Citation Nr: 1205899 Decision Date: 02/16/12 Archive Date: 02/23/12 DOCKET NO. 10-04 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rate of special monthly compensation (SMC) higher than what is paid pursuant to 38 U.S.C.A. § 1114(m); 38 C.F.R. § 3.350(f)(ii), to include as a result of the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to September 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In that decision, the RO denied entitlement to a higher rating of SMC based on the need for regular aid and attendance. The Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in August 2011. A copy of the transcript is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks a higher rating for SMC, asserting that his service connected disabilities require the aid and attendance of another person. The Veteran's service connected disabilities include amputation of the left lower extremity with disarticulation at the hip, rated as 90 percent disabling; residuals of shrapnel wound, right lower extremity with drop foot and paralysis right common peroneal nerve and retained foreign body (rated as loss of use) rated as 40 percent disabling; diskogenic disease of the cervical spine, rated as 20 percent disabling; diskogenic disease of the lumbar spine, rated as 20 percent disabling; residuals of tracheotomy scar and chest wounds, rated as 10 percent disabling; residuals of chest wall injury associated with residual tracheotomy scar and chest wounds, rated as 10 percent disabling; degenerative joint disease with myositis, left shoulder, rated as 10 percent disabling; right knee condition, rated as 10 percent disabling; and, history of hookworm infestation, rated as 0% disabling. The combined schedular disability rating is 100 percent. Additionally, the Veteran has been awarded SMC pursuant to 38 U.S.C.A. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)1) at the rate equal to subsection (m) on account of loss of use of one foot with the anatomical loss of one leg so near the hip as to prevent the use of a prosthetic appliance. This rate of SMC has been in effect since September 27, 1971, and the Veteran asserts that he now needs the regular aid and attendance of another person, particularly given that his wife, who has helped care for him since service, has developed her own medical conditions which prevent her from caring for him as well as she once could. The statute and regulations pertaining to SMC are complicated and can be confusing. Below is a summary of these benefits and what is necessary to qualify for each level: SMC grants an additional level of compensation to Veterans above the basic levels of compensation (0 percent to 100 percent) for various types of losses or levels of impairment solely due to service-connected disabilities. This additional compensation is payable for such things as amputations, blindness, and aid and attendance, for example. SMC is governed by 38 U.S.C.A. § 1114 and 38 C.F.R. § 3.350. The regulation is broken down into paragraphs that are commonly referred to by their alphabetic designations, such as SMC(k), SMC(l), etc. The alphabetic designations come from 38 USCA § 1114. The following is an entire list of the breakdown: 38 USCA § 1114 38 CFR § 3.350 SMC(k) 3.350(a) SMC(l) 3.350(b) SMC(m) 3.350(c) SMC(n) 3.350(d) SMC(o) 3.350(e) SMC(p) 3.350(f) SMC(q) 3.350(g) SMC(r) 3.350(h) SMC(s) 3.350(i) In general, SMC is only paid for permanent disabilities. SMC(k) SMC(k) is the most commonly granted level of SMC and is also the lowest payment amount. The authorities pertaining to SMC(k) are: * 38 USCA § 1114(k) * 38 CFR § 3.350(a) * 38 CFR §§ 4.63, 4.64 SMC(k) is granted for the anatomical loss or loss of use of the following extremities and organs: * One foot * One hand * Loss of use of both buttocks * One or more creative organs * Blindness of one eye * Deafness of both ears * Complete organic aphonia (loss of voice) * Loss of 25 percent or more of the tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy) * When breast tissue has been subjected to radiation treatment The regulation provides that each extremity or organ has different criteria. Loss or Loss of Use of One Hand According to 38 CFR § 3.350(a)(2) and 38 CFR § 4.63, the loss or loss of use of a hand is held to exist when its function would be no better than if the hand were amputated and replaced by a suitable prosthesis. Complete ankylosis of two major joints of an upper extremity also establishes loss of use of a hand. In determining loss, the questions are: * What can the person do with that extremity? * Is there any effective useful function remaining? Function may also be described in terms of grasping and manipulation. Can the hand hold things, button a shirt, or would the Veteran be equally well off with a prosthesis? SMC(k) is granted for loss of use of one hand, in other words, the Veteran has no useful remaining function. The Loss or Loss of Use of One Foot The anatomical loss or loss of use of one foot is also found in 38 CFR § 3.350(a)(2) and 38 CFR § 4.63. The method for determining the loss or loss of use of a foot is very similar to that of a hand. As with a hand, the loss or loss of use of a foot is held to exist when its function would be no better than if the foot were amputated and replaced by a suitable prosthesis. Again, in determining loss, the questions are: * What can the person do with that extremity? * Is there any effective useful function remaining? Normal functions of the foot include balance and propulsion. Lack of balance and propulsion prevent ambulation. Other factors that establish loss of use of a foot include: * Extremely unfavorable complete ankylosis of the knee; or, * Complete ankylosis of two major joints of an extremity; or, * Shortening of the lower extremity three and one-half inches or more; or, * Complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes. Loss of Use of Both Buttocks 38 CFR § 3.350(a)(3) and 38 CFR § 4.64 state that loss of use of both buttocks exists when there is severe damage by disease or injury to muscle group XVII, bilaterally, resulting in the inability to rise without assistance from a seated or stooped position and the inability to maintain postural stability. This disability is described in Diagnostic Code 5317. Since the person must be able to perform the activities without assistance, if the Veteran's own hands or arms are used or, in the matter of postural stability, a special appliance is used, SMC will still be established. There are several tests used to determine whether there is loss of use of both buttocks: * The standing test. Does the Veteran need to use his/her hands to stand from a chair? * The rising from a stooped position test. Can the Veteran rise from the stooped position without assistance? * The postural stability test. Can the Veteran keep his/her torso vertical over his/her legs? Note: SMC for loss or loss of use of both lower extremities, as provided under SMC(l) through (n), will not preclude additional compensation under SMC(k) for loss of use of both buttocks where appropriate tests clearly substantiate that there is such additional loss. Loss or Loss of Use of a Creative Organ This is the most commonly awarded form of SMC(k). 38 CFR § 3.350(a)(1) relates to the loss of one or more creative organs. The requirement for SMC(k) is the acquired absence of one or both testicles (other than undescended testicles), ovaries, or other creative organs. SMC(k) may also be established for other conditions that are considered part of the reproductive tract, such as a male Veteran undergoing removal of the epididymis or prostate gland, or a female Veteran who has her uterus or a fallopian tube removed. SMC(k) can also be established when a Veteran suffers from retrograde ejaculation, or spermatozoa dumping into the bladder, which may be due to transurethral resection. As this issue does not apply to the instant case, there will be no additional information provided here regarding entitlement to SMC(k) based on the loss of use of a creative organ. Loss of Use or Blindness in One Eye with Light Perception Only (LPO) Although not mentioned, this also includes anatomical loss of the eye. This criteria may be found in 38 CFR § 3.350(a)(4) and 38 CFR § 4.79. LPO is held to exist when there is inability to recognize test letters at a distance of one foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at three feet. In effect, loss of use of one eye means that, were vision in the good eye to be lost, total blindness would result. The statutory allowance will not be paid when the affected eye is amenable to correction better than light perception, nor will it be paid if an opaque lens is used over an otherwise normal eye to avoid diplopia. VA regulations do not provide a legal definition of blindness, but some states do. The word "blindness" does not have a strict legal definition but may depend on context; it can mean anything from decreased visual acuity to total blindness. Deafness in Both Ears Deafness in both ears is defined in 38 CFR § 3.350(a)(5) as the absence of air and bone conduction. This absence is held to exist when examination by a licensed audiologist under current testing criteria shows that bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum rating evaluation under the rating schedule. Complete Organic Aphonia As stated in 38 CFR § 3.350(a)(6), complete organic aphonia exists when there is a disability of the organs of speech that constantly precludes communication by speech. Miscellaneous Considerations under SMC (k) A Veteran may be eligible for more than one SMC(k) if he/she meets the criteria for that condition. The combined rate of all SMC(k) awards with the basic rate of compensation payable on the basis of degree of disability may not exceed the monthly rate under SMC(l) when authorized in conjunction with any disability evaluation. SMC(l) SMC(l) is what is generally referred to as aid and attendance (A&A), but the A&A provisions actually encompass only part of (l). See 38 USCA § 1114(l); 38 CFR §§ 3.350(b), 3.352. SMC(l) is assigned where there is anatomical loss or loss of use of both feet, OR for loss of use of one hand AND one foot. Loss of use is defined in 38 CFR § 4.63 as existing when no effective function remains beyond that which would be equal to an amputation with use of a suitable prosthesis. * The functions of the foot are balance, propulsion, or ambulation. * The functions of the hand are grasping and manipulation, etc. * Extremely unfavorable ankylosis of the knee or two major joints of the leg (ankle or knee, or wrist or elbow), or shortening of the extremity by 3.5 inches or more is loss of use. * There is no loss of use at the hip or shoulder level, only anatomical loss. * Foot drop due to paralysis of the external popliteal/common peroneal nerve, with accompanying changes such as impaired circulation or trophic problems (too little or too much muscle) are also defined as loss of use. SMC(l) is assigned for blindness in both eyes, with visual acuity of 5/200 or less. SMC (l) is assigned for being permanently bedridden. SMC(l) also is assigned for a factual need for A&A. A&A is actually defined in 38 CFR § 3.352(a). Factors are: * An inability to dress or undress oneself. * An inability to keep oneself ordinarily clean and presentable. * A need to frequently adjust prosthetics or appliances which cannot be accomplished without aid. An inability to feed oneself due to a loss of coordination or extreme weakness. * An inability to "attend to the wants of nature." * An inability to protect oneself from the hazards and dangers of daily life and environment. The inability can be physical or mental. The need must be regular, not constant. The need must be caused solely by service connected disabilities. SMC(m) SMC(m) provides a higher level of SMC based on certain combinations of disabilities or levels of impairment. 38 USC 1114(m); 38 CFR § 3.350(c). SMC(m) is assigned for anatomical loss or loss of use of BOTH hands. SMC(m) is assigned for anatomical loss or loss of use of BOTH legs above the knee (or at a level that prevents natural knee action with a prosthetic in place). SMC(m) is assigned for anatomical loss or loss of use of one leg above the knee AND one arm above the elbow (at a level that prevents natural action of the joint with a prosthetic device). SMC (m) is assigned for blindness with light perception only bilaterally. SMC (m) is assigned for blindness with 5/200 vision bilaterally and a need for A&A. The need for A&A must be based entirely on the blindness. 38 CFR § 3.350(c)(1)(v). SMC(n) SMC(n) again deals with increased levels of overall impaired function due to combinations of disabilities. See 38 USCA § 1114(n); 38 CFR § 3.350(d). SMC(n) is assigned for the anatomical loss or loss of use of both arms above the elbow, anatomical loss of both legs at hip level, anatomical loss of one leg AND one arm, and for a lack of light perception in both eyes. SMC(o) SMC(o) provides higher levels of compensation for various combinations of disabilities. See 38 USCA § 1114(o); 38 CFR § 3.350(e). * SMC(o) is assigned for anatomical loss of both arms preventing use of prosthetics. * SMC(o) is assigned for combinations of service connected blindness and deafness. * SMC(o) is assigned for paraplegia via the loss of use of both lower extremities together with loss of anal and bladder sphincter control and with a showing of helplessness. * SMC(o) is assigned when a Veteran is entitled to two SMC rates under SMC(l), (m), or (n). Each SMC entitlement must be totally separate from the other; one disability cannot support both SMC entitlements SMC(p) SMC(p) assigns whole or half steps of increased SMC depending on the combination of disabilities shown. See 38 USCA § 1114(p); 38 CFR § 3.350(f). It does not actually assign a rate as much as it provides a "bump up" for rates assigned under another SMC provision. SMC(p) is assigned for combinations of losses of two extremities as follows: Regulation Combination of Loss SMC 38 CFR § 3.350(f)(1)(i) foot and knee (l) + 1/2 38 CFR § 3.350(f)(1)(ii) foot and hip (m) 38 CFR § 3.350(f)(1)(iii) foot and elbow (l) + 1/2 38 CFR § 3.350(f)(1)(iv) foot and shoulder (m) 38 CFR § 3.350(f)(1)(v) knee and hip (m) + 1/2 38 CFR § 3.350(f)(1)(vi) knee and hand (l) + 1/2 38 CFR § 3.350(f)(1)(vii) knee and shoulder (m) + 1/2 38 CFR § 3.350(f)(1)(viii) hip and hand (m) 38 CFR § 3.350(f)(1)(ix) hip and elbow (m) + 1/2 38 CFR § 3.350(f)(1)(x) hand and elbow (m) + 1/2 38 CFR § 3.350(f)(1)(xi) hand and shoulder (n) 38 CFR § 3.350(f)(1)(xii) elbow and shoulder (n) + 1/2 SMC(p) is also assigned for combinations of bilateral loss of vision as well as blindness in connection with deafness and/or loss of an extremity; however, as this is not pertinent to the claim on appeal here, these provisions will not be provided. SMC(p) is assigned for the presence of additional disabilities (not involved in prior SMC determinations) rated 50 percent (additional 1/2 step) or 100 percent (additional whole step) disabling. SMC(p) is assigned for loss or loss of use of three extremities. SMC(r) There are two parts to SMC(r): there is special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is designated (r)(2). See 38 USCA § 1114(r); 38 CFR §§ 3.350(h), 3.352. SMC (r)(1), A&A: As a threshold matter, the Veteran must be entitled to SMC at the maximum (o) or (p) levels. Once this is established, the Veteran then also is entitled to A&A if the need is shown on a factual basis. SMC (r)(2), A&A: The Veteran must be receiving compensation at the intermediate rate between (n) and (o) plus (k). Once this threshold is established, the Veteran must show that he is in need of A&A, or a higher level of care. A higher level of care means that in the absence of such care, the Veteran would be an inpatient or resident at a hospital or nursing home. SMC(s) SMC(s) is governed by 38 USCA § 1114(s) and 38 CFR § 3.350(i). SMC(s) is also referred to as housebound. There are two different ways to assign SMC(s): Statutory Housebound and Housebound in Fact. Both Statutory Housebound and Housebound in Fact will require at least a single 100 percent disability. Statutory Housebound requirements: * At least a single 100 percent rating, and * Separate and distinct disabilities independently ratable at 60 percent. The separate 60 percent disabilities must involve separate and distinct anatomical segments or body systems. However, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. There is no requirement that either the 100 percent or the 60 percent rating be permanent for Statutory Housebound. Housebound in Fact requirements: * A single 100 percent disability, and * A factual determination that the Veteran is permanently housebound as a result of service-connected disabilities. This means that he or she is confined to the place of residence or immediate premises or, if institutionalized, to the ward or clinic areas. Effective December 1, 2011, the pay scale for SMC for a Veteran with a dependent spouse is as follows: Without Children, SMC-L through SMC-N Dependent Status L L1/2 M M1/2 N Veteran with Spouse $3,601 $3,779 $3,958 $4,219 $4,481 Without Children, SMC-N 1/2 through SMC-S Dependent Status N1/2 O/P R.1 R.2 S Veteran with Spouse $4,735 $4,990 $7,064 $8,080 $3,255 In this case, the Veteran is currently being paid SMC at the "m" rate with a dependent spouse. To warrant a higher level of SMC, the evidence must show entitlement to SMC at any of the following rates: M1/2, N, N1/2, O/P, R.1 or R.2. Note that S pays less than what the Veteran is currently receiving. The Veteran is currently being paid SMC at the "m" rate based on the loss of use of one foot and one leg. Loss of two feet entitles the Veteran to SMC under the "l" rate, and loss of both legs entitles the Veteran to SMC under the "m" rate. In this case, the Veteran "exceeds" the criteria for the "l" rate because his loss of use of one leg up to the hip and one foot is more severe than loss of use of both feet. Loss of use of one foot and one leg is not one of the listed criteria under "m"; however, under "p", the Veteran's "l" rate is bumped up to the next higher "m" rate because the loss of use of one foot and one leg "exceeds" the criteria for the "l" rate, but doesn't quite meet the criteria for the "m" rate. In other words, the Veteran's assignment of SMC at the "m" rate is assigned pursuant to the language at 38 U.S.C.A. § 1114 (p) which states that in the event the veteran's service-connected disabilities exceed the requirements for any of the rates prescribed in this section, the Secretary may allow the next higher rate or an intermediate rate. See also 38 C.F.R. § 3.350(f)(1)(ii). Significantly, 38 U.S.C.A. § 1114(p) also notes that in the event the veteran has suffered the anatomical loss or loss of use or a combination of anatomical loss and loss of use of three extremities, the Secretary shall allow the next higher rate or intermediate rate. The most recent medical evidence in this case shows that, in addition to the loss of use of both lower extremities, there is a possibility that the Veteran also has a loss of use of one or both of his upper extremities and/or loss of use of both buttocks. A March 2010 VA muscles examination notes that the Veteran has myopathy of the upper extremity with weakness of the right and left shoulder and the upper extremity secondary to compression on the axillary area. The examiner noted that there was nerve damage in the shoulders and the joints of both shoulders were also affected. Significantly, the examiner noted that the Veteran could not lift and carry. The examiner noted that the Veteran could sit without limitation, but could only stand and walk with a crutch, limitedly less than 100 feet. Additionally, the Veteran could not climb, kneel, bend, twist, pull or push. The examiner noted that the Veteran could do simple grasping on the right, but did not indicate as to what, if any ability, the Veteran had with regard to his left hand. The Veteran could not reach with the shoulder. Importantly, the examiner noted that the Veteran was scheduled for EMG testing in July 2010 (nerve conduction velocity study), and that results and opinion would follow. Neither the results of the July 2010 EMG, nor any opinion related thereto has been associated with the claims file. As the record is apparently incomplete, the matter must be remanded to obtain those records, and any other VA and/or private records pertinent to the claim on appeal. Additionally, VA examination in July 2008 indicates that the Veteran is in need of A&A due to the loss of use of the right and left legs, but also due to his lung condition, which is also a service-connected disability; yet, it is unclear as to the current nature or severity of that lung condition. In sum, based on the Veteran's loss of use of the right foot and anatomical loss of the left leg at the hip, in addition to his other service-connected disabilities, there are only a few ways that he can qualify for a rate of SMC higher than "m". First, if the Veteran is found "helpless" in addition to his loss of use of both legs, his "m" rate would be bumped to the rate of "o." See 38 C.F.R. § 3.350(o)(2). However, the "helplessness" must be based on need resulting from pathology other than that of the extremities. Here, the Veteran has been awarded service-connection for a cervical spine disability, lumbar spine disability, a lung condition and disabilities of both upper extremities. It is unclear whether these disabilities, in combination, render the Veteran helpless. Similarly, if the Veteran were found to have another service-connected disability, or combination of disabilities, independently ratable at 50 percent, SMC would be payable at the next higher rate, as long as these disabilities were separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under "m." Here, the Veteran's other service-connected disabilities of the cervical and lumbar spine segments, as well as the lung condition and upper extremity conditions must be evaluated to determine whether they, in combination, or singly, produce disability ratable at 50 percent or higher, independently from the loss of use of the lower extremities. Finally, if the Veteran can establish the loss of use of a third extremity, such as one of the upper extremities, or both buttocks (under "k"), then SMC would be payable at the next higher rate. The current examinations of record do not provide enough medical information for the Board to make an informed determination in this regard. In addition, the RO has not yet considered these matters. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Obtain and associate with the claims file all relevant VA medical records, including the July 2010 EMG results and any additional medical opinions relating thereto referred to by the May 2010 VA examiner. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file any private treatment records identified by the Veteran as pertinent to his claim on appeal. 3. Schedule the Veteran for appropriate VA examinations to determine the current nature, extent, and severity of the Veteran's service-connected upper extremities, as well as the status of both buttocks to determine whether there is loss of use. With regard to the buttocks, the examiner should opine whether it is at least as likely as not that the Veteran has a disability of the buttocks that is due to or aggravated by the service-connected disabilities. Additionally, the examiner should determine the current nature and severity of the service-connected chest wall/lung condition, and cervical and lumbar spine conditions, as well as the service-connected right and left shoulder disabilities, to determine whether these disabilities create a state of helplessness independent from the loss of use of the lower extremities. The examiner should also address whether there is a loss of anal and bladder sphincter control. Additionally, the current severity of these disabilities must be obtained to determine whether there are service-connected disabilities, in combination, or singly, are severe enough to be independently rated as 50 percent disabling for purposes of establishing SMC at a rate higher than "m". 4. Ensure the above development has been properly completed and that the examination reports and opinions are complete and responsive, conduct any other development deemed warranted and then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, VBA should provide the Veteran and his representative with a supplemental statement of the case, which addresses whether a rate higher than what is paid pursuant to 38 U.S.C.A. § 1114(m), to include as a result of the need for regular aid and attendance of another person, is warranted. Allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).