Citation Nr: 0109438	
Decision Date: 03/30/01    Archive Date: 04/03/01

DOCKET NO.  97-20 311A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in St. 
Petersburg, Florida



THE ISSUES

1.  Entitlement to an original compensable evaluation for 
incomplete C4-C5 quadriplegia (loss of use of the lower 
extremities).  

2.  Entitlement to a higher level of special monthly 
compensation than that provided by 38 U.S.C.A. § 1114(s). 



REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.



ATTORNEY FOR THE BOARD

R.P. Harris, Counsel
INTRODUCTION

The appellant had active service from August 1978 to August 
1982.  

Historically, appellant appealed a January 1991 rating 
decision by the St. Petersburg, Florida, Regional Office 
(RO), which denied entitlement to benefits pursuant to 
38 U.S.C.A. § 351 (now § 1151) for loss of use of the lower 
extremities and neurogenic bladder and bowel.  In a July 1996 
rating decision, the RO partially allowed the § 1151 issue 
for neurogenic bladder and bowel that represented additional 
disability from aggravation of appellant's preexisting 
quadriplegia attributable to the 1987 VA hospitalization 
treatment in question.  That rating decision granted § 1151 
benefits for loss of anal sphincter control, rated 100 
percent disabling, and urinary incontinence, rated 60 percent 
disabling, each effective October 2, 1990.  Additionally, 
that rating decision granted special monthly compensation 
benefits under the provisions of 38 U.S.C.A. § 1114(s), 
effective October 2, 1990.  That rating decision, however, 
denied the § 1151 issue with respect to whether any 
additional paralysis of the lower extremities had occurred 
from aggravation of the preexisting quadriplegia attributable 
to that hospitalization treatment.  

In a February 1997 decision, the Board of Veterans' Appeals 
(Board) awarded benefits pursuant to 38 U.S.C.A. § 1151 for 
loss of use of the lower extremities, claimed as due to 
aggravation of quadriplegia from VA treatment in June 1987.  
In a May 1997 implementing rating decision, the RO granted 
benefits pursuant to 38 U.S.C.A. § 1151 for loss of use of 
the lower extremities, claimed as due to aggravation of 
quadriplegia from VA treatment in June 1987; and assigned a 
noncompensable evaluation for incomplete C4-C5 quadriplegia 
(loss of use of the lower extremities).  

In that May 1997 rating decision sheet, the RO conceded that 
appellant has totally disabling spastic paraplegia with loss 
of use of the feet; that totally disabling spastic paraplegia 
with loss of use of the feet had preexisted said June 1987 VA 
treatment; and that since that condition had remained totally 
disabling prior and after said June 1987 VA treatment, there 
was no "additional" disability due to aggravation as to 
warrant a compensable rating.  Additionally, that May 1997 
rating decision and a June 1997 rating decision denied 
entitlement to a higher level of special monthly compensation 
than that provided by 38 U.S.C.A. § 1114(s).  Appellant 
subsequently appealed said issues of entitlement to a 
compensable evaluation for incomplete C4-C5 quadriplegia and 
entitlement to a higher level of special monthly compensation 
than that provided by 38 U.S.C.A. § 1114(s).  Since the 
appeal stemmed, in part, from the original grant of § 1151 
benefits and initial rating assigned for incomplete C4-C5 
quadriplegia (loss of use of the feet), the provisions of 
Fenderson v. West, 12 Vet. App. 119 (1999) appear applicable 
(since § 1151 compensation is to be awarded "in the same 
manner as if such disability, aggravation, or death were 
service-connected").  See Fenderson, wherein the United 
States Court of Appeals for Veterans Claims (formerly the 
United States Court of Veterans Appeals) (Court) explained 
that there was a legal distinction between a claim for an 
"original" rating and an "increased" rating claim.  

In February 1999, the Board requested an opinion from the VA 
Office of the General Counsel regarding the applicability, if 
any, of the provisions of 38 C.F.R. §§ 3.322 and 4.22 
concerning computation of aggravation in awards of disability 
compensation as if service connected pursuant to 38 U.S.C.A. 
§ 1151 and 38 C.F.R. § 3.358.  A February 2001 Precedential 
Opinion was rendered by the VA Acting General Counsel.  See 
VA O.P.G. Prec. Op. No. 4-2001 (February 2, 2001).  Appellant 
and his representative were provided copies of said 
Precedential Opinion for review and response.  Later that 
month, appellant and his representative submitted written 
statements informing the Board that they had no further 
evidence or argument to present.  It is noted that the 
Opinion is binding on the Board.  38 U.S.C.A. § 7104.



FINDINGS OF FACT

1.  In a February 1997 decision, the Board awarded benefits 
pursuant to 38 U.S.C.A. § 1151 for loss of use of the lower 
extremities, claimed as due to aggravation of quadriplegia 
from VA treatment in June 1987.  

2.  In a May 1997 implementing rating decision, the RO 
granted benefits pursuant to 38 U.S.C.A. § 1151 for loss of 
use of the lower extremities, claimed as due to aggravation 
of quadriplegia from VA treatment in June 1987; and assigned 
a noncompensable evaluation for incomplete C4-C5 quadriplegia 
(loss of use of the lower extremities).  In that May 1997 
rating decision sheet, the RO conceded that appellant has 
totally disabling spastic paraplegia with loss of use of the 
feet; that totally disabling spastic paraplegia with loss of 
use of the feet had preexisted said June 1987 VA treatment; 
and that since that condition had remained totally disabling 
prior and after said June 1987 VA treatment, there was no 
"additional" disability due to aggravation as to warrant a 
compensable rating.  

3.  A recent VA Precedential General Counsel opinion 
precludes VA from deducting that level of disability existing 
prior to aggravation as the result of VA medical treatment 
from the current level of disability, where the disability 
after aggravation is total.  

4.  Appellant's loss of use of the lower extremities, loss of 
anal sphincter control, and urinary incontinence result in 
helplessness requiring the need for regular aid and 
attendance by another person.  However, said conditions are 
not shown by the evidence of record to require the need for 
personal health-care services by, or under the supervision 
of, a licensed health-care professional on a daily basis in 
appellant's home.  Such certification has not been made by a 
medical professional.



CONCLUSIONS OF LAW

1.  The criteria for an original 100 percent evaluation for 
incomplete C4-C5 quadriplegia (loss of use of the lower 
extremities) have been met.  38 U.S.C.A. § 1155 (West 1991); 
38 C.F.R. Part 4, Code 5110 (2000); and VA O.P.G. Prec. Op. 
No. 4-2001 (February 2, 2001).  

2.  The criteria for additional special monthly compensation 
pursuant to 38 U.S.C.A. § 1114(o) and (r)(1), but no higher 
than that rate, have been met.  38 U.S.C.A. § 1114(o), (r)(1) 
(West 1991); 38 C.F.R. §§ 3.102, 3.350(h), 3.352(b) (2000). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  An Original Compensable Evaluation for Incomplete C4-C5 
Quadriplegia (Loss of Use of the Lower Extremities)

As an initial matter, to the extent any duty to assist 
requirement may exist with respect to said appellate issue, 
it is the Board's opinion that any necessary evidentiary 
development has been accomplished, particularly in light of 
the allowance of that issue herein.  Thus, the Board 
concludes that the duty to assist as contemplated by 
applicable provisions, including the Veterans Claims 
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114 
Stat. 2096-2100 (2000) (to be codified as amended at 38 
U.S.C.A. §§ 5102, 5103, 5103A, and 5107), has been satisfied 
with respect to this issue.  

As stated in the "Introduction" section of this decision 
herein, by a February 1997 decision, the Board awarded 
benefits pursuant to 38 U.S.C.A. § 1151 for loss of use of 
the lower extremities, claimed as due to aggravation of 
quadriplegia from VA treatment in June 1987.  In a May 1997 
implementing rating decision, the RO granted benefits 
pursuant to 38 U.S.C.A. § 1151 for loss of use of the lower 
extremities, claimed as due to aggravation of quadriplegia 
from VA treatment in June 1987; and assigned a noncompensable 
evaluation for incomplete C4-C5 quadriplegia (loss of use of 
the lower extremities).  

In that May 1997 rating decision sheet, the RO conceded that 
appellant has totally disabling spastic paraplegia with loss 
of use of the feet and that totally disabling spastic 
paraplegia with loss of use of the feet had preexisted said 
June 1987 VA treatment; and the RO determined that since that 
condition had remained totally disabling prior and after said 
June 1987 VA treatment, there was no "additional" 
disability due to aggravation as to warrant a compensable 
rating.  Additionally, the RO rated that disability 
noncompensable under Diagnostic Code 5110 for loss of use of 
the feet.  However, since Code 5110 provides a 100 percent 
evaluation for loss of use of the feet, it is clear that the 
RO deducted the 100 percent degree of disability preexisting 
said June 1987 VA treatment from the current total level of 
disability in arriving at that noncompensable rating.  

In February 1999, the Board requested an opinion from the VA 
General Counsel's office regarding the applicability, if any, 
of the provisions of 38 C.F.R. §§ 3.322 and 4.22 concerning 
computation of aggravation in awards of disability 
compensation as if service connected pursuant to 38 U.S.C.A. 
§ 1151 and 38 C.F.R. § 3.358.  A February 2001 Precedential 
Opinion was rendered by the VA Acting General Counsel.  VA 
O.P.G. Prec. Op. No. 4-2001 (February 2, 2001) held, in 
pertinent part:

Sections 3.322(a) and 4.22...require that, 
in rating disabilities aggravated by 
service, the degree of disability 
existing at the time of entrance into 
service, if ascertainable, be deducted 
from the present degree of disability 
unless the present degree of disability 
is total, in which case no deduction is 
made.  These provisions apply to the 
rating of disabilities compensated under 
38 U.S.C. § 1151....

Since the recent VA Precedential General Counsel opinion held 
that VA is precluded from deducting a level of disability 
existing prior to aggravation as the result of VA medical 
treatment from a current level of disability, where the 
disability after aggravation is total, and the RO has 
conceded that appellant's incomplete C4-C5 quadriplegia (loss 
of use of the lower extremities) has been totally disabling 
prior and subsequent to aggravation as the result of VA 
medical treatment, it logically follows that appellant's 
incomplete C4-C5 quadriplegia (loss of use of the lower 
extremities) warrants assignment of a 100 percent original 
evaluation as provided under Diagnostic Code 5110.  


II.  A Higher Level of Special Monthly Compensation than that 
Provided by 38 U.S.C.A. § 1114(s)

As an initial matter, to the extent any duty to assist 
requirement may exist with respect to said appellate issue, 
it is the Board's opinion that any necessary evidentiary 
development has been accomplished, particularly in light of 
the allowance of that issue herein.  Thus, the Board 
concludes that the duty to assist as contemplated by 
applicable provisions, including the Veterans Claims 
Assistance Act of 2000, has been satisfied with respect to 
this issue.  

It is contended that since a recent VA examination indicated 
that appellant required the aid and attendance of others for 
bowel care and to position his feet in a standing frame, 
additional special monthly compensation under 38 U.S.C.A. 
§ 1114(r)(1) should be granted.  The Board agrees for the 
reasons set forth in greater detail below.

It is reiterated that the RO rated appellant's loss of anal 
sphincter control as 100 percent disabling, urinary 
incontinence as 60 percent disabling, and loss of use of the 
lower extremities as noncompensable; and granted special 
monthly compensation benefits under the provisions of 
38 U.S.C.A. § 1114(s).  

In pertinent part, special monthly compensation provided by 
38 U.S.C.A. § 1114(s) is payable where the veteran has a 
single service-connected disability rated as 100 percent and 
(1) has additional service-connected disability or 
disabilities independently ratable at 60 percent, separate 
and distinct from the 100 percent service-connected 
disability and involving different anatomical segments or 
bodily systems, or (2) is permanently housebound by reason of 
service-connected disability or disabilities.  38 C.F.R. 
§ 3.350(i) (2000).  

A higher level of special monthly compensation than that 
provided by 38 U.S.C.A. § 1114(s) may be assigned under the 
provisions of 38 U.S.C.A. § 1114(o), (r)(1) and 38 C.F.R. 
§§ 3.350(h), 3.352(b).  

The provisions of 38 U.S.C.A. § 1114(o) and 38 C.F.R. 
§ 3.350(e) provide, in pertinent part that this level of 
special monthly compensation is warranted where there is 
paralysis of both lower extremities together with loss of 
anal and bladder sphincter control.  This is based on the 
loss of use of the legs and helplessness.

The provisions of 38 U.S.C.A. § 1114(r) and 38 C.F.R. 
§ 3.350(h) state, in pertinent part:

Special aid and attendance benefit:  
38 U.S.C. § 1114(r)-

(1) Maximum compensation cases.  A 
veteran receiving the maximum rate under 
38 U.S.C. § 1114(o) or (p) who is in need 
of regular aid and attendance or a higher 
level of care is entitled to an 
additional allowance....  Determination of 
this need is subject to the criteria of 
§ 3.352.
..................................................................

(3) Amount of the allowance.  The amount 
of the additional allowance payable to a 
veteran in need of regular aid and 
attendance is specified in 38 U.S.C. 
§ 1114(r)(1).  The amount of the 
additional allowance payable to a veteran 
in need of a higher level of care is 
specified in 38 U.S.C. § 1114(r)(2).  The 
higher level aid and attendance allowance 
authorized by 38 U.S.C. § 1114(r)(2) is 
payable in lieu of the regular aid and 
attendance allowance authorized by 
38 U.S.C. § 1114(r)(1).  

The provisions of 38 C.F.R. § 3.352(a) state, in pertinent 
part:

(a) Basic criteria for regular aid and attendance and 
permanently bedridden.  The following will be accorded 
consideration in determining the need for regular aid and 
attendance (§ 3.351(c)(3)):  inability of claimant to dress 
or undress himself (herself), or to keep himself (herself) 
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 (this will not include the adjustment of appliances which 
normal persons would be unable to adjust without aid, such as 
supports, belts, lacing at the back etc.); inability of 
claimant to feed himself (herself) through 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 the claimant from 
hazards or dangers incident to his or her daily environment....  
It is not required that all of the disabling conditions 
enumerated in this paragraph be found to exist before a 
favorable rating may be made.  The particular personal 
function which the veteran is unable to perform should be 
considered in connection with his or 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 be a constant need....  They must be 
based on the actual requirement of personal assistance from 
others.  

On April 1997 VA examination, it was noted that according to 
appellant's history, after the 1987 VA hospitalization in 
question, appellant needed assistance from his mother with 
bowel care.  Currently, he was described as leading "a bed 
to wheelchair to standing frame existence.  Wife is noted to 
help the patient when he is in the standing frame, including 
making certain that his feet are on the pads....  He has no 
motor function in legs.  He has considerable spasticity in 
legs, elicited by any attempts at extension."  Clinically, 
upper extremities reflexes were brisk and grossly 
symmetrical, with somewhat diminished right arm sensation but 
intact left arm sensation.  Additionally, grip strength was 
no more than moderately decreased, bilaterally.  No sensation 
was elicited one-fingerbreadth below the umbilicus and the 
lower extremities had no gross motor functioning.  Bladder 
and bowel incontinence was noted.   

Based on the evidentiary record, it is the Board's conclusion 
that appellant is so disabled as to require the regular aid 
and attendance of another person and warrants entitlement to 
benefits provided by 38 U.S.C.A. § 1114(o) and(r)(1) and 38 
C.F.R. § 3.350(e) and (h).

Parenthetically, although it is not contended that appellant 
meets the criteria for benefits provided by 38 U.S.C.A. 
§ 1114(r)(2), the Board has considered the potential 
applicability of an additional allowance payable to a veteran 
in need of a "higher level of care" as specified in 
38 U.S.C. § 1114(r)(2).  

The provisions of 38 U.S.C.A. § 1114(r)(2) and 38 C.F.R. 
§ 3.352(b) state, in pertinent part:

(b) Basic criteria for the higher level aid and attendance 
allowance.  
(1) A veteran is entitled to the higher level aid and 
attendance allowance authorized by § 3.350(h) in lieu of the 
regular aid and attendance allowance when all of the 
following conditions are met:
(i) The veteran is entitled to the 
compensation authorized under 38 U.S.C. 
1114(o), or the maximum rate of 
compensation authorized under 38 U.S.C. 
1114(p).
(ii) The veteran meets the requirements 
for entitlement to the regular aid and 
attendance allowance in paragraph (a) of 
this section.  
(iii) The veteran needs a "higher level 
of care" (as defined in paragraph (b)(2) 
of this section) than is required to 
establish entitlement to the regular aid 
and attendance allowance, and in the 
absence of the provisions of such higher 
level of care the veteran would require 
hospitalization, nursing home care, or 
other residential institutional care.  

(2) Need for a higher level of care shall be considered 
to be need for personal health-care services provided on a 
daily basis in the veteran's home by a person who is licensed 
to provide such services or who provides such services under 
the regular supervision of a licensed health-care 
professional.  

.......................................................................

(5) The provisions of paragraph (b) of this section are 
to be strictly construed.  The higher level aid-and-
attendance allowance is to be granted only when the veteran's 
need is clearly established and the amount of services 
required by the veteran on a daily basis is substantial.

As the April 1997 VA examination report indicates, according 
to appellant's history, after the 1987 VA hospitalization in 
question, appellant needed assistance from his mother with 
bowel care.  Additionally, he currently was able to rise from 
a bed to wheelchair or a standing frame, albeit the standing 
frame required his wife's assistance.  Moreover, his upper 
extremities/grip strength was intact, although somewhat 
diminished.  Significantly, the evidence on file contains no 
indication that appellant needs personal health-care services 
provided on a daily basis in his home by a person who is 
licensed to provide such services or who provides such 
services under the regular supervision of a licensed health-
care professional.  It should be pointed out that for 
entitlement to special monthly compensation benefits provided 
by 38 U.S.C.A. § 1114(r)(2), the regulatory provisions are to 
be "strictly construed," and said benefits are only to be 
provided when the veteran's need is "clearly established and 
the amount of services required by the veteran on a daily 
basis is substantial."  See 38 C.F.R. § 3.352(b)(5).  
Accordingly, since there is no significant evidence-nor are 
there contentions-that the appellant meets the criteria for 
the section 1114(r)(2) benefits, there is no basis to a 
higher level of special monthly compensation.  Of course if 
the appellant desires to make a claim for a higher level of 
special monthly compensation, he or his representative are 
free to do so.


ORDER

An original 100 percent evaluation for incomplete C4-C5 
quadriplegia (loss of use of the lower extremities) and 
additional special monthly compensation pursuant to 
38 U.S.C.A. § 1114(o) and (r)(1) are granted, subject to the 
applicable regulatory provisions governing payment of 
monetary awards.  


		
	MICHAEL D. LYON 
	Member, Board of Veterans' Appeals