Citation Nr: 21006182 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-22 346 DATE: February 3, 2021 REMANDED Entitlement to service connection for erectile dysfunction (ED), as secondary to service-connected disabilities, to include medication, is remanded. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(r), based on a higher need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1970 to May 1972. These claims were denied by the Board in an October 2019 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated May 2020, the Court granted a Joint Motion for Remand (JMR), vacated the Board decision in part, with regards to the Board denial for service connection for ED and consideration of a higher level SMC, and remanded the case back to the Board. 1. Entitlement to service connection for erectile dysfunction, as secondary to service-connected disabilities, to include medication is remanded. The Board notes that in the Court’s JMR, the Board was directed to further speak to the Veteran’s claim for ED, to explicitly include as secondary to the medication taken for his service-connected disabilities, like his psychiatric disabilities. To this end, while the previous denial spoke to whether the Veteran’s ED was secondary to his service-connected diabetes mellitus, the Board decision was silent on any risk factors or affects any of his psychiatric medications could have on causing or aggravating his ED. The Board finds, however, that the evidence is insufficient to make such a finding. Specifically, the VA examinations and medical evidence currently of record do not speak explicitly to any potential etiological connection between the Veteran’s array of medication and his ED. A close review of the March 2015 VA examination that provided an opinion on the nature and etiology of the Veteran’s ED reveals the examiner’s failure to adequately speak to a finding regarding any etiological connection between the Veteran’s psychiatric medications on his ED. Here, the examiner not only fail to elaborate on any findings regarding the risk factors of the Veteran’s medication, but also provided a speculative opinion against the claim. As such, the Board finds the last VA examination and opinion to be inadequate, and remand is required for the VA to fulfill its duty to the Veteran. 2. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(r), based on a higher need for aid and attendance is remanded. In the Board’s October 2019 decision, the Veteran was granted SMC under 38 U.S.C. § 1114(l), based on normal aid and attendance. That decision was based on an analysis of the totality of the Veteran’s service-connected disabilities, which showed that aid and attendance was warranted. However, in the analysis the Board failed to address any higher levels of SMC. To this end, the last Board decision provided no differentiation or even discussion with regards to the different levels of SMC available, and only granted based on the criteria under (l), ignoring the moderate and higher levels of (o), (p), and (r). As such, the Court, in granting the JMR, found that the Board’s failure to discuss the other, higher levels of SMC, especially in light of the fact that such higher (r) rating was explicitly claimed by the Veteran’s private representative, is a failure to fulfill VA’s duty to maximize the Veteran’s benefits; the Board agrees. As an initial matter, the Board notes that the Veteran’s private representative has explicitly asserted that the Veteran’s conditions warrant a higher SMC rating under the criteria set forth by 38 U.S.C. § 1114(r). There are two parts to SMC (r): special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is discussed in (r)(2). See 38 U.S.C. § 1114(r); 38 C.F.R. §§ 3.350(h), 3.352. To be awarded SMC(r)(1), under 38 U.S.C. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also be in need of regular aid and attendance. See 38 U.S.C. § 1114(r). For SMC at the (r)(2) rate, once the aforementioned threshold is met, the Veteran must show that, in addition to the need for regular aid and attendance, he is in need a higher level of care as specified. See 38 U.S.C. § 1114 (r)(2). The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C. § 1114 (o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350 (h)(1). In sum, the threshold consideration for SMC under (r) is to demonstrate entitlement to SMC under the criteria under (o), which is as follows: SMC provided by 38 U.S.C. § 1114 (o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114 (l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. 38 C.F.R. § 3.350(e)(1). As there is evidence that the Veteran has the use of his hands and arms, at least sufficient to use his walker, and as there is no evidence of deafness, the only qualifying criteria for SMC under (o) is establishing “(ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. § 1114 (l) through (n). In other words, as an initial matter in establishing a higher SMC rating under (r), there must be a preliminary finding that the Veteran’s service-connected conditions fulfill the criteria for establishing eligibility under U.S.C. § 1114 (l) or (n), twice. The Veteran is service-connected for several disabilities, to include an acquired psychiatric disability, Parkinson’s Disease, which include separate disabilities for his bilateral upper and lower extremities, vertigo, residuals of a traumatic brain injury (TBI), diabetes, scars, tinnitus, residuals of prostate cancer, and hearing loss. The Board notes that the Veteran’s representative asserts that the Veteran’s separately rated and service-connected upper and lower extremity disabilities, due to his Parkinson’s, should be considered separate disabilities warranting eligibility under the “l” criteria for SMC. The Board, however, finds that such theory to go against the criteria under U.S.C. § 1114(o)(ii) for eligibility. Section (ii) explicitly states that the same condition cannot be considered twice, meaning, the same condition cannot be used to qualify under the (l) standard for this purpose. Here, while the Veteran’s representative is correct that the upper and lower extremities are rated separately under VA law, such disabilities are nonetheless symptoms/manifestations of the same “condition.” As such, the Board finds that such argument to be unpersuasive. However, in the same November 2020 correspondence from the Veteran’s representative, it was alternatively asserted that the Veteran’s posttraumatic stress disorder (PTSD), and associated psychiatric disability, may also rise to the level in which to require aid and attendance. Here, the Board notes that the Veteran is currently rated at 70 percent for his PTSD, which demonstrates a severe disability affecting the Veteran’s functional ability, memory, and ability to concentrate and follow directions. The representative additionally asserts that due to such psychiatric disability, the Veteran has severe memory loss, to required daily assistance for simple task such as taking medication. The Board finds that it is certainly plausible that the combination of the Veteran’s service-connected PTSD and his various other disabilities such as vertigo and residuals of his TBI, may produce a disability picture in which could meet the eligibility for a SMC under (l); and when combined with the Veteran’s Parkinson’s, which was found to already meet the (l) criteria by the last Board decision, the Veteran may meet the standard for (o). However, the Board finds that the evidence of record is insufficient to make such a determination. Here, the last VA examination to assess the nature and severity of the Veteran’s PTSD was more than a decade ago, in July 2010. The Board finds that the relevant medical evidence no longer is representative of the Veteran’s actual level of disability with regards to his service-connected PTSD. As such, the Board finds that remand is required so to obtain a VA examination that speak to the current nature and severity of the Veteran’s PTSD. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Schedule the Veteran for a VA examination addressing the Veteran’s ED claim with a medical doctor examiner who has not previously conducted an examination of the Veteran. All necessary examinations, tests, and studies should be conducted. A complete rationale must be provided for all opinions offered. The examiner must review the record, including service medical records and VA treatment records, and offer opinion as to the following: (a) Is it at least as likely as not that ED manifested during, or as a result of, active service? (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that ED was caused by any service-connected disability, to specifically include the medication for his psychiatric disability. (c) Opine as to whether it is at least as likely as not (50 percent probability or greater) that ED was aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disability, to specifically include the medication for his psychiatric disability. 3. Then, schedule the Veteran for a VA examination of the Veteran’s psychiatric disability, to include any residuals of his TBI. The examiner must review the claims file and must note that review in the report. The examiner is specifically asked to report on the current nature and severity of the Veteran’s psychiatric disability, to include a current diagnosis. A complete rationale for any opinion expressed should be included in the examination report. The examiner should opine as to the level of occupational and social impairment due to the psychiatric disability and should describe the symptoms that cause those levels of impairment. Additionally, the examiner must opine whether, as a result of the Veteran’s disabilities other than those related to his Parkinson’s Disease, such as his PTSD, TBI, and vertigo, the Veteran is bedridden (or actually required to remain in bed), unable to dress or undress himself, unable to keep himself ordinarily clean and presentable, needs frequent adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid, is unable to feed himself or attend to the wants of nature, or experiences incapacity which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. The examiner must state whether, due to the combined effects of his service-connected disabilities, other than those produced by his Parkinson’s, the Veteran needs a higher level of care or personal health-care services provided on a daily basis in his home by a licensed health care professional or someone under the supervision of a licensed health care professional. Finally, the examiner must address whether, because of these disorders he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disabilities and resultant confinement will continue throughout his lifetime. A complete, well-reasoned rationale must be provided for any opinion offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.