Citation Nr: 0802426 Decision Date: 01/23/08 Archive Date: 01/30/08 DOCKET NO. 05-24 545A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to special monthly compensation for loss of use of the lower extremities. 2. Entitlement to special monthly compensation for aid and attendance. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from August 1974 to April 1975. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied special monthly compensation for aid and attendance; and from an April 2004 decision that granted special monthly compensation for the loss of use of both feet. FINDINGS OF FACT 1. The veteran has been granted service connection for advanced multiple sclerosis, rated as 100 percent disabling. In addition, the veteran has the following separately rated disabilities as a consequence of multiple sclerosis: right hand tremor, rated as 40 percent disabling; left lower extremity weakness, rated as 40 percent disabling; right lower extremity weakness, rated as 40 percent disabling; dizziness and vision impairment, rated as 30 percent disabling; speech impairment, rated as 30 percent disabling; and left hand tremor, rated as 30 percent disabling. 2. The veteran's central nervous system disorder causes considerable weakness in her lower extremities. However, there is a full range of motion and moderate muscle tone of the foot, knee, and leg. The veteran is able to ambulate with the assistance of a cane and walker. The weight bearing capability, joint flexion, muscle strength, and function are greater than that afforded by an amputation and prosthesis. 3. The veteran has loss of use of both feet and is helpless. 4. The veteran requires aid and attendance for safe mobility in the home, housekeeping, and meal preparation because of weakness and fatigue of the lower extremities. The veteran requires aid and attendance for the activities of daily living that require fine hand skills including some dressing functions and meal preparation because of weakness and fatigue of the upper extremities and hands. The veteran requires aid and attendance because of urinary incontinence. The assistance does not require the services of a skilled health care professional. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation under 38 U.S.C.A. § 1114(m) have not been met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352, 4.63 (2007). 2. The criteria for special monthly compensation under 38 U.S.C.A. § 1114 (o) have been met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352, 4.63 (2007). 3. The criteria for special monthly compensation for aid and attendance under 38 U.S.C.A. § 1114 (r) (1) have been met. 38 U.S.C.A. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in April 2003 and in November 2004, which informed the veteran of the information and evidence required to substantiate the aid and attendance claim and the loss of use of lower extremity claim respectively, and which also informed her of the information and evidence VA was to provide and which the veteran was to provide. While the letters did not explicitly ask that the appellant provide any evidence in her possession that pertains to the claims, she was advised of the types of evidence that could substantiate her claims and to ensure that VA receive any evidence that would support the claims. Logically, this would include any evidence in her possession. However, the April 2003 letter was sent only seven days prior to the initial unfavorable decision and the November 2004 letter was sent after the initial unfavorable decision. The Board concludes that both letters were untimely. Nevertheless, the Board finds that any defect with respect to the timing of the notice requirement is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board notes that the Court specifically stated in Pelegrini that it was not requiring the voiding or nullification of any RO action or decision, only finding that appellants are entitled to content-complying notice. Thus, the timing of the notice does not nullify the rating action upon which this appeal is based and the Board specifically finds that the veteran was not prejudiced by the post-decision notice because she was given sufficient time to submit and/or identify any and all evidence necessary to substantiate the claims. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained several medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The veteran has been granted service connection advanced multiple sclerosis, rated as 100 percent disabling. In addition, the veteran has the following separately rated disabilities as a consequence of multiple sclerosis: right hand tremor, rated as 40 percent disabling; left lower extremity weakness, rated as 40 percent disabling; right lower extremity weakness, rated as 40 percent disabling; dizziness and vision impairment, rated as 30 percent disabling; speech impairment, rated as 30 percent disabling; and left hand tremor, rated as 30 percent disabling. The veteran is currently entitled to special monthly compensation under 38 U.S.C.A. § 1114 (l) for loss of use of both feet and additional special monthly compensation under 38 U.S.C.A. § 1114 (p) at an intermediate rate between 38 U.S.C.A. § 1114(l) and 38 U.S.C.A. § 1114 (m) for the additional independently rated disabilities. The veteran seeks a higher rate of compensation under 38 U.S.C.A. § 1114(o) for two separate loss of use disabilities: specifically, loss of use of the lower extremities and a factual need for aid and attendance due to inability to function with both hands. The veteran seeks a higher rate of compensation under 38 U.S.C.A. § 1114(m) for a loss of use of both legs above the knee. The veteran also seeks special monthly compensation under 38 U.S.C.A. § 1114 (r) (1) for aid and attendance. Loss of use of a hand or foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of actual remaining function, whether the acts of grasping and manipulation or balance or propulsion could be accomplished equally well with a prosthesis. 38 C.F.R. § 3.350(a) (2), 4.63; see Tucker v. West, 11 Vet. App. 369, 373 (1998). Special monthly under 38 U.S.C.A. § 1114(m) is warranted in part for loss of use of both hands or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place. In determining whether there is natural elbow or knee action with prosthesis in place, consideration will be based on whether use of the proper prosthetic appliance requires natural use of the joint, or whether necessary motion is otherwise controlled, so that the muscles affecting joint motion, if not already atrophied, will become so. If there is no movement in the joint, as in ankylosis or complete paralysis, use of prosthesis is not to be expected, and the determination will be as though there were one in place. 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(c). Special monthly compensation under 38 U.S.C.A. § 1114(o) is warranted in part for conditions entitling the claimant to two or more of the rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n). Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle the claimant to the maximum rate under 38 U.S.C.A. § 1114(o), through the combination of loss of use of both legs and helplessness. The requirement of loss of anal and bladder sphincter control may be met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.350 (e). Determinations for entitlement under 38 U.S.C.A. § 1114(o) must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. Id. If the loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities be taken as entitling the veteran to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement. Id. A veteran receiving the maximum rate under 38 U.S.C.A. § 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 during periods he or she is not hospitalized at United States Government expense. Determination of this need is subject to the criteria of 38 C.F.R. § 3.352. The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C.A. § 1114 (o) or (p), or was based on an independent factual determination. 38 C.F.R. § 3.350(h)(1). The amount of the additional allowance payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C.A. § 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.A. § 1114(r) (2). The higher level aid and attendance allowance authorized by 38 U.S.C.A. § 1114(r) (2) is payable in lieu of the regular aid and attendance allowance authorized by 38 U.S.C.A. § 1114(r) (1). 38 C.F.R. § 3.350(h)(3). Determinations as to need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: 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; 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. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above 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 his/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. 38 C.F.R. § 3.352. A veteran is entitled to the higher level aid and attendance allowance authorized by 38 U.S.C.A. § 1114(r)(2) and 38 C.F.R. § 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 § 3.352(a); (iii) the veteran needs a "higher level of care" (as defined in § 3.352(b)(2)) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. 38 C.F.R. § 3.352(b) (1) (i-iii). 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. 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. 38 C.F.R. § 3.352(b) (2). The term "under the regular supervision of a licensed health- care professional" means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(b) (2-4), (c) (2004). The requirements for establishing the need for a higher level of care 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. 38 C.F.R. § 3.352(b) (5). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424, (U.S. Vet. App. Nov. 19, 2007). As the veteran's claim is for increased compensation because of deteriorating symptoms of a service-connected disability, the Board will determine whether staged levels of compensation are warranted. Multiple sclerosis is a disease manifested by weakness, numbness, tingling, or unsteadiness in a limb; spastic paraparesis; retrobulbar neuritis; diplopia; disequilibrium; or a sphincter disturbance, such as urinary urgency or hesitation. Traut v. Brown, 6 Vet. App. 495, 497 (1994). Multiple sclerosis is a disease with a prolonged course characterized by remissions and relapses over a course of many years. Bielby v. Brown, 7 Vet. App. 238, 266 (1994). In April 2002, a VA physician noted that the veteran used a wheelchair and a rolling 4-wheel walker. The examiner noted that the veteran could perform the activities of daily living but that she experience urinary incontinence and was at risk for falls because of decreased safety awareness. In February 2003, a VA advanced registered nurse practitioner (ARNP) conducted an aid and attendance examination at a clinic. The ARNP noted that the veteran's legs were weak and that she was at risk for falls. The veteran used a walker with a seat for mobility. The ARNP also noted poor sensation in the fingers that prevented buttoning clothes or opening cans or jars. The veteran had difficulty in dressing but could use toilet facilities without assistance. However the veteran also exhibited memory loss, speech impairment, mental confusion, and urinary incontinence. The ARNP stated that the veteran needed assistance with all the activities of daily living and was very dependent on her husband for daily care. (The Board notes that the veteran is not married and that assistance was provided by a friend who lived in her home). She was able to leave the home with assistance for medical appointments. The ARNP diagnosed an advanced stage of multiple sclerosis and indicated that the veteran required the daily personal health care services of a skilled provider, without which she would require institutional care. In December 2003, the VA ARNP again evaluated the veteran's need for aid and assistance at the clinic. The ARNP noted that the veteran was very frail and fragile, lost feeling in her fingers and hands, and was unable to hold objects, button clothing, or tie shoes. The veteran lost all feeling in her legs and feet which could no longer bear weight. The ARNP noted that a wheelchair was necessary because the walker was no longer useful. The ARNP noted that the veteran needed assistance with all activities of daily living. She was unable to bathe, dress, or cook but could use toilet faculties independently. The ARNP noted that the veteran experienced weakness, unsteadiness, and fatigue that required the continuous presence of another person in the home. The ARNP diagnosed an advanced stage of multiple sclerosis and peripheral neuropathy of the upper and lower extremities and again indicated that the veteran required the daily personal health care services of a skilled provider. In March 2004, a VA physician evaluated the veteran's need for aid and attendance. The physician noted that the veteran had a pin placed in her right hip in 1994 and that she experienced relapses of her multiple sclerosis symptoms including weakness, general fatigue, ataxia, urinary incontinence, and occasional diplopia and blurred vision. He noted that the veteran could not walk without a walker or cane and required assistance with transfers to the examining table. He noted that the veteran could not bathe, prepare meals, or dress independently, the latter because she was unable to manipulate buttons. However, the veteran was able to remain alone in the home while her roommate worked and she was able to warm food in a microwave oven. He noted that muscle strength was good and peripheral pulses were intact. He concluded that the veteran was "in dire need of aid and attendance" but he did not specify whether the veteran's limitations were a result of lower or upper extremity limitations or contributions from both. He also did not specify whether the level of care required the services of a skilled health care professional. In a December 2004 annual evaluation, a VA examiner noted that the veteran was confined to a wheelchair except for 15 to 20 foot distances with support from a cane or walker. She was also dependent on another for all activities of daily living. However, the examiner noted that hand grasp was equal bilaterally with no muscle strength deficits in the upper extremities. Later in December 2004, the veteran fell in her home and fractured her left hip. She underwent a left hip arthroplasty at a private hospital. In follow-up examinations in December 2004, physicians noted that the veteran could dorsiflex both feet, eat independently, toilet, and ambulate 100 feet with contact guard assistance. In March 2005, a VA social worker noted that the veteran participated in a weekly multiple sclerosis group and desired to apply for a VA home aide program. The social worker noted that despite physical therapy, the veteran continued to require assistance with cleaning, shopping, meal preparation, housekeeping, and mobility primarily because of deteriorating weakness from multiple sclerosis. In May 2005, a VA ARNP examiner noted the veteran's reports that she was ambulating better around her home. The examiner noted frailty and left hip muscular atrophy, but the veteran was able to ambulate with the walker up to 200 feet. The veteran reported that she required occasional assistance with the activities of daily living but was able to shower, wash her hair, and dress independently with occasional assistance required to don shoes. Knee and ankle flexion bilaterally were within functional limits. Upper and lower extremity strength was measured as 3+ and 4- on a scale of zero to five. The veteran was performing a home exercise program as part of hip replacement recovery. As a preliminary matter, the Board concludes that special monthly compensation under 38 U.S.C.A. § 1114 (m) for loss of use of both legs at a level preventing natural knee action is not warranted. The veteran contends that an inability to walk unassisted including weakness and loss of knee function is shown on examination. The Board disagrees. Although the veteran's central nervous system disorder has caused considerable weakness that waxes and wanes over time, and although the veteran also underwent bilateral hip surgeries, all examiners noted that the veteran is able to ambulate with foot, knee, and leg function to some extent. In particular, the most recent examination in May 2005 showed improvement in strength and flexibility at each joint. There is some weight bearing capability, joint flexion, muscle strength, and function greater than that of an amputation and prosthesis. The Board acknowledges the veteran's contention that no examiner was tasked with or provided an exact level of functional loss and that another examination is required. The Board also acknowledges that multiple sclerosis will likely result in degrading symptom over time. However, the results of the May 2005 examination established that function of the lower extremities above the knee have not been lost. For similar reasons, the Board concludes that special monthly compensation under 38 C.F.R. § 1114 (m) for loss of use of both hands is not warranted. Although medical assessments showed that the veteran has general weakness and fatigue, difficulty in sensation, manipulating buttons, opening jars, and grasping objects, evaluations in 2003, 2004 and 2005 showed that the veteran is capable of some function such as grasping support devices, operating a microwave oven, washing her hair, toileting, and dressing with clothing not requiring fine finger manipulation. None of the examiners noted that the veteran was incapable of self-administration of medication. Nevertheless, the Board concludes that the weight of competent medical evidence showed that the veteran is so helpless as to be in need of regular aid and attendance due to disabilities of the lower and upper extremities. As the need has been established for more than two disabilities under 38 U.S.C.A. § 1114(l), special monthly compensation at the rate provided under 38 U.S.C.A. § 1114(o) is warranted. Further, additional special monthly compensation under 38 U.S.C.A. § 1114 (r) (1) is warranted because the need for aid and attendance has been established. Many examiners noted deficits affecting safe mobility, and the veteran sustained a fractured hip in 2004, further demonstrating the need for assistance in avoidance of hazards in the home. Many examiners also noted incapacity to prepare meals, perform housekeeping, and activities requiring fine hand skills. The veteran has only recently been able to bathe independently. The examiners all cited general fragility and weakness affecting upper and lower extremities and urinary continence as on-going conditions and all recommended the regular aid and assistance of another. A higher rate of compensation under 38 U.S.C.A. § 1114 (r) (2) is not warranted because the need for skilled health care at home has not been established. Only the ARNP in January and December 2003 noted that there was a need for such care. However, the Board placed less probative weight on the assessment because it was in the form of a checked box and because the examiner made no comments regarding any specific need for assistance that required skilled home health care. No other examiners referred to the need for skilled care, and the veteran did not contend that such care was necessary. The Board concludes that special monthly compensation under 38 U.S.C.A. § 1114 (o) and under 38 U.S.C.A. § 1114 (r) (1) is warranted throughout the pendency of the claims. Although the veteran's specific incapacities have been evaluated on occasion as more or less severe, the weight of medical evidence is that the overall factual need for aid and attendance was established throughout this period. (CONTINUED ON NEXT PAGE) ORDER 1. Special monthly compensation under 38 U.S.C.A. § 1114(m) is denied. 2. Special monthly compensation under 38 U.S.C.A. § 1114(o) is granted, subject to the legal criteria governing the payment of monetary benefits. 3. Special monthly compensation under 38 U.S.C.A. § 1114 (r) (1) for aid and attendance is granted, subject to the legal criteria governing the payment of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs