Citation Nr: 21066435 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 11-31 233 DATE: November 1, 2021 ORDER Entitlement to service connection for a urinary disability to include incontinence and benign prostate hypertrophy is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is denied. FINDINGS OF FACT 1. The Veteran's urinary disability to include incontinence and benign prostate hypertrophy is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 2. The Veteran is not service-connected for any disability that causes the anatomical loss or loss of use of both feet, one hand and one foot, or blindness in both eyes with 5/200 visual acuity; and the preponderance of the evidence of record shows that the Veteran's service-connected disabilities alone do not cause him to be bedridden; necessitate the care or assistance of another person on a regular basis to attend to the activities of daily living to protect him from the hazards or dangers of his daily environment; and do not cause him to be permanently housebound or permanently institutionalized at any time during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a urinary disability to include incontinence and benign prostate hypertrophy due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for SMC based on the need for regular aid and attendance or at the housebound rate have not been met at any time during the pendency of the appeal. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.326, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1959 to February 1961 and from January 1991 to March 1991. The Veteran also had an intervening period of service with a Reserve Component. As an initial matter, during the pendency of the appeal, the Veteran has been granted entitlement to TDIU effective August 27, 2014. 1. Entitlement to service connection for a urinary disability to include incontinence and benign prostate hypertrophy The Veteran contends he has a urinary disability, to include incontinence and benign prostate hypertrophy that was incurred in or due to his time in service or is proximately due to his service-connected disabilities. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must 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)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran has a current diagnosis of functional urinary incontinence and benign prostatic hypertrophy. See August 2021 VA Examination. The Veteran's service treatment records (STRs) show the Veteran denied any weakness, bowel dysfunction, or bladder dysfunction. See December 1992 STR. Additionally, the Veteran did not report any bladder or urinary problems while in service. Indeed, the Veteran was seen for and reported other ongoing conditions so it does not appear to be reasonable the Veteran would report some ongoing conditions, but not others. The Veteran himself stated provided highly probative evidence his own claim by stating his urinary disability began 5 years ago. See August 2021 VA Examination. Because the Veteran's STRs do not show ongoing complaints from service, treatment of a bladder disability in service, and the Veteran reporting his urinary disability only onset 5 years ago, the claim will be denied on a direct basis. However, the Board will also consider whether the Veteran's condition may be secondary to any of his service-connected conditions. The Veteran had VA examinations for a urinary disability in August 2021, November 2020, and August 2020 in which VA examiners saw the Veteran in person, reviewed his file, and noted he had been diagnosed with functional urinary incontinence and benign prostatic hypertrophy. The VA examiners opined that it was less likely than not that any of the Veteran's service-connected disabilities caused or aggravated the Veteran's urinary disability beyond its natural progression. The examiners instead attributed the Veteran's urinary disability to his benign prostatic hypertrophy which they stated was less likely than not caused or aggravated by any service-connected disability and was not caused or incurred in service, but due to age and other factors. The Board has reviewed the Veteran's file, including his medical records, and find that the objective evidence does not show that a urinary disability was incurred in and due to his time in service nor is it proximately due to any of his service-connected disabilities. Therefore, the claim will be denied. Regarding the above, the Board acknowledges the Veteran's statements that his condition bothers him and that he believes it is due to his time in service or another service-connected disability. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as diagnosing or determining the nature and etiology of medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the objective medical evidence of record. This includes the examinations discussed which the Board find to be adequate as the examiners saw the Veteran in person, reviewed his file, and offered opinions backed by explanations based on the in-person interview, the Veteran's file, and the examiner's expertise. It is important for the Veteran to understand that the medical finding provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his disability is the result of service or a service-connected disability, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status The Veteran claims he is entitled to SMC because, in substance, he needs the aid of another person. A veteran who, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less or is permanently bedridden or so helpless as to be in need of regular aid and attendance under criteria set forth in 38 C.F.R. § 3.352 (a) shall receive the provided level of compensation. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Under the provisions of 38 C.F.R. § 3.352 (a), the criteria to establish a factual need for aid and attendance include the inability of the veteran to dress or undress himself; ability to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances, which, by reason of the particular disability, cannot be done without aid; the inability to feed himself; the inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. An individual who is bedridden meets the criteria for aid and attendance. The regulation provides that being "bedridden" means that the condition which, through its essential character, actually requires that the claimant remain in bed. Determinations that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran has the following service-connected disabilities: Lumbar spine disability, rated 40 percent disabling; Left knee disability, rated 30 percent disabling; Right hip disability, rated 10 percent disabling; Left hip disability, rated 10 percent disabling; Right lower extremity radiculopathy, rated 10 percent disabling; Left lower extremity radiculopathy, rated 10 percent disabling; Lumbar spine scar, rated 0 percent disabling; Right hip limitation of extension, rated 0 percent disabling; Right hip impairment of the hip, rated as 0 percent disabling; Left hip limitation of extension, rated as 0 percent disabling; Left hip impairment of the hip, rated as 0 percent disabling; Right knee joint osteoarthritis, rated as 0 percent disabling; and Left knee scar, rated as 0 percent disabling. The Veteran has also been granted a TDIU from August 27, 2014. The Veteran was also entitled to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) from January 13, 2016 to February 28, 2017 following a total knee replacement. a. Loss/Loss of use of Both Feet, Loss of One Hand and One foot, and/or Visual Impairment The Veteran is not service connected for any disability that causes the anatomical loss or loss of use of both feet, one hand and one foot, or blindness in both eyes with 5/200 visual acuity. Therefore, the Board finds that the Veteran cannot prevail on his SMC claim under this part of the criteria at all times during the pendency of the appeal. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). b. Bedridden As to being bedridden, the Veteran does not claim and the record, including the February 2018 VA Form 21-2680, Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance does not show that he is bedridden due to only his service-connected disabilities. See Owens, supra. Therefore, the Board finds that the Veteran cannot prevail on his SMC claim under this part of the criteria at all times during the pendency of the appeal. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). c. Factual Need for Aid and Attendance As to a factual need for aid and attendance, the February 2018 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, notes that due to the Veteran's service-connected back disability, the Veteran requires the assistance of another person for bathing and tending to hygiene needs, medication management, management of financial affairs, preparation of own meals. However, the Board finds that the February 2018 opinion less probative as to whether the Veteran's service-connected disabilities cause a factual need for aid and attendance. The Board has reached this conclusion because the examiner lists other non-service-connected disabilities such as diabetes mellitus and chronic pain syndrome. Further, the examiner failed to cite how the Veteran's service-connected back alone causes the need of assistance with management of financial affairs or medication management. See Owens, supra. Instead, the Board finds that the opinion relies on the adverse impact of nonservice-connected disabilities. Id. In addition, an August 2021 VA back examination noted the Veteran is unable to walk long distances or use stairs, it also noted he has a scooter he can use for long distances and has a chair lift in his home so he can go to the second story. The Board therefore finds that the preponderance of the evidence is against finding the Veteran's service-connected disabilities cause a factual need for aid and attendance. See Colvin, supra, Owens, supra. Furthermore, while the Veteran and his wife can report on the observable problems caused by the appellant's service-connected disabilities, the Board does not find they can provide a competent opinion on the service-connected disabilities causing a factual need for aid and attendance because they do not have the required medical experience to provide an answer to this complex medical question. See Davidson, supra. Based upon the above, the Board finds that the most probative evidence of record shows that the Veteran does not require the care or assistance on a regular basis due to his service-connected disabilities, either with the activities of daily living or to protect himself from hazards or dangers incident to his daily environment, during the entire time frame on appeal. See Owens, supra. Therefore, the Board finds that the claim for SMC based on the need for aid and attendance is also denied under this part of the criteria during the entire time frame on appeal. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). II. Housebound As to the housebound claim, if a veteran does not qualify for increased benefits based on the need for aid and attendance, increased compensation benefits may still be payable if has a single permanent disability rated 100 percent disabling and has either additional service-connected disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.351 (d). The "permanently housebound" requirement is met when the veteran is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. Id. a. 100 percent plus 60 percent As relevant, SMC at the housebound rate is warranted where a veteran has a single service-connected disability evaluated as 100 percent disabling and 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. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). For SMC purposes, a TDIU satisfies the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Consequently, entitlement to SMC at the housebound rate is viable if a TDIU is awarded based on a single disability. In the instant case, to include as a result of the decisions rendered herein, the Veteran did not have a single service-connected disability evaluated as 100 percent disabling, to include based on a TDIU, with additional service-connected disability or disabilities independently ratable at 60 percent. While the Veteran was awarded TDIU, it was not based on a single service-connected disability but instead upon his back, hip, and knee service-connected disabilities. Therefore, the Board finds that the claim for SMC based on this part of the housebound criteria are not met at all times applicable to the claim on appeal. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.351 (d). b. Permanently Housebound and/or Permanently Institutionalized As to being "permanently housebound" by reason of disability or disabilities, the Board finds that nothing in the record, including the findings by the February 2018 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance as well as any of the VA examinations of record, suggests that the Veteran is permanently housebound or permanently institutionalized due to only his service-connected disabilities. See, Owens, supra. In reaching this conclusion, the Board has not overlooked any lay claims from the Veteran and his wife that his service-connected disabilities so impair him that he is, in substance, housebound. However, the Board once again finds that providing an opinion as to whether his service-connected disabilities make him housebound requires special medical training that lay persons do not have. Therefore, the Board finds the determination is "medical in nature" and not capable of lay observation. See Davidson, supra. Accordingly, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that any lay opinions are not competent evidence. See Jandreau, supra. The Board finds that the most probative evidence of record shows that the Veteran's service-connected disabilities neither confine him to his dwelling and the immediate premises, nor require permanent institutionalization at any time during the time frame that is the subject of the appeal. See Owens, supra. Therefore, the Board also finds that the claim for SMC based on this part of the housebound criteria are not met at all times during the pendency of claim on appeal. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.351 (d). Based upon the foregoing, the Board concludes that the preponderance of the evidence is against a favorable finding in this appeal. The Veteran is not entitled to SMC based upon the need for aid of another person to keep him safe and/or because he is housebound. (Continued on the next page) In reaching all of the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, Associate 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.