Citation Nr: 21051711 Decision Date: 08/23/21 Archive Date: 08/23/21 DOCKET NO. 15-40 418 DATE: August 23, 2021 ORDER Entitlement to special monthly compensation (SMC) based on a need for aid and attendance is granted. Entitlement to specially adapted housing is granted. Entitlement to service connection for prostate cancer as secondary to service-connected prostatitis is denied. Entitlement to special monthly compensation based on a need for housebound is dismissed. Entitlement to a special home adaptation grant is dismissed. REMANDED Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.29 is remanded. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30 is remanded. FINDINGS OF FACT 1. The Veteran is in need of aid and attendance as a result of functional impairment from his service-connected disabilities. 2. The grant of entitlement to SMC based on aid and attendance renders moot the housebound claim. 3. The Veteran's permanent and total service-connected disability results in the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion. 4. The grant of assistance in acquiring specially adapted housing renders moot the issue of eligibility for a special home adaptation grant. 5. Prostate cancer was not caused or aggravated by service-connected prostatitis. CONCLUSIONS OF LAW 1. The criteria for SMC based on the need for aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 2. The claim of entitlement to SMC based on being housebound is dismissed as moot. 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350, 3.351. 3. The criteria for eligibility for assistance in acquiring specially adapted housing are met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 4. The claim for entitlement to a special home adaptation grant is dismissed as moot. 38 U.S.C. §§ 2101(b), 7105; 38 C.F.R. § 3.809a. 5. The criteria for service connection for prostate cancer as secondary to service-connected prostatitis have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to March 1993. This claim comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board denied the claim of entitlement to service connection for prostate cancer, to include as secondary to service-connected prostatitis. The Board also remanded the other issues listed above in January 2019. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In this regard, the Veteran only appealed the issue with regard to service connection on a secondary basis. In January 2020, the Court granted a December 2019 Joint Motion for Partial Remand (JMPR). In April 2020 and January 2021, the case was remanded for additional development and it now returns for appellate review. 1. Entitlement to special monthly compensation based on a need for aid and attendance. The Veteran is claiming SMC based on the need for aid and attendance due to his service-connected disabilities. Relevant to this case, SMC based on the need for aid and attendance is available where the Veteran is so helpless as to be in need of regular aid and attendance due to service-connected disabilities. 38 C.F.R. § 3.350 (b). In making this determination, the Board is to consider the Veteran's ability to dress or undress himself, keep himself ordinarily clean and presentable, inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness, inability to attend to the wants of nature (use the bathroom); incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). In accordance with the January 2019, the Veteran was afforded an examination for Housebound Status or Permanent Need for Regular Aid and Attendance in December 2019. At such time, the examiner noted that the Veteran ambulated slowly with cane. It was further noted that the Veteran was able to perform activities listed, however, he needed supervision and sometimes assistance during some activities. Veteran states he is unable to prepare meals on the stove/cook for himself but is capable of heating things in microwave. The Veteran reported that someone needed to be present when he showered/used the bathroom, and he fell in the shower due to internal bleeding. The Veteran also stated that he did not wear buttoned or zippered clothing. In this regard, he reported that both his hands "felt weak" and stated that sometimes when tried button shirt. Additionally, the Veteran reports he is unable to go outside of the home independently and he was unable able to drive himself for the last 10 years. The examiner explained that the Veteran reported that he no longer drove due to side effects on his impairment from morphine pump which helps with pain to his neck, back and left leg. The examiner further explained that Veteran only left his household for medical appointments and occasional grocery shopping. Therefore, the examiner concluded that it was at least as likely as not that the Veteran's service connected disabilities, to include his left knee, lumbar spine, radiculopathy, and neck disorder rendered him permanently bedridden or so helpless as to be in need of the regular aid and attendance of another person, or is permanently housebound by reason of his service-connected disability or disabilities. The Board affords great probative weight to the December 2019 VA examiner's opinion as he considered all of the pertinent evidence of record, to include the Veteran's relevant medical history and contentions, and provided a complete rationale, relying on and citing to the records reviewed. The examiner's opinion is consistent with the objective evidence of record. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board finds the Veteran in need of aid and attendance due to his service-connected disabilities. The claim of entitlement to SMC based on the need for aid and attendance is granted. 2. Entitlement to specially adapted housing The Veteran contends that he is entitled to a special home adaptation grant or specially adapted housing due to his service-connected disabilities. In this regard, the Veteran is currently service connected for several disabilities, to include a lumbar spine disability, bilateral lower extremity radiculopathy, left knee injury, and a neck disability. Additionally, as stated above, the Veteran is in receipt of a combined 100 percent disability rating for his service-connected disabilities. Specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (2) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (3) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (4) the loss, or loss of use, of both lower extremities; (5) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, (6) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion. VA considers § 3.809(b) satisfied if the Veteran has amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017. 38 U.S.C. § 2101 (a); 38 C.F.R. § 3.809 (a), (b), (d). The phrase 'preclude locomotion' is defined as the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809 (c). In accordance with the January 2019 Board remand, the Veteran was afforded a VA examination in December 2019. At such time, the examiner concluded that the Veteran's left knee disability, lumbar spine disability and radiculopathy were at least as likely as not the cause the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. As rationale, the examiner explained that the Veteran required the aid of a cane on standing and locomotion due to lumbar spine condition with associated bilateral lower extremity radiculopathy. The Veteran was unsteady on his feet with reduced weakness to bilateral lower extremities. The Board finds that the weight of the evidence indicates that the Veteran required the use of a cane, wheelchair, or walker due to symptoms of his service-connected lumbar spine disability, bilateral lower extremity radiculopathy, and left knee disability. The Veteran is in receipt of a combined 100 percent disability rating for his service-connected disabilities, and there is no indication that his ability to ambulate will improve. Therefore, the Board concludes that the Veteran has permanent and total service-connected disability due to the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. As such, he is eligible for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101; 38 C.F.R. § 3.809. 3. Entitlement to SMC based on based on housebound status. SMC may be granted to a Veteran based on the need for regular aid and attendance from another person or of being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound, but not for both simultaneously. As SMC by reason of the need for aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound, the Board need not address housebound status as it is moot. The matter is dismissed. 4. Entitlement to special home adaptation. Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). However, in this case, the Veteran has been granted a certificate of eligibility for specially adapted housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809a(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot. 5. Entitlement to service connection for prostate cancer as secondary to service-connected prostatitis. The Veteran contends that his currently diagnosed prostate cancer is related to his service-connected prostatitis. Service connection may 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As stated above, the Veteran appealed the denial of service connection on a secondary basis. The Court found that, in January 2019, the Board failed to provide an adequate statement of reasons or bases for its reliance on the September 2011 VA examination, despite it being unclear whether the examiner's opinion addressed whether the Veteran's prostate cancer was aggravated by his service-connected prostatitis. In April 2020, the Board remanded the case to obtain an additional medical opinion. In this regard, the RO provided the Veteran a VA examination in May 2020 to address the nature and etiology of the Veteran's prostate cancer as secondary to the Veteran's service-connected prostatitis. The VA examiner reviewed the Veteran's claims file and provided the medical opinion that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. The VA examiner rationalized that prostate cancer was related to changes in the cell type of prostate tissue, and not thought to be related to any type of prostate infection. The examiner opined that prostatitis is not a known cause of a carcinoma of the prostate, as the mechanism of developing the two conditions are different. The examiner also provided an opinion that addressed whether the Veteran's service-connected prostatitis aggravated his prostate cancer. However, in January 2021, the Board found that the opinion was inadequate and remanded the case for an addendum opinion. Pursuant to the previous Board remand, the RO provided the Veteran a VA examination in February 2021 to address the nature and etiology of the Veteran's prostate cancer as secondary to the Veteran's service-connected prostatitis. The VA examiner concluded that the Veteran's prostate cancer was not at least as likely as not aggravated beyond its natural progression by the service-connected prostatitis. As rationale, the examiner explained that the medical record did not indicate that the prostate cancer had progressed faster than what would be expected. The examiner further stated that any progression of prostate cancer was unrelated to his history of chronic prostatitis. He also explained that, even if the Veteran had a relapse of his prostate cancer, common medical knowledge indicates that it would not be aggravated by a chronic prostatitis. The examiner concluded that the etiology of prostate cancer is an abnormal cell type of behavior, not an infectious etiology. Thus, chronic prostatitis, would not aggravate an unrelated abnormal cell growth and the chronic prostatitis would not accelerate any malignant cell growth in the prostate. The Board accords great probative weight to the February 2021 VA examiner's opinion as it considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl, supra. Importantly, there are no medical opinions of record to the contrary. The Board also acknowledges the Veteran's statements that his prostate cancer is related to his service-connected prostatitis. However, the Board finds that the question regarding the potential relationship between the Veteran's current disorder and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran is competent to describe his current symptomatology, the Board accords his statements regarding the causation of his disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In the instant case, the question of causation of his current disorder involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as the Veteran does not have the appropriate medical training and expertise to offer an opinion as to the etiology of his current disorder, the lay assertions in this regard have no probative value. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for prostate cancer as secondary to his service-connected prostatitis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 6. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.29. 7. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.30. The Veteran contends that he is entitled to a temporary total evaluation pursuant to 38 C.F.R. § 4.29 and 4.30. In this regard, in a September 2009 statement from the Veteran, he stated that he was entitled to temporary total ratings for hospitalization and convalescence due to open heart surgery and other illnesses which also required hospitalizations. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. Temporary total disability ratings may be assigned under 38 C.F.R. § 4.30 if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; the presence of severe postoperative residuals; or the amount of time at least one major joint was immobilized by a cast. 38 C.F.R. § 4.30. The Veteran submitted private treatment records which reveal that on October 6, 2008 the Veteran was screened at an emergency department for complaints of chest and abdominal pain. On the following day he underwent open heart surgery for an aortic valve deformity. Additionally, in March 2009, while still hospitalized and recovering the Veteran was transferred to the psychiatric clinic based on brief psychiatric episodes secondary to opioids. The private treatment records also show several other periods of hospitalizations, but it is not clear which dates and procedures the Veteran is referencing for entitlement to a temporary total evaluation pursuant to 38 C.F.R. § 4.29 and 4.30. Additionally, the Veteran is service connected for lumbar degenerative disc disease with residuals of a morphine pump implantation. Given the fact that he is service connected for opioid use, the Board finds that the RO must consider this information when readjudicating the Veteran's claim. On remand, the RO should seek clarification from the Veteran as to the dates and facilities of such treatment, and whether he was hospitalized for a service-connected disability. After obtaining clarification, the RO should obtain a VA opinion that calculates the length of time of convalescence and/or hospitalization, and the time period postoperative residuals were present. The matters are REMANDED for the following actions: 1. With regards to the Veteran's claims for entitlement to a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 and 4.30. Obtain clarification from the Veteran as to the dates and facilities of such treatment and whether he was hospitalized for a service-connected disability. 2. After completing #1, obtain an addendum opinion from an appropriate clinician that is responsive to the following: a) what was the length of the period of convalescence for this surgery; and b) what, if any severe postoperative residuals manifested after surgery and over what period did these residuals manifest. The examiner is asked to address the relevant evidence of record. The Veteran's service-connected morphine pump must be specifically considered in determining whether the evidence shows entitlement to a temporary total rating under these regulations. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran's remaining claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.