Citation Nr: 21005286 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-15 423 DATE: February 1, 2021 ORDER Entitlement to service connection for a chronic kidney disability is granted. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance of another person is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s chronic kidney disability was the result of his use of antibiotic medications prescribed to treat his service-connected total knee arthroplasty. 2. The evidence is at least in equipoise that the Veteran required the regular care or assistance of another person for activities of daily living due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for chronic kidney disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for special monthly compensation based on the need for regular aid and attendance of another have been met. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1945 to June 1945. The Veteran died in June 2019. The appellant is his surviving spouse and has been substituted as the claimant in this appeal. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, denied service connection for a left kidney disability and special monthly compensation based on the need for aid and attendance. In October 2012 the Veteran filed a Notice of Disagreement. A Statement of the Case was issued in March 2014. In April 2014 the Veteran filed a timely substantive appeal. In a January 2018 decision, the Board remanded the matter for additional evidentiary development. In addition to the claims of service connection for a kidney disability and for special monthly compensation based on the need for aid and attendance, the Board remanded a claim of service connection for ingrown toenails. While the matter was in remand status, in a December 2018 rating decision, the RO granted service connection for bilateral ingrown toenails and assigned an initial noncompensable rating, effective November 22, 2011. The grant of service connection for ingrown toenails constitutes a full award of the benefits sought on appeal with respect to that claim. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). 1. Entitlement to service connection for a chronic kidney disability. The Veteran contended, and the appellant contends, that he developed a chronic kidney disability due to long-term use of antibiotic medications prescribed to treat infections he developed as a result of his service-connected total right knee arthroplasty. See e.g., January 2012, February 2017, and February 2020 Statements in Support of Claim; February 2017 Correspondence. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service-connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Between March 2012 and June 2017, C.W., M.D., the Veteran’s private nephrologist provided three letters in which she indicated that she had been following the Veteran for chronic kidney disease since 2007. She stated that the Veteran had stable chronic kidney disease, Stage III. It was noted that he had undergone a right knee replacement in 2002 which was complicated by septic arthritis. As a result, he required long-term and numerous antibiotics with ultimate removal of the prosthesis. Dr. W. noted that when the Veteran received nafcillin in 2004, he developed acute renal failure, most likely secondary to interstitial nephritis from nafcillin, with subsequent chronic kidney disease. She noted that the knee replacement had been performed in another state and she was not his doctor at that time, however, “this seems like the most likely etiology.” See e.g., March 2012, January 2017 and June 2017 Letters from Dr. C.R.W., Nephrologist. In February 2019 the Veteran was afforded a VA examination. Upon examination of the Veteran and a review of the record, the examiner opined that the “Veterans claimed CKD is at least as likely as not due to or secondary to his claimed “right knee disability, to include status post total arthroplasty.” It was noted that the Veteran had septic arthritis of his knee after the surgery for his knee (TKA). The physician noted that the Veteran had medical records with him from nephrology that showed he was diagnosed with stage III chronic kidney disease following medication induced rhabdomyolysis from antibiotics used to treat septic arthritis from right knee. The examiner noted that there is a causal relationship between the antibiotic (used for septic arthritis) induced rhabdomyolysis leading to acute renal failure leading to chronic kidney disease. The examiner noted that the Veteran had a diagnosis of chronic kidney disease stage III and that the Veteran’s treatment plan included taking continuous medication for his kidney disease. In addition, the Veteran was noted to have persistent edema due to renal dysfunction. He did not require regular dialysis. The Veteran’s medical history was negative for urolithiasis, urinary tract or kidney infection, kidney transplant or removal, and tumors or neoplasms. The examiner opined that in his opinion, based on a review of records and today’s exam, the Veteran’s claimed chronic kidney disease is at least as likely as not due to or secondary to claimed “right knee disability, to include status post total arthroplasty.” See e.g., February 2019 Compensation and Pension Examination. The record on appeal reflects that service connection is in effect for right knee degenerative joint disease, status post total knee arthroplasty. Given the medical opinions discussed above, and the fact that the record contains no probative evidence to the contrary, the Board concludes that the evidence supports the finding that the Veteran’s chronic kidney disability is proximately due to his service-connected total knee arthroplasty. Therefore, the Board finds that the criteria for entitlement to service connection for a chronic kidney disability, secondary to a service-connected right knee disability, status post total knee arthroplasty, have been met and the same is granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 2. Entitlement to special monthly compensation based on the need for aid and attendance. Special monthly compensation is payable at the aid and attendance rate when a 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). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress him or herself, or to keep him or herself 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 appliance which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself 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. It is not required that all of 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 a 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 a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. See Turco v. Brown, 9 Vet. App. 222 (1996). The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” See Gilbert, 1 Vet. App. at 54. At the time of his death, service connection was in effect for right knee degenerative joint disease, status post arthroplasty, rated as 60 percent disabling; bilateral pes planus, rated as 30 percent disabling; left knee degenerative joint disease, rated as 10 percent disabling; instability of the left knee, rated as 10 percent disabling; hallux valgus of the left great toe, rated as 10 percent disabling; hallux valgus of the right foot, rated as 10 percent disabling; and a right knee surgical scar, bilateral ingrown toenails, and limitation of extension of the left knee, all rated as zero percent disabling. The Veteran’s combined rating at the time of his death was 90 percent. In addition, as set forth above, the Board has awarded service connection for chronic kidney disease. In a statement dated January 2012, the Veteran stated that he used a cane, walker and wheelchair and he cannot walk without pain and fear of falling. In addition, a statement from the Veteran’s wife indicated the Veteran wore a brace on the left knee and walked very slow and with a cane for fear of falling. She indicated that he had trouble with stairs and ramps and needed help getting in and out of chairs, taking a bath, etc. See e.g., January 2012 VA 21-4138 Statement in Support of Claim; February 2012 Buddy/Lay Statement. A statement received from the Veteran’s brother in March 2012 states that he has observed that the Veteran has had trouble walking because of pain associated with his service-connected foot disability. See e.g., March 2012 Buddy/Lay Statement. The Veteran underwent examination for housebound status or permanent need for regular aid and attendance in January 2012, conducted by C.D.H., M.D. Dr. H. diagnosed the Veteran as having osteoarthritis status post right knee replacement as well as medication-induced stage 3 chronic kidney disease. It was noted that the Veteran’s ambulation was limited by osteoarthritis and he predominantly used a wheelchair which restricted his activities and functions. He was not confined to bed. The Veteran was able to feed himself but could not prepare his own meals. The physician noted that the Veteran was also unable to drive or grocery shop. He required assistance in bathing and tending to other hygiene needs as he “requires assistance to enter and exit the bathing area safely” because he is a fall risk. It was also noted that handicap bars and a shower seat had been installed in the Veteran’s shower. He was not legally blind and did not require nursing home care. The physician noted that the Veteran required assistance with medication management as he needed assistance with picking up his medications and needed someone to accompany him to his doctor’s appointments. He had the ability to manage his own financial affairs. The Veteran was noted to suffer from kyphosis and stigmata of advanced osteoarthritis. He had limited range of motion of all joints and a limited gait with assistance of a walker. It was noted that the Veteran suffered from advanced degenerative joint disease and painful, unreliable locomotion specifically in the lower extremities. It was noted that he is high risk for falls. He uses a wheelchair and can walk only a limited distance with the use of a walker. It was noted that the Veteran largely hangs around the house unless he is accompanied to the doctor by his wife. His wife drives him to his appointments. Aids such as canes, braces, crutches, or the assistance of another person were required for locomotion. See e.g., January 2012 VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. An April 2012 letter from private podiatrist S.D.H. indicates that the Veteran “has had a variety of foot problems throughout his life.” The physician opined that “it is not unlikely that any patient would have some difficulty walking for extended distances. However, considering his biomechanical alignment (with which he was born) and the history of surgeries for a bunion deformity (hallux valgus) performed bilaterally, he has an even greater degree of limited mobility than the average patient does.” The physician opined that the Veteran’s arthritis made it difficult to perform even the simplest of daily tasks for any length of time. See e.g., April 2012 Letter from Private Physician. A January 2017 letter received from the Veteran’s primary care physician indicated that it is his opinion that due to the Veteran’s advanced osteoarthritis of both knees which required a total right knee replacement, and the arthritic pains of the ankles and hip, the Veteran has significant disability from this condition and is dependent on his wife for many activities of daily living. The physician indicated that movement creates significant pain for the Veteran, and he is a fall risk. He requires a cane, and optimally a walker for ambulation. He takes medications to help manage the pain. The physician further stated that “in my opinion, he has reached maximal medical improvement.” See e.g., January 2017 Dr. C.W. Letter. The Veteran underwent a second examination for housebound status or permanent need for regular aid and attendance in June 2017. It was noted that the Veteran was diagnosed with coronary artery disease (CAD), advanced osteoarthritis, chronic obstructive pulmonary disease, chronic fatigue, and that he was legally blind. The claimant was not confined to bed and he was able to feed himself; however, he was not able to prepare his own meals. The physician indicated that the Veteran needed assistance in bathing and tending to other hygiene needs and required transport. The Veteran did not require nursing home care; however, it was noted that he did require medication management and his daughter assisted him with this. The Veteran had the ability to manage his own financial affairs. Upon examination the Veteran was noted to have kyphosis with a hunched over posture and an unsteady gait. It was noted that his wife helps him with fine motor skills such as buttoning his shirt because he suffers from osteoarthritis of the shoulder, neck, and hands, which limit his range of motion. The physician noted that the Veteran has advanced osteoarthritis in his left knee and is in need of a knee replacement. He is status post right knee replacement. He uses a walker or a cane for ambulation without which he would fall. It was noted that the Veteran cannot safely pivot without assistance. The Veteran suffers from advanced osteoarthritis of the cervical spine, which is very painful and limits his range of motion. He is dependent on his wife for assistance with most activities of daily living (ADL’s) (i.e., toileting, feeding, bathing due to legal blindness, and advanced osteoarthritis.). It was noted that the Veteran’s wife provides him transportation to doctor’s visits when necessary. The Veteran is noted to use aids such as canes, braces, crutches, or the assistance of another person for locomotion. He can ambulate for 1 block with a walker. See e.g., June 2017 VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The Veteran underwent a third examination for housebound status or permanent need for regular aid and attendance in June 2019. At that time the Veteran’s gait was noted to be unstable and he was restricted in his activities and functions due to severe arthritis. The Veteran was able to feed himself, but not without experiencing pain in his right shoulder and arm. The patient was unable to prepare his own meals. The physician indicated that the Veteran required assistance in bathing and tending to other hygiene needs. The Veteran did not require nursing home care. The Veteran was noted to have the mental capacity to manage his benefit payments, but with assistance. The Veteran presented as kyphotic and hunched over. His upper extremities were restricted due to adhesions on the shoulders and stigmata of osteoarthritis and limited range of motion of the hands. His lower extremities were restricted by hypertrophied joints, osteoarthritis of the spine, limited range of motion, and an increasing fall risk. He has very limited flexion and extension of the spine, trunk and neck. The Veteran only leaves the house to attend doctor’s appointments. He uses aids such as canes, braces, crutches, or the assistance of another person for locomotion. However, he is unable to travel any distance with an aid. See e.g., June 2019 VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. After a review of the evidence, the Board finds that entitlement to special monthly compensation based on the need for aid and attendance is warranted. The record contains evidence that the Veteran’s service-connected disabilities rendered him unable to bathe without assistance. In addition, as a result of his service-connected disabilities, the Veteran required the use of an assistive device such as a wheelchair or walker. His gait was consistently described as unsteady and he was repeatedly noted to be at risk of falling. The evidence confirms that he had limited range of motion in his lower extremities which caused him to have significant pain and unsteadiness upon ambulation. In addition, the record contains evidence that the Veteran needed assistance getting out of chairs. The Board finds that fall risks, inability to bathe without assistance, inability to maneuver stairs, ramps, or chairs without assistance, inability to prepare meals without assistance, inability to pivot, and inability to perform activities of daily living all rendered the Veteran in need of the assistance of another person. 38 C.F.R. § 3.352. In summary, the Board concludes that the record is sufficient to establish that the Veteran’s service-connected disabilities, standing alone, rendered him disabled to the extent that he required the regular aid and assistance of another person. Under these circumstances, special monthly compensation based on the need for aid and attendance is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.