Citation Nr: 1800015 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 15-27 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for right foot arthritis (right foot disability), to include as a residual of a gunshot wound. 2. Entitlement to service connection for left foot arthritis (right foot disability), to include as a residual of a gunshot wound. 3. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (A&A) of another person. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from August 1965 to March 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, a right foot disability is caused or permanently worsened by his service-connected right thigh gunshot wound. 2. Resolving all reasonable doubt in favor of the Veteran, a left foot disability is caused or permanently worsened by his service-connected right thigh gunshot wound. 3. Resolving all reasonable doubt in favor of the Veteran, his disabilities leave him in need of regular aid and attendance. CONCLUSIONS OF LAW 1. A right foot disability is proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.310 (2017). 2. A left foot disability is proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.310 (2017). 3. The criteria for SMC on the basis of the need for regular aid and attendance are met. 38 U.S.C. §§ 1114 (l), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350 (b), 3.352(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board grants entitlement to service connection for arthritis of the left and right foot, and SMC; these awards represent a complete grant of those benefits sought and therefore discussion of VCAA compliance is unnecessary. The Veteran contends that he is entitled to service connection a left and right foot disability on the basis that they are proximately due to his service-connected left and right thigh gunshot wound residuals, and SMC on the basis of need for regular aid and attendance because of his service-connected disabilities. Merits of the Service Connection Claims Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling Leopoldo v. Brown, 4 Vet. App. 21 (1993), and Tobin v. Derwinski, 2. Vet. App. 34 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The record reveals that the Veteran suffers from left and right arthritis of the foot, and hallux valgus of the bilateral feet connected to his service-connected right and left gunshot wounds. On a July 2009 VA examination report for residuals of gunshot wounds of the bilateral thighs, the physician diagnosed the Veteran with arthritis of the left and right foot, and hallux valgus of the left and right foot. As the evidence in support of the claim is at least in relative equipoise, the benefit of the doubt doctrine is for application. Accordingly, the Veteran fulfills the criteria necessary for service connection on a secondary basis, and service connection is granted. SMC Under 38 U.S.C. § 1114 (l), SMC for aid and attendance is payable if, as the result of service-connected disability, 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. 38 U.S.C. § 1114 (l) (2012); 38 C.F.R. § 3.350 (b) (2017). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350 (b)(3). The following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). There need not be a constant need but, rather, only a regular need for aid and attendance. Id. It is not required that all of the disabling conditions are present or are due to a service-connected condition to warrant SMC. Id.; see also Turco v. Brown, 9 Vet. App. 222, 224 (1996). Here, the Veteran seeks SMC based on the need for aid and attendance. He is service-connected for residuals of a gunshot wound to the left thigh with a fractured left femur, osteomyelitis of the left femur, and partial ankylosis of the left knee; residuals of a gunshot wound of the right thigh; PTSD; CAD; prostate cancer; residuals of a gunshot wound to the left thigh muscle group XV; osteomyelitis of the right knee with total knee replacement; impotence; diabetes mellitus; scar of the right lower extremity; skin condition to include recurrent skin abscess of the left thigh; and arthritis of the bilateral feet as granted herein. He is also awarded a TDIU. On review, the Board finds that, resolving all reasonable doubt in his favor, the Veteran is entitled to SMC based on the need for aid and attendance. The evidence clearly shows that the Veteran has abnormal function in his lower extremities, due in large part to pain and weakness and he uses a motorized scooter. This impairment results in some difficulty in his ability to self-feed, dress, undress, self-bathe and self-groom, as asserted by the Veteran during the April 2016 Board hearing and affirmatively stated by a September 2013 VA physician. Additionally, the medical evidence reflects that the Veteran is prescribed numerous medications for his CAD, diabetes, PTSD, and prostate cancer, and needs assistance with the medication administration. Resolving all reasonable doubt in his favor, entitlement to SMC based on the need for aid and attendance is warranted. ORDER Service connection for a right foot disability is granted on a secondary basis. Service connection for a left foot disability is granted on a secondary basis. SMC based on the need for aid and attendance is granted, subject to the laws and regulations governing monetary regulations. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs