12-31 005
12-31 005
| Board of Vet. App. | Jun 30, 2017Background
- Veteran served 1976–1988; appeal from Atlanta RO rating decisions (Dec 2009, Jun 2011) and previously remanded (Mar 2016).
- Service-connected conditions include diabetic nephropathy (100% with transplant), proliferative diabetic retinopathy with cataracts (80%), diabetes (60%), pruritus (60%), coronary disease (60%), peripheral vascular disease and neuropathy, and prior SMC (k) and (s) awards.
- Veteran is legally blind: right eye light perception/hand-motion and severely constricted left visual field; uses a cane and cannot drive.
- Veteran reports substantial dependence on spouse for daily tasks (clothing, meal prep, medications, appointments) and inability to manage many ADLs independently.
- Left upper extremity: history of brachial–basilic AV fistula for dialysis (left arm) retained after transplant; complaints of left elbow pain, EMG showing ulnar neuropathy; restrictions include not lifting >10 lb with left arm and avoidance of needle sticks/BP on left.
- VA exams (Apr–May 2016) found incomplete partial functional loss of left elbow attributable to AV fistula/diabetic neuropathy; normal ROM and strength but lifting restrictions and precautions present.
Issues
| Issue | Appellant's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Entitlement to SMC based on need for aid and attendance | Vet: blindness and functional limitations require regular aid and attendance (spouse provides most care) | Secretary: conceded based on evidence; evaluation whether higher SMC rates apply | Granted SMC at §1114(m) (aid & attendance) due to bilateral blindness and need for regular assistance; higher rates denied |
| Entitlement to service connection for loss of use of left elbow, secondary to dialysis shunt/diabetic nephropathy | Vet: complete loss of use of left elbow due to surgical AV fistula created for service-connected nephropathy | Secretary: medical evidence shows only partial/incomplete functional loss; restrictions due to AV fistula and neuropathy but preserved ROM/strength | Granted secondary service connection for incomplete partial functional loss of left elbow (proximate to service‑connected diabetic nephropathy) |
Key Cases Cited
- Jandrea v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competency of lay testimony on symptoms)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (elements for service connection)
- Shedden v. Principi, 38 F.3d 1163 (Fed. Cir. 1994) (nexus requirement for service connection)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule in veteran claims)
- Alemany v. Brown, 9 Vet. App. 518 (1996) (weight of evidence standard for denial)