Citation Nr: 21026681 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-16 837 DATE: May 3, 2021 ORDER Entitlement to special monthly compensation (SMC) based on aid and attendance (A&A) is denied. FINDING OF FACT The preponderance of the evidence does not demonstrate that the Veteran required the regular aid and attendance of another person to perform the activities of daily living. CONCLUSION OF LAW The criteria for SMC based on A&A have not been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.351(c)(3), 3.352(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1947 to December 1953. Unfortunately, the Veteran passed away on August 22, 2018, during the appeal process. In October 2019, the appellant, who is his surviving spouse, was substituted to continue the appeal. The case is on appeal to the Board of Veterans' Appeals (Board) from November 2014 and December 2014 (which denied SMC based on A&A) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A June 23, 2015 rating decision granted entitlement to special monthly pension (SMP) based on A&A, effective March 5, 2014. In December 2016, March 2018, and March 2020, the Board remanded the case for additional development. In December 2016 the Board denied an initial compensable rating for bilateral hearing loss and remanded claims for service connection for prostate cancer, lung cancer, renal cancer (claimed as kidney cancer), cancer of the blood (also claimed as leukemia, and breast cancer, as well as SMC based on A&A. In March 2018 the Board again remanded those claims for compliance with the 2016 remand. In March 2020 the Board again remanded the claims. In July 2020 the Board denied service connection for (a) a breast condition, to include gynecomastia or carcinoma; (b) cancer of the blood (also claimed as leukemia), to include polycythemia vera; (c) prostate cancer; and (d) lung cancer. The claim for service connection for renal carcinoma, claimed as kidney cancer (and claimed as due to inservice asbestos exposure) and the claim for SMC based on A&A were remanded. A February 2021 rating decision granted service connection for chronic kidney disease with renal carcinoma (claimed as kidney cancer) and assigned an evaluation of 80 percent effective May 14, 2013. It also granted service connection for lower abdomen scar, secondary to the service-connected disability of chronic kidney disease with renal carcinoma, and assigned a noncompensable evaluation effective May 14, 2013. It also found that as to the May 2014 rating decision granting service connection for tinnitus and bilateral hearing loss effective November 7, 2014, there was clear and unmistakable error (CUE) and that the correct effective date was May 14, 2013. 1. Entitlement to SMC based on A&A The appellant is seeking entitlement to SMC based on aid and attendance for her spouse (the Veteran) prior to his death. The Board concludes that, although the Veteran had significant disability due to his service-connected renal cancer, affecting his ability to attend to the activities of daily living, the preponderance of the evidence is against finding that he required the regular aid and attendance of another person. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.350(b)(3), 3.351(c)(3), 3.352(a). At the Veteran's death he was entitled to service connection for chronic kidney disease with renal carcinoma, rated 80% disabling; tinnitus, rated 10% disabling; bilateral hearing loss, rated noncompensably disabling; and a lower abdominal scar, associated with chronic kidney disease, also rated noncompensably disabling. He had a combined disability evaluation of 80 percent, effective May 14, 2013. Also, he had been awarded entitlement to special monthly pension (SMP) based on A&A. However, the matter now before the Board is entitlement to special monthly compensation (SMC) based on A&A. The difference between SMP based on A&A and SMC based on A&A is that SMP A&A is awarded for a veteran that served during a period of war. 38 U.S.C. § 1521. Here, the Veteran served during the Korean Conflict, a period of war. See 38 U.S.C. § 101(9) and 38 C.F.R. § 3.2(e). Also, in determining entitlement to SMP based on A&A consideration is given to all disabling impairments, both service-connected and nonservice-connected. On the other hand, in determining entitlement to SMC based on A&A consideration is given only to service-connected disabilities. See 38 U.S.C. § 1114. 38 C.F.R. § 3.350(b)(3) states that the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a). Also, 38 C.F.R. § 3.351(c)(3) provides that a veteran will be considered in need of regular aid and attendance if he (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 5 degrees or less; or (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 §3.352(a). In this case, it is neither shown nor contended that the Veteran was blind or nearly blind or was a patient in a nursing home because of service-connected physical incapacity. Thus, the dispositive matter is whether, due solely to service-connected disability(ies) there was a factual need for aid and attendance within the meaning of 38 C.F.R. § 3.352(a). In turn, 38 C.F.R. § 3.352(a) provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (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 appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (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. For the purpose of this paragraph "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the 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 the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran 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. Factual Background The Veteran was hospitalized in in March 201 for cardiovascular problems, and again in September 2011 for generalized weakness, probably secondary to progressive renal insufficiency, and metabolic acidosis due to chronic renal insufficiency but the symptoms improved with bicarbonate. He had had a prior left nephrectomy. His other medical problems included hypertension; moderate aortic insufficiency; coronary artery disease; gastroesophageal reflux disease (GERD); prostate cancer; a history of radiation proctopathy; and diverticulosis. The Veteran was hospitalized in November and December 2013 for what was felt, after a chest CT scan, was radiation pneumonitis from his previous radiation therapy for lung cancer. VA outpatient treatment (VAOPT) records in 2016 demonstrate that the Veteran attend clinical appointments, both scheduled and unscheduled, on his own. A Hematologic and Lymphatic Disability Benefits Questionnaire (DBQ) in July 2017 shows that after he lost about 30 lbs. a bone marrow study was done and he was given a diagnosis of polycythemia vera, but it had resolved. The current diagnosis was anemia, and the impact was that he was precluded from heavy work. A Respiratory Conditions DBQ noted that following radiation therapy for malignant lung cancer, he could only perform sedentary work. A Kidney Conditions DBQ noted that following his left nephrectomy, he had had decreased function of his remaining right kidney, but he did not required dialysis due to renal dysfunction. The impact on his ability to work was that he was precluded from heavy exertion. A Prostate Condition DBQ shows that he had gotten better since radiation therapy for prostate cancer, and the impact on his ability to work was that he could perform sedentary to light work only. A July 18, 2018 VAOPT record shows that the Veteran's lung cancer had worsened since his last hospitalization in April 2018. He had had palliative care while inpatient at that time and had refused Hospice care at that time. He was to be asked if he would reconsider outpatient Hospice care "which means he stays in his own home with family and the hospice staff will check on him and make sure he is not out of medications for palliative care." Later in July 2018 he had swelling of his legs due to congestive heart failure. The Veteran's death certificate shows that he died in August 2018 of malignant neoplasm of the lung. An April 2020 medical opinion concluded that the Veteran's renal cancer was as likely as not associate with inservice exposure to asbestosis, which was the basis for the subsequent grant of kidney cancer. It was also reported that a December 2014 bone scan had revealed multilevel changes in the thoracic spine, which was considered to be degenerative disc disease (DDD) and there were changes involving bilateral upper and lower extremity joints, suggestive of arthritis. It is neither shown nor contended that the Veteran's service connected tinnitus, bilateral hearing loss, or abdominal scar, separately or in combination resulted in, or contributed to, the Veteran's being in need of A&A of another. As to his service-connected kidney disorder, he had had removal of one kidney (nephrectomy) and an 80% rating was assigned under 38 C.F.R. § 4.114, Diagnostic Code 7500, which provides for a minimum rating of 30% for removal of one kidney, or an evaluation as renal dysfunction if there is nephritis, infection or pathology of the other kidney. The provisions for rating renal dysfunction provide for an 80% rating when, in pertinent part, there is persistent edema and albuminuria, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. However, it was not until the progression of the Veteran's nonservice-connected congestive heart failure and his ultimately terminal nonservice-connected lung cancer that he had such physical impairment that hospice care was recommended. Prior to that time his kidney condition was not of such severity as to cause impairment justifying the need for regular aid and attendance of another. For example, the July 2017 Kidney Condition DBQ noted that the impact of his kidney condition was only that he was precluded from heavy exertion. Clearly, if one can engage in employment which is other than one requiring heavy exertion, such person is not in the need of the need for regular aid and attendance of another. There is otherwise no evidence that at any time prior to his death his service-connected kidney condition was productive of such impairment as to cause an inability to dress or undress himself; or to keep himself ordinarily clean and presentable; or necessitated the frequent need of adjustment of any special prosthetic or orthopedic appliances; or caused an inability to feed himself through loss of coordination of upper extremities or through extreme weakness; or cause an inability to attend to the wants of nature; or otherwise caused such incapacity as to require care or assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. After careful consideration of the medical and lay evidence of record, the Board finds that aid and attendance for the Veteran is not warranted. The Board acknowledges that the evidence shows that the Veteran had significant health problems due to his service-connected kidney disability; however, he was not shown to meet the criteria for aid and attendance as outlined in 38 C.F.R. § 3.352(a). The lay and the medical evidence reflects that he was able to leave his house for appointments and there was no evidence of any impairment in his ability to ambulate, i.e., walk. The Board is sympathetic to the appellant inasmuch as the Veteran passed away during this appeal. However, there is an absence of competent evidence, lay or medical, to establish a factual basis that the Veteran was so physically disabled due solely to his service-connected kidney disability and irrespective of impairments imposed by his multiple and severely disabling nonservice-connected disorders as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(c)(3). If the balance of positive and negative evidence is in equipoise the benefit of the doubt is given to the claimant, and to deny a claim, the evidence must preponderate against the claim. 38 C.F.R. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, Id. In this case, on balance, the weight of the evidence is against the claim. It is not in equipoise. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.