Citation Nr: 1807268	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-27 962A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1. Entitlement to service connection for a swollen prostate disability. 

2. Entitlement to compensation under 38 U.S.C. § 1151 (2012) for right eye blindness due to VA surgery.

3. Entitlement to special monthly compensation (SMC) for aid and attendance. 

4. Entitlement to a compensable rating for athlete's foot fungus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter
ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1951 to January 1953.

This appeal comes to the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Jurisdiction has since moved to New Orleans, Louisiana. 

In November 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge who is rending the determination for this claim.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issue of a compensable rating for athlete's foot fungus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's prostate disability was not present in service and is not otherwise related to service.

2. The Veteran developed right eye blindness following his May 2010 VA surgery. The disability is not as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA.

3. The Veteran does not require regular aid and attendance nor is he factually housebound due to his service-connected disabilities. 


CONCLUSIONS OF LAW

1. The criteria for service connection for a swollen prostate have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2. The criteria for compensation under 38 U.S.C. § 1151 for loss of sight in right eye are not met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017).

3. The criteria for SMC for aid and attendance and housebound benefits have not been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.352, 3.350 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service Connection-Swollen Prostate

Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Following a review of the relevant evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for a swollen prostate. 

The Veteran filed a claim for service connection for his swollen prostate in 2012. Although the Veteran does have a current prostate disability noted in his post-service records there is no competent evidence of a relationship between the current disability and service. 

The Veteran claims in a statement supporting his claim that that his prostate was swollen in service in 1951 and he had to be given a shot. However, the Veteran's military treatment records are silent to any symptoms, diagnosis or treatment for his prostate. The Veteran was circumcised while in service in May of 1952, but there were no issues with his prostate noted at that time. The Veteran was also provided a separation examination in June 1953 and no disabilities of this nature were noted. 

The first documentation within the claims file of the swollen prostate disability is in approximately 2002; this is almost 50 years after the Veteran's military service. This evidence tends to establish that the Veteran's disability did not have its onset in service. The passage of many years between service separation and medical documentation of a disability tends to weigh against a finding that a disease or injury had its onset in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

"It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). The most probative evidence weighs against that the Veteran's swollen prostate being related to his military service. Therefore, the claim for service connection for swollen prostate must be denied. 

Because the preponderance of the evidence is against granting the claim for service connection for a swollen prostate, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. 38 U.S.C. 1511 Claim-Right Eye Blindness

The Veteran contends that his right eye blindness is due to VA's negligence in performing his May 2000 surgery. 

Compensation under 38 U.S.C. § 1151 is granted for additional disability if the additional disability was not the result of willful misconduct, the actual cause of the additional disability was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c), (d).

The mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation. Evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in additional disability. 38 C.F.R. § 3.361(c)(1). 

To determine whether the Veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based, to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1).

The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107. In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. 

In making any determination the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

In May 2000, the Veteran underwent a right eye corneal transplant to fix a failed transplant from 1998. After the surgery, the Veteran's vision and healing were constantly monitored through VA treatment. After a period of time, the Veteran began losing sight in his right eye. 

The Veteran meets the requirements of an additional disability for his right eye. The evidence of record establishes that the Veteran had vision in his right eye before the May 2010 surgery, but lost all vision in that eye due to multiple failed corneal transplants and glaucoma. 

The remaining question, therefore, is whether there was negligence, or similar instance of fault on VA's part, or whether the additional disability was an event not reasonable foreseeable. 38 C.F.R. §§ 3.361(c)(d).

Following an October 2013 VA examination and a review of the pertinent records, a VA examiner found that the Veteran's blindness was more likely than not due to complications stemming from his surgery. The examiner found that the Veteran's right eye blindness was not caused by carelessness, negligence, lack of skill, or similar incidences of fault on the part of the eye care personnel. The examiner found that the eye care provider gave the Veteran the appropriate level of care. The examiner went on to state that the Veteran also developed glaucoma prior to his 2000 surgery and that glaucoma is the second leading cause of blindness in the world and the leading cause amongst African Americans. 

The Veteran has offered no competent medical opinion suggesting his right eye blindness was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or other fault related to VA treatment, or that his additional right eye disability was an event not reasonably foreseeable. 

Further, the Veteran has neither asserted, nor does the evidence show, that VA provided any treatment without his informed consent. In fact, the consent form for the right eye surgery list loss of eye and blindness as known risks of the procedure. 

While the Veteran is competent to report symptoms such as pain, Layno v. Brown, 6 Vet. App. 465 (1994), he is not competent to determine whether his right eye blindness was the fault of VA. To offer such an opinion requires specialized knowledge of standards of eye surgery, risks of treatment, and frequency of side effects. The Veteran is not a health care provider and the record does not otherwise show that he possesses the knowledge necessary to make these determinations. Also, the Veteran switches between statements as to which surgery it was that caused his right eye disability, his 1998 or 2000 surgery lessening the credibility of his statements. As a result, the persuasive value of his lay assertions is low and the findings of the VA examiner are more probative than the Veteran's lay assertions.

Given these facts, the fact that the appellant was provided informed consent, and the absence of any competent evidence suggesting that VA care was careless, negligent, administered due a lack of proper skill, judgment error or like fault, the Board concludes that a preponderance of the evidence is against finding entitlement to compensation under the provisions of 38 U.S.C. § 1151 for loss of sight in right eye as a result of VA treatment. The benefit-of-the doubt rule does not apply, and the claim is denied.

IV. Special Monthly Compensation-Aid and Attendance and Housebound

The Veteran has filed a claim for SMC for aid and attendance and housebound benefits. 

SMC is payable at the (l) rate if a Veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 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 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 (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 claimant 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 the claimant from 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 this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the 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 the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Id.

The regulations also provide additional compensation on the basis of being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

The Veteran is not in need of aid and attendance or housebound due to a service-connected disability. 

The Veteran is currently service-connected for bilateral hearing loss, tinnitus and athlete's foot fungus for a total 50 percent disability rating. These disabilities neither individually nor collectively prevent the Veteran from being able to carry out tasks of daily living as listed above nor confine him to his home. The same rationale applies to both his aid and attendance and housebound benefits claims. 

The Veteran has been granted pension benefits for several other disabilities that for pension purposes have qualified him for aid and attendance benefits. However, for the granting of a special monthly compensation, it must be the Veteran's service-connected disabilities that hinder him. At the Veteran's videoconference hearing he discussed the hardships he experiences with daily tasks such as walking and getting dressed. However, the Veteran did not state that the hardships were because of his service-connected disabilities. Again, it is the Veteran's burden to establish the elements of his claim and the preponderance of the evidence is against the Veteran's service-connected disabilities being the bases for his need of aid. 

Thus, the criteria for SMC aid and attendance and housebound benefits for the Veteran have not been met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53.


ORDER

Entitlement to service connection for a swollen prostate disability is denied. 

Entitlement to compensation under 38 U.S.C. § 1151 (2012) for right eye blindness due to VA surgery is denied.

Entitlement to special monthly compensation (SMC) for aid and attendance is denied. 



REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure proper development regarding the Veteran's claim on appeal.

Here, the Veteran, his daughter and his representative claim that the Veteran's Athlete's foot fungus has worsened since his last examination now spreading past his feet. After a review of the record and testimony from the video conference hearing, the Board finds that a significant period of time has passed since the Veteran's last VA examination in May 2012, and the findings in this examination report may no longer reflect an accurate and complete picture of the Veteran's service-connected disability. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for an appropriate VA examination, including any and all testing and imagery deemed necessary by the examiner, to provide a complete disability picture of the Veteran's service-connected athlete's foot fungus disability. 

2. Readjudicate the Veteran's claim on appeal. If the benefit sought remains denied, provide the Veteran and the representative with a supplemental statement of the case.

The appellant has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs