Citation Nr: 23019727 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 12-13 789 DATE: March 30, 2023 ORDER Entitlement to special monthly compensation (SMC) on the basis of aid and attendance is granted. Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to service connection for a gastrointestinal condition to include gastroesophageal reflux disease (GERD) as secondary to the service-connected disability of diabetes mellitus type 2, is remanded. Entitlement to special monthly compensation by reason of being housebound for the period prior to May 8, 2013, is remanded. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are productive of an inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. 2. The Veteran does not have hepatitis C which is attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC based on the need for the regular aid and attendance of another person are met. 38 U.S.C.7 §§ 1114, 5107; 38 C.F.R. § 3.350. 2. The criteria for service connection for hepatitis C are not met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February1968. The Veteran testified before the undersigned at a Board of Veterans' Appeals (Board) decision. The Board remanded the issues on appeal in July 2016, September 2017, and February 2021. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. A relevant to the issues remaining on appeal, the 2016 remand directed the RO to obtain current VA treatment records, request authorizations for private records from the Veteran, and to request an opinion regarding secondary aggravation of GERD by the service-connected diabetes mellitus. VA treatment records were obtained in 2016 and 2017. The RO requested authorizations from the Veteran for private medical records; no response regarding private records was received. As relevant to the issues remaining on appeal, the 2017 remand directed the RO to obtain current VA treatment records and request authorizations for private records from the Veteran. VA treatment records were obtained in 2019 and 2020. The RO requested authorizations from the Veteran for private medical records; no response was received. As relevant, the 2021 remand directed the RO to obtain an etiological opinion regarding the presence of hep C and an addendum opinion regarding a gastrointestinal condition. Adequate VA medical examinations and opinions regarding hepatitis C were obtained in April 2021 and July 2021. The gastrointestinal condition is remanded herein. The 2021 remand remanded the issues of entitlement to service connection for hepatitis C, constipation, and a gastrointestinal condition, SMC due to housebound status and due to aid and attendance. After the 2021 remand, the RO granted service connection for constipation; thus, this issue is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Aid and Attendance The Veteran and his representative contend that he is in need of the regular aid and attendance of another person for her activities of daily living and to protect him from the hazards or dangers incident to his daily environment. The Veteran is currently service-connected for post-traumatic stress disorder (PTSD) rated, as 100 percent disabling; coronary artery disease, rated as 30 percent disabling; diabetes mellitus, type ii (DM) with constipation and diarrhea, rated as 20 percent disabling; peripheral neuropathy, left lower extremity, rated as 20 percent disabling; peripheral neuropathy, right lower extremity, rated as 20 percent disabling; urinary urgency and incontinence, rated as 20 percent disabling; hypertension, rated as 10 percent disabling; tinea pedis and manus with onychomycosis, rated as 10 percent disabling; and cataracts and erectile dysfunction, each rated as non-compensable. SMC based on aid and attendance is available when a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran does not contend that he has anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden. Rather, as noted, he contends that she has significant disabilities as to be in need of regular aid and attendance of another person. Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; and (4) 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 Veteran from the hazards or dangers incident to his daily environment. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) 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 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 is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. "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. 38 C.F.R. § 3.352(a). In June 2009, the Veteran was afforded a VA aid and attendance/housebound examination. At that time, it was noted that the Veteran had poor balance and dizziness as well as poor urinary and bowel control. He required assistance with bathing, dressing, and incontinence care. He spent most of his day in a recliner chair and only went out of the home for medical appointments. The examiner indicated that he required the aid and attendance of another person. In July 2021, he was afforded another aid and attendance/housebound examination. At that time, it was noted that that the Veteran required another person (his spouse) to bring him to the examination. It was indicated that he was always dizzy and this was worse with quick movements. It was noted that he might fall and he ambulated with a cane. It was noted that he sometimes fell even with the cane. He had trouble remembering to take his medications. During the day he walked around the house a little, played games, and went out only with his wife. His wife helps him get dressed and undressed. She helps him get in the shower. He has a bench to sit on. His wife had to encourage him to eat and he sometimes throws food at wife. He can sit on toilet but has trouble getting up. Sometimes he cannot make it in time to urinate in toilet and wets his pants. A lack of coordination and a lack of balance were noted on examination. He could walk 100 feet with a cane or walk. The Veteran was noted to be competent, but the examiner indicated that his wife handles the finances. In August 2021, a VA examiner opined that the Veteran requires a cane, or other support, for his poor balance and intermittent dizziness that is at least as likely as not due to his service-connected diabetic neuropathy. His forgetfulness is less likely than not related to his service-connected disorders but rather it likely multifactorial with age and genetics being the major factors. In February 2022, he was afforded another aid and attendance/housebound examination. At that time, it was noted that that the Veteran had poor endurance, was unable to stand for long periods, and needed assistance to get in and out of the tub. He needed help organizing and managing his medication. He was chronically ill and had dyspnea. He had limited range of motion and some muscle wasting. He left the home for doctors' appointments and some personal matters. Considerations for entitlement to SMC on this basis include, but are not limited to, the Veteran's inability to dress or undress, keep ordinarily clean and presentable, feed herself, or attend to the wants of nature without assistance; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; and physical or mental incapacity requiring care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his or her daily environment. The Veteran has problems with his physical needs when dressing, bathing, toileting, and cooking due to his dizziness and balance as well as incontinence issues per criterion (1). The Veteran also meets criterion (4) which indicates required care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. He has forgetfulness which is not related to service-connected disability; however, his psychiatric disability does result in memory impairment as well. His recent July 2021 PTSD examination indicated that PTSD is not limiting in basic activities of daily living such as hygiene, meals, and daily care, but stated that the Veteran is also not motivated to do many activities of daily living for other reasons besides physical limitations, which is related to his PTSD and his depression. His Veteran also limits shopping in large, crowded areas or stores. It is also clear that it is preferable that the Veteran leaves home in the company of his wife. The Board acknowledges that constant assistance is not required in order for SMC based on the need for aid and attendance to be warranted; but the Veteran need only show the need for regular aid and attendance. See 38 C.F.R. § 3.352(a). The record supports that the Veteran's disability level has required the aid and attendance assistance particularly since his level of functioning has been deteriorating with no measurable or sustained improvement. His service-connected disabilities and their complications render him vulnerable to the hazards or dangers incident to his daily environment including during personal necessary activities and navigating his environment particularly when he leaves his home. Accordingly, and affording him all reasonable doubt, the Veteran satisfies the criteria for entitlement to SMC based on the need for the regular aid and attendance of another person. 2. Hepatitis C Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no record of hepatitis C during service. Post-service, the evidence was unclear. A May 2009 VA laboratory report shows that hepatitis C testing was positive/negative. A June 2009 VA treatment record shows that the treating physicians remarked that a thorough evaluation Veteran was required in a setting of hepatitis C. An August 2009 VA treatment record shows that hepatitis C was not detected. July 2014 VA laboratory results indicated Hep BcAb referenced negative, but Hep ATOT was positive but reference interval was negative. March 2018 results from the hepatology clinic revealed that HBsAg was negative, and HCV Ab was negative. The Board remanded this case for a medical examination and opinion. In April 2021, a VA examination was conducted. The examiner indicated that a diagnosis of hepatitis C and a positive hepatitis C test was not found in the Veteran's record. The current hepatitis C test taken is negative. A July 2021 examination report indicated that the Veteran had not been diagnosed with hepatitis C. Testing inducted in April 2021 was negative. The examiner concluded the Veteran has no past or present diagnosis of hepatitis C. The Board finds this opinion probative; the examiner based their opinion on objective testing and a review of the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (providing that service connection may not be granted unless a current disability exists). In the absence of proof of a present disability -i.e., a functional impairment of earning capacity - there can be no valid claim, on either a direct or secondary basis. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Thus, the most probative evidence establishes there is no present disability. In the absence of proof of a present disability, there is no valid claim. See Degmetich, 104 F. 3d 1328; Gilpin, 155 F.3d 1353; Saunders, 886 F.3d 1356. Therefore, service connection for hepatitis C is not warranted. As the evidence of record persuasively weighs against a finding of service connection, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). REASONS FOR REMAND 3. Gastrointestinal condition The Veteran has claimed that he has GERD as a result of his DM. The Board finds that an addendum opinion is warranted. An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). A June 2021 VA opinion was obtained. The clinician provided negative nexus opinion, reasoning that they could not locate any literature that states that diabetes mellitus causes GERD. No aggravation opinion was provided. An August 2021 opinion was then obtained. The clinician also provided negative nexus opinions regarding secondary causation and aggravation, reasoning that no good current studies conclude that such is possible. However, the clinician then noted that current studies indicated that diabetes mellitus was a risk factor for GERD, but that the clinician could not access these studies. This statement undermines the clinician's reasoning for the negative nexus opinions. Accordingly, remand is required for a clarifying opinion. 4. Housebound for the period prior to May 8, 2013 The Board notes SMC due to aid and attendance benefits is granted herein. Additionally, the issue of service connection for GERD is remanded herein. The full resolution of these issues (to include the assigning of effective dates by the RO) may potentially affect the outcome of this issue. Accordingly, it is deferred. The matters are REMANDED for the following action: 1. Obtain a VA medical addendum opinion. The record must be made available to the clinician for review. The clinician should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that GERD is proximately due to, or the result of, the service-connected DM. Explain. The clinician should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) GERD is aggravated by the Veteran's service-connected DM. Explain. The examiner should note that aggravation contemplates any increase in severity including intermittent flare-ups. 2. Readjudicate. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly 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.