Citation Nr: 1007608	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  05-06 420A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUES

1.  Entitlement to an increased evaluation for low back 
disability, characterized as lumbar strain with spondylosis 
deformans involving the lumbar spine associated with 
degenerative disc disease of T-12/L-1, L-2/L3, L-3/L-4, L-
4/L-5, and L-5/S-1, currently evaluated as 40 percent 
disabling.

2.  Entitlement to special monthly compensation (SMC) on the 
basis of need for regular aid and attendance or being 
housebound.



ATTORNEY FOR THE BOARD

D. Schechter, Counsel



INTRODUCTION

The Veteran had active service from March 1946 to March 1949.  
He was born in May 1927.

This appeal was brought to the Board of Veterans' Appeals 
(Board) from rating actions by the above Department of 
Veterans Affairs (VA) Regional Office (RO) in February 2004 
and March 2005.

Service connection is also in effect for right knee 
arthroplasty (previously described as "traumatic 
degenerative arthritis of the right knee"), rated as 30 
percent disabling; bilateral pes planus with bilateral 
calcaneal spurring, rated as 10 percent disabling; and 
athlete's foot, bilateral, rated at 10 percent.  A total 
disability rating based on individual unemployability due to 
service-connected disabilities (TDIU) has been granted, for a 
brief time before a total schedular rating for the right knee 
arthroplasty in 1999, and then with TDIU again effective from 
May 1, 2000.

The Veteran was scheduled for a videoconference hearing in 
April 2007, but failed to appear for that hearing.  The Board 
remanded the case to address the low back claim in May 2007.  
The special monthly compensation claim was deferred pending 
development of the low back claim.  The Board remanded both 
claims in February 2008, to afford the Veteran the 
opportunity to clarify whether he still desired a Board 
hearing.  The Board subsequently determined that the Veteran 
no longer desired a hearing, based on his failure to reply to 
a March 2008 notice letter requesting clarification as to 
whether he still desired a hearing.  The Veteran's daughter, 
on his behalf, informed VA by an August 2009 telephone 
conversation that the Veteran was incapacitated and she had 
been appointed as his guardian.  Development requested by the 
April 2009 Board remand having been accomplished, including 
in particular by a further VA examination conducted in August 
2009, the case has been returned to the Board for further 
review.

This appeal has been advanced on the Board's docket pursuant 
to 38 C.F.R. § 20.900(c) (2009).  38 U.S.C.A. § 7107(a)(2) 
(West 2002).

FINDINGS OF FACT

1.  The Veteran has ankylosis effectively involving the 
entire spine, with difficulty walking because of limited line 
of vision resulting from a stooped position due to 
unfavorable flexion ankylosis of the thoracolumbar spine as 
well as ankylosis of the cervical spine, and restricted 
opening of the mouth and chewing.  

2.  As a result of his service-connected lumbar disorder, the 
Veteran is both effectively housebound and in need of regular 
aid and attendance of another person for his daily 
activities.  


CONCLUSIONS OF LAW

1.  The schedular criteria for a 100 percent evaluation for 
the service-connected back disorder are met.  38 U.S.C.A. 
§§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§  4.1, 
4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5293 (2009).

2.  The criteria for an award of special monthly compensation 
based on the need for the regular aid and attendance of 
another person have been met.  38 U.S.C.A. §§ 1114, 5107 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.350, 3.352 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper 
notice from VA must inform the claimant of any information 
and evidence not of record (1) that is necessary to 
substantiate the claim; (2) that VA will seek to provide; and 
(3) that the claimant is expected to provide.  38 C.F.R. § 
3.159(b)(1) (2008).  This notice must be provided prior to an 
initial decision on a claim by the RO.  Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. 
Principi, 18 Vet. App. 112 (2004). 

The Board herein grants the benefits sought, to the extent 
adjudicated herein.  A 100 percent rating for low back 
disability as well as SMC based on need for aid and 
attendance or being housebound are herein granted, which are 
the maximum benefits sought in this appeal.  Effective dates 
for these grants of benefits are not herein resolved because 
of the absence of some relevant medical records, as discussed 
infra.  However, to the extent the appealed claims are 
adjudicated herein, the maximal benefit sought is herein 
granted by the Board, and hence there is no reasonable 
possibility that additional development would further the 
claims to that extent.  Hence, no further notice or 
development assistance pursuant to the VCAA need be 
undertaken prior to the Board's adjudication, due to the 
absence of reasonable possibility of furthering the claims to 
that extent.  

The Board observes that we could remand the claims herein 
adjudicated rather than granting, in order to resolve 
questions of effective date simultaneously with questions of 
entitlement to the benefits sought.  However, the Veteran is 
ill, and his case has been advanced on the Board's docket.  
The record reveals his severe degree of infirmity and 
cognitive decline, including as reflected in the most recent 
VA examination in September 2009.  Hence, the Board concludes 
that the better course in this case is to resolve those 
issues which may be resolved by the present decision - to the 
fullest extent they may be resolved - so that the Veteran may 
appreciate the resolution of his claim to that extent, while 
he yet lives and while he yet possesses some measure of 
cognitive capacity for that enjoyment.  

The Board is aware of the U.S. Court of Appeals for Veterans 
Claims has often stated its interest in the conservation of 
judicial resources by avoiding piecemeal litigation.  See 
Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court 
will [not] review BVA decisions in a piecemeal fashion"); 
Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) 
("[a]dvancing different arguments at successive stages of 
the appellate process does not serve the interests of the 
parties or the Court").  However, the exigencies of the 
present case warrant the expeditious action taken herein, 
with the matter of effective date left for the RO to resolve 
in effectuation the decisions herein.  

II.  Entitlement to an Increased Rating for Low Back 
Disability,
and for SMC Based on Need for Aid and Attendance
or Being Housebound

Disability evaluations are assigned to reflect levels of 
current disability.  The appropriate rating is determined by 
the application of a schedule of ratings which is based on 
average impairment of earning capacity.  Separate diagnostic 
codes identify the various disabilities.  38 U.S.C.A. § 1155 
(West 2002 & Supp. 2009); 38 C.F.R. Part 4 (2009).   Staged 
ratings are to be considered for assigning initial ratings 
downstream of grants for service connection, beginning from 
the effective date of service connection, as in this case 
with the claim for the back disability.  Fenderson v. West, 
12 Vet. App 119 (1999).  When there is a question as to which 
of two evaluations shall be applied, the higher evaluation 
will be assigned if the disability picture more nearly 
approximates the criteria required for that rating.  
Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7 (2009).

These ratings are determined by applying the criteria set 
forth in the VA Schedule for Rating Disabilities (Rating 
Schedule).  In all cases, the Board attempts to determine the 
extent to which the Veteran's disability adversely affects 
his ability to function under the ordinary conditions of 
daily life, and the assigned rating is based, as far as 
practicable, upon the average impairment of earning capacity 
in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § § 4.1, 
4.10.

When reviewing the level of disability due to a service- 
connected joint disorder, when the rating is based on 
limitation of motion, the Board must consider an increased 
schedular rating based on functional loss due to pain on 
undertaking motion, weakened movement, fatigability, and 
incoordination. 38 C.F.R. §§ 4.40, 4.45 (2009); DeLuca v. 
Brown, 8 Vet. App. 202 (1995).

Medical evidence is generally required to establish a medical 
diagnosis or to address other medical questions, and lay 
assertions do not constitute competent medical evidence for 
these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 
(1992).  However, lay statements may serve to support claims 
by supporting the occurrence of lay-observable events or the 
presence of disability or symptoms of disability subject to 
lay observation.  38 C.F.R. § 3.303(a); Jandreau v. 
Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan 
v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) 
(addressing lay evidence as potentially competent to support 
presence of disability even where not corroborated by 
contemporaneous medical evidence).

The present appeal involves the veteran's claim that the 
severity of his service-connected low back disability 
warrants a higher disability rating.  The general rating 
formula for the spine provides for the disability ratings 
under Diagnostic Codes (DCs) 5235 to 5243, unless the 
disability rated under DC 5243 is evaluated under the Formula 
for Rating Intervertebral Disc Syndrome Based on 
Incapacitating Episodes, for diseases and injuries of the 
spine, with or without symptoms such as pain (whether or not 
it radiates), stiffness, or aching in the area of the spine 
affected by residuals of injury or disease.  38 C.F.R. 
§ 4.171a, DCs 5235-5243 (2009).

Under the general rating formula for diseases and injuries of 
the spine, ratings are assigned as follows: a 40 percent 
rating is assigned for unfavorable ankylosis of the entire 
cervical spine; or, forward flexion of the thoracolumbar 
spine 30 degrees or less; or favorable ankylosis of the 
entire thoracolumbar spine; a 50 percent rating is awarded 
for unfavorable ankylosis of the entire thoracolumbar spine; 
and a 100 percent rating is warranted for unfavorable 
ankylosis of the entire spine.

Instructive notes inform of appropriate rating under the 
applicable codes.  Note (1) to the rating formula specifies 
that any associated objective neurologic abnormalities, 
including, but not limited to, bowel or bladder impairment, 
should be separately evaluated under an appropriate 
diagnostic code.

Note (2): (See also Plate V).  For VA compensation purposes, 
normal forward flexion of the cervical spine is zero to 45 
degrees, extension is zero to 45 degrees, left and right 
lateral flexion are zero to 45 degrees, and left and right 
lateral rotation are zero to 80 degrees.  Normal forward 
flexion of the thoracolumbar spine is zero to 90 degrees, 
extension is zero to 30 degrees, left and right lateral 
flexion are zero to 30 degrees, and left and right lateral 
rotation are zero to 30 degrees.  The combined range of 
motion refers to the sum of the range of forward flexion, 
extension, left and right lateral flexion, and left and right 
rotation.  The normal combined range of motion of the 
cervical spine is 340 degrees and of the thoracolumbar spine 
is 240 degrees.  The normal ranges of motion for each 
component of spinal motion provided in this note are the 
maximum that can be used for calculation of the combined 
range of motion.

Note (3):  In exceptional cases, an examiner may state that 
because of age, body habitus, neurologic disease, or other 
factors not the result of disease or injury of the spine, the 
range of motion of the spine in a particular individual 
should be considered normal for that individual, even though 
it does not conform to the normal range of motion stated in 
Note (2).  Provided that the examiner supplies an 
explanation, the examiner's assessment that the range of 
motion is normal for that individual will be accepted.

Note (4):  Round each range of motion measurement to the 
nearest five degrees.

Note (5):  For VA compensation purposes, unfavorable 
ankylosis is a condition in which the entire cervical spine, 
the entire thoracolumbar spine, or the entire spine is fixed 
in flexion or extension, and the ankylosis results in one or 
more of the following: difficulty walking because of a 
limited line of vision; restricted opening of the mouth and 
chewing; breathing limited to diaphragmatic respiration; 
gastrointestinal symptoms due to pressure of the costal 
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or 
cervical subluxation or dislocation; or neurologic symptoms 
due to nerve root stretching. Fixation of a spinal segment in 
neutral position (zero degrees) always represents favorable 
ankylosis.

Note (6):  Separately evaluate disability of the 
thoracolumbar and cervical spine segments, except when there 
is unfavorable ankylosis of both segments, which will be 
rated as a single disability.

The law also permits an increased rate of compensation to 
veterans who are in need of regular aid and attendance.  38 
U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).

Determinations as to need for aid and attendance must be 
based on actual requirements 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 (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. 
"Bedridden" will be a proper basis for the determination.  
38 C.F.R. §§ 3.350(b)(3), 3.352(a). 

For the purpose of the foregoing, "bedridden" will be that 
condition which, through its essential character, actually 
requires that the claimant remain in bed.  The fact that 
claimant has voluntarily taken to bed or that a physician has 
prescribed rest in bed for the greater or lesser part of the 
day to promote convalescence or cure will not suffice.  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 functions 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.  Determinations that the veteran is 
so helpless, as to be in need of regular aid and attendance 
will not be based solely upon an opinion that the claimant's 
condition is such as would require him or her to be in bed.  
They must be based on the actual requirement of personal 
assistance from others.  Id.

Where a veteran does not meet the qualifications for pension 
at the aid and attendance rate, another special monthly 
compensation may be applicable.  38 U.S.C.A. § 1114(s); 
38 C.F.R. § 3.350(i) allows for SMC where a veteran who has a 
disability which is rated as 100 percent disabling also 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 
is housebound.  The housebound question need not be addressed 
in this case, because the Board finds that the Veteran meets 
the requirements for SMC based on the need for aid and 
attendance, as discussed infra.

The Veteran was most recently afforded a VA examination in 
September 2009 to evaluate his service-connected low back 
disorder.  At that examination the Veteran reported have back 
pain as well as neck pain, lasting hours daily.  He further 
complained that his back gets very stiff and he cannot move.  
The examiner noted that the Veteran used two canes, a brace, 
and a wheelchair, and that he was non-ambulatory, with 
inability to stand or walk without assistance.  The Veteran 
had a stooped posture with kyphosis and scoliosis of the 
spine.  Ankylosis was noted of part of the cervical as well 
as part of the thoracolumbar spine, with the thoracolumbar 
spine ankylosed in a flexed position, and he had difficulty 
walking due to a limited line of vision.  The examiner also 
noted that the Veteran had difficulty opening his mouth and 
chewing, also due to flexion ankylosis.  The examiner noted 
that the thoracic sacrospinals exhibited spasms left and 
right, atrophy left and right, guarding left and right, pain 
with motion left and right, tenderness left and right, and 
weakness left and right; these symptoms were noted to be 
severe enough to be responsible for abnormal gait or abnormal 
spinal contour.  

The examiner noted that testing of spinal range of motion 
could not be performed due to Alzheimer's disease and 
previous strokes resulting in the Veteran's inability to 
follow directions well.  The examiner further noted that the 
Veteran was confined to a wheelchair.  X-rays of the spine 
showed significant degeneration, with the 
L2-L3 and L3-L4 disc spaces poorly visualized.  Significant 
disc disease was present in both the cervical and lumbar 
spine.  The examiner noted that questions of significant 
incapacitating episodes could not be adequately addressed 
because of the already very low level of functioning of the 
Veteran.  The examiner assessed that the Veteran could not 
stand and support himself, and that he was essentially 
housebound and required aid and attendance for activities of 
daily living.  

Affording the Veteran the benefit of the doubt, the Board 
concludes that his service-connected low back disorder 
effectively amounts to unfavorable ankylosis of the entire 
spine, with the Veteran's spine fixed in a stooped position 
due to ankylosis, and ambulation impaired as the examiner 
found, due to reduced vision from this stooped position, and 
with restricted opening of the mouth and chewing also due to 
ankylosis.  38 C.F.R. § 4.71a, Diagnostic Code 5240, Note 
(5).  

Accordingly, the Board concludes that a 100 percent 
evaluation is warranted for the Veteran's low back disorder.  
Id.  The Board also concludes, based including on the 
findings upon this September 2009 examination, that special 
monthly compensation based on the need for aid and attendance 
should be granted to the Veteran.

We recognize that the RO denied aid-and-attendance benefits 
on the ground that the Veteran has several non-service-
connected disabilities which cause serious impairment.  
However, based upon the foregoing medical opinion, as it is 
supported by the other medical evidence of record, the Board 
finds there is reasonable doubt that the Veteran is so 
helpless as to need regular aid and attendance due to his 
service-connected disabilities.  The Board therefore holds 
that an award of SMC based upon this need is warranted.  
Because the aid and attendance benefit is paid at a higher 
rate than the housebound benefit, the claim for housebound 
benefits is rendered moot, and no further analysis is 
required.

The Veteran was granted a total disability rating based on 
unemployability due to service-connected disabilities (TDIU) 
effective from June 1998.  Hence, a total rating for the low 
back based on unemployability is not for consideration in 
this case since that time.  While the Board herein grants a 
total schedular rating for a low back disorder and SMC based 
on need of aid and attendance, it does not herein ascertain 
an effective date to be afforded for the low back disorder 
rating and the grant of SMC. 

The evidentiary record, in particular a record of VA 
examination conducted in August 2009, as discussed supra, 
supports these grants.  However, that examination record also 
informs that the Veteran suffers from severe comorbid 
incapacitation associated with past strokes and Alzheimer's 
disease.  An April 2007 VA treatment record informs that a 
recent hip replacement surgery resulted in two strokes from 
which the Veteran experienced no significant recovery, 
resulting in substantial incapacitation.  Records of that hip 
replacement surgery and associated hospitalization and follow 
up treatment, which may be important in ascertaining the 
appropriate effective dates for the grant of a 100 percent 
evaluation for the Veteran's low back disorder and for the 
grant of SMC based on the need for aid and attendance, are 
not contained in the claims file.  Hence, the Board finds 
that the effective date for the grant of the 100 percent 
rating for low back disorder and for the grant of SMC should 
be left to the RO upon effectuation of the Board's grants, 
based on a more complete record including of that hip 
replacement surgery and hospitalization and treatment 
thereafter.  


ORDER

A 100 percent rating is granted for the service-connected low 
back disability, subject to the law and regulations governing 
the payment of monetary awards.

Special monthly compensation based on the need for regular 
aid and attendance of another person is granted, subject to 
the laws and regulations governing the award of monetary 
benefits.



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


 Department of Veterans Affairs