Citation Nr: 21021663 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 09-01 543 DATE: April 13, 2021 ORDER Entitlement to special monthly pension (SMP) based on the Veteran’s need for aid and attendance is dismissed as moot. REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for renal failure is remanded. FINDINGS OF FACT 1. The Veteran is in receipt of a combined disability rating of 100 percent, effective June 14, 2000. 2. For the entire period on appeal, the Veteran’s service-connected benefits result in a greater benefit than that of SMP benefits. CONCLUSION OF LAW Entitlement to SMP based on the Veteran’s need for aid and attendance is dismissed as moot. 38 U.S.C. § 1521; 38 C.F.R. § 3.151(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from March 1989 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014 and May 2018, the Board remanded these matters for further development. Entitlement to SMP based on the Veteran’s need for aid and attendance. The May 2009 rating decision on appeal denied entitlement to SMP based on the Veteran’s need for aid and attendance. VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C. § 1521(a). In addition, an increased rate of pension, in the form of a SMP, is available when an eligible veteran is in need of regular A&A or has a disability rated as permanent and total, and (1) has an additional disability or disabilities ratable at 60 percent, or (2) is permanently housebound. See 38 U.S.C. § 152(d), (e); see also 38 C.F.R. § 3.351(b), (c), (d). In a July 2020 rating decision, during the pendency of the present appeal, service connection for other specified mental disorders, residuals of a traumatic brain injury, was granted and an initial rating of 100 percent was assigned, effective June 14, 2000. Therefore, the Veteran has been in receipt of a combined disability rating of 100 percent for the entire time his SMP claim has been pending. A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. 38 C.F.R. § 3.151(a). The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. Id. In the present case, disability compensation at the 100 percent rate is greater than the rate payable for nonservice-connection pension, and the Veteran has not specifically elected to receive the lesser benefit. Thus, as a matter of law, payment of SMP based on the Veteran’s need for aid and attendance is not permissible over the period in question, and the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Despite the fact that the Veteran is not entitled to SMP based on his need for aid and attendance, he may be entitled to special monthly compensation (SMC) based on his need for aid and attendance under 38 U.S.C. § 1114. However, the issue of entitlement to SMC based on the Veteran’s need for aid and attendance is not currently before the Board. If the Veteran would like to seek SMC based on his need for aid and attendance, he should file a new claim with the RO. REASONS FOR REMAND Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for renal failure is remanded. At issue is whether the Veteran is entitled to compensation under 38 U.S.C. § 1151. Specifically, the Veteran has alleged that his renal failure was a side effect of medication that he had been prescribed by VA, and that this constituted carelessness, negligence, or lack of proper skill. The Veteran’s treatment records indicate that he was prescribed Lithium to treat his mental disorder, but that this prescription was ended in 2005 due to the detection of elevated lab results indicating a problem with the Veteran’s kidney function. The Veteran submitted a private medical opinion in July 2008. The provider diagnosed the Veteran with renal failure. The provider opined that the Veteran’s renal failure was a side effect of Lithium prescribed by VA to treat the Veteran’s mental disorder. The provider also opined that VA providers were negligent in failing to detect the side effect earlier enough to prevent the Veteran from developing a permanent disability. A VA medical opinion was obtained in May 2010. The VA examiner indicated that the Veteran had slightly elevated lab results, and that the Veteran may have developed partial nephrogenic diabetes as a side effect to Lithium; but that such a side effect would not be due to a lack of exercising reasonable degree of care. Another VA medical opinion was obtained in May 2015. The examiner opined that lab results indicated that the Veteran’s renal function was on the upper end of what was considered normal, and that despite a temporary worsening of the Veteran’s lab results, the Veteran did not develop a permanent disability. The examiner opined that VA providers were aware of potential side effects of lithium, and that they took proper steps to monitor the Veteran’s kidney functioning; and, that due to this diligence, VA providers detected a problem with the Veteran’s kidney functioning early enough to prevent the Veteran from developing a permanent disability. Once VA undertakes the effort to provide the Veteran with a VA examination., it must provide the Veteran with an adequate one, and an adequate examination is sufficiently detailed in order to ensure that VA’s evaluation of the Veteran’s claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Ultimately, it is undisputed that the Veteran developed kidney issues as a side effect of being prescribed lithium by VA. Nevertheless, the Board must determine whether or not these kidney problems became severe enough to be considered a disability (elevated lab results are not disabilities 61 Fed. Reg. 20440 (May 7, 1996)); if so whether or not any kidney failure manifested during the pendency of the Veteran’s appeal, and whether or not such kidney failure was due to negligence, carelessness, lack of proper skill, or error in judgement by VA. Unfortunately, it is not clear to the Board based on the evidence currently of record whether the Veteran was actually diagnosed with a kidney disability, such as renal failure, and not merely elevated lab results, during the period on appeal. For example, the Board notes that November 2017 private medical treatment records reflect multiple diagnosed disabilities, but do not indicate any diagnosed kidney disability. Therefore, remand is warranted to determine if the Veteran has been diagnosed with a kidney disability at any point during the period on appeal. The Board notes that, even if the Veteran’s kidney failure did eventually resolve itself, the Veteran may still be entitled to compensation under the provisions of 38 U.S.C. § 1151 for renal failure so long as the Veteran manifested such renal failure during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The matters are REMANDED for the following action: 1. Obtain a medical opinion from a nephrologist, or other appropriate specialist, to address the claim under 38 U.S.C. § 1151 for nephrogenic diabetes insipidus and renal failure due to lithium toxicity. If, in the opinion of the specialist an in-person evaluation is necessary, arrange for the Veteran to attend such an examination. After review of the claims file, the specialist should address each of the following questions: (a.) Regardless of whether it eventually resolved, did the Veteran experience additional disability to specifically include lithium toxicity, a kidney disability, and/or renal failure due to VA treatment, namely, prescribed lithium and/or a delay in diagnosis? (b.) If the Veteran had additional disability to specifically include lithium toxicity and/or renal failure due to VA treatment, namely prescribed lithium and/or a delay in diagnosis, did such additional disability resolve? If so, please identify the beginning and end dates of the additional disability, and any related symptoms. (c) If the Veteran had additional disability to specifically include lithium toxicity and/or renal failure due to VA treatment, namely prescribed lithium and/or a delay in diagnosis, even if such additional disability resolved, was the proximate cause of the disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of VA in furnishing the lithium treatment? When making this determination, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provide. (c.) Is any such additional disability to specifically include lithium toxicity and/or renal failure due to an event not reasonably foreseeable? The examiner should provide a complete rationale for all opinions rendered. If the reviewing clinician cannot provide the requested opinion(s) without resorting to speculation, it must be so stated, and he or she must provide the reasons why such opinion would require speculation. 2. Then, readjudicate the remaining issue on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.