Citation Nr: 21040964 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-25 423 DATE: July 7, 2021 ORDER Entitlement to special monthly compensation (SMC) based on the Veteran's need for aid and attendance is denied. REMANDED Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to an initial compensable rating for a right ear hearing loss disability is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of an eye surgery is remanded. FINDING OF FACT The Veteran was not blind, or nearly blind, was not institutionalized, or in a nursing home on account of physical or mental incapacity due to his service-connected disabilities, and did not need or rely on the aid and assistance of another person to perform the routine activities of daily living due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to SMC based on the Veteran's need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 1115, 5107(2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to October 1969. Unfortunately, he died in February 2021. The appellant is his surviving spouse and has been properly substituted as claimant in the claim addressed herein. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2014 and April 2016 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at an April 2021 Board virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to SMC based on the Veteran's need for aid and attendance. VA's governing laws and regulations direct that special monthly compensation at the aid and attendance rate is payable by reason of the Veteran being helpless or so nearly helpless due to his service-connected disabilities that he requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502(b); 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, the Veteran must (1) be 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) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. §§ 3.351(c). Determinations as to a factual need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the inability to dress and undress, the inability to keep ordinarily clean and presentable, the inability to feed oneself through loss of coordination of the upper extremities or through extreme weakness, or the inability to attend to the wants of nature. It includes the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid. A need for aid and attendance also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to the daily environment. Additionally, an individual who is bedridden, as that term is defined by regulation, meets the criteria for aid and attendance. 38 C.F.R. § 3.352(a). Bedridden is defined as a condition that, through its essential character, actually requires that the veteran remain in bed. The fact that the veteran 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. 38 C.F.R. § 3.352(a). The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. The evidence need only establish that he is so helpless as to need regular aid and attendance, not constant need. Determinations that he is so helpless as to need regular aid and attendance will not be based solely upon an opinion that his condition requires him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The veteran must be unable to perform one of the enumerated personal functions, but his condition does not have to manifest in an inability to perform all the enumerated personal functions. Turco v. Brown, 9 Vet. App. 222, 224 (1996). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran was in receipt of service connection for a right ear hearing loss disability and tinnitus. He was neither blind nor nearly blind, and was not a patient in a nursing home or bedridden due to his service-connected disabilities at any point during the pendency of this appeal. See February 2016, September 2018, and June 2020 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. Therefore, the facts must establish that the Veteran was in need of aid and attendance in order to establish eligibility for SMC benefits. Turning to the evidence, the June 2014 VA audiology examination indicated that the functional impact of the Veteran's hearing loss was that he had problems hearing people and missed information. The February 2016 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, indicated that the Veteran had been diagnosed with diabetes mellitus, cerebrovascular accident (a stroke), dementia, and coronary artery disease, and that his dementia restricted his activities/functions. The examining physician did not indicate that the Veteran's service-connected hearing loss or tinnitus caused him to need aid and attendance. The September 2018 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, received by VA in October 2018, indicated that the Veteran had been diagnosed with hypertension, unsteady balance fall risk, and advancing age, and that the diagnosed fall risk, diabetes, and hypertension restricted the Veteran's activities/functions. The examining physician did not indicate that the Veteran's service-connected hearing loss or tinnitus caused him to need aid and attendance. The June 2020 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, received by VA in July 2020, indicated that the Veteran had been diagnosed with cerebrovascular accident (a stroke), hemiparesis, and dementia, and that these diagnoses were the basis for his need for aid and attendance. The examining physician did not indicate that the Veteran's service-connected hearing loss or tinnitus caused him to need aid and attendance. After a review of the evidence, both lay and medical, the Board finds that the Veteran did not have a factual need for aid and attendance due to his service-connected disabilities. While the evidence reflects that the Veteran had a factual need for aid and attendance, the evidence clearly indicates that such need for aid and attendance was not due to his service-connected disabilities, including hearing loss and tinnitus. To the contrary, the February 2016, September 2018, and June 2020 VA Forms 21-2680 reflected that the Veteran's need for aid and attendance was due to his non-service-connected disabilities, and this evidence is considered highly probative. For these reasons, the Board finds that the weight of the evidence supports a finding that the Veteran did not have a factual need for the aid and attendance of another due to his service-connected disabilities. Therefore, the claim for SMC based on the Veteran's need for aid and attendance is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board notes that, during the pendency of this appeal, the Veteran was awarded special monthly pension (SMP) based on his need for aid and attendance, effective June 13, 2018. To the extent that the testimony from the appellant and her representative during the April 2021 pertained to the issue of entitlement to an earlier effective date for this award of SMP, the Board notes that SMC and SMP are different benefits with different legal requirements, though both can be based on the Veteran's need for aid and attendance. In this case, the issue of entitlement to an earlier effective date for the award of SMP was not appealed and the Board does not have jurisdiction over that issue; therefore, it is not addressed in this decision. REASONS FOR REMAND 1. Entitlement to service connection for a left ear hearing loss disability is remanded. In June 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his hearing loss disability. The VA examiner opined that, since there is no audiometric data in the Veteran's service medical records, based on his history of in-service noise exposure, it appears at least as likely as not that the Veteran's left ear hearing loss was related to in-service noise exposure. However, this opinion was not based on review of the Veteran's claims file, as the claims file was unavailable. In an August 2014 addendum opinion, after review of the Veteran's claims folder, the June 2014 VA examiner opined that the Veteran's left ear hearing loss is less likely than not related to military noise exposure. The VA examiner explained that the Institute of Medicine (IOM) report (Noise and Military Service, September 2005) concluded that based on current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. The IOM also stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The VA examiner also noted that there was no significant shift in the Veteran's hearing levels greater than normal measurement variability during service. In review of the rationale provided by the VA examiner in the August 2014 addendum opinion and in light of the decision of the Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243 (2019), the Board finds that remand is necessary. In McCray, the Court found that the 2005 IOM study contained contradictory findings. The study found that "based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss." However, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The Board, in deciding the claim, must explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Thus, if relying on the IOM report to support a conclusion, the examiner should state why such conclusion is applicable to the facts of this Veteran's case. 2. Entitlement to an initial compensable rating for a right ear hearing loss disability is remanded. Disability ratings for hearing loss are calculated based on consideration of both ears, with different numbers used if the Veteran is in receipt of service connection for a hearing loss disability in only one ear. See 38 C.F.R. § 4.85. Thus, the Board finds that it must defer consideration of the issue of entitlement to an initial compensable rating for a left ear hearing loss disability, as it is inextricably intertwined with the issue of entitlement to service connection for right ear hearing loss disability. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separately claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). 3. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of an eye surgery is remanded. At issue is whether the Veteran was entitled to compensation under 38 U.S.C. § 1151. Specifically, the Veteran and the appellant alleged that the Veteran's decreased visual acuity resulted from or was aggravated by a 2008 cataract surgery in which proper procedures were not followed and the surgery was not performed by proper personnel. See April 2021 Board hearing transcript. The statute and regulation make clear that if there is additional disability, then two separate requirements must each be met: first, it must be shown that the disability was caused by the treatment; second, it must be shown that the proximate cause of the disability was either VA fault or an event not reasonably foreseeable. See 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(c)(1), (d). To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran's informed consent. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d)(1). Whether an event is reasonably foreseeable is based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). Here, the record reflects that the Veteran had medical history of a right eye with severe decrease in visual acuity secondary to cataract surgery. See November 2013 VA treatment note. In addition, a March 2009 VA treatment record indicated that the Veteran stated he had a right eye cataract removed three months earlier and had vision loss with that procedure. To date, VA has not obtained a competent medical examination and opinion addressing this claim. Accordingly, a VA examination is necessary prior to further adjudication. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While VA treatment records from 2008 related to the right eye cataract surgery have been added to the Veteran's claims folder, those records contain numerous notations that "scanned document attached to this note," followed by directions to view the document. It is not clear from the record whether the contents of such attached documents are included in the VA treatment records that are currently in the claims folder. On remand, the RO should ensure that all of the VA treatment records related to the Veteran's right eye cataract surgery in August 2008, and any subsequent optometry and ophthalmology records, are present in the Veteran's claims folder. The matters are REMANDED for the following action: 1. Obtain and associate with the record all VA treatment records related to the Veteran's August 2008 right eye cataract surgery, including any records that have been scanned and require additional steps to access, as well as any subsequent VA optometry and ophthalmology treatment records. 2. Obtain an addendum opinion from the June 2014 VA examiner, or a suitable substitute, as to the etiology of the Veteran's left ear hearing loss disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file, the examiner is asked to respond to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the left ear hearing loss manifested during or is otherwise related to the Veteran's period of active service, including his in-service exposure to acoustic trauma experienced while assigned to an artillery battery. (b) If applicable, the theory of delayed or latent onset of hearing loss as it relates to the facts of the Veteran's case must be addressed. The examiner must explain how, if at all, medical treatise evidence (such as the IOM report referenced herein) contributed to the etiology opinion. The Board cautions the examiner to carefully explain the rationale of their medical opinion, especially when relying on any potentially qualifying or contradictory aspect of the IOM report or other medical texts. See McCray v. Wilkie, 31 Vet. App. 243 (2019). A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Request an opinion from a VA ophthalmologist regarding the etiology of the Veteran's diagnosed right eye conditions, including his decreased visual acuity. The claims file and a copy of this remand will be made available to the ophthalmologist, who will acknowledge receipt and review of these materials. After a review of the record, the ophthalmologist is asked to respond to the following: (a) Identify all diagnosed right eye conditions since August 2008, to include reduced visual acuity. (b) For each right eye condition diagnosed since August 2008, provide an opinion whether it was at least as likely as (a 50 percent or higher probability) not caused or aggravated by the August 2008 cataract surgery at the VA. (c) If additional disability resulted, provide an opinion as to whether it was caused by carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA? In doing so, address the appellant's assertion that the surgery was performed by an unqualified or student physician. (d) If additional disability resulted, also provide an opinion as to whether it was a reasonably foreseeable result of the VA's cataract surgery, that is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment(s) at issue? A complete rationale should be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Then, readjudicate the remanded issues on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.