Citation Nr: 0031408 Decision Date: 11/30/00 Archive Date: 12/06/00 DOCKET NO. 96-13 736A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to increased special monthly compensation. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his fiancée ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel REMAND The veteran served on active duty from September 1977 to November 1981. This matter comes to the Board of Veterans' Appeals (Board) following an October 1995 decision by the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claim for special monthly compensation. Subsequently, by an October 1996 hearing officer decision, the veteran was granted a combined 100 percent schedular rating for disability due to multiple sclerosis and special monthly compensation at the intermediate rate between subsection (l) and subsection (m) of 38 U.S.C.A § 1114 (West 1991 & Supp. 2000) based on loss of use of both feet with additional disabilities rated 50 percent or more. See 38 C.F.R. §§ 3.350(b), (f)(3) (2000). In April 1999, the Board remanded the veteran's appeal for further evidentiary development. Initially, the Board notes that controlling laws and regulations provide that when pertinent evidence is submitted in a timely fashion to the Board, such evidence must be referred to the agency of original jurisdiction (AOJ) for review and preparation of a supplemental statement of the case unless the claimant or appointed representative waives such consideration. 38 C.F.R. §§ 19.37(a), 20.1304 (2000). In this regard, the Board received from the veteran's representative additional VA treatment records, dated from April 1998 to October 2000, which specifically refer to, among other things, the extent of the veteran's symptomatology due to his service-connected multiple sclerosis. Specifically, the records include a statement that the veteran self-catheterized ever four to six hours in order to handle his bladder problems. Therefore, the Board finds that it is pertinent to the issue on appeal. However, because the veteran's representative, in a November 2000 informal brief, expressly withheld a waiver of AOJ review, a remand is required. Id. Next, the Board notes that the case was remanded in April 1999, in part, to obtain copies of the medical reports that supported a February 1990 award of Social Security Administration (SSA) disability benefits. However, while the RO, in August 1999 requested copies of the SSA records, none was received from SSA. Therefore, on remand, additional efforts must be made to obtain these records. See Stegall v. West, 11 Vet. App. 268 (1998); Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The Board also finds that, given the context of the veteran's claim and the state of the record, further evidentiary development is required. This is so, in part, because the record contains conflicting opinions as to the severity of the veteran's adverse symptomatology. At a June 1996 VA housebound examination, it was observed that the veteran required a urinal several times a day because of incontinence, that catheterization was required several times a day, and that he had lost voluntary bowel movements. It was opined that the conditions would not improve. As to his upper extremities, it was observed that the veteran had decrease in fine finger coordination in both hands. As to his lower extremities, it was observed that the veteran could barely raise his legs against gravity, had muscle atrophy, and fatigued rapidly. It was opined that the veteran required daily personal health care services of a skilled provider without which he would require institutional care. Likewise, at a July 1996 VA examination, the veteran reported that he was no longer able to ambulate (essentially wheelchair bound because of numbness, tingling, and paresthesias in the lower extremities as well as progressive weakness), had bladder incontinence (wore diapers that had to changed five to six times per day due to incontinence), had bowel incontinence (lost continence of his bowels two to three times per week), had bouts of constipation, and required assistance for all of his activities of daily living, including feeding himself, clothing himself, and personal hygiene. He also complained of loss of hand coordination. On examination, he had a great deal of spasticity in the lower extremities with sustained ankle clonus bilaterally, decreased fine finger movement and coordination bilaterally, decreased sensation bilaterally in the lower extremities, and mild loss of vibratory sensation bilaterally in the upper extremities. It was opined that, while the veteran could stand, he was unable to ambulate without a great deal of assistance. It was noted that the veteran had bowel and bladder incontinence issues, was a likely candidate for self catheterization, wore diapers which had to be changed five to six times a day, was plagued with bowel incontinence, and required total support care for activities of daily living. Similarly, in the January 1999 statement from Craig N. Bash, M.D., after an extensive review of the record, it was opined that the veteran had lost the use of the lower extremities, had incontinence of bowel and bladder, wore absorbent (diapers) materials which had to be changed more than four times a day, had to use suppositories for bouts of constipation, and lost continence of his bowels two to three times per week. It was concluded that the veteran had total incontinence of bladder and bowel. In addition, an October 2000 VA treatment record shows that the veteran self-catheterized ever four to six hours, had some voiding between catheterizations, residual urine had averaged approximately 200 to 500 cc's, and recently he had had some urgency requiring more frequent catheterization. On the other hand, at a March 2000 VA examination, observations were made that suggested less severe difficulties than those described above. Specifically, the examiner, without indicating that a review of the record had been undertaken, reported that [the veteran claimed to have] bowel control. He uses Colace twice a day for bouts of constipation. He is on a regular toileting schedule every morning. He has the sensation of when he needs to go and then can control his movements. He does have some urgency and needs to find a bathroom quickly from the time he has the sensation to the time he needs to evacuate. He remains clean throughout the day. He has only occasional accidents one time per month on average. He does not use a diaper during the day or at night. It is my opinion that he does have sphincter control and does not have total bowel incontinence. The Board finds that, given the varying characterizations of the degree of disability caused by his service-connected disability and because of VA's duty to assist, which requires that the veteran be given a thorough and contemporaneous examination that takes into account the records of prior examinations and treatment, the claim should be remanded for a clarifying VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991); Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994); Massey v. Brown, 7 Vet. App. 204 (1994); 38 C.F.R. § 3.326 (1999). This appeal is REMANDED for the following actions: 1. The veteran should be allowed to supplement the record on appeal. The veteran should be contacted and asked to identify all health-care providers who treated him recently for multiple sclerosis. Necessary consent forms should be obtained. All identified records should be obtained and associated with the record. Another attempt should be made to obtain SSA records. If the RO is unable to obtain evidence identified by the veteran or from SSA, the RO should so notify the veteran, identifying the records it was unable to obtain, explaining the efforts that were made to obtain those records, and describing any further action to be taken with respect to his claim. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). 2. The veteran should be scheduled for VA urological, orthopedic, and neurological evaluations to determine the extent of his service-connected multiple sclerosis. The examiner(s) should review the entire claims folder and, to the extent feasible, identify each functional debility legitimately experienced by the veteran due to service-connected disability and provide findings that take into account all functional impairments due to service-connected disability. a. As to loss of bladder control, the examiner(s) should provide an opinion as to whether the veteran has urine leakage or urinary incontinence requiring the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a; Diagnostic Code 7512 (2000). b. As to both anal and bladder sphincter control, the examiner(s) should provide an opinion as to whether the veteran has loss of anal and/or bladder sphincter control. The examiner(s) should provide an opinion as to whether incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. 38 C.F.R. § 3.305(e)(2) (2000). Thereafter, the examiner(s) should provide an opinion as to whether the veteran has impairment of rectum and anus sphincter control with occasional involuntary bowel movements necessitating the wearing of a pad, with extensive leakage and fairly frequent involuntary bowel movements, or with complete loss of sphincter control. 38 C.F.R. § 4.114; Diagnostic Code 7332 (2000). c. As to his lower extremities, the examiner(s) should provide an opinion as to whether the veteran's service connected lower extremity disability equates to paraplegia - paralysis of the lower extremities. 38 C.F.R. § 3.305(e)(2) (2000). d. As to his upper extremities, the examiner(s) should provide an opinion as to whether the veteran has loss of use of both hands. 38 U.S.C.A. § 1114(m) (West 1991 & Supp. 2000). e. Lastly, the examiner(s) should provide an opinion as to whether the veteran is in need of aid and attendance on account of disability other than that resulting from loss of use of the lower extremities. Specifically, the examiner(s) must state if the veteran is helpless or is so nearly helpless as to require the regular aid and attendance of another person. § 3.350(b)(3). Factors to be considered include whether the veteran is able to dress or undress himself; to keep himself ordinarily clean; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances; inability to feed himself; inability to attend to the wants of nature; incapacity that requires assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment; and/or whether the veteran is bedridden. § 3.352(a). f. All opinions provided should be explained in the context of other opinions of record, including the June 1996 housebound examination, the July 1996 VA examination, the January 1999 statement from Craig N. Bash, M.D., and the March 2000 VA examination. 3. The RO should review the examination report(s) for compliance with the instructions set out above, especially with respect to the requested medical opinions. If the instructions have not been followed, the examination(s) should be returned to the examiner(s) for further action. 4. Additional evidentiary development as suggested by the evidence obtained pursuant to the instructions set forth above should be undertaken by the RO. 5. Thereafter, adjudicatory action should be taken on the basis of the entire record. If the benefit sought is not granted, the veteran and his representative should be furnished a supplemental statement of the case (SSOC). After the veteran has been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until further notice is received. The purpose of this remand is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board is appealable to the Court. 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) (2000). - 9 -