Citation Nr: 21004116 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-39 377 DATE: January 26, 2021 ORDER Entitlement to service connection for metastatic adenocarcinoma, to include as due to herbicide agent exposure, is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. Entitlement to SMC due to housebound status is denied. FINDINGS OF FACT 1. There is no probative evidence of record showing that the Veteran’s metastatic adenocarcinoma had its onset during his active service or is otherwise causally or etiologically related to an in-service event, injury, or disease, to include his presumed exposure to herbicide agents. 2. Resolving reasonable doubt in the appellant’s favor, the Veteran was so helpless as to need regular aid and attendance due to his service-connected disabilities. 3. The Veteran did not have a single service-connected disability rated at 100 percent disabling and he was not substantially confined to his dwelling and the immediate premises due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for metastatic adenocarcinoma have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to SMC based on the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 3. The criteria for entitlement to SMC due to housebound status have not been met. 38 U.S.C. §§ 1114, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1949 to November 1973. The Veteran died in November 2016. The appellant is the Veteran’s spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In May 2019, the appellant testified during a video conference hearing before the undersigned Veterans Law Judge. In October 2020 the Board notified the Veteran that the Veterans Law Judge who held the May 2019 hearing has since retired. The Veteran responded and declined the opportunity for a new hearing. The transcript of the May 2019 hearing is included in the claims file and has been considered as part of the evidence in this decision. 1. Entitlement to service connection for metastatic adenocarcinoma The appellant contends that the Veteran developed metastatic adenocarcinoma as a result of exposure to herbicide agents during his active service. His DD Form 214 reflects that he had service in the Republic of Vietnam during the Vietnam era. Therefore, he is presumed to have been exposed to herbicide agents during his active service. See 38 C.F.R. § 3.307 (a) (6). The question for the Board is whether the Veteran’s metastatic adenocarcinoma began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran was diagnosed with metastatic adenocarcinoma during or in proximity to the claim, and he is presumed to have been exposed to herbicide agents during his active service, there is no probative evidence of record showing that the Veteran’s metastatic adenocarcinoma had its onset during his active service or is otherwise causally or etiologically related to an in-service event, injury, or disease, to include the presumed exposure to herbicide agents. 38 U.S.C. §§ 1110, 1131, 5107 (b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Specifically, the medical treatment records show the Veteran was not diagnosed with metastatic adenocarcinoma until several decades after his separation from active service. The records do not reflect complaint of or treatment for a metastatic adenocarcinoma condition during the Veteran’s active service or within one year of his separation from active service. Therefore, the evidence does not establish that the Veteran’s metastatic adenocarcinoma had its onset during his active service or within one year of his separation from active service. With regard to the appellant’s contention that the Veteran’s metastatic adenocarcinoma was caused by in-service exposure to herbicide agents, the Board notes that the list of diseases that are associated with exposure to certain herbicide agents and that may be service connected on a presumptive basis as due to herbicide agent exposure does not include metastatic adenocarcinoma. See 38 C.F.R. § 3.309 (e). Therefore, the condition may not be service connected on a presumptive basis despite the Veteran’s presumed in-service exposure to herbicide agents. Furthermore, the record does not contain any competent evidence showing that the Veteran’s metastatic adenocarcinoma was actually caused by his exposure to herbicide agents or by any other in-service event, injury, or disease. In that regard, the Board notes that the Veteran and appellant are not considered competent to determine that the Veteran’s metastatic adenocarcinoma was the result of any particular cause, as the issue is medically complex and requires medical knowledge and expertise the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Veteran’s and appellant’s contentions do not constitute probative evidence establishing that the Veteran’s metastatic adenocarcinoma was causally or etiologically related to an in-service event, injury, or disease, to include the presumed exposure to herbicide agents. Additionally, the Veteran’s claims file was reviewed by a VA examiner in January 2020. The VA examiner opined that it is less likely as not that the Veteran’s metastatic adenocarcinoma was related to his active service, to include, his exposure to herbicide agents. As rationale, the VA examiner noted that the medical literature does not reflect an association between herbicide agent exposure and cancers of the digestive system, including cancers of the small intestine. The VA examiner further noted that risk factors for small bowel cancers include gene mutations passed through families and that an October 2016 private oncology note reflects a genetic mutation was detected in the Veteran. The January 2020 VA examiner noted that a September 2016 private examiner opined that it is less likely as not that exposure to Agent Orange or other herbicides caused the Veteran’s colon cancer. However, the VA examiner noted that the Veteran was diagnosed with duodenal/small intestinal adenocarcinoma, not colon cancer. As such, the September 2016 private opinion is not relevant to the appellant’s claim. After reviewing all evidence of record, the Board finds that the uncontradicted opinion from the VA examiner is the most persuasive evidence regarding the etiology of the Veteran’s metastatic adenocarcinoma. The examiner’s conclusion followed an extensive review of the Veteran’s claims file, relevant medical literature, as well as consideration of reported history; therefore, the January 2020 VA opinion is afforded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the medical expert’s access to the claims file and the thoroughness and detail of the opinion). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for metastatic adenocarcinoma. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to SMC based on the need of regular aid and attendance and/or housebound status The appellant seeks entitlement to SMC based on the Veteran’s need for regular aid and attendance prior to his death. Entitlement to SMC based on the need for regular aid and attendance will be granted when a veteran, due to a service-connected disability, has 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 need regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for regular aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to the following: inability of the veteran 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 of the veteran 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 veteran from the hazards or dangers inherent in his daily environment. 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. 38 C.F.R. § 3.352 (a). Prior to his death, the Veteran was service connected for the following disabilities: degenerative joint disease lumbar spine; degenerative arthritis and ligament instability right ankle; fungal dermatitis onychomycosis, bilateral feet; coronary artery disease; diabetes mellitus type II; right knee arthritis; bilateral hearing loss; and chloracne. He had a 90 percent combined disability rating and was in receipt of a TDIU since January 11, 1997. The appellant testified that the Veteran needed assistance with tasks such as ambulating through the house, bathing, preparing meals, and attending to personal hygiene. See May 2019 Board hearing transcript. Additionally, in an August 2010 statement, the Veteran reported that he is unable to bend due to his service-connected back disability and that he was issued braces for his knee and ankle. The Veteran further reported that he needs assistance putting on his braces, socks, shoes and for personal hygiene and that he is unable to drive a car. The Veteran was provided an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, completed by a medical doctor in April 2015. The examiner noted that the Veteran was not able to ambulate safely unassisted due to his lower extremity weakness. The examiner further noted that the Veteran is unable to stand and required assistance to get on the examination couch. Additionally, the VA examiner noted that the Veteran needed assistance of another person for bathing and hygiene needs. A March 2015 examination reflects that the Veteran was unsteady on his feet and needed ambulatory aid. The examination further reflects that the Veteran had severe knee, back and ankle diseases that required extensive braces and support for and ambulation. Thus, the record, to include lay statements from the appellant and Veteran, indicates that due to the service-connected musculoskeletal disabilities, the Veteran used braces for his knee and ankle and required help getting dressed, bathing, performing personal hygiene, preparing food, and driving. The Board finds no reason to question the probative value of the appellant’s and Veteran’s statements and other evidence of record relevant to the issue. Based on the record, the Board concludes that the evidence is at least in relative equipoise as to whether the Veteran’s service-connected disabilities caused him to be so helpless as to need personal assistance from others. He required assistance in dressing and keeping himself ordinarily clean and presentable. Resolving all reasonable doubt in the Veteran’s favor, entitlement to SMC based on the need for regular aid and attendance of another person under 38 U.S.C. § 1114 (l) and 38 C.F.R. § 3.352 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to SMC due to housebound status The appellant seeks entitlement to SMC based on the Veteran’s housebound status. Entitlement to SMC based on housebound status will be granted when a veteran has a single service-connected disability rated as 100 percent disabling and, (1) has 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 is permanently housebound when he is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises. 38 C.F.R. § 3.350 (i). In this case, the Veteran did not have a single service-connected disability rated as 100 percent at any point during the appeal period. Furthermore, the record does not show that the Veteran was permanently housebound by reason of his service-connected disabilities at any time during the appeal period. The Veteran’s VA treatment records show that he has difficulty with ambulation due to his service-connected disabilities. In that regard, the Board recognizes that the Veteran has been in receipt of a TDIU since January 1997, and that a TDIU, if based on a single service-connected disability, can satisfy the 100 percent requirement for SMC based on housebound status. See Bradley v. Peake, 22 Vet. App. 280, 290-91 (2008). However, the Veteran was awarded the TDIU based on a combination of his service-connected lumbar spine, right ankle, and bilateral feet disabilities. Accordingly, the Veteran’s TDIU does not satisfy the requirement that there be a single service-connected disability rated as 100 percent and the Veteran does not meet the criteria for entitlement to SMC at the housebound rate under 38 C.F.R. § 3.350 even in view of his receipt of a TDIU. In summary, the Veteran did not have a single service-connected disability rated as 100 percent during the claim period. As such, the preponderance of the evidence is against the claim for entitlement to SMC based on housebound status, and the claim is denied. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.