Citation Nr: 18158737 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-04 488 DATE: December 17, 2018 ORDER Entitlement to special monthly compensation (SMC) for the Veteran based on aid and attendance and/or housebound is denied. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Prior to the Veteran’s death, he was only service-connected for chronic schizophrenia. 2. The Veteran was not blind, or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or contraction of the visual field to 5 degrees or less, because of a service-connected disability. 3. The Veteran was not a patient in a nursing home. 4. The Veteran’s service-connected chronic schizophrenia did not render him unable to care for his daily needs without the regular aid and attendance of another person, or render him unable to protect himself from the hazards and dangers incident to his daily environment. 5. The Veteran did not have a single service-connected disability rated as 100 percent. 6. The Veteran did not have a service-connected disability that resulted in permanent impairment of vision of both eyes. 7. Resolving all reasonable doubt in the Appellant’s favor, the Veteran’s service-connected chronic schizophrenia caused or contributed materially to producing or accelerating his death. CONCLUSIONS OF LAW 1. The criteria for an award of SMC based on aid and attendance and/or housebound status have not been met. 38 U.S.C. §§ 1114, 5103, 5103A; 38 C.F.R. §§ 3.350, 352(a). 2. Resolving all reasonable doubt in favor of the Appellant, the criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1953 to November 1953. These issues are on appeal from December 2014 and January 2016 rating decisions. The Veteran died in May 2015. The Appellant is his surviving spouse. In a December 2018 administrative decision, the Appellant was substituted for the Veteran. In the Substantive Appeals, the Appellant requested a Board hearing. The Board hearing was scheduled for November 2018, but the Appellant withdrew her hearing request prior to the hearing. 1. Entitlement to special monthly compensation for the Veteran based on aid and attendance or housebound. The Appellant seeks SMC benefits for the Veteran prior to his death based on his need for aid and attendance or at the housebound rate due to a service-connected disability. Prior to his death, the Veteran was only service-connected for chronic schizophrenia. SMC is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). The following criteria will be considered in determining whether a veteran is in need of the regular aid and attendance of another person: the inability of the Veteran to dress or undress himself or herself, or to keep himself 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.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the 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 veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Bedridden status will be a proper basis for the determination of the need for regular aid and attendance. Bedridden means that condition which, through its essential character, actually requires that the veteran remain in bed. 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. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The particular personal function which a veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222 (1996). A veteran may receive housebound-rate special monthly compensation if he or she has a service-connected disability rated as permanent and total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of disability or disabilities, is permanently housebound but does not qualify for special monthly pension at the aid and attendance rate. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he or she is substantially confined to the house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.351(d)(2). In his September 2014 SMC claim, the Veteran argued that he was legally blind. In October 2014, the Veteran submitted a July 2009 opinion from a VA Blind Rehabilitation Outpatient Specialist. The opinion stated that the Veteran was legally blind secondary to his cataracts. The Veteran was not service-connected for cataracts or any eye disorder prior to his death. Thus, the Veteran’s legal blindness is not sufficient to warrant SMC as the blindness was not caused by his service-connected chronic schizophrenia. Additionally, the Appellant does not allege that the Veteran was in a nursing home prior to his death because of mental or physical incapacity as a result of his service-connected chronic schizophrenia. In his September 2014 claim, the Veteran argued that he was housebound and needed assistance of another person to leave the house. He also needed the assistance of another person to perform his personal functions required in everyday living, to include bathing, feeding, dressing, and attending to the wants of nature. He stated that he required the regular attendance of another person. The Veteran did not state whether his service-connected chronic schizophrenia or other non-service-connected disabilities caused these impairments. As stated above, at the time of his claim, the Veteran was legally blind secondary to his non-service-connected cataracts. His VA treatment records also document diagnoses of osteoarthritis and benign prostatic hyperplasia (BPH) in March 2014. The Board finds that the medical evidence does not establish a factual need for regular aid and attendance due to the service-connected chronic schizophrenia. The medical evidence also does not demonstrate that the Veteran was bedridden due to his service-connected chronic schizophrenia. At a September 2014 examination for housebound status or permanent need for regular aid and attendance, the VA examiner diagnosed the Veteran with paranoid schizophrenia, legal blindness secondary to cataracts, BPH, and osteoarthritis. The examiner found that these disorders required the Veteran to have help setting up his food. He was unable to prepare his own meals. He required assistance in bathing and tending to other hygiene needs. He was legally blind. He did not require nursing home care. He did not need medication management. He did not have the ability to manage his own financial affairs, so his wife managed them. The Veteran had decreased peripheral strength in his hands. He had bilateral lower extremities weakness. His left knee would give out. He had decreased peripheral sensation in his bilateral lower extremities. The Veteran experienced urinary incontinence. Another person was required for locomotion in excess of one block. The Veteran was able to leave his house 0-1 days per week when accompanied. The Veteran’s legal blindness, cataracts, BPH, urinary incontinence, osteoarthritis, and decreased strength and sensation in his bilateral upper and lower extremities were not service-connected disabilities. While the Board acknowledges that the Veteran required aid and attendance for these non-service-connected disabilities (and possibly, in part due to the schizophrenia), the evidence does not establish that the Veteran required aid and attendance due solely to his service-connected schizophrenia. The evidence also does not establish that the Veteran was bedridden, as he was able to leave his house approximately once per week. There is no positive medical evidence to the contrary in the claims file. In short, the evidence in this case does not provide a basis for concluding that that the Veteran’s service-connected schizophrenia on its own rendered him unable to tend to the basic functions of self-care without regular assistance from another person, or rendered him vulnerable to the hazards and dangers incident to his environment. As the Veteran cannot establish a factual need for regular aid and attendance or “permanently bedridden” status based on a service-connected disability and pursuant to the criteria listed in 38 C.F.R. § 3.352(a), a SMC based upon the need for regular aid and attendance of another person or based on housebound status must be denied. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). In addition, the evidence does not show that the Veteran had one single disability ratable as 100 percent disabling. The Veteran was only service-connected for chronic schizophrenia, rated as 70 percent disabling. The Veteran did not have one single disability ratable as 100 percent disabling. Accordingly, the Veteran is not entitled to SMC based on his service-connected disability rating. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). For the aforementioned reasons, the criteria for SMC are not met. Under these circumstances, the Board must find that the preponderance of the evidence is against the claim. The benefit-of-the doubt doctrine is inapplicable and the claim must be denied. 2. Entitlement to service connection for the cause of the Veteran's death. The Appellant seeks to establish entitlement to service connection for the cause of the Veteran’s death. To grant service connection for the cause of the veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). The Veteran died in May 2015 with the immediate cause of death listed as respiratory failure. Other significant conditions contributing to death included aspiration pneumonia and right posterior cerebral artery ischemic stroke. At the time of his death, the Veteran was service-connected for chronic schizophrenia only. The Appellant argues that the Veteran’s service-connected schizophrenia caused his hypertension, which then lead to his cerebrovascular accident (CVA or stroke). In this regard, the claims file contains three medical opinions. In December 2015, Dr. C.B., a private neuro-radiologist, reviewed the Veteran’s claims file and provided a medical opinion. Dr. C.B. opined that the Veteran’s death due to a stroke was caused by his long-standing schizophrenia. Specifically, the physician believed that the Veteran’s schizophrenia caused his high blood pressure, which in turn caused his stroke. The rationale was that the Veteran had schizophrenia since 1953. He had high blood pressure at 147/95 in 2015 and systolic in the 161/90 range also in 2015. Schizophrenia is known to cause high blood pressure and this is known to cause a stroke. As support for his medical opinion, Dr. C.B. also cited the medical literature, which documented that each increase in 10 mg of blood pressure increases the risk of stroke. The Veteran had blood pressure in the 161/90 range due to his schizophrenia; thus, he had a four-fold increase in stroke risk due to his increased blood pressure. Dr. C.B. referenced a medical study of 11,000+ people, which showed a relative risk of stroke at 1.2 to 1.4 for people with schizophrenia. This is higher than the general population. Thus, Dr. C.B. stated that the Veteran’s schizophrenia was also an independent cause of the stroke. The Veteran’s records did not support another more plausible etiology for his demise other than his schizophrenia. Schizophrenics are known to not live as long as the general population due to the side effects of the disease. The time lag between the Veteran’s schizophrenia in service and his demise are consistent with known medical principles and the natural history of this disease. In February 2017, a VA examiner reviewed the Veteran’s claims file, to include the December 2015 medical opinion. The examiner opined that the Veteran’s death was less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected schizophrenia. The rationale was that the Veteran was 81 years old at the time of his death and his manner of death was noted as “natural” on the death certificate. The examiner stated that hypertension was not a noted risk factor/cause in the development of ischemic stroke. The examiner cited to the medical literature as further support for his opinion. The examiner found the December 2015 medical opinion to be inadequate as the private physician discussed stroke rather than specifically “right posterior artery ischemic stroke” (which was noted on the death certificate). The VA examiner also found that while the private physician referenced the Veteran’s high blood pressure readings in 2015, there was no evidence in the medical records of three different elevated blood pressure readings on at least two clinical visits to support a clinical diagnosis of hypertension. There was also no evidence of treatment, diagnoses, or complications related to hypertension in the Veteran’s problem list or in the medical records. In March 2018, the Appellant submitted another private medical opinion. Dr. A.P. reviewed the Veteran’s claims file and the medical literature in forming the opinion. The private psychologist determined that it was at least as likely as not that the Veteran’s service-connected schizophrenia was a contributory cause to his death. The rationale was that emerging research has found a correlation between oxidative stress, inflammation, schizophrenia, and increased risk for ischemic stroke. Dr. A.P. also noted allegations by the Veteran in the medical evidence of being verbally and physically assaulted during his active military service. The physician stated that if these incidences did occur, then it was more than likely that the Veteran did sustain some form of traumatic brain injury (TBI). Dr. A.P. noted that computed tomography (CT) scans and magnetic resonance imaging (MRIs) did not become widely available until the 1980s and 1990s, long after the Veteran’s active military service in the 1950s. Dr. A.P. described a correlation between TBI and the increased risk of ischemic stroke. Regarding the TBI theory, the Board notes that in a September 2005 VA examination (used for establishing the Veteran’s initial grant of service connection for schizophrenia), the Veteran reported mistreatment and several altercations during his active military service. The Board concludes that the medical evidence is at least in equipoise as to whether the Veteran’s service-connected schizophrenia caused and/or contributed to the cause of his death, to include by causing either high blood pressure or a TBI which then ultimately caused the Veteran to have a stroke. Therefore, in affording the benefit of the doubt, the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel