Citation Nr: 21066606 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-26 106 DATE: November 1, 2021 ORDER Entitlement to service connection for special monthly compensation based on the need for aid and attendance is granted. Entitlement to service connection for basal cell carcinoma, claimed as skin cancer, due to Agent Orange exposure, is denied. FINDINGS OF FACT 1. The medical evidence of record establish that the veteran's service-connected disabilities had rendered so helpless that he was unable to perform self-care tasks or protect himself from the hazards incident to his daily environment without care or assistance of another person on a regular basis. 2. There is no competent evidence that the Veteran's basal cell carcinoma was caused by exposure to Agent Orange, occurred within one year of separation, or is otherwise related to his service. CONCLUSIONS OF LAW 1. The criteria for Entitlement to special monthly compensation based on the need for aid and attendance for accrued purposes have been met. 38 U.S.C. § 1114 5103A; 38 C.F.R. §§ 3.350, 3.352. 2. The criteria for Entitlement to service connection for basal cell carcinoma, claimed as skin cancer, due to Agent Orange exposure for accrued purposes have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1950 to January 1973. He had service in the Republic of Korea and the Republic of Vietnam and was award, among other citations, a Purple Heart and Combat Infantryman Badge. The Veteran died in September 2012 during the pendency of his appeal. The Veteran's surviving spouse is the appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2013 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appellant requested a Board hearing but did not appear for the scheduled hearing and did not present good cause for failing to appear or request that the Board hearing be rescheduled. As such, the appellant's hearing request is considered withdrawn. 38 C.F.R. § 20.702 (d). 1. Entitlement to service connection for special monthly compensation based on the need for aid and attendance or housebound benefits. The appellant contends that she is entitled to special monthly compensation based on the need for aid and attendance. Special monthly compensation is payable at a specified rate if the veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is 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 5 degrees or less; if the veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.351(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 or her daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352(a). A veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. 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 that the veteran is unable to perform should be considered in connection with his or her 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. 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 or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996). At the time of his death, the Veteran was service connected for schizophrenia at 70 percent, degenerative arthritis of the right wrist and lumbar spine at 20 percent, left femur, knee, and hip disabilities at 20 percent, right femur and knee disabilities at 10 percent, cervical strain at 10 percent, bilateral hearing loss at 0 percent, hemorrhoids at 0 percent, coccidiomycosis and thoracotomy scar at 0 percent, and plantar wart at 0 percent. He had a combined rating of 90 percent and had been in receipt of a total disability rating based on individual unemployability (TDIU) since June 1975. The record reflects that the Veteran had significant psychiatric impairment related to his service-connected schizophrenia, which was rated as 70 percent disabling for many decades prior to his death; that rating was assigned following a several month period of inpatient care to treat his schizophrenia. An August 2011 VA treatment record notes the Veteran could not stand up straight which lowered his height by 4 inches, had antalgic gait, and slow, cautious ambulation. It was noted that his mobility was limited by knee and back pain and that he had severe kyphosis of the spine. The Veteran reported that he "can't hardly stand on [his] right knee." It was also noted that the Veteran's body was "worn out." An April 2012 VA treatment record notes the Veteran was only able to take a few steps at home and that his son had to lower him into the bathtub. A June 2012 VA examination for regular aid and attendance report reflects that the Veteran required assistance with bathing, dressing, emptying his urinal, organizing his medication, and paying his bills. A June 2012 VA treatment record notes the Veteran receives assistance in bathing, dressing, and toileting. It was further noted that he can feed himself but needs assistance with cutting meat and buttering bread and cannot prepare any meals. It was then noted that he is able to travel and go shopping, but not by himself. It was noted that he could only perform light housework, needed to be reminded to take his medications, and could manage his daily buying needs but required assistance for his finances. In light of the medical evidence, the Board finds that the criteria are satisfied to award special monthly compensation based on the need aid and attendance of another person. Given the Board's determination that special monthly compensation based on aid and attendance is warranted, the claim seeking special monthly compensation based being housebound is moot. 2. Entitlement to service connection for basal cell carcinoma, claimed as skin cancer, due to Agent Orange exposure for accrued purposes. The appellant contends that she is entitled to service connection for basal cell carcinoma, claimed as skin cancer, due to Agent Orange exposure for accrued purposes. For veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as malignant tumors, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. Of note, basal cell carcinoma is not among the diseases associated with exposure to herbicides agents. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for melanoma and non-melanoma skin cancer (basal cell and squamous cell). See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010); National Academies of Science, Engineering, Medicine, Veterans and Agent Orange: Update 2014, at 907-08 (listing "[n]on-melanoma skin cancer (basal-cell and squamous-cell)" as part of the "Inadequate or Insufficient Evidence to Determine an Association" category, available at https://www.nap.edu/read/21845/chapter/16#907. The Board notes that a review of the service treatment records does not reveal any complaints, treatments for, or diagnosis of basal cell carcinoma while on active duty. The Board further notes that neither evidence nor argument has been received asserting in-service or within one year of discharge occurrence of basal cell carcinoma. A June 2002 VA treatment record notes the Veteran reported a "huge sore on his right ear which has been going on for several years." It was noted that he has no history of skin cancer. The Board notes that numerous subsequent VA treatment records show recurrence and treatment of basal cell carcinoma. The Board recognizes that the Veteran was not afforded a VA examination with respect to this issue. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See, McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Here, there is no competent evidence of record with respect to the existence of an in-service event, injury, or disease or any evidence of an association between the Veteran's basal cell carcinoma and his service. There is clearly sufficient competent medical evidence of record to adjudicate the Veteran's claim. Even if there were competent evidence of an in-service incurrence, a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See, Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In other words, absent such evidence, the Board finds that it is unnecessary to remand to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of the claimed disability in service. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran's basal cell carcinoma was caused by exposure to Agent Orange, occurred within one year of separation from service or was otherwise related to his service. Here, there is no lay or medical evidence linking the disability to service and the appellant does not contend otherwise. In light of the foregoing, the appellant's claim for service connection for must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.