Citation Nr: A21019782 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 210816-180155 DATE: December 13, 2021 ORDER Entitlement to special monthly compensation based on loss of use of creative organ is denied. Entitlement to special monthly compensation based on need for aid and attendance or housebound status is denied. FINDINGS OF FACT 1. The evidence is insufficient to establish that the Veteran had loss of use of creative organ due to his service-connected disabilities. 2. Prior to his death, the Veteran's service-connected disabilities did not render him so helpless as to be in need of the regular aid and attendance of another individual, and the Veteran was not substantially confined to his house due to service-connected disabilities, nor did he have a single service-connected disability ratable at 100 percent along with other unrelated disabilities, which combine to at least 60 percent. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation based on loss of use of creative organ have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. 2. The criteria for special monthly compensation based on need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1951 to August 1955. The Veteran passed away in July 2018. The appellant is the Veteran's spouse. In December 2019, the Board issued a decision which did not properly address the claims on appeal. The appellant filed a timely appeal to the Court of Appeals for Veterans' Claims (Court). In a November 2020 Joint Motion for Partial Remand, the parties agreed that the claims for SMC raised during the appeals period were not adjudicated. The parties agreed to vacate and remand the appeal to the Board for further development. In April 2021, the Board remanded the appeal for further development. In July 2021, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting an August 2021 VA Form 10182, Decision Review Request: Board Appeal, identifying the July 2021 SSOC. Therefore, the July 2021 SSOC is the AOJ decision on appeal. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 SSOC, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Special monthly compensation based on loss of use of creative organ The appellant contends that the Veteran's service-connected disability caused loss of use of creative organ such that special monthly compensation (SMC), on a substitution basis, is warranted. Special monthly compensation is a statutory award, in addition to awards based on the schedular evaluations provided by the diagnostic codes in the VA Rating Schedule. Claims for special monthly compensation, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k)(s); 38 C.F.R. §§ 3.350, 3.352. Under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(1), special monthly compensation is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. Id. Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Id. Turning to the evidence, the Veteran's medical files of record do not contain a complaint of, diagnosis of, or treatment for erectile dysfunction. In December 2017 correspondence, the Veteran's representative asserted that the Veteran's service-connected peritoneal malignant mesothelioma warrants a grant of Special Monthly Compensation based on loss of use of creative organ. The representative stated that in a phone conversation on December 21, 2017, the Veteran reported that he experienced erectile dysfunction throughout the appeals period. The representative noted the Veteran declined to pursue medical treatment for the condition but stated that the Veteran was competent to report it, and there was no evidentiary basis to question the credibility of his report. The representative went on to note that medical literature associated sexual dysfunction with most men with cancer. The representative attached studies noting a relationship between a cancer diagnosis and sexual dysfunction. In a November 2021 private medical opinion, the examiner opined that it is more likely than not that the Veteran's 2013 hemicolectomy in treatment of his mesothelioma directly caused the Veteran's erectile dysfunction. Citing medical literature, the examiner reported that damage to the S2, S3, and S4 nerve roots, which are innervated to the penis, testes, ureter, and prostate, will impact function of any one organ or all the organs innervated by these roots. The examiner noted that the Veteran had extensive surgical intervention in the colorectal area involving the sacrum, colon, the vasculature and the nerves roots that travel throughout the region. The examiner further noted that any damage to these nerve roots can and does cause erectile dysfunction as these nerve roots are responsible for maintenance propagation of normal erectile function. The examiner went on to state that damage to any of these nerves, which almost always occurs in colorectal surgery results in functional impairment to any of the bodily processes of these organs. The examiner noted that the Veteran underwent right hemicolectomy in 2013. The examiner stated that the Veteran reported erectile dysfunction shortly thereafter. Therefore, the examiner concluded, with a reasonable degree of medical certainty and probability, that the Veteran's right hemicolectomy caused him erectile dysfunction. The examiner went further to assert that the material review was more than adequate to reach the opinion provided. After review of the record, the Board finds that the evidence is insufficient to establish entitlement to special monthly compensation for loss of use of creative organ. The record does not contain evidence of the Veteran's diagnosis of erectile dysfunction. The Board acknowledges that the Veteran is competent to report symptoms; however, the Veteran is not competent to make a diagnosis as it requires specialized knowledge which the Veteran had not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Moreover, while the Board is sympathetic to the Veteran's decision to decline treatment for such claimed symptoms, the medical and lay evidence contemporary to the Veteran's life is limited as to the nature and etiology of the Veteran's claim of loss of use of creative organ. The singular assertion by the Veteran's representative of loss of use of creative organ does not contain lay statements from the Veteran or his spouse regarding symptomatology. With regard to the November 2021 private medical opinion, the Board notes that while the postmortem opinion offers a positive nexus, it is based on the premise that a diagnosis of erectile dysfunction has been established. Moreover, the opinion provides medical literature noting a relationship between damage to nerve roots as a result of surgery; however, the evidence in itself does not establish that this Veteran had erectile dysfunction. To the extent that the opinion speculates on a diagnosis, the Board finds it inadequate for the purpose of adjudicating the claim. For all these reasons, the Board finds that SMC for loss of use of creative organ is not warranted. 2. Special monthly compensation based on aid and attendance or housebound status The appellant contends that the Veteran's service-connected disabilities were such that special monthly compensation for aid and attendance, on a substitution basis, is warranted. Special monthly compensation at the aid and attendance rate is payable to a Veteran who, as a result of his service-connected disabilities: (1) is blind or 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 five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b)(3). Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352(a). That regulation provides that the following criteria will be considered in determining whether the Veteran is in need of the regular aid and attendance of another person: the 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 such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. Turco v. Brown, 9 Vet. App. 222, 224 (1996). The particular personal functions that a 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 a Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352(a). Housebound status is warranted if a veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is 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) he/she is permanently housebound because of service-connected disability or disabilities. 38 U.S.C. § 1114(s). There is no statutory or regulatory requirement that the service-connected disability resulting in the need for aid and attendance be rated as 100 percent disabling. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.352; compare with 1114(s) (requiring the service connected disability be rated as total in order to grant benefits based upon being permanently housebound). However, the evidence must reflect that the Veteran requires regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). At the outset, the Board notes that the April 2021 Board decision directed that, with any assistance from the appellant, the RO was to obtain any outstanding medical records, to include private treatment records relevant to the Veteran's service-connected peritoneal mesothelioma. The appellant was also notified of the right to submit additional evidence and argument. While the Veteran's VA records appear to be complete, no additional private records or lay evidence were provided. The record indicates that VA properly provided medical release forms for any outstanding private medical records. The duty to assist is not a one-way street, and, to qualify for disability compensation, the appellant is required, with the assistance of VA, to provide the Board with the legally required information to effectuate a grant. See 38 U.S.C. § 5103A(a); Wood v. Derwinski, 1 Vet. App. 190,193 (1991). Therefore, analysis will continue with the available evidence. Turning to the evidence, prior to his death, the Veteran had a 100 percent disability rating for residuals of peritoneal mesothelioma and a noncompensable rating for a scar, status-post hemicolectomy associated with residuals of peritoneal mesothelioma. The Veteran's medical records do not contain evidence of physician-required bedrest. Moreover, the evidence does not indicate that the Veteran was bound to the house due to physical or mental limitations associated with his service-connected mesothelioma. In February 2017 correspondence, the Veteran asserted that his symptoms were such that entitlement to special monthly compensation on the need for aid and attendance was established. In a January 2018 VA medical record, the examiner performed a screening for independence in activities of daily living (ADL) and instrumental activities of daily living (IADL). In the ADL screening, the examiner found that the Veteran was able to perform independent bathing, independent dressing, independent toileting, independent transferring, independent continence, and independent feeding. The examiner noted a point score of 6 out of 6 in the ADL screening, indicating that the Veteran was a highly independent patient. The examiner further reported in the IADL screening that the Veteran was able to use the telephone, take care of shopping needs, food preparation, do laundry, travel independently on public transportation or in own car, responsible for own medication and ability to handle own finances. The examiner noted that the Veteran did not participate in housekeeping tasks. The examiner reported a point score of 7 out of 8 in the IADL screening, indicating high function and independent. After review of the evidence, the Board finds that SMC based on need for aid and attendance or, in the alternative, housebound, is not warranted. The evidence of record does not indicate the 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 such aid; the inability of the Veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which required care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. Likewise, the evidence of record does not show that the Veteran's service-connected mesothelioma resulted in the Veteran being permanently confined to his house. While the Veteran had a 100 percent disability rating, he did not have additional service-connected disability or disabilities independently ratable at 60 percent. Therefore, SMC based on need for aid and attendance or housebound is not appropriate. The Board acknowledges the February 2017 assertion that SMC based on the need for aid and attendance was warranted; however, the evidence of record fails to establish a factual basis for such award. A service-connected diagnosis alone is insufficient to establish the basis for aid and attendance or housebound status. Rather, the medical and lay record must indicate evidence that the Veteran's service-connected disability was such that instances of need for aid and attendance, such as the aforementioned, but non-exhaustive examples, are of record. As such, and based on the analysis above, a preponderance of the evidence is against the appellant's claim for service connection for SMC based on the need for regular aid and attendance or being housebound, for substitution purposes. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.