Citation Nr: 21066636 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-17 828 DATE: November 1, 2021 ORDER Service connection for a urinary disorder, diagnosed as recurrent urinary tract infections, benign prostatic hypertrophy and prostatitis, is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied. Entitlement to SMC at the housebound rate from April 12, 2013 to July 18, 2013 and as of November 1, 2013 is granted. FINDINGS OF FACT 1. The Veteran's current urinary disorder, diagnosed as recurrent urinary tract infections, benign prostatic hypertrophy and prostatitis, did not onset in service and is not causally related to service, to include Agent Orange exposure, nor was it caused or aggravated by any of his service-connected disabilities, to include medication taken to treat those conditions. 2. The Veteran's service-connected disabilities do not involve the anatomical loss or loss of use of both feet or one hand and one foot or blindness in both eyes, nor do they cause the Veteran to be permanently bedridden or so helpless to be in need of regular aid and attendance or another. 3. The Veteran meets the criteria for a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) based solely on his service-connected posttraumatic stress disorder (PTSD). 4. The Veteran's service-connected disabilities have not caused him to be housebound prior to July 18, 2013 or as of November 1, 2013. 5. The Veteran's service-connected disabilities other than PTSD combine to at least a 60 percent rating from April 12, 2013 to July 18, 2013 and as of November 1, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a urinary disorder, diagnosed as recurrent urinary tract infections, benign prostatic hypertrophy and prostatitis, have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 3. The criteria for entitlement to SMC at the housebound rate from April 12, 2013 to July 18, 2013, but no earlier, and as of November 1, 2013 have been met. 38 U.S.C. §§ 1114, 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 September 1967 to September 1969. He received the Combat Infantryman Badge and Purple Heart, among other decorations, for this service. This matter comes on appeal before the Board of Veterans' Appeals (Board) from August 2011 and December 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, May 2018, October 2020, and March 2021, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a urinary disorder, diagnosed as recurrent urinary tract infections, benign prostatic hypertrophy and prostatitis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d 1372. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). 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 veteran 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. Here, the record reflects that the Veteran has been diagnosed with benign prostatic hypertrophy (BPH), chronic prostatitis, and renal cell carcinoma. First, the Board will consider whether service connection is warranted based on exposure to Agent Orange in service. Such exposure has been conceded. However, none of the Veteran's diagnosed conditions are on the list of diseases for which presumptive service connection is warranted, therefore service connection cannot be granted on a presumptive basis. See 38 C.F.R. § 3.309(e). The Board further finds that a preponderance of the evidence is against finding that service connection is warranted on a direct, facts found basis as due to Agent Orange exposure. A VA opinion was obtained in April 2021 with respect to whether the Veteran's urinary disorder is secondary to his conceded Agent Orange exposure. The VA examiner acknowledged that the absence from the presumptive list of service-connected conditions due to Agent Orange does not disqualify service-connection in itself. However, the examiner stated that the current, widely accepted, peer-reviewed literature has not established Agent Orange as a cause of BPH with chronic prostatitis or renal cell carcinoma. The examiner explained that men's prostates grow throughout life, leading to BPH and possible obstructive symptoms, which in turn may lead to susceptibility to infection and chronic inflammation, which is unrelated to Agent Orange exposure and is due to natural pathophysiology. The examiner further stated that renal cell carcinoma is thought to be due to a genetic mutation, which has not been linked to Agent Orange exposure. The Board finds that April 2021 VA opinion to be the most probative evidence of record as to whether the Veteran's urinary problems are causally related to his conceded Agent Orange exposure. The Board acknowledges that the Veteran himself has argued there is a relationship, but finds that as a lay person, he does not have the education, training, or experience to competently opine as to such a complicated etiology question. See 38 C.F.R. § 3.159(a)(1). While the Veteran is competent to state what symptoms he experiences, the etiology of his urinary problems is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Rather, it is a medical etiological question involving internal and unseen system processes unobservable by the Veteran. Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board further finds that there is no other probative evidence directly linking the Veteran's current urinary problems to his service, nor has the Veteran claimed direct service connection based on any other aspect of his service. The Veteran has generally claimed urinary problems since Vietnam; however, the Board finds that a preponderance of the evidence is against finding that the Veteran has a current condition that onset in service. Service treatment records reflect no urinary complaints or diagnoses. On an August 1969 report of medical history, the Veteran denied frequent or painful urination and no abnormalities were noted on examination. The Board finds the contemporaneous records, particularly the Veteran's denial of urinary symptoms at his separation from service, to be highly probative. Based on the forgoing, the Board finds that a preponderance of the evidence is against finding that the Veteran's current urinary condition onset in or is causally related to his service, to include Agent Orange exposure. Next, the Board will consider whether secondary service connection is warranted. The Veteran has argued that his urinary problems are related to medication prescribed for his service-connected disabilities, including his mandible gunshot wound. The Veteran underwent a VA examination in September 2010. That examiner noted the Veteran's use of tramadol and acetaminophen for his service-connected mandible injury. The examiner opined that the two medications are less likely than not to lead to prostate problems, recurrent urinary tract infections, or prostatitis. In April 2015, the Board remanded to obtain an opinion as to whether prescribed medications aggravated the Veteran's urinary condition and ordered that the examiner provide a rationale for all opinions expressed. In June 2016, a VA examiner opined that Tylenol taken for the Veteran's service-connected mandible injury does not cause or aggravated BPH, urinary infections, or prostatitis. In May 2018 the Board again remanded the claim to obtain an opinion considering all of the medications taken to treat the Veteran's service-connected disabilities. In October 2020, another VA opinion was obtained. The examiner acknowledged that the Veteran is taking medications for various service-connected disabilities; however, the examiner opined that the medications have not caused, or aggravated beyond its normal progression, the Veteran's urinary condition. The examiner opined that the Veteran's urinary condition is a result of a progression from aging. The Board acknowledges the Veteran's own opinion that medication taken for his service-connected mandible condition caused or aggravated his urinary condition but finds that as a lay person he does not have the education, training, or experience to offer such an etiology opinion. The Board finds no other evidence of record suggesting a connection, either causal or aggravating, between any of the Veteran's medications taken for any of his service-connected disabilities and his current urinary condition. Based on the forgoing, the Board finds that a preponderance of the evidence is thus against service connection for a urinary condition on a secondary basis. As a preponderance of the evidence is against service connection on either a direct or secondary basis, the benefit of the doubt doctrine does not apply, and the claim must be denied. Increased Rating 2. Entitlement to SMC based on the need for aid and attendance Special monthly compensation at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered 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 be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: The inability of the 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 assistance. The inability of the 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, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 38 C.F.R. § 3.352(a). The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the claimant be so helpless as to be in need of regular aid and attendance, not that there is a constant need. "Bedridden" constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court of Appeals for Veterans Claims (Court) held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires that at least one of the factors set forth in VA regulation is met. In addition, determinations that the claimant 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. See Turco, 9 Vet. App. 222, 224. Here, the evidence does not reflect that the Veteran due to service-connected disability, has suffered 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. Thus, the remaining question is whether the Veteran is in need of regular aid and attendance due to his service-connected disabilities. In an October 2011 statement for consideration of aid and attendance, a doctor indicted that the Veteran is able to feed himself, is able to care for the needs of nature, and does not need assistance in bathing and tending to other hygiene needs. The doctor indicated that the Veteran does not drive and uses a cane or walker to ambulate. In a February 2016 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance a doctor indicated that the Veteran is able to feed himself and manage his financial affairs. The doctor indicated that the Veteran needs assistance to prepare his meals but indicated that need is secondary to neck and back pain, which the Board notes the Veteran is not service connected for. The examiner also indicated the Veteran needs assistance bathing and tending to hygiene needs, citing "chronic pain" without specifying the cause or location of the pain. The doctor also noted that the Veteran's mood impacts his attention to medication dosing, causing him to need medication management. The VA examiner who conducted the June 2016 PTSD examination opined that the Veteran's PTSD does not render him unable to dress or undress himself, to keep himself clean, to feed himself, to "attend to the wants of nature" or to protect himself from the hazards or dangers incident to his daily environment. A November 2020 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance indicates that the Veteran can feed himself and prepare his own meals and does not need assistance bathing and tending to other hygiene needs or medication management. The Board has considered the functional limitations caused by all of the Veteran's service-connected disabilities but does not find that they render him so helpless as to be in need of regular aid and attendance. Although the Veteran's spouse may perform some household tasks and the Veteran may have some limitations due to nonservice-connected conditions, the Board finds that the Veteran's service-connected disabilities do not prevent him from being able to dress and undress himself, to keep ordinarily clean and presentable, to feed himself, to attend to the wants of nature, or to protect himself against hazards or dangers incident to his daily environment. Based on the forgoing, the Board finds that a preponderance of the evidence is against entitlement to special monthly compensation based on a need for aid and attendance. 3. Entitlement to SMC at the housebound rate prior to July 18, 2013 and after October 31, 2013 Housebound special monthly compensation is available either statutorily or based in fact. Statutory housebound compensation requires the Veteran to have a single service-connected disability rated as 100 percent 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. Housebound-in-fact special monthly compensation requires the Veteran to have a single service-connected disability rated as 100 percent and be permanently housebound by reason of service-connected disability or disabilities. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A total disability rating based on individual unemployability (TDIU) based on a single service-connected disability can count as a single service-connected disability rating at 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). The record reflects that the Veteran does not have a single service-connected disability rated at 100 percent, but he is in receipt of TDIU from February 28, 1997 to July 18, 2013 and as of November 1, 2013. His service-connected disabilities prior to July 18, 2013 include residuals of gunshot wound to face (10 percent), PTSD (70 percent), residuals of gunshot wound to mandible (20 percent), residuals of gunshot wound of facial muscles (10 percent), residuals of gunshot wound to 5th cranial nerve (10 percent), tinnitus (10 percent), gastroesophageal reflux disease (10 percent), left iliac crest (0 percent), allergic rhinitis (0 percent), tinea cruris (0 percent), bilateral hearing loss (0 percent), and left eye epiphora (10 percent effective April 12, 2013). From November 1, 2013 he is additionally service-connected for scars of the anterior trunk and left lower extremity (30 percent), residuals of gunshot wound scars of the face (10 percent effective February 13, 2018), left lower extremity polyneuropathy (10 percent effective July 18, 2013 and 20 percent effective September 10, 2019), coronary artery bypass graft with coronary artery disease (10 percent effective November 1, 2013 and 30 percent effective July 10, 2017), and painful scars of the anterior trunk (0 percent). Thus, the pertinent question is whether the Veteran is entitled to TDIU based on a single service-connected disability prior to July 18, 2013 or as of November 1, 2013. Prior to July 18, 2013 The Board finds that prior to July 18, 2013, the evidence does not support that the Veteran's gunshot wound residuals, GERD, tinnitus, left iliac crest, allergic rhinitis, tinea cruris, or left eye epiphora disabilities alone support entitlement to TDIU. However, the Board does find that giving the Veteran the benefit of the doubt, TDIU may be based entirely on his service-connected PTSD prior to July 18, 2013. The August 2010 VA PTSD examination supports that the Veteran's PTSD alone has caused unemployability. Therefore, the Veteran may be considered to have a single disability rated at 100 percent. Entitlement to SMC at the housebound rate additionally requires that either the Veteran be permanently housebound by reason of service-connected disabilities or that service-connected disabilities separate and distinct from the Veteran's PTSD and involving different anatomical segments or bodily systems be independently ratable at 60 percent. Here, the evidence does not reflect, and the Veteran has not contended, that he was permanently housebound prior to July 18, 2013. Rather, records reflect that the Veteran reported leaving his home to go to church and shopping. Thus, the next issue to be resolved is whether the Veteran's service-connected disabilities prior to July 18, 2013 other than PTSD combined to at least a 60 percent rating. The record reflects that a 60 percent combined rating for the Veteran's disabilities other than PTSD was first met April 12, 2013 at which time the Veteran was service connected for left eye epiphora with a disability rating of 10 percent. Prior to April 12, 2013, the Veteran's service-connected disabilities other than PTSD did not combined to at least a 60 percent rating. Thus, the Board finds that the criteria for SMC at the housebound rate is met from April 12, 2013 to July 18, 2013, but not earlier. As of November 1, 2013 The Board will next consider the period as of November 1, 2013. The Board finds that for this period the evidence does not reflect, and the Veteran has not contended, that he is actually housebound. Examiners who conducted an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance in February 2016 and October 2020 both indicated the Veteran is able to leave his home as necessary. Records further indicate that the Veteran has a history of doing so, including to go shopping and to church. At his June 2016 VA PTSD examination the Veteran indicated he limits his driving to within the neighborhood and attends social activities outside the house. The evidence continues to support entitlement to TDIU based solely on service-connected PTSD. Specifically, the Veteran's treating psychiatrist opined in treatment records in June 2015 and November 2016 that the Veteran is unemployable due to his PTSD. (Continued on the next page) The record further reflects that the Veteran has a combined rating of at least 60 percent for his service-connected disabilities other than PTSD for the entire period since November 1, 2013. Thus, the Board finds that the criteria for SMC at the housebound rate is met from November 1, 2013. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.