Citation Nr: 21064843 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-16 943A ORDER Entitlement to service connection for onychomycosis, as secondary to service-connected diabetes mellitus, is granted. Entitlement to an initial, compensable rating for chronic kidney disease is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran's onychomycosis is aggravated by his service-connected diabetes mellitus. 2. The Veteran's chronic kidney disease has not been manifested by albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension. 3. The Veteran does not require insulin or regulation of activities to manage his diabetes mellitus. 4. The evidence demonstrates it is as likely as not that the Veteran's service-connected disabilities render him so helpless as to be in the need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for onychomycosis, as secondary to service-connected diabetes mellitus, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 2. The criteria for an initial, compensable rating for percent for chronic kidney disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7941 (2020). 3. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2020). 4. The criteria for SMC due to the need for regular aid and attendance have been met. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to May 1989. The Veteran is incompetent for Department of Veterans Affairs (VA) benefits purposes. The appellant is the Veteran's spouse who has been appointed as the custodian payee. During the course of the Veteran's appeal, entitlement to a total disability rating based on individual unemployability (TDIU) was granted effective the October 2013 date of claim; accordingly, this matter is no longer before the Board. In August 2021, after certification to the Board, the Veteran's attorney indicated that he was no longer representing the Veteran. Pursuant to 38 C.F.R. § 20.6(a)(2), after an appeal has been filed to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on a motion. The August 2021 motion for withdrawal does not reflect that the representative provided good cause for his withdrawal. As such, there has not been compliance with the provisions of 38 C.F.R. § 20.6(a)(2), and withdrawal of representation is not accepted as valid. Accordingly, he is deemed to still be the Veteran's representative, as reflected above. Service Connection 1. Entitlement to service connection for onychomycosis The Veteran asserts that his onychomycosis is related to service or to his service-connected diabetes mellitus. 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 military service. 38 U.S.C. §§ 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); 38 C.F.R. § 3.303(a). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). In this case, the record reflects diagnosis of onychomycosis, with post-service private treatment records noting assessment of onychomycosis in April 2009, and December 2019 VA examination also noting diagnosis of onychomycosis. In addition, the record reflects that the Veteran's is service-connected for diabetes mellitus, as well as skin complaints noted as tinea versicolor and skin rash in service. The remaining question, then is whether the Veteran's onychomycosis is related to service or to service-connected disability. In that regard, on December 2019 examination, wherein the examiner diagnosed onychomycosis of the bilateral big toenail, the examiner opined that the claimed disability was less likely than not incurred in or caused by service, given that there was no evidence of the disability in service, with post-service records showing diagnosis in 2009. On VA examination in June 2021, the Veteran reported onset of onychomycosis in 2009 with his toenails becoming yellow and scaly. After exam, the examiner diagnosed onychomycosis, noting a date of diagnosis in 2009. In an accompanying medical opinion, the examiner indicated that the Veteran's onychomycosis was less likely than not incurred in service, noting treatment for unrelated conditions of pes planus and tinea versicolor in service, nor caused by a service-connected disability. However, the examiner also opined that the Veteran's onychomycosis was at least as likely as not aggravated beyond its natural progression by the service-connected diabetes, most likely due to the pathophysiology and inherent nature of the disease progression. In sum, the record reflects that the Veteran has been diagnosed with onychomycosis. In addition, June 2021 determined that it is at least as likely as not that the Veteran's onychomycosis was secondary to his service-connected diabetes mellitus, noting that the condition had been aggravated beyond the nature progression by the service-connected diabetes mellitus. There is no opinion to the contrary. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran's onychomycosis is aggravated by his service-connected diabetes mellitus. Service connection for onychomycosis is therefore warranted. 38 C.F.R. § 3.310. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating for chronic kidney disease The Veteran's chronic kidney disease, secondary to his diabetes mellitus, is rated as noncompensable pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7541. This diagnostic code provides that renal involvement in diabetes mellitus is to be rated as renal dysfunction. With respect to renal dysfunction, a 0 percent rating is assigned for albumin and casts with a history of acute nephritis; or, hypertension noncompensable under Diagnostic Code 7101. A 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted for constant albuminuria with some edema, or definite decreased in kidney function, or hypertension at least 40 percent disabling. An 80 percent rating is assigned for persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria, or BUN more than 80mg%, or creatinine more than 8mg%, or markedly decreased function of the kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115b. The medical evidence of record indicates that the Veteran has been assessed with chronic kidney disease associated with his diabetes mellitus, with the evidence primarily consisting of VA examinations. A December 2019 kidney disability benefits questionnaire indicates that the Veteran was not on dialysis at that time and was able to urinate via a urinary catheter. The examiner noted that the Veteran had renal dysfunction, but there were no signs or symptoms due to the dysfunction. There was no indication of kidney, uretal or bladder calculi, or recurrent symptomatic urinary tract or kidney infections. The examiner diagnosed chronic kidney disease. On VA examination in January 2021, the Veteran reported that he had hematuria in 2018 and in 2019 had a urinary tract infection with abdominal pain, confusion, and nausea. He did not take medication or have current treatment for the disability. The examiner indicated that signs and symptoms related to renal dysfunction included generalized poor health, but not lethargy, weakness, or limitation of exertion. He did not require regular dialysis. He had not had kidney, uretal, or bladder calculi or recurrent symptoms of urinary tract or kidney infections. The examiner diagnosed chronic kidney disease. In addition, the examiner commented that the Veteran had frequent abdominal pain, confusion and nausea with diabetes nephropathy which might impact the time spent to accomplish tasks and inhibit tasks that require concentration. In various lay statements from family members, it was indicated that that the Veteran used a catheter due and was unable to tell when he was urinating due to his kidney disease. In sum, the record does not indicate that the Veteran's chronic kidney disease has been manifested by albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101. The Board observes that the Veteran is separately rated for hypertension, rated as noncompensable. In addition, while the 2021 examiner noted generalized poor health, symptoms such as lethargy, anorexia, or limitation of exertion were not noted. Accordingly, the Board finds that an initial, compensable rating for percent for chronic kidney disease is not warranted. The Board has considered whether, consistent with the Veteran's family member statements, the Veteran's kidney disease is productive of voiding dysfunction requiring use of a catheter. However, neither the 2019 nor 2021 VA examiner found the Veteran's kidney disability to be productive of voiding dysfunction. The Board finds these statements less probative than the objective kidney examinations of record, prepared by skilled professionals. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a higher rating for chronic kidney disease at any time during the course of the appeal. See 38 U.S.C. § 5107. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus The Veteran's diabetes mellitus is rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Diagnostic Code 7913 provides for a 20 percent rating for diabetes that requires insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted when diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned where insulin, restricted diet, and regulation of activities are required, with episodes of ketoacidosis or hypoglycemia reactions required one to two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. As indicated above, the Veteran has been awarded separate ratings for chronic kidney disease, as well as peripheral neuropathy of the right and left lower extremities. On VA examination in December 2019, the examiner noted that the Veteran's diabetes was managed by restricted diet, but not by oral medication or insulin. He did not require regulation of activities as part of medical management of diabetes. He required visits for episodes of ketoacidosis or hypoglycemia less than 2 times per month. He had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions. Additional complications included peripheral neuropathy and diabetic nephropathy or renal dysfunction. The examiner diagnosed diabetes mellitus type II. On VA examination in January 2021, the examiner noted that the Veteran's diabetes mellitus was treated with prescribed oral hypoglycemic agents. Insulin or regulation of activities was not indicated. He required visits for episodes of ketoacidosis or hypoglycemia less than 2 times per month. He had not been hospitalized for episodes of ketoacidosis or hypoglycemic reactions. No other pertinent findings were indicated. Various lay statements from the Veteran's family members have indicated that the Veteran's diabetes mellitus, along with his other disabilities, impacted his ability to work and perform daily functions. The Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for diabetes mellitus. To receive a higher evaluation, the Veteran's diabetes mellitus would need to require insulin and regulation of activities. The evidence fails to demonstrate that the Veteran's activities have been regulated or that he required insulin injections. Rather, the Veteran's disability has been managed with oral medication and a restricted diet. As the predominant characteristics of the Veteran's diabetes mellitus are contemplated by the assigned 20 percent rating, an increased rating is not warranted. In addition, no other complications outside of those separately rated and addressed in this decision (kidney disease) or a previous Board decision (neuropathy) have been identified. In sum, the evidence shows that the Veteran's diabetes mellitus has not required regulation of activities, and thus does not warrant a rating in excess of 20 percent under Diagnostic Code 7913. See 38 C.F.R. § 4.119. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a higher rating for diabetes mellitus at any time during the course of the appeal. See 38 U.S.C. § 5107. SMC The Veteran contends that he is entitled to SMC on the basis of need of aid and attendance of another person. The Board notes that the Veteran is in receipt of SMC based on housebound status. SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. See 38 U.S.C. § 1114(l), (s); 38 C.F.R. § 3.350(i). Under 38 U.S.C. § 1114(l), SMC 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); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350(b). Under 38 C.F.R. § 3.352(a), 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. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) 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 is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant 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). In this case, the Veteran is service-connected for posttraumatic stress disorder, obstructive sleep apnea, diabetes mellitus, cerebrovascular accident residuals, peripheral neuropathy of the right and left lower extremities, hypertension, and chronic kidney disease. In a December 2013 Examination for Housebound Status or Need for Regular Aid and Attendance, the examining physician noted that, due to the Veteran's cerebrovascular accident, he was unable to feed himself or prepare his own meals. He was unable to bathe or tend to other hygiene needs. He required medication management and was unable to manage his own financial affairs. He had limited strength in the left extremity which caused inability to dress or clean himself. He had to use a walker for assistance with ambulation. She noted that he only left the house for medical appointments and was accompanied by a caregiver. An August 2019 Examination for Housebound Status or Need for Regular Aid and Attendance report indicated that, as a result of cerebrovascular accident, diabetes mellitus, PTSD, hypertension, defibrillator, sleep apnea, and bladder/bowel incontinence, the Veteran needed assistance with meal preparation and bathing/hygiene needs. His family provided homecare with the assistance of home healthcare providers. His wife organized and administered his medication. He had limited strength and mobility in the upper and lower extremities, and needed assistance with bathing, dressing, shaving, and moving. He left the home for medical appointments with the assistance of family. He was wheelchair dependent. A November 2019 report from a home health aide indicated that the Veteran had limited mobility due to left-sided hemiplegia status post cerebrovascular accident. On examination in February 2020, the examiner noted diagnosis of paraplegia of the left upper and lower extremity. It was noted that the Veteran was unable to walk and used a wheelchair. He was also unable to dress or feed himself, attend to toileting, bathing, or other hygiene needs. The Veteran also required assistance with managing, dispensing, and reminding to take medication. His wife managed all of his affairs. She had to use a gait belt to lift the Veteran and transfer him from the bed to his chair. He required full assistance to stand and was unable to balance. He left the home approximately 4 times per month for doctor's appointments and 4 times a year for church. Statements from the Veteran's wife and family members indicate that he needed round-the-clock care with bathing, toileting/catheter maintenance, medication management, and meal preparation. They noted issues with anger, memory, and confusion. He struggled with wearing his C-PAP machine for treatment of his sleep apnea and frequently took it off, making him tired the following day. The above-discussed medical evidence along with the various lay statements demonstrates that the service-connected cerebrovascular accident with residuals, as well as additional complications from his service-connected peripheral neuropathy, sleep apnea, and PTSD, impact the Veteran's ability to walk on his own, and cause the Veteran to require help in dressing himself, bathing, and feeding. He used a walker, and subsequently a wheelchair, due to balance issues and inability to bear weight on the lower extremities. He required home health care and constant assistance from his wife and family. Accordingly, resolving reasonable doubt in the Veteran's favor, entitlement to special monthly compensation based upon the need for aid and attendance is granted. See 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.159, 3.350(b)(3), 3.352(a). REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction The Veteran contends that his erectile dysfunction is due to service or a service-connected disability. In a March 2021 remand, the Board instructed that the Veteran be afforded a VA examination to address whether the Veteran's erectile dysfunction was related to his service-connected hypertension or cerebrovascular residuals. The Veteran was afforded a VA examination in June 2021, at which time the examiner opined that the Veteran erectile dysfunction was less likely than not proximately due to or the result of a service-connected disability. However, the examiner did not opine as to whether a service-connected disability aggravated the Veteran's erectile dysfunction El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (Where an examiner finds that a service-connected disability did not cause a claimed disorder, it is not clear that aggravation has been addressed.). Accordingly, remand is required for an additional examination and opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, remand for additional opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed erectile dysfunction. Any indicated tests should be accomplished. The examiner should review the record prior to examination, and elicit from the Veteran a detailed medical history. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's erectile dysfunction was caused by or aggravated (increased in severity beyond the natural progress of the condition) by a service-connected disability. The examiner is also advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, Counsel 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.