantiate the claim. As it relates to the claim for service connection for a low back disorder, the RO, in an August 2008 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The August 2008 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. As it relates to the claim for SMC based upon the aid and attendance of another person, in a January 2008 letter the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting a veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all pertinent treatment records have been obtained and associated with the claims folder insofar as possible. No other relevant records have been identified. As it relates to the claim of service connection for a low back disorder and the necessity for an examination, the Veteran was afforded a VA examination in November 2008 to assist in determining the nature and etiology of any low back disorder and its relationship, if any, to service. The opinion obtained in conjunction with the examination is sufficient and provides detailed rationale. As such, the Board finds that an additional VA examination is not warranted as there is otherwise sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). As to the necessity for an examination with regard to the Veteran's claim for SMC for aid and attendance of another person, service connection is currently in effect for bilateral hearing loss, prostate cancer, PTSD, dermatophytosis of the feet, and tinnitus. There has been no indication either in the record or by way of statements from the Veteran that his service-connected disabilities result in his requiring the need for aid and attendance of another. The Veteran has asserted that he requires aid and attendance as a result of his non-service-connected low back and knee disorders. Also, there is competent medical evidence of record to decide this claim. As such, an examination is not necessary on the question of whether the Veteran's service-connected disabilities require the need for aid and attendance of another. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative and by appearing at a hearing if so desired. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist in substantiating this claim. Service Connection - Legal Authority It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by a veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, supra. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The evidence shows the Veteran has a "chronic disease" of arthritis of the lumbar spine listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim of service connection for this disorder. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with degenerative joint disease of the lumbar spine, which is arthritis of the spine. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for a Low Back Disorder The Veteran contends that his claimed lumbar spine disorder arises out of lifting heavy objects in service with continuous or intermittent symptoms since service. The evidence does not show, nor does the Veteran allege, that his injuries arise out of combat with the enemy. After a review of all the evidence, lay and medical, the Board finds that the Veteran did not sustain a low back injury or lumbar spine disease in service, experienced back pain in service that was diagnosed as left paravertebral muscle spasm, but did not experience chronic symptoms of low back disorder during service. The Veteran was seen with complaints of back pain on several occasions during service, but no actual injury was reported and the symptoms were not indicated to be chronic in nature during service and were not of such frequency to be chronic. In October 1968, the Veteran was seen with complaints of pain in the middle of his back. There was a notation that the Veteran had been playing football. It was the examiner's assessment that the Veteran had a mild left paravertebral muscle spasm. At the time of an October 1968 follow-up visit, the Veteran was again seen for back pain. In November 1968, the Veteran reported having back pain for three months. Subsequent treatment records reveal no further findings or complaints of back problems, indicating that the low back pain was not chronic during the remainder of service. At the time of the April 1969 service separation examination, normal findings were reported for the spine and other musculoskeletal system. On the April 1969 service separation report of medical history the Veteran checked the "yes" box when asked if he had, or had ever had, recurrent back pain. In the physician's summary section of the service separation examination report, it was indicated that the Veteran had low back muscular pain. Because the evidence does not show that symptoms of a low back disorder were "chronic" during service, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) are not met. The Board finds that the Veteran did not experience continuous symptoms of a lumbar spine disorder after service, including no arthritis manifest to 10 percent within one year of service. The Veteran has a currently diagnosed lumbar spine disability. In November 2008, the Veteran underwent a VA examination during which he reported having had intermittent back pain since the 1968 in-service complaints. The examiner indicated that the Veteran had known degenerative joint disease of the lumbar spine that was shown on April 2008 VA x-rays. X-rays taken in April 2008, made part of the November 2008 VA examination report, also revealed multilevel degenerative disc disease, most pronounced at L4/5 right greater than left. In his October 2009 substantive appeal, the Veteran indicated that his back condition had started in service and that he had missed work from time to time as a result of his back. The Veteran is competent to report symptoms such as back pain and to re port that such pain has been unremitting since service; however, the Veteran's inconsistent statements when giving a history of onset of symptomatology on other occasions outweighs his more recent assertion of continuous post-service low back symptoms. Weighing against the recent implication that low back pain had been recurrent since service separation is a VA claim in 2001. At the time of his initial application for compensation in 2001, the Veteran did not report having any back problems. The Veteran previously filed a claim for compensation in September 2001, at which he did not claim service connection for back disorder and did not mention back injury in service or back problems at any time. Had the Veteran in fact been experiencing low back symptomatology in 2001, and since service, when he filed for service connection for disabilities other than his low back, it is reasonable to assume that he would also have sought service connection for a low back disability. See AZ v. Shinseki, No. 2012-7046 (Fed. Cir. Sept. 30, 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran's failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). As one additional factor that weighs against a finding of continuous symptoms since service, in addition to the other factors and evidence cited in this decision, the evidence shows no treatment for a low back disorder prior to 2004. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (the Board may weigh the absence of contemporaneous medical evidence in service as a factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence of onset of symptoms in service lacks credibility merely because it is unaccompanied by contemporaneous service treatment/medical record evidence). The Veteran has endorsed a long standing history of low back pain, including as far back as period of service; however, in addition to reports of a 40-year history of low back pain, treatment records also include inconsistent reports of a three year history and reports that symptoms were intermittent. The Veteran did not begin to endorse low back pain until 2007, the same year he filed his claim of service connection for a low back disorder in close proximity to his claim for compensation benefits. All of these inconsistent reports reflect a post-service onset of the current symptomatology and resulting current diagnosis. Based on this evidence, the Board finds that the weight of the evidence demonstrates that the symptoms of low back disorder were not continuous since service, and did not manifest until many years after service. Because the evidence does not show that symptoms of a low back disorder were "continuous" since service separation, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) are not met. Because arthritis did not manifest, including to a degree of 10 percent, within one year of service separation, the criteria for presumptive service connection for a chronic disease of arthritis at 38 C.F.R. § 3.309(a) and 3.307 are also not met. The Board further finds that the weight of the evidence demonstrates that the Veteran's current degenerative joint disease and degenerative disc disease of the lumbar spine is not causally or etiologically related to his service. Following service separation, the Veteran was not seen at a VA medical facility with complaints of back pain until 2007. He reported only a three year history of back problems at that time. At the time of the November 2008 VA examination, the examiner accurately noted that the Veteran did not receive on-going treatment in service following his initial injury in 1968, and did not complain of back symptomatology until 40 years after separation from service. The VA examiner opined that the Veteran's current complaints of low back pain were not a continuation of the symptoms or findings in service in 1968, and that the complaints of low back pain were not caused by or a result of the 1968 service complaints of lumbar strain. The rationale for the opinion included the accurate assumption that there were over 40 years of lack of complaints or treatment from 1968 to the present, and that the Veteran had driven a truck for twenty years without loss of time from work. The VA examiner's opinion, which was based on consideration of the accurate facts in this case, including symptoms and treatment and diagnosis during service, and non-continuous symptoms since service, as well as the Veteran's history and examination of the Veteran, is of greater probative value than the Veteran's statements regarding etiology of the current back disorders. The examiner's opinion is based on accurate factual assumptions consistent with those found by the Board in this decision based upon a weighing of the lay and medical evidence. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disorder, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Erectile Dysfunction The Veteran maintains that he currently has ED secondary to his service-connected prostate cancer. He contends that the treatment he received for his prostate cancer caused his ED. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Treatment records associated with the claims folder reveal that the Veteran has undergone radiation treatment and hormone therapy for his service-connected prostate cancer. Both the Veteran and his wife have indicated that his ED started following his treatment for prostate cancer. In conjunction with this claim, the Veteran was afforded a VA examination in June 2010. The examiner noted that the Veteran was diagnosed with prostate cancer in 2007. Treatment included external beam radiation and hormone shots. The examiner further noted that the Veteran's ED started in June 2008 following hormone therapy. The examiner stated that the Veteran was given hormone shots to suppress the hormones to contain the cancer cells. Physical examination revealed ED. In an August 2010 VA examination addendum report, the June 2010 VA examiner opined that it was possible that radiation treatment affected the Veteran's ability to produce testosterone. He noted that 80 percent of patients were able to have sex after radiation treatment with medication. The examiner observed that the Veteran had very low testosterone and he was 62 years old, when 40 percent of the male population had some form of ED. He stated that it was difficult to speculate the cause of the Veteran's ED but it was most likely androgenic and not caused by radiation treatment of prostate cancer. Based upon the above, the evidence has satisfied the three elements necessary for a grant of service connection for ED. The evidence shows a current disability of ED, a service-connected disability of prostate cancer, and evidence that is in relative equipoise on the question of relationship of ED to the service-connected prostate cancer. The lay statements from the Veteran and his wife reflect the onset of ED following prostate treatment (for service-connected prostate cancer), and the VA examiner's opinion of the possibility that radiation treatment affected the Veteran's ability to produce testosterone and that it was speculation to make a determination as to the cause of the current ED. Given the foregoing, and resolving reasonable doubt on the Veteran's behalf, service connection for ED as secondary to prostate cancer, is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. Special Monthly Compensation Based Upon Aid and Attendance SMC is payable to a veteran for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. Under 38 C.F.R. § 3.352, the factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to 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 daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision is permissible. Particular personal functions which a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). It is logical to infer, however, a threshold requirement that "at least one of the enumerated factors be present." Turco, 9 Vet. App. at 224. "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a). The Veteran is currently service connected for bilateral hearing loss, rated as 100 percent disabling; prostate cancer, rated as 100 percent disabling; PTSD, rated as 30 percent disabling; dermatophytosis of the feet, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. There has been no indication from the evidence nor has the Veteran indicated that these disabilities result in his requiring the aid and attendance of another person. Both the Veteran and his spouse have indicated that the need for aid and attendance was caused by back and knee disorders, for which service connection is not in effect. The Board finds that evidence of record does not show that the Veteran's service-connected disabilities have caused the anatomical loss or loss of use of both feet or one hand and one foot, and he is not blind in both eyes. Consequently, the Veteran can only establish entitlement to SMC under 38 U.S.C.A. § 1114(l) by showing his service-connected disabilities cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a). The evidence does not reflect that, due to the service-connected disabilities, the Veteran's service-connected disabilities have rendered him unable to dress or undress himself, to keep himself ordinarily clean and presentable, to feed himself, to attend to the wants or nature, or that his service-connected disability requires the need of adjustment of any special prosthetic or orthopedic appliance or result in other incapacity that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The evidence also does not reflect that the Veteran has a service-connected disability which, through its essential character, actually requires that he remain in bed. The Veteran's theory is that his (non-service-connected) back and knee disorders cause the need for aid and attendance. Such assertion is supported by the evidence of record which attributes the need for the aid and attendance of another to these non-service-connected disorders, thus weighing against the claim for aid and attendance based on the need for aid due to service-connected disabilities. The evidence demonstrates that the Veteran's service-connected disabilities (hearing loss, prostate cancer residuals, PTSD, dermatophytosis of the feet, and tinnitus) do not cause him to be permanently bedridden or so helpless as to be in need of regular aid and attendance of another. Consequently, the criteria for SMC based on the need for the regular aid and attendance of another person are not met, a preponderance of the evidence is against the claim, and the claim for SMC based on the need for the regular aid and attendance of another person must be denied. See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). ORDER Service connection for a low back disorder is denied. Service connection for ED, as secondary to service-connected prostate cancer, is granted. SMC based upon the aid and attendance of another is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs