KIDNEY NEOPLASM OF MALIGNANT

Summary

The veteran, who served from October 1968 to October 1970, including service in the Republic of Vietnam, appeals the denial of service connection for kidney cancer and COPD, and seeks Special Monthly Compensation (SMC) based on aid and attendance. The Board found the evidence evenly balanced for kidney cancer secondary to psoriatic arthritis treatment with NSAIDs, and for COPD secondary to psoriasis, granting both claims with the benefit of the doubt. For kidney cancer, the Board gave significant weight to a May 2022 physician's opinion finding it more likely than not secondary to NSAID use, refuting earlier negative opinions. For COPD, the Board found the May 2022 physician's opinion more probative, linking it to psoriasis despite earlier negative opinions and conflicting evidence. The Board also granted SMC for aid and attendance, finding the Veteran required regular assistance with activities of daily living, including dressing, showering, toileting, and meal preparation, based on lay statements and a vocational assessment report, resolving doubt in his favor.

Rationale

Evidence evenly balanced regarding NSAID use and kidney cancer; May 2022 physician opinion found more probative; Resolved doubt in favor of Veteran

Full Decision Text

Citation Nr: A25019980
Decision Date: 03/05/25	Archive Date: 03/05/25

DOCKET NO. 220311-227815
DATE: March 5, 2025

ORDER

Entitlement to service connection for kidney cancer, secondary to treatment for psoriatic arthritis with non-steroidal anti-inflammatory drugs (NSAIDs) on a causation basis, is granted.

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) secondary to service connected psoriasis on a causation basis, is granted.

Entitlement to special monthly compensation (SMC) based on aid and attendance is granted, subject to the laws and regulations controlling the award of monetary benefits.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether the Veteran's kidney cancer was caused by NSAIDs used to treat his service connected psoriatic arthritis.

2. The evidence is at least evenly balanced as to whether the Veteran's COPD was caused by his service connected psoriasis.

3. The evidence is at least evenly balanced as to whether the Veteran required the regular aid and attendance of another due to his service connected disabilities.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for kidney cancer, secondary to treatment for psoriatic arthritis, have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for COPD, secondary to service connected psoriasis, have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria to establish SMC based on the need for aid and attendance have been met.  38 U.S.C. §§ 1502, 1521; 38 C.F.R. §§ 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1968 to October 1970 with service in the Republic of Vietnam.  The Veteran died in November 2022 and the appellant is his surviving spouse.

In the March 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.  Therefore, the Board may only consider the evidence of record at the time of the March 2022 Supplemental Statement of the Case (SSOC), as well as any evidence submitted by the Veteran or his attorney with, or within 90 days from receipt of, the Department of Veterans Affairs (VA) Form 10182.  38 C.F.R. § 20.303.  If evidence was submitted either during the period after the Agency of Original Jurisdiction (AOJ) issued the March 2022 SSOC and prior to receipt of the VA Form 10182, or more than 90 days following receipt of the VA Form 10182, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.303, 20.801.

If the Apellant would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

SERVICE CONNECTION

Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection on a secondary
 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability.  See 38 C.F.R. § 3.310; but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) (holding all that is needed is a "but for" causation or aggravation to show entitlement to secondary service connection).

1. Kidney Cancer

The Veteran's June 1969 personnel records reflect service in the Republic of Vietnam, and his DD-214 indicate that he is a recipient of the Republic of Vietnam Armed Forces Meritorious Unit Citation of the Gallantry Cross with Palm amongst other decorations.

An October 2016 VA examination report reflects a diagnosis of kidney neoplasm and indicate kidney removal.  The examining nurse practitioner (NP) opined that the Veteran's kidney cancer is less likely than not (likelihood is less than approximately balanced or nearly equal) due to or the result of a service connected condition.  The NP noted that the Veteran's renal cell carcinoma is not a presumptive condition from exposure to Agent Orange and indicated that the Veteran's risk factors included smoking, hypertension, and pre-obesity.

In a February 2019 letter, a physician opined that it is more likely than not that the Veteran's renal cell carcinoma is secondary to his long-term continuous use of NSAIDs for his service connected psoriatic arthritis.  The physician disagreed with the October 2016 finding that smoking, hypertension, and pre-obesity are the Veteran's only risk factors for development of renal cell cancer.  The physician indicated that as noted in medical literature, the negative effects of smoking on cancer begin to wane and eventually disappear the more years out after one quits.  The physician added that the Veteran's renal cell cancer was diagnosed 33 years after he quit smoking, therefore it is unlikely it contributed to or was a risk factor in the development of his renal cell cancer.  The physician noted that the Veteran was overweight but not obese and indicated that October 2016 examiner did not address the risks of long-term NSAID use on the development of renal cell cancer.    The physician referenced medical literature which indicated that there is a significant meta-analysis that clearly shows the increased risk NSAID use has in the development of renal cell cancer. 

In a December 2020 disability benefits questionnaire (DBQ), the NP indicated that the Veteran's left kidney cancer was less likely than not (likelihood is less than approximately balanced or nearly equal) due to or the result of his service connected condition.  The NP noted that the Veteran's post-service treatment records are positive for a diagnosis of and treatment for left kidney cancer which resulted in the removal of his left kidney.  He added that age, gender, obesity, high blood pressure, and dialysis were risk factors, but noted that the exact cause of kidney cancer is unknown.  The NP however stated that a review of the available evidence does not indicate a link between NSAID use and kidney cancer, thus it was his opinion that the Veteran's kidney cancer was less likely as not proximately due to or because of his service connected conditions.

In another December 2020 DBQ, the NP opined that the Veteran's kidney cancer is less likely than not (likelihood is less than approximately balanced or nearly equal) proximately due to or the result of his service connected condition.  The NP noted risk factors of age, gender, obesity, high blood pressure, and dialysis, and noted that while the exact cause of kidney cancer is unknown, the available evidence does not indicate a link between psoriatic arthritis and kidney cancer.  The NP noted diagnoses of neoplasm of the kidney and kidney removal from 2016, indicating that the Veteran was hospitalized for pneumonia and cancer was found on a CT scan.

In a January 2021 DBQ, the physician stated that while the physician who provided the February 2019 letter opined that the length of time the Veteran had ceased smoking did not constitute a major risk for renal cell carcinoma, people who ever smoked have a higher risk than the normal population for the disease.
 The NP noted risk factors of age, gender, obesity, high blood pressure, and dialysis, and noted that while the exact cause of kidney cancer is unknown, the available evidence does not indicate a link between psoriatic arthritis and kidney cancer.  The NP noted diagnoses of neoplasm of the kidney and kidney removal from 2016, indicating that the Veteran was hospitalized for pneumonia and cancer was found on a CT scan.

In a January 2021 DBQ, the physician stated that while the physician who provided the February 2019 letter opined that the length of time the Veteran had ceased smoking did not constitute a major risk for renal cell carcinoma, people who ever smoked have a higher risk than the normal population for the disease.  The physician reported that the Veteran had several of the risk factors for renal cell carcinoma and that while some studies have shown long-term use of anti-inflammatories are an independent risk factor, cause and effect has not been established and risk factors cannot be misconstrued as a cause.  Therefore, he opined that it is less likely than not that the Veteran's renal cell carcinoma is due to or incurred in the diagnosis of psoriatic arthritis and chronic nonsteroidal anti-inflammatory use.

April 2021 medical treatment records reflect that the Veteran has a diagnosis of left kidney renal cancer.

A May 2021 pathology report indicates that the Veteran has a diagnosis of metastatic clear cell renal carcinoma.

In a May 2022 letter, the physician reinforced his opinion that it is more likely than not that the Veteran's renal cell carcinoma is secondary to his continuous use of NSAIDs for his psoriatic arthritis.  He referenced medical treatise documentation that there is significant meta-analysis that shows the increased risk of NSAID use has in the development of renal cell cancer.  The physician also reported that since his last opinion, medical studies have found that herbicide exposure is another risk factor for developing renal cell carcinoma.  He referenced medical literature which showed a statistically significant increased risk of renal cell cancer among those exposed to high amounts of 2, 4, 5-T which the Veteran was exposed to through Agent Orange during Vietnam service.  Thus, it is at least as likely as not that Agent Orange exposure played a causal role in the Veteran's development of renal cell cancer.

The evidence of record is at least evenly balanced as to whether the Veteran's kidney cancer was related to treatment for his service connected psoriatic arthritis.  The Veteran's rating decision code sheet reflects service connection for psoriatic arthritis and his April 2021 medical treatment records and May 2021 pathology report indicate that he had a diagnosis of kidney cancer.  Service connection is warranted for disability caused by a service connected disease or injury and includes medication taken for a service connected disease causing disability.  Wanner v. Principi, 17 Vet. App. 4, 8 (2003) (noting that "the Board awarded service connection for tinnitus as 'the result of treatment for a service-connected disability'"), rev'd on other grounds, 370 F.3d 1124 (Fed. Cir. 2004); Velez v. West, 11 Vet. App. 148, 157 (1998) (discussing "an implicit secondary-service-connection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition").  While the October 2016 NP opined that the Veteran's kidney cancer was less likely than not due to a service connected disability, they only addressed other risk factors and presumptive service connection without addressing a nexus between medication for psoriatic arthritis and kidney cancer.  Thus, the October 2016 NP's opinion is afforded little probative weight.

The December 2020 NP and January 2021 physician also each opined that the Veteran's kidney cancer was less likely than not due to NSAID use, noting other risk factors and stating that a "cause and effect" between psoriatic arthritis and kidney cancer had not been established.  However, the May 2022 physician opined that the Veteran's kidney cancer was more likely than not secondary to his continuous use of NSAIDs and provided a thorough rationale to support his opinion based on an accurate characterization of the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  The physician addressed the other risk factors and refuted the January 2021 physician's notion that there was merely an association between psoriatic arthritis and kidney cancer, referencing medical treatises to support his opinion.  Medical article and treatise evidence can provide important support when combined with an opinion
 likely than not secondary to his continuous use of NSAIDs and provided a thorough rationale to support his opinion based on an accurate characterization of the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  The physician addressed the other risk factors and refuted the January 2021 physician's notion that there was merely an association between psoriatic arthritis and kidney cancer, referencing medical treatises to support his opinion.  Medical article and treatise evidence can provide important support when combined with an opinion of a medical professional.  Sacks v. West, 11 Vet. App. 314, 317 (1998).  Thus, the May 2022 physician's opinion is afforded significant probative weight.

Thus, there are positive and negative nexus medical opinions regarding the etiology of the Veteran's kidney cancer, and treatise material which reflects a link between the Veteran's use of NSAIDs and the development of kidney cancer which is afforded some probative value.  The evidence is thus at least evenly balanced as to whether the Veteran's kidney cancer is related to his use of NSAIDs to treat his service connected psoriatic arthritis.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, service connection for kidney cancer secondary to psoriatic arthritis is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

2. COPD

A September 2016 DBQ reflects that the Veteran had a diagnosis of COPD and that he had a history of pulmonary symptoms.  A total body CAT scan was negative for any metastatic disease.

In a February 2019 letter, a physician opined that the Veteran's COPD is more likely than not secondary to his service connected psoriasis.  The physician reported that as noted in medical literature, psoriasis is a known risk factor for the development of COPD and noted while smoking may lead to the development of COPD, the Veteran stopped smoking in 1983 which significantly reduced his risk of developing smoking related COPD by 90 percent.

A December 2020 DBQ indicates that the Veteran has a diagnosis of paroxysmal nocturnal hypoxia from 2012.  The NP reported that the Veteran was seen for headaches and sleep disturbances in 2012 and had pulmonary valve insufficiency.  He indicated that since onset, the Veteran has had a resolution of pulmonary hypertension, but still requires supplemental oxygen along with his CPAP machine.  The NP noted that the Veteran's provider has not been able to identify an exact cause but suspects it to be residential damage from the pulmonary hypertension.

In another December 2020 DBQ, the NP noted that the Veteran's service treatment records and post-service treatment records were silent for a diagnosis of a lung disorder, and that the Veteran reported respiratory conditions of sleep apnea and supplemental oxygen use at night.  The NP opined that the Veteran's lung disability was less likely than not proximately due to or because of his service connected conditions.

In a separate December 2020 DBQ, the NP noted that the Veteran's service treatment records and post-service treatment records were silent for a diagnosis of COPD.  The NP reported that the Veteran's 2019 treatment records reflect that the Veteran does not have COPD and that no COPD diagnosis was rendered.  Therefore, the NP opined that the Veteran's COPD was less likely than not proximately due to or because of his service connected condition.

In a January 2021 DBQ, the physician indicated that the authors in the article submitted by the physician did not establish cause and effect but merely an association between psoriatic arthritis and COPD.  He stated that while the physician opined that the length of time the Veteran had ceased smoking did not constitute a major risk for COPD, people who ever smoked have a higher risk than the normal population for COPD.  Therefore, it is less likely than not that the Veteran's COPD is due to psoriatic arthritis.  He noted that the risk of developing COPD in individuals with psoriatic arthritis is only 1.45 which does not establish cause.

April 2021 medical treatment records reflect a diagnosis of granuloma with necrosis and right and left lower lobe lung mass.

In a May 2022 letter, the physician, following a review of the in-service and post-service medical records, stated that the Veteran's COPD is more likely than not secondary to his service connected psoriasis, disagreeing with the 2021 examiner's finding that there is no "cause and effect".  
 the normal population for COPD.  Therefore, it is less likely than not that the Veteran's COPD is due to psoriatic arthritis.  He noted that the risk of developing COPD in individuals with psoriatic arthritis is only 1.45 which does not establish cause.

April 2021 medical treatment records reflect a diagnosis of granuloma with necrosis and right and left lower lobe lung mass.

In a May 2022 letter, the physician, following a review of the in-service and post-service medical records, stated that the Veteran's COPD is more likely than not secondary to his service connected psoriasis, disagreeing with the 2021 examiner's finding that there is no "cause and effect".   He noted that the examiner contradicted himself by dismissing the Veteran's risk factor of psoriasis as not "cause and effect" while putting forward other risk factors as the only ones that should be considered.  The physician referenced literature which explained that psoriasis is a known risk for the development of COPD and that as the Veteran stopped smoking in 1983, he significantly reduced his risk of developing smoking related COPD.

The evidence of record is at least evenly balanced as to whether the Veteran's COPD was related to his service connected psoriasis.  The Veteran's rating code sheet reflects service connection for psoriasis and his September 2016 DBQ indicates that he had a diagnosis of COPD.  While the December 2020 NP opined that the Veteran's COPD was less likely than not due to a service connected disability, he based his opinion on a lack of a diagnosis of a lung disorder, stating that no COPD diagnosis was rendered.  However, as previously noted, the September 2016 DBQ reflects a diagnosis of COPD.  As the December 2020 NP based his opinion on an inaccurate factual premise, his opinion is afforded little probative weight.

Additionally, while the January 2021 physician opined that the Veteran's COPD is less likely than not due to psoriatic arthritis, the physician did not opine as to whether the Veteran's COPD was related to his service connected psoriasis.  Alternatively, the May 2022 physician opined that the Veteran's COPD was more likely than not secondary to his service connected psoriasis, refuting the January 2021 NP's rationale, and provided a thorough rationale to support his opinion based on an accurate characterization of the evidence of record.  See Nieves-Rodriguez, 22 Vet. App. at 304.  The physician also referenced medical treatises to support his opinion.  Thus, the May 2022 physician's opinion is afforded significant probative weight.

There are positive and negative nexus medical opinions regarding the etiology of the Veteran's COPD, and treatise material which reflects a link between the Veteran's psoriasis and COPD which is afforded some probative value.  The evidence is thus at least evenly balanced as to whether the Veteran's COPD is related to his psoriasis.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, service connection for COPD secondary to service connected psoriasis is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

3. SMC Based on Aid and Attendance

SMC provides for additional levels of compensation above the basic levels of compensation afforded by the schedular rating criteria in 38 C.F.R. Part 4.  These additional levels of compensation are awarded for various types of losses or levels of impairment, due solely to service-connected disabilities, and for specific combinations of such impairments.  The different types of SMC available are commonly referred to by their alphabetic designations, such as SMC(k), SMC(l), etc., which correspond to the paragraphs of 38 U.S.C. § 1114 which provides the statutory authority for SMC.  These same paragraphs are codified in VA regulations, predominantly at 38 C.F.R. § 3.350 (a)-(i).

SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to need regular aid and attendance.  See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b).  In this matter, the record does not reflect that the Veteran has the anatomical loss, or loss of both feet, or one hand and one foot, or is blind in both eyes.  See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3
 and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to need regular aid and attendance.  See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b).  In this matter, the record does not reflect that the Veteran has the anatomical loss, or loss of both feet, or one hand and one foot, or is blind in both eyes.  See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b).  Thus, the question is whether he is permanently bedridden or so helpless as to be in need of regular attendance due to his service-connected disabilities.

Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a veteran is so helpless as to need regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a).  That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself 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; inability to feed himself through the 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 him from hazards or dangers incident to his daily environment.

"Bedridden" is defined as that condition, which, through its essential character, requires that a claimant remain in bed, and is a proper basis for this determination. The fact that a 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 the above disabling conditions be found to exist before a favorable rating may be made.  The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to need regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed.  They must be based on the actual requirement of personal assistance from others.  See 38 C.F.R. § 3.352 (a).

The Veteran was in receipt of service connection for left lower extremity sciatic nerve disability, rated 60 percent disabling; psoriatic arthritis of the bilateral ankles, rated 60 percent disabling; posttraumatic stress disorder, rated 50 percent disabling; right lower extremity sciatic nerve disability, rated 40 percent disabling; psoriasis, rated 30 percent disabling; type 2 diabetes mellitus, rated 20 percent disabling; and surgical scar and headaches, rated noncompensable.  His combined rating was 90 percent, and he was also in receipt of a total disability rating due to individual unemployability from October 30, 2008.

In an August 2010 statement, the Veteran's neighbor said that the Veteran worked as a contractor until he had an operation on his back.  The neighbor stated that since the operation, the Veteran has had a lot of problems with his feet and legs, and that he now pretty much stays home all the time and uses a cane for ambulation.  The neighbor indicated that the Veteran has not been able to work since the operation.

In a separate August 2010 statement, the Veteran's brother indicated that the Veteran has been in pain and totally disabled since his 2008 operation on his back to correct a pinched nerve.  He stated that the Veteran now cannot walk without a cane or wheelchair, and that he has to lay down most of the day as his legs and feet bother him.  The Veteran's brother reported that the Veteran will never be able to work again and needs help from everyone else whereas he used to be very helpful and active.

May 2009 medical treatment records furnished by the Social Security Administration (SSA) indicate that the Veteran had difficulty dressing, showering, standing to brush his teeth or shave, using the toilet, and doing chores around the house.  The Veteran estimated that he could sit and concentrate on a task for 2 to 3 minutes then he
 his 2008 operation on his back to correct a pinched nerve.  He stated that the Veteran now cannot walk without a cane or wheelchair, and that he has to lay down most of the day as his legs and feet bother him.  The Veteran's brother reported that the Veteran will never be able to work again and needs help from everyone else whereas he used to be very helpful and active.

May 2009 medical treatment records furnished by the Social Security Administration (SSA) indicate that the Veteran had difficulty dressing, showering, standing to brush his teeth or shave, using the toilet, and doing chores around the house.  The Veteran estimated that he could sit and concentrate on a task for 2 to 3 minutes then he has to lie down.

A January 2013 VA examination report reflects that the Veteran required constant use of braces and a wheelchair due to his back disability.

September 2015 VA treatment records reflect that the Veteran requested a scooter as his arthritis prevented him from walking.  He also reported that he drove a truck.

In an August 2021 Vocational Assessment Report, the counselor noted the Veteran's report that he has been wheelchair bound since 2011 due to pain, joint stiffness, weakness, impaired sensation, and instability.  The Veteran indicated that he needs assistance with most, if not all, activities of daily living stating that his sister does everything including preparing meals, washing clothes, and cleaning the house.  The counselor reported that the Veteran can put on a shirt but needs assistance putting on pants, socks, and shoes.  The report also indicated that the Veteran needed assistance showering even though he had adaptive equipment.  The Veteran expressed difficulty transferring to and from the toilet and indicated that he avoided using the public restroom but needed assistance if he had to use a public restroom.  The counselor indicated that the Veteran has been unable to perform nearly all activities of daily living independently due to his bilateral lower extremity radiculopathy and psoriatic arthritis.

For the following reasons, the requirements for SMC based on aid and attendance have been met, as the evidence of record indicates that the Veteran is in need of aid and attendance due to his service connected disabilities.  The Veteran's neighbor and brother competently and credibly reported that the Veteran's disabilities caused the Veteran to stay home, use a cane or wheelchair, and that the Veteran is unable to work.  The Veteran's brother added that the Veteran has to lay down most of the day due to his disabilities whereas he previously had been very active. 

Additionally, the August 2021 counselor indicated that the Veteran was unable to prepare his own meals, wash his clothes, put on his pants, socks, or shoes, or help with chores.  He also indicated that the Veteran needed assistance with toileting and showering and reported that the Veteran was unable to perform nearly all the activities of daily living. The counselor noted that the Veteran's sister has to do everything for the Veteran.  The counselor provided the Veteran with an interview, and reviewed the medical and lay evidence of record to prepare the report and his findings are afforded significant probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).   

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The evidence is thus at least evenly balanced as to whether the Veteran required the care or assistance of another on a regular basis or to protect him from the hazards or dangers incident to his daily environment due to his service connected disabilities.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the appellant, entitlement to SMC based on the need for aid and attendance is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

 

PAULA B. McCARRON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Maddox, Rolen

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.