Citation Nr: 0611685	
Decision Date: 04/24/06    Archive Date: 05/02/06

DOCKET NO.  00-24 378A	)	DATE
	)
	)

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



THE ISSUE

Entitlement to an effective date earlier than September 29, 
2000, for the award of additional special monthly 
compensation (SMC) at the rate provided by 38 U.S.C.A. § 
1114(r)(1).


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc. (PVA)


WITNESSES AT HEARING ON APPEAL

The veteran and his spouse




ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel


INTRODUCTION

The veteran served on active duty from February 1978 to May 
1992, at which time he was retired via the Temporary 
Disability Retirement List.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a July 1997 rating decision by the above 
Department of Veterans Affairs (VA) Regional Office (RO), 
which awarded SMC based on the need for regular aid and 
attendance, under 38 U.S.C.A. § 1114(1) and under 38 U.S.C.A. 
§ 1114(p) at the rate equal to 38 U.S.C.A. § 1114(m) due to 
bowel dysfunction and bladder impairment, each effective as 
of August 22, 1996.

In May 2001, the RO granted SMC under 38 U.S.C.A. § 1114(o) 
and 38 C.F.R. § 3.350(e) for paraplegia with loss of use of 
both legs and loss of use of anal and bladder sphincter 
control, and entitlement to additional aid and attendance 
under 38 U.S.C.A. § 1114(r)(1) and 38 C.F.R. § 3.350(h), on 
account of entitlement under subsection (o) and being in need 
of aid and attendance, with that rate of SMC made effective 
from September 29, 2000.  

The case was previously before the Board in November 2003 and 
December 2004, and was remanded for additional development 
and readjudication.  The veteran, accompanied by his wife, 
testified at a hearing at the Board before the undersigned 
Veterans Law Judge in February 2006.  At the hearing, the 
veteran and his representative clarified that the issue for 
which favorable appellate action was desired is as stated on 
the first page, above.



FINDINGS OF FACT

1.  In September 1996, the veteran filed a claim for SMC for 
aid and attendance and an increased rating for service 
connected bowel dysfunction.  At the time, he was in receipt 
of SMC under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) 
on account of loss of use of one foot, since July 1993.

2.  A May 8, 1997, VA examination report suggested, in part, 
that the veteran had paraplegia of the both lower extremities 
and was unable to attend to the needs of nature, and required 
the daily personal health care services of a skilled 
provider.

3.  In July 1997, the RO increased the evaluation for bowel 
dysfunction to 100 percent disabling.  Service connection for 
weakness of the right lower extremity was granted, for which 
a 60 percent evaluation was assigned.  The veteran was 
awarded a higher rate of SMC on account of the need for the 
regular aid and attendance of another person, 38 U.S.C.A. 
§ 1114(l).  In addition, SMC was awarded in light of the 
total rating assigned for bowel dysfunction, to reflect 
disability independently ratable at 100 percent with 
additional disability consisting of bladder impairment, left 
foot drop with marked weakness of the left knee, and weakness 
of the right lower extremity, under 38 U.S.C.A. § 1114(p).  

4.  In September 2000, the veteran filed a claim for 
increased ratings for service-connected left foot drop, 
marked left knee weakness, impairment of the right upper 
extremity, impairment of left upper extremity, and weakness 
of the right lower extremity.  

5.  In May 2001, SMC under 38 U.S.C.A. § 1114(o) and 38 
C.F.R. § 3.350(e) based upon paraplegia with loss of use of 
both lower legs and loss of anal and bladder sphincter 
control was established, effective from September 29, 2000.  
Additional aid and attendance under 38 U.S.C.A. § 1114(r)(1) 
and 38 C.F.R. § 3.350(h) on account of entitlement under 38 
U.S.C.A. § 1114(o) was also established, effective from 
September 29, 2000.


CONCLUSION OF LAW

Giving the benefit of the doubt to the veteran, the criteria 
for an effective date of May 8, 1997, for SMC under 38 
U.S.C.A. § 1114(r)(1) and 38 C.F.R. § 3.350(h) have been met.  
38 U.S.C.A. §§ 1114, 5107, 5110 (West 2002); 38 C.F.R. §§ 
3.350, 3.400, 4.3 (2005).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. § 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005).

After reviewing the claims folder, the Board notes that the 
claimant has been notified of the applicable laws and 
regulations which set forth the criteria for entitlement to 
the issues on appeal.  The discussions in the rating 
decisions, statement of the case, supplemental statement of 
the case, and February 2005 VCAA letter, have informed the 
claimant of the information and evidence necessary to warrant 
entitlement to the benefits sought.  Moreover, in the 
February 2005 VCAA letter, the claimant was advised of the 
types of evidence VA would assist him in obtaining as well as 
his own responsibilities with regard to identifying relevant 
evidence.  As the U.S. Court of Appeals for the Federal 
Circuit Court has stated, it is not required "that VCAA 
notification must always be contained in a single 
communication from the VA."  Mayfield v. Nicholson, No. 05-
7157 (Fed. Cir. Apr. 5, 2006), slip op. at 9.

In addition, we observe that the veteran's PVA 
representative, who advocated on the veteran's behalf at the 
hearing before the Board, is an expert in the subject matter 
pertaining to SMC, as exemplified in the Informal Brief filed 
with the Board in July 2005.  Under these circumstances, the 
Board finds that adjudication of the claim under 
consideration at this juncture, without directing or 
accomplishing any additional notification and or development 
action, poses no risk of prejudice to the claimant, even in 
the absence of strict compliance by the RO with the augmented 
notice requirements recently identified by the U.S. Court of 
Appeals for Veterans Claims in Dingess/Hartman v. Nicholson, 
Nos. 01-1917 and 02-1506 (Vet. App. March 3, 2006).  See 
Conway v. Principi, 353 F.3d 1369, 1374 (2004), holding that 
the Court of Appeals for Veterans Claims must "take due 
account of the rule of prejudicial error."

II.  Factual Background

The veteran is service connected for the multiple residuals 
of an automobile accident in service that resulted in a 
fracture of C5-6, with later cervical fusion. 

In September 1996, the veteran submitted a claim in which he 
sought an increased rate of SMC based on the need for the 
regular aid and attendance of another person, and an 
increased rating for service-connected bowel dysfunction.  At 
that time the veteran was in receipt of a SMC under 38 
U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) on account of 
loss of use of one foot since July 1993.

In support of his claim is an October 1995 outpatient 
treatment record which shows he was incontinent of both bowel 
and bladder, and needed a scooter to cover long distances.  
In August 1996, the veteran described his daily bowel care 
routine and the assistance provided by his wife.  There was 
no mention of loss of use of the right lower extremity or 
need for regular aid and attendance.  

On VA examination in April 1997, the veteran's use of his 
upper extremities was quite limited secondary to flexion 
deformity of his fingers.  As a result of his reduced upper 
extremity mobility he needed help in dressing.  The veteran 
was incontinent of bladder and bowel function.  There was no 
mention of loss of use of the right lower extremity at that 
time.

On VA examination in May 1997, the examiner noted the 
veteran's history of severe quadriparesis and resultant 
weakness of all four extremities with a neurogenic bowel and 
bladder.  He used two crutches for ambulation over short 
distances in the house only, for example, from the bed to 
chair and from the bed to the bathroom.  He was required to 
use a wheelchair outside the house.  He had extreme 
difficulty performing activities of daily living, and 
required the assistance of his wife for the majority of these 
tasks including cooking, cleaning, personal hygiene, bathing, 
and feeding.  It was very difficult to perform these 
activities because of the clasped hand deformities, the 
spastic quadriparesis of the upper and lower extremities, and 
the neurogenic bowel and bladder.  The veteran wore a brace 
on the left knee and an AFO (ankle foot orthosis) to help 
with left foot positioning. 

On examination, there were classic pronated forearms with 
fingers held clasped in his fist, with thumb and palm 
deformity on both sides.  The veteran had some atrophy and 
loss of muscle mass in both upper and lower extremities.  The 
examiner observed that it was very difficult for the veteran 
to move about using the crutches, and he exhibited spasticity 
with clonus in the lower extremities with attempts to 
ambulate.  Deep tendon reflexes were 3+ at the patella and 
achilles.  Motor strength was 3/5 in the psoas, quads, 
tibialis anterior, hallucis, and peroneal.  The veteran had 
motion against gravity but not resistance.  There was 
moderate spasticity in all four extremities, and global 
profound weakness.  The examiner concluded that the veteran 
would likely need attendant care, if not full time then 
certainly for help with activities of daily living.  The 
examiner noted that, although the veteran was a household 
ambulator with Lofstrand crutches, he could not walk for 
distances greater than 40-50 feet without the use of a 
wheelchair, and it was quite cumbersome for him to transfer 
from wheelchair to the examination table.  

At the conclusion of the VA examination, the RO issued a 
rating decision in July 1997, increasing the evaluation for 
bowel dysfunction to 100 percent disabling; the right upper 
extremity to 50 percent disabling; and the left upper 
extremity to 40 percent disabling.  Service connection for 
weakness of the right lower extremity was granted and 
assigned a 60 percent evaluation, effective August 22, 1996.  

The veteran was also awarded a higher rate of SMC on account 
of the need for the regular aid and attendance of another 
person.  38 U.S.C.A. § 1114(l).  In addition, SMC was awarded 
in light of the total rating assigned for bowel dysfunction, 
to reflect disability independently ratable at 100 percent 
with additional disability consisting of bladder impairment, 
left foot drop with marked weakness left knee, and weakness 
right lower extremity.  38 U.S.C.A. § 1114(p).  

In September 2000, the veteran filed a claim for an increased 
rating for service connected for left foot drop, marked left 
knee weakness, impairment of the right upper extremity, 
impairment of left upper extremity, and weakness of the right 
lower extremity.  

During VA examination in February 2001, the veteran reported 
that he was able to transfer himself from the bed to the 
wheelchair once placed in a sitting position.  He was able to 
use his electric razor with minor assistance, help with 
bathing the front part of his body, and assist himself with 
urination.  On examination, there was mild contracture of the 
right elbow which limited range of motion by 20-25 percent 
and noticeable contracture deformity of both hands.  There 
was evidence of mild atrophy, and 90 percent of the time he 
used a motorized wheelchair.  He needed daily assistance with 
meal preparation, feeding positioning from lying to sitting, 
bathing, shaving, and bowel care.

In a May 2001 rating decision the veteran was awarded a 100 
percent evaluation for loss of use of both feet; the right 
upper extremity was increased to 60 percent disabling; and 
the left upper extremity was increased to 50 percent 
disabling, all effective September 29, 2000.  The rating 
decision also granted SMC at the (o) rate on account of 
paraplegia of both legs and loss of anal and bladder 
sphincter control, effective from September 29, 2000.  
Further, the rating decision established entitlement to SMC 
at the R-1 rate, effective from September 29, 2000, on 
account of the veteran's entitlement under section (o) and 
his need for the regular aid and attendance of another 
person.

The veteran expressed his disagreement with the effective 
date assigned for the grant of SMC that provided a special 
aid and attendance allowance under 38 U.S.C.A. § 1114(r)(1) 
and 38 C.F.R. § 3.350(h).  That issue was subsequently 
perfected for appeal.

In February 2006, the veteran and his wife appeared before 
the undersigned Veterans Law Judge, and testified as to the 
severity of the veteran's overall disability situation.  
Additional documentary evidence was submitted at the hearing, 
with the veteran's waiver of initial RO consideration.  
Generally, the witnesses indicated that the veteran's present 
level of compensation does not address the severity of his 
disabilities.  They argued that the evidence of record at the 
time of the July 1997 rating decision demonstrated that the 
veteran had loss of bladder control, loss of use of the both 
hands, and loss of use of both feet, which would entitle him 
to the SMC (r)(1) rate.  He contended, with the assistance of 
his representative, that the medical evidence establishes 
that he can only move his lower extremities against gravity, 
but not resistance, and that he has demonstrated clonus and 
spasticity on examination.  Therefore, he argued that the 
medical evidence establishes functional loss of use of both 
lower extremities.  The veteran's wife testified that he is 
unable to perform ordinary functions of daily living by 
himself or without assistance. 

III.  Laws and Regulations

The veteran's claim for additional SMC, which gave rise to 
the present issue of earlier effective date, is most 
analogous to a claim for an increased rating.  Claims for 
increased ratings are effective as of the date of receipt of 
claim, or the date entitlement arose (i.e., when it is 
factually shown that the requirements for the increased 
rating are met), whichever is later.  An exception to this 
rule is that the effective date may be the earliest date as 
of which it is factually ascertainable that an increase in 
disability had occurred, provided a claim is received by VA 
within one year after that date.  38 U.S.C.A. § 5110(a) (West 
2002); 38 C.F.R. § 3.400(o) (2005).  

A "claim" is defined under 38 C.F.R. § 3.1(p) (2005) as "a 
formal or informal communication in writing requesting a 
determination of entitlement, or evidencing a belief in 
entitlement, to a benefit."  Quarles v. Derwinski, 3 Vet. 
App. 129, 134-35 (1992).  A report of examination or 
hospitalization which meets certain requirements will be 
accepted as an informal claim for benefits if the report 
relates to a disability which may establish entitlement.  38 
C.F.R. §§ 3.155(c), 3.157(a).

Generally, claims for special monthly compensation are 
governed by the provisions set forth at 38 U.S.C.A. § 1114(k) 
through (s) (West 2002), and 38 C.F.R. §§ 3.350 and 3.352 
(2005).  

Pursuant to 38 U.S.C.A. § 1114(r)(1), if any veteran, 
otherwise entitled to compensation authorized under 
subsection (o), at the maximum rate authorized under 
subsection (p), or at the intermediate rate authorized 
between the rates authorized under subsections (n) and (o) 
and at the rate authorized under subsection (k), is in need 
of regular aid and attendance, then, in addition to such 
compensation, the veteran shall be paid a monthly aid and 
attendance allowance.  See 38 C.F.R. § 3.350(h).

Entitlement to benefits provided by 38 U.S.C.A. § 1114(o) is 
met when there is paraplegia of both lower extremities 
together with the loss of anal and bladder sphincter control.  
38 C.F.R. § 3.350(e)(2).  

The term "loss of use" of a hand or foot is defined by 38 
C.F.R. § 3.350(a)(2) and 4.63 as that condition where no 
effective function remains other than that which would be 
equally well served by an amputation stump at the site of 
election below elbow or knee with use of a suitable 
prosthetic appliance.  The determination will be made on the 
basis of the actual remaining function, whether the acts of 
grasping, manipulation, etc., in the case of the hand, or 
balance, propulsion, etc., in the case of a foot, could be 
accomplished equally well by an amputation stump with 
prosthesis.  Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 
which constitute loss of use of a foot or hand are extremely 
unfavorable ankylosis of the knee, or complete ankylosis of 
two major joints of an extremity, or shortening of the lower 
extremity of 31/2 inches or more.

The determination of the factual need for aid and attendance 
is subject to the criteria of 38 C.F.R. § 3.352(b), which 
provide that the need for a higher level of aid and 
attendance allowance shall be considered to be the 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.  Personal 
health-care services include (but are not limited to) such 
services as physical therapy, administration of injections, 
placement of indwelling catheters, and the changing of 
sterile dressings, or like functions which require 
professional health-care training or the regular supervision 
of a trained health-care professional to perform.  A licensed 
health-care professional includes (but is not limited to) a 
doctor of medicine or osteopathy, a registered nurse, a 
licensed practical nurse, or a physical therapist licensed to 
practice by a State or political subdivision thereof.  38 
U.S.C.A. § 1114(r); 38 C.F.R. § 3.352(b)(2).

IV.  Analysis

The veteran contends that the RO erred by failing to grant 
SMC benefits to the veteran at the (r)(1) level from October 
31, 1995, the date of a VA outpatient treatment record.  He 
maintains that the medical evidence in existence at the time 
showed loss of use of both upper and lower extremities, thus 
demonstrating his entitlement to SMC benefits at the (r)(1) 
rate from the date of that outpatient treatment record.  

Inasmuch as entitlement to SMC based on loss of use of the 
left foot was previously established, effective from July 
1993, and considering the fact that a 100 percent rating has 
been in effect since August 1996 for loss of bowel and 
bladder control, the question of entitlement to SMC at the 
(r)(1) rate prior to September 29, 2000, turns upon the 
earliest date as of which it is factually ascertainable that 
there was both (1) loss of use of the right foot and (2) the 
need for the regular aid and attendance of another person.  
38 U.S.C.A. § 1114(r)(1); 38 C.F.R. § 3.400(o)(2).

On VA examination in May 1997, the examiner attested to need 
for aid and attendance, as well as to diminished functioning 
of the lower extremities.  The left leg was noted to be worse 
than the right, and the veteran required a wheelchair for a 
majority of the time.  He was able to transfer himself from 
his wheelchair with great difficulty, and was only able to 
ambulate short distances with crutches.  The examiner also 
noted the veteran's left foot drop, resulting in complete 
loss of use of the left foot.  Specifically, the examiner 
indicated that the veteran had moderate quadriparesis with 
spasticity in all four extremities, clonus with attempts at 
ambulation, and global profound weakness.  Patellar and 
Achilles reflexes were 3+ bilaterally.  The examiner did not 
further comment on the right foot.  

While the level of disability in the left lower extremity is 
clearly more severe than that of the right lower extremity, 
the clinical evidence contained in this examination report 
clearly demonstrates a deterioration on the right side, as 
reflected by the award of service connection for weakness in 
the right lower extremity, rated as 60 percent disabling in 
July 1997.  Moreover, there is substantial impairment in the 
upper extremities shown, also suggesting the need for aid and 
attendance.  Finally, the disability associated with the 
veteran's bladder and bowel incontinence also approaches 
"loss of anal and bladder sphincter control."  

The Board is mindful of the doctrine of resolving reasonable 
doubt in favor of the veteran, embodied in 38 U.S.C.A. § 
5107(b); 38 C.F.R. §§ 3.102, 4.3.  Therefore, as the 
disability associated with the veteran's C5 quadriparesis, 
which the clinical evidence of record indicates is a 
progressive condition, at least approaches paraplegia of the 
both lower extremities with loss of anal and bladder 
sphincter control by reason of helplessness, the Board finds 
that the criteria for additional SMC at the "o" rate were 
met as of VA examination report dated May 8, 1997.  38 
U.S.C.A. § 1114(o); 38 C.F.R. § 3.350(e), 4.7.  Moreover, as 
the need for regular aid and attendance was also shown at 
that time, the veteran was entitled to SMC at the rate 
provided by 38 U.S.C.A. § 1114(r)(1).  Prior to that date, 
there is no substantial evidence that would have warranted 
entitlement to special monthly compensation under 38 U.S.C.A. 
§ 1114(o); 38 C.F.R. 38 C.F.R. § 3.350(e), given that the 
veteran still retained significant function in his right 
lower extremity.  

The initial claim of entitlement to special monthly 
compensation was filed in September 1996.  The Board is of 
the opinion, however, that entitlement did not arise until 
the veteran was seen on VA examination on May 8, 1997.  As 
noted previously, the effective date of an evaluation and 
award of compensation based on a claim for increase is the 
date of receipt of the claim or the date entitlement arose, 
whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 
3.400.  Under the circumstances, May 8, 1997, must be 
determined to be "the date entitlement arose."  

ORDER

An effective date of May 8, 1997, for the grant of special 
monthly compensation under 38 U.S.C.A. § 1114(r)(1) and 38 
C.F.R. § 3.350(h), is granted, subject to the laws and 
regulations pertaining to the award of monetary benefits.



_________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs