Citation Nr: 1031146	
Decision Date: 08/18/10    Archive Date: 08/24/10

DOCKET NO.  92-20 170	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New 
York


THE ISSUE

Entitlement to a level of special monthly compensation (SMC) in 
excess of that authorized under 38 U.S.C. § 1114(n).


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Esq.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel


INTRODUCTION

The Veteran served on active duty from May 1946 to November 1947.

This case originally came before the Board of Veterans' Appeals 
(Board) on appeal of a March 1992 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in New 
York, New York that denied reopening of a previously-denied claim 
of service connection for multiple sclerosis.  Service connection 
for multiple sclerosis was eventually granted, and SMC was 
authorized consequent to multiple sclerosis effective from 
December 15, 1998.  

The issue presently before the Board arises from a February 2001 
RO rating decision that granted an earlier effective date of 
December 19, 1991, for SMC.  The Veteran thereupon appealed for a 
higher rate of SMC and an earlier effective date.  The RO issued 
a rating decision in November 2001 retroactively granting SMC at 
the "p" level, but the Veteran continued his appeal for both a 
higher rate and an earlier effective date.

The Board remanded the case for further development in December 
2003.  In December 2005 the Board issued a decision denying an 
earlier effective date for SMC; at that time, the Board also 
remanded the issue of entitlement to a higher rate of SMC for 
further development.  The Board remanded the issue once again in 
September 2006.

In August 2009 the Board issued a decision increasing SMC from 
the "p" rate under 38 U.S.C.A. § 1114(p) (which results in an 
award halfway between the "l" rate and the "m" rate) to the 
higher "n" rate.  Not content with the Board's award, the 
Veteran appealed the Board's decision to the U.S. Court of 
Appeals for Veterans Claims (Court), which issued an Order in May 
2010 granting a joint motion of the parties to vacate the Board's 
decision to the extent that it denied SMC in excess of the "n" 
rate and remanded the case to the Board for action in compliance 
with the joint motion. 
 

This appeal has been advanced on the Board's docket pursuant to 
38 C.F.R. § 20.900(c) (2009).  


FINDINGS OF FACT

1.  The Veteran's service-connected disability picture includes 
loss of use of both lower extremities at a level that precludes 
natural knee action; he has total loss of bladder control but not 
total loss of bowel control.

2.  The Veteran's disability picture does not entitle him to two 
or more of the rates provided in 38 U.S.C.A. § 1114(l) through 
38 U.S.C.A. § 1114(n) with no service-connected condition being 
considered twice.


CONCLUSION OF LAW

The criteria for the assignment of special monthly compensation 
in excess of the n rate are not met.  38 U.S.C.A. § 1114 (West 
2002 & Supp. 2009); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran claims entitlement to a level of SMC higher than the 
currently assigned rate.  The Board will initially discuss 
certain preliminary matters and will then address the pertinent 
law and regulations and their application to the facts and 
evidence.

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified in 
pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 
2009), and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2009), provide that VA will assist a claimant in 
obtaining evidence necessary to substantiate a claim but is not 
required to provide assistance to a claimant if there is no 
reasonable possibility that such assistance would aid in 
substantiating the claim.  They also require VA to notify the 
claimant and the claimant's representative, if any, of any 
information, and any medical or lay evidence, not previously 
provided to the Secretary that is necessary to substantiate the 
claim.  

As part of the notice, VA is to specifically inform the claimant 
and the claimant's representative, if any, of which portion, if 
any, of the evidence is to be provided by the claimant and which 
part, if any, VA will attempt to obtain on behalf of the 
claimant.  Although the regulation previously required VA to 
request that the claimant provide any evidence in the claimant's 
possession that pertains to the claim, the regulation has been 
amended to eliminate that requirement for claims pending before 
VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for 
Veterans Claims (Court) has held that the plain language of 38 
U.S.C.A. § 5103(a) (West 2002), requires that notice to a 
claimant pursuant to the VCAA be provided "at the time" that, 
or "immediately after," VA receives a complete or substantially 
complete application for VA-administered benefits.  Pelegrini v. 
Principi, 18 Vet. App. 112, 119 (2004).  The Court further held 
that VA failed to demonstrate that, "lack of such a pre-AOJ-
decision notice was not prejudicial to the appellant, see 38 
U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 
2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) 
(providing that '[i]n making the determinations under [section 
7261(a)], the Court shall . . . take due account of the rule of 
prejudicial error')." Id. at 121.  

In the case at hand, the Veteran was sent a letter in March 2006 
that provided adequate notice concerning the effective-date 
element of his claim.  In addition, he was sent a letter in June 
2007 detailing the evidence required to establish entitlement to 
SMC at a higher rate and the respective duties of VA and the 
claimant in obtaining evidence.  Although the Veteran was not 
provided complete notice until after the initial adjudication of 
the claim, the Board finds that there is no prejudice to him in 
proceeding with the issuance of a final decision.  See Bernard v. 
Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board 
notes that following the provision of the required notice and the 
completion of all indicated development of the record, the 
originating agency readjudicated the Veteran's claim in June 
2009.  There is no indication in the record or reason to believe 
that the ultimate decision of the originating agency on the 
merits of the claim would have been different had complete VCAA 
notice been provided at an earlier time.  See Overton v. 
Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be 
cured by a new VCAA notification followed by a readjudication of 
the claim).  

The Board also notes the Veteran has been afforded appropriate VA 
examinations and service treatment records (STR), Social Security 
Administration (SSA) disability records, and pertinent VA and 
private medical records have been obtained.  Neither the Veteran 
nor his representative has identified any outstanding evidence 
that could be obtained to substantiate his claim.  The Board is 
also unaware of any such outstanding evidence, to include medical 
records.

The most joint motion of the parties, as incorporated by the 
Court's Order, expressed no issues regarding duties to notify and 
assist.  The Board is confident that if any additional VCAA 
defects existed at the time of its August 2009 decision, such 
defects would have been brought to the Court's attention in the 
interest of judicial economy.

In sum, the Board is satisfied that any procedural errors in the 
originating agency's development and consideration of the claim 
were insignificant and not prejudicial to the Veteran.  
Accordingly, the Board will address the merits of the claim.

Legal Criteria

A veteran who, as the result of a service-connected disability, 
has suffered the anatomical loss or loss of use of both feet, or 
is permanently bedridden or so helpless as to be in need of 
regular aid and attendance, shall receive SMC under the 
provisions of 38 U.S.C.A. § 1114(l).  See 38 C.F.R. § 3.350(b).

A veteran who, as the result of a service-connected disability, 
has suffered the anatomical loss or loss of use of both hands, or 
of both legs at a level, or with complications, preventing 
natural elbow or knee action with prostheses in place, rendering 
such veteran so helpless as to be in need of regular aid and 
attendance, shall receive SMC under the provisions of 38 U.S.C.A. 
§ 1114(m).  See 38 C.F.R. § 3.350(c).

A veteran who, as the result of a service-connected disability, 
has suffered the anatomical loss or loss of use of both arms at 
levels, or with complications, preventing natural elbow action 
with prostheses in place, or has suffered the anatomical loss of 
both legs so near to the hip as to prevent the use of prosthetic 
appliances, or has suffered the anatomical loss of one arm and 
one leg so near to the hip and shoulder as to prevent the use of 
prosthetic appliances, shall receive SMC under the provisions of 
38 U.S.C.A. § 1114(n).  See 38 C.F.R. § 3.350(d).

Where a veteran, as a result of service-connected disabilities, 
has suffered disability under conditions that would entitle such 
veteran to two or more of the rates provided in the sections 
above, no condition being considered twice in the determination, 
such veteran shall receive SMC under the provisions of  
38 U.S.C.A. § 1114(o).  See 38 C.F.R. § 3.350(e)(1).

Also, paralysis of both lower extremities together with loss of 
anal and bladder sphincter control will entitle 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 is met even though 
incontinence has been overcome under a strict regimen of 
rehabilitation of bowel and bladder training and other auxiliary 
measures.  See 38 C.F.R. § 3.350(e)(2).  Determination of 
combinations must be based upon separate and distinct 
disabilities; see 38 C.F.R. § 3.350(e)(3).  

Where a veteran's service-connected disabilities exceed the 
requirements for any of the rates prescribed above, VA may allow 
the next higher rating or an intermediate rate; any intermediate 
rate is established at the arithmetic mean, rounded down to the 
nearest dollar between the two rates concerned.  See 38 U.S.C.A. 
§ 1114(p); 38 C.F.R. § 3.350(f).

In addition to the statutory rates payable under 38 U.S.C.A. 
§ 1114(l) through (n) and the intermediate or next higher rate 
provisions outlined above, additional single permanent disability 
or combinations of permanent disabilities independently ratable 
at 50 percent or more will afford entitlement at the next higher 
intermediate rate or if already entitled to an intermediate rate 
to the next higher statutory rate under section 1114 but not 
above the rate under 38 U.S.C.A. § 1114(o).  In the application 
of this subparagraph the disability or disabilities independently 
ratable at 50 percent or more must be separate and distinct and 
must involve different anatomical segments or bodily systems from 
the conditions establishing entitlement under 38 U.S.C.A. 
§ 1114(l) through (n) or the intermediate rate provisions 
outlined above.  See 38 C.F.R. § 3.350(f)(3).

Also in addition to the statutory rates payable under 38 U.S.C.A. 
§ 1114(l) through (n) and the intermediate or next higher rate 
provisions outlined above, additional single permanent disability 
independently ratable at 100 percent apart from any consideration 
of individual unemployability will afford entitlement to the next 
higher statutory rate under 38 U.S.C.A. § 1114 or if already 
entitled to an intermediate rate to the next higher intermediate 
rate, but in no event higher than the rate for 38 U.S.C.A. § 1114 
(o).  See 38 C.F.R. § 3.350(f)(4).

If any veteran otherwise entitled to compensation under 
38 U.S.C.A. § 1114(o), at the maximum rate authorized under 
38 U.S.C.A. § 1114(p), or at the intermediate authorized under 
38 U.S.C.A. § 1114(n) and (o) and at the rate authorized under 
38 U.S.C.A. § 1114(k) is in need or regular aid and attendance, 
then in addition to such compensation the veteran shall be paid 
monthly aid and attendance under the provisions of 38 U.S.C.A. 
§ 1114(r)(1).  Such veteran who is in need of a higher level of 
care shall be paid monthly aid and attendance under the 
provisions of 38 U.S.C.A. § 1114(r)(2) if VA finds the veteran, 
in the absence of such care, would require hospitalization, 
nursing home care or other institutional care.  See 38 U.S.C.A. 
§ 1114(r); 38 C.F.R. § 3.350(h).
   
A veteran who has a service-connected disability rated as 100 
percent disabling and (1) has an additional service-connected 
disability or disabilities independently rated at 60 percent or 
more, or (2) by reason of such service-connected disability or 
disabilities is permanently housebound, shall receive SMC under 
the provisions of 38 U.S.C.A. § 1114(s).  See 38 C.F.R. 
§ 3.350(h)(3)(i).

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits under 
laws administered by the Secretary.  The Secretary shall consider 
all information and lay and medical evidence of record in a case 
before the Secretary with respect to benefits under laws 
administered by the Secretary.  When there is an approximate 
balance of positive and negative evidence regarding any issue 
material to the determination of a matter, the Secretary shall 
give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 
(West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 
(1990).  To deny a claim on its merits, the evidence must 
preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 
518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background

The Veteran has service connection for the following 
disabilities, all due to multiple sclerosis (MS): loss of use of 
both lower extremities (rated at 100 percent from December19, 
1991); urinary incontinence (rated at 40 percent from December 
19, 1991, and at 60 percent from June 9, 2005); bowel 
incontinence (rated at 10 percent from December 19, 1991, and at 
30 percent from December 15,1998); paresis of the left upper 
extremity (rated at 30 percent from December 19, 1991); paresis 
of the right upper extremity (rated at 20 percent from 
December19, 1991); nystagmus (rated at 10 percent from 
December19, 1991); and impotence (noncompensable but receiving 
SMC from December19, 1991).

Historically, a rating decision in March 1999 granted SMC at the 
S-1 (housebound) rate effective from December 15, 1998; it also 
granted entitlement to automobile and adaptive equipment and 
specially adaptive housing.  In February 2001 the RO issued a 
rating decision granting SMC at the S-1 rate from an earlier date 
of December 19, 1991; the same rating decision granted SMC at the 
K-1 level for loss of use of a creative organ, also effective 
from December 19, 1991, and reaffirmed entitlement to automobile 
and adaptive equipment and specially adaptive housing.  In 
November 2001 the RO issued a rating decision granting SMC at the 
P-1 level effective from December 19, 1991, and reaffirming SMC 
at the K-1 level and entitlement to automobile and adaptive 
equipment and specially adaptive housing.

The file contains statements submitted in February and March 1992 
by a number of the Veteran's acquaintances and family members in 
support of his claim for service connection.  The letters 
generally assert observable symptoms such as fatigue, headaches, 
speech impairment (slurring of words) and impairment of gait 
resulting in use of crutches, but do not show symptoms of such 
severity to warrant a higher level of SMC.

A VA rehabilitation services note dated in May 1993 shows the 
Veteran was transferred from a nursing home status post fracture 
of the left ulna the previous October.  The Veteran reported 
having had periods of exacerbations and remissions since the 
onset of MS.  Until 9 years previously he had been able to walk 
with a cane, but currently could stand and ambulate only with a 
walker.  He reported occasional diplopia and fair control of 
bladder and bowel.  On admission the Veteran had muscle strength 
of 3/5 in the left upper extremity (LUE) and left lower extremity 
(LLE), compared to 4-5/5 in the right upper extremity (RUE) and 
3+-4/5 in the right lower extremity (RLE).  The clinician's 
impression was impaired functional mobility secondary to MS with 
resultant weakness predominantly in the left side extremities and 
impaired coordination. 

VA occupational therapy (OT) notes dated in June 1993 state the 
Veteran was confined to a wheelchair but had no current 
limitations in the upper extremities.  The Veteran was noted to 
have good control of bowel and bladder and to be independent in 
grooming, dressing, activities of daily living (ADLs) and 
transfer activities.

A VA OT note dated in March 1994 states the Veteran was 
independent in ADLs and transfer activities; the Veteran in fact 
was able to walk more than 200 feet using a walker.  The Veteran 
was also noted as being continent in bowel and bladder.

The Veteran had a VA examination of the peripheral nerves in 
February 1995 that disclosed numbness and weakness of the left 
leg, diagnosed as myelopathy secondary to MS.  

The Veteran had another VA peripheral nerves examination in June 
1995 during which he complained of increased numbness of the 
right hand.  The examiner noted a history of gait ataxia and 
paraparesis as well as longstanding paraparesis of the LUE.  
Sensory examination showed decreased sensation on the left side 
of the feet and extremities and weakness in all ranges of motion.  
The examiner's impression was myelopathy and right cerebral 
dysfunction due to MS.

The Veteran had a VA examination in December 1998 in which the 
examiner noted the Veteran had been wheelchair-bound for at least 
8 years.  The Veteran complained of poor memory, severe left-
sided hemiparesis, occasional bowel and bladder incontinence, and 
rare diplopia.  On examination there was some muscle weakness and 
nystagmus in the left eye.  The examiner noted no bladder or 
bowel impairment on examination.  The examiner diagnosed MS, 
wheelchair-bound.

At a VA "routine checkup" in March 1999, it was noted the 
Veteran had been wheelchair-bound for 8 or 9 years.  The 
Veteran's vision was characterized as "okay" and he had 
adequate bladder control.  The Veteran was able to stand but 
could not walk.  

The Veteran's wife submitted a letter in May 1999 stating the 
Veteran had been issued a wheelchair in June 1993; the Veteran 
was now unable to stand or walk by himself and was totally 
reliant on the wheelchair for mobility.

The Veteran was evaluated for VA driver training in April 2000.  
The physician noted the Veteran was able to walk 100 feet with a 
standard walker.  Range of motion was normal for all extremities; 
power was 3+/5 in the LLE but "good+" in all others.  However, 
the Veteran became fatigued during behind-the-wheel testing so 
his candidacy for driver training was assessed as questionable.

The record contains a letter from Dr. CNB dated in July 2000 in 
which Dr. CNB stated an opinion, based on a review of the record, 
that the Veteran had intermittent urinary incontinence beginning 
in 1976 but by October 1988 the Veteran had persistent 
incontinence of both bladder and bowel.  Dr. CNB also stated the 
Veteran had loss of use of the left arm from 1986, citing a VA 
examination report in which the Veteran was noted to have had 
"decreased grip."
 
The Veteran had a VA genitourinary examination in May 2001 in 
which the examiner noted a history of MS and prostate cancer.  
The Veteran reported difficulty with urination and urinary 
incontinence, and the need to use adult undergarments to maintain 
dryness.  He also reported experiencing urinary tract infections 
every 4 to 5 months and stated he could empty his bladder 
sufficiently but was incontinent.  The examiner diagnosed 
prostate cancer, impotence and urinary incontinence.

The Veteran also had a VA rectum and anus examination in May 
2001, during which he reported that every 4 to 5 weeks he would 
have a stool of which he was unaware, but with no intermittent 
episodes of fecal leakage or involuntary bowel movements.  
Physical examination was grossly normal.  The examiner's 
diagnosis was intermittent anal incontinence, likely secondary to 
MS.

The Veteran also had a VA examination of the intestines in May 
2001 during which he endorsed experiencing constipation once 
every 4 to 5 months and diarrhea approximately once every 6 
months.  The abdominal examination was normal.

The Veteran also had a VA neurological examination in May 2001 
during which he reported living a basic bed-to-chair existence.  
The Veteran stated he could generally complete transfers by 
himself although he occasionally required help.  The Veteran 
reported he could not stand.  He endorsed mild difficulties using 
the upper extremities, left more than right; he also endorsed 
rare diplopia and rare dysphagia.  He reported being generally 
continent of both urine and stool, although having more accidents 
in both functions in recent years.  He denied significant loss of 
vision in either eye.  Physical examination revealed strength of 
5/5 in the RUE and 4/5 in the LUE, with normal tone for both but 
with dissymmetric tremors in both upper extremities (mild in the 
right, moderate in the left).  The lower extremities had 
diminished strength and markedly diminished tone, as well as 
diminished sensation.  The Veteran was unable to stand on 
examination.  The examiner's diagnosis was MS with loss of all 
functional capacity in the lower extremities and mild functional 
impairment in the upper extremities, more so on the left.

The Veteran's wife submitted a letter in April 2003 in which she 
reported the Veteran had to wear a pad or diaper constantly due 
to urinary and fecal incontinence.  The Veteran's memory and 
cognitive ability had deteriorated and he was no longer able to 
transfer from his chair to his bed or the toilet unassisted and 
he was no longer able to use a urinal in bed without assistance; 
he had many accidents soiling the bedding.

In April 2003 Dr. Craig N. Bash submitted a letter stating an 
opinion the Veteran had lost bowel sphincter control, based on 
the letter from the Veteran's wife (cited above) and also on 
statements made by the Veteran's wife during an examination 
performed by Dr. Bash in March 2003 (which is not of record) to 
the effect that the Veteran soils his sheets with stool, which 
she finds in the mornings when she makes the bed.  Dr. Bash 
stated the Veteran had demonstrated "constant" leakage of 
stool.

A VA social work progress note dated in August 2004 states the 
Veteran called requesting his home health assistance be reduced 
to 4 hours per day, 3 days per week.  The Veteran's wife also 
called in with the same request.  (The contracted provider 
declined to provide support for anything less than 8 hours per 
day, so authorization was eventually granted for 8 hours per day, 
3 days per week, extending to 5 days per week during scheduled 
surgery for the Veteran's wife.)  

At a routine VA outpatient follow-up examination in August 2004, 
the Veteran complained of increasing weakness in his legs; he 
stated he could no longer stand as he used to.  He also reported 
urinary incontinence but no change in bowel habits.  Neurologic 
examination showed paraparesis worse on the left; strength was 
2/5 in the RLE, 1/5 in the LLE, 5/5 in the RUE and 4/5 in the 
LUE.

At a routine VA outpatient follow-up examination in January 2005, 
the Veteran had no new complaints.  Neurologic examination showed 
paraparesis worse on the left; strength was 3/5 in the RLE, 1+/5 
in the LLE, 5/5 in the RUE and 4/5 in the LUE.

In February 2005 the Veteran's wife contacted a VA social worker 
and requested home health assistance be extended to 8 hours per 
day, 3 days per week on a regular basis.  

The Veteran had VA housebound examination in March 2005.  The 
examiner stated the Veteran was confined to a wheelchair.  The 
examiner particularly noted weakness on the left side (left 
arm/hand/leg/foot paresis) as well has history of urinary 
incontinence.  The examination report is silent in regard to any 
bowel dysfunction or loss of use of the upper extremities.  The 
examiner noted the Veteran was unable to walk without the 
assistance of another person but was able to leave his house in 
his motorized wheelchair, weather permitting.  The examiner 
indicated by checkmark that the Veteran required the daily 
personal health care services of a skilled provider, without 
which he would require hospital, nursing home or other 
institutional care.

A routine VA outpatient follow-up examination in March 2005 noted 
a slight progression of LLE weakness.  Neurologic examination 
showed strength of 0/5 in the LLE, 5/5 in the RLE, 4/5 in the LUE 
and 5/5 in the RUE.

The Veteran had a VA genitourinary examination in April 2005 in 
which he reported nocturia once per night and incontinence during 
the day requiring 3 to 4 pads per day due to leakage.  The 
examiner diagnosed urinary incontinence due to MS and also 
diagnosed erectile dysfunction.

The Veteran had a VA general medical examination in April 2005 in 
which the examiner noted the Veteran was unable to stand without 
assistance due to weakness of the left lower extremity.  The 
examiner noted urinary incontinence and occasional fecal 
incontinence.  The examiner noted the Veteran currently had a 
home health aide 8 hours per day, 5 days per week, but required 
assistance in cooking, shopping, cleaning, dressing and personal 
hygiene.  The examiner's diagnosis was MS, wheelchair-bound with 
spastic paraparesis.

The Veteran had a VA eye examination in April 2005 in which he 
denied diplopia, pain on eye movement, or any vision problems 
although he endorsed mild occasional irritation relieved by 
artificial tears.  On examination the Veteran had unrestricted 
eye movement with mild asymptomatic convergence insufficiency and 
end gaze nystagmus, causing no current visual disability.  The 
Veteran also had mild astigmatism and presbyopia, mild optic 
neuropathy likely due to MS, and congenital color blindness.

The Veteran had a VA brain and spinal cord examination in April 
2005 during which he reported using a pad for a 20-year history 
of urinary incontinence; he also reported a 3-year history of 
bowel incontinence 1 or 2 times per week.  He also reported a 5-
to-6 month history of intermittent, brief episodes of blurred 
(but not double) vision.  The Veteran reported experiencing poor 
balance for years.  The Veteran needed fulltime assistance for 
ADLs.  During examination the Veteran was alert and oriented 
times three, speech was normal and cranial nerves were grossly 
normal.  Extraocular muscles were intact, with 4 beats nystagmus 
in the left lateral gaze.  Power was 1/5 in the LLE and 4/5 in 
the other three extremities; touch and pinprick were 
satisfactory.  All deep tendon reflexes were 2; knee jerk and 
ankle jerk were absent bilaterally and range of motion was full.  
The examiner diagnosed MS.

The Veteran had a VA rectum and anus examination in April 2005 in 
which the examiner recorded a history of occasional fecal 
incontinence.  There was no evidence of fecal leakage on 
examination.  The examiner diagnosed MS with intermittent fecal 
incontinence.

A VA neurology outpatient note dated in June 2005 shows the 
Veteran complained of greater weakness and more falls; the 
Veteran's wife reported his increasing leg stiffness made it 
increasingly difficult for her to care for him.  The examiner 
noted recent magnetic resonance imaging (MRI) had shown moderate-
to-severe cervical spine stenosis and extensive MS changes in the 
brain.  The Veteran also reported urinary frequency, urgency and 
leakage.  Examination of the eyes showed left internuclear 
opthalmoplegia (INO) and right gaze paresis.  The extremities 
showed mild left arm dysmetria and bilateral leg 
extensor/adductor spasicity (marked in the right, moderate in the 
left).  Strength was 1/5 LLE and 4/5 RLE although slow and poorly 
controlled with bilateral Babinski.  The examiner's impression 
was MS probably decompensated by current fever/UTI, questionable 
role of spondylotic myelopathy, and doubtful primary progression 
of MS.  The Veteran was subsequently admitted for inpatient 
treatment for his fever.     

The Veteran had an MRI of the brain by VA in August 2005 that 
showed findings consistent with MS but no significant changes 
from the previous study; the findings also showed degenerative 
changes of the cervical spine with moderate-to-severe stenosis.

An August 2005 VA consultation note shows the Veteran had been 
increased to home care 8 hours per day, 7 days per week.  
However, the Veteran was not housebound in that he was able to 
travel for the purpose of receiving outpatient medical treatment.

An August 2005 VA outpatient treatment note shows complaints of 
left-sided weakness and worsened slurring of speech.  Neurologic 
examination showed quadriparesis; strength was 4/5 in the RUE, 
+3/5 in the LUE, 2+/5 in the RLE and 1+/5 in the LLE.  Left hand 
grip was 1+/5; the examiner also noted hypertonia and depressed 
reflexes.  The examiner noted the worsening hemiparesis could be 
due to worsening MS, cervical myelopathy or other intracranial 
pathology; also, urinary incontinence could be due to MS or to 
cord compression.

The Veteran underwent flexible cystoscopy by VA in August 2005 
due to urinary complaint of incontinence between voids; the 
impression was small contracted bladder with prostatic 
hypertrophy.  He subsequently underwent a video urodymamics 
evaluation by VA in October 2005 that resulted in postoperative 
diagnosis of urge incontinence from bladder instability with 
external sphincter dyssynergia. 

The Veteran's strength was assessed by VA for physical 
rehabilitation in September 2005.  Strength in the RLE was 2/5 in 
the muscle groups of the hip, 3/5 in the knee and 2/5 or 1/5 in 
the ankle.  Strength in the LLE was predominantly 1/5 in the 
muscle groups of the hips and knees and 0/5 in the ankles.  
Strength in the RUE was 4/5 or 4-/5.  Strength in the LUE was 3-
/5 in the grip and the muscle groups of the shoulder, and 4-/5 in 
the in the muscle groups of the elbow.  The Veteran required 
assistance to sit up in bed or to transfer; he was able to stand 
for not more than 30 seconds before being overcome by fatigue.  
Subsequent physical therapy resulted in some improvement in 
strength and ability to transfer.

A VA physician's note in September 2005 states the Veteran's 
urinary incontinence was multifactoral: MS, cervical myelopathy 
and radiation therapy.  The Veteran was at risk of nursing home 
placement because his wife, who was his primary caregiver, was no 
longer able to cope.  Also, the Veteran was not currently 
housebound but was at risk of becoming housebound in the future.

A September 2005 VA outpatient treatment note shows the Veteran 
complained of urinary incontinence despite three catherizations 
per day.  He stated undergarments were not really helpful.   

The file contains a copy of a VA housebound examination report, 
undated but received by the RO in December 2006.  The Veteran's 
primary complaint was urinary incontinence.  The examiner noted 
reduced strength in both arms, resulting in the need for 
assistance with meals, and reduced strength in both legs, 
resulting in the need for assistance with bathing and dressing.  
The examiner noted the following pathologies contributing to the 
Veteran's impairment: MS, severe cervical myelopathy, prostate 
cancer in remission, urinary incontinence, hypertension, and 
urinary tract infections.  The examiner noted the Veteran was 
unable to walk without assistance and only left the house for 
medical appointments. The examiner stated the Veteran was at high 
risk for nursing home placement and indicated by checkmark that 
the Veteran required the daily personal health care services of a 
skilled provider, without which he would require hospital, 
nursing home or other institutional care.

VA treatment notes for the period September 2005 through January 
2007 are concerned primarily with urinary symptoms due to 
neurogenic bladder.  As of December 2006 the Veteran was noted as 
being confined to a motorized wheelchair but able to transfer 
independently.  In January 2007 the Veteran underwent surgery for 
suprapubic tube insertion; per the operative notes the Veteran 
requested a suprapubic catheter because his current Foley 
catheter (in place since September 2006) was too difficult.  The 
Veteran's left-side weakness during the period was characterized 
as severe myelopathy due to MS, aggravated by cervical spinal 
stenosis; the Veteran was offered decompression surgery but 
declined.

The Veteran's wife submitted a letter in February 2007 stating 
the Veteran's urinary incontinence had severely deteriorated.  
The previous month (January 2007) VA removed the Veteran's Foley 
catheter and surgically replaced it with a suprapubic catheter, 
without the knowledge or permission of the Veteran's wife; the 
leg bag must be emptied at least five times per day.  The family 
was also making alterations to the bathroom because the Veteran 
was no longer able to transfer out of his wheelchair into his 
bed, his bath, or onto the toilet.  The Veteran had required 
emergency care twice during the previous three months.  

A VA social services progress report in April 2007 states the 
Veteran was alert and oriented but homebound due to a history of 
illnesses including MS, spinal stenosis and urinary incontinence.  
The Veteran had been managing at home with the assistance of his 
wife and homecare services 12 hours per day, 7 days per week.  
The Veteran's primary care physician (PCP) was asked to endorse 
continued home care for the Veteran.

A VA outpatient treatment note dated in January 2008 reflects the 
Veteran's wife spoke to the VA physician requesting an increase 
in homecare from the currently authorized level of 12 hours per 
day, 7 days per week.  The Veteran's wife stated the Veteran 
required increased assistance in all activities of daily living.  
The Veteran was having episodes of bedwetting each night despite 
a recent change in his suprapubic catheter; he was sleeping on 
rubber sheets and had been advised to wear a diaper.    

The Veteran had a VA medical examination in April 2008 in which 
he denied bowel incontinence, and the examiner specifically noted 
there was no history of loss of anal sphincter control due to MS.  
The examiner noted the Veteran was wheelchair-bound due to his 
service-connected lower extremity disability; the examiner noted 
moderate impairment of the upper extremities but stated such 
disability was most likely due to nonservice-connected cervical 
stenosis rather than to the service-connected MS. 

VA outpatient treatment records during the period March 2007 
through June 2009 show no complaint of bowel dysfunction.  The 
Veteran had recurrent problems relating to the suprapubic 
catheter that had been emplaced to address his urinary 
incontinence; specifically, the Veteran experienced repeated 
blockage of the urinary catheter, and his family reported a 
history of urinary tract infections if the catheter was not 
changed regularly.  Ophthalmology treatment notes during the 
period recorded an assessment of MS with resolving bilateral 
internuclear ophthalmoplegia (INO) as well as congenital color 
blindness, dry eye and refractive error, but do not show the 
Veteran was blind in either eye.  As of August 2008 the Veteran 
was characterized as "almost non-ambulatory" but continued to 
attend physical therapy to improve his ambulation and transfers. 

Analysis

The Board's action in August 2009 awarded SMC at the n rate based 
on loss of use of both lower extremities equating to loss of use 
of both legs at a level, or with complications, preventing 
natural knee action with prostheses in place.  

The Board's action noted that to be entitled to higher SMC at the 
"o" level, the Veteran must have loss of bowel control in 
addition to the current loss of bladder control, or a separate 
service-connected disability rated as 100 percent disabling.  As 
the Veteran did not have another disability rated as 100 percent 
disabling, the Board turned its attention to the question of 
whether the Veteran has loss of bowel control.

The Board noted Dr. Bash's letter in April 2003 stating an 
opinion the Veteran had lost bowel sphincter control, based on 
"constant" leakage of stool as reported by the Veteran's wife.  
For the reasons cited in the Board's decision in August 2009, the 
Board did not accept Dr. Bash's opinion that the Veteran has 
total loss of bowel sphincter control warranting SMC.  The joint 
motion did not assert any challenge to the Board's reasoning in 
this regard.

The Board noted the Veteran's wife has reported fecal 
incontinence, especially at night.  However, even affording full 
credibility to the Veteran's wife, the Board found that soiling 
of the sheets at night, without comparable soiling during the 
day, did not show total loss of sphincter control.  The joint 
motion did not express any doubt regarding the Board's reasoning 
on this matter.

The Board also noted that Dr. Bash's letter in July 2000 asserted 
the Veteran had loss of use of the left arm, citing a VA 
examination in which the Veteran was noted to have had 
"decreased grip."  However, the Board noted that "decreased 
grip" does not equate to loss of use, and review of the file 
shows the Veteran's LUE strength, including grip strength, had 
consistently been 3/5 at worst during medical examinations.  The 
joint motion did not assert any challenge to the Board's 
reasoning in this regard.

Finally, the Board noted that if any veteran otherwise entitled 
to compensation under subsection (o) or at the maximum rate under 
subsection (p) is in need of regular aid and attendance, then in 
addition to such compensation the veteran shall be paid monthly 
aid and attendance under the provisions of 38 C.F.R. 
§ 1114(r)(1).  The Board found the Veteran in this case is not 
entitled to compensation under subsection (o) and his 
compensation under subsection (p) is not at the maximum rate, so 
subsection (r)(1) does not apply.  The joint motion did not 
express any qualms about the Board's analysis of this question.

The joint motion, as incorporated by the Court's Order, did not 
assert any disagreement with the Board's evidentiary findings.  
Rather, the joint motion asserted the Board's decision in August 
2009 failed to consider the provision of subsection (o) that 
permits an award at that rate "if the veteran, as a result of 
service-connected disability, has suffered disability under 
conditions that would entitle such veteran to two or more of the 
rates provided in one or more subsections (l) through (n) of this 
section, no condition being considered twice in the 
determination."  The joint motion stated that on remand the 
Board should discuss whether SMC for aid and attendance is 
separately warranted under 38 U.S.C.A. § 1114(l) and, if so, 
whether increased SMC under 38 U.S.C.A. § 1114(o) is also 
warranted.

Because the Board assigned SMC at the "n" rate based 
exclusively on the Veteran's loss of use of the lower 
extremities, the question posed by the Joint Remand is whether 
the Veteran's other service-connected disabilities would 
separately entitle him to SMC at the "l" rate, "m" rate or 
"n" rate.  (As noted above, no condition may be considered 
twice in the determination.)

It is now well-settled law that a remand by the Court is not 
merely for the purpose of rewriting an opinion so that it will 
superficially comply with the requirements to provide a 
comprehensive statement of the reasons or bases for its decision.  
See Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991).  
Accordingly, the Board's response to the questions raised by the 
Joint Remand is provided below.

The Veteran's other service-connected disabilities are urinary 
incontinence (rated at 60 percent); bowel incontinence (rated at 
30 percent); paresis of the left upper extremity (rated at 30 
percent); paresis of the right upper extremity (rated at 20 
percent); nystagmus (rated at 10 percent); and impotence 
(noncompensable but receiving SMC).

In regard to SMC at the "l" rate, the Board finds that aid and 
attendance would not be required for the Veteran's total urinary 
incontinence and partial bowel incontinence, in combination with 
his upper extremity pareses and nystagmus, if the Veteran were 
able to ambulate; he would then be able to toilet by himself and 
to clean up after himself when necessary.  The Veteran's 
helplessness, and resultant need for aid and attendance, is 
clearly due primarily to his loss of mobility associated with 
loss of use of the lower extremities, which is compensated under 
the "n" level of SMC awarded by the Board.  Accordingly, he 
does not have a separate entitlement to SMC at the 'l" rate.

The Veteran has service-connected pareses of the upper 
extremities, but is not shown to have disability equating to loss 
of use of both hands, or with complications preventing natural 
elbow action.  Accordingly, he does not have a separate 
entitlement to SMC at the "m" rate or the "n" rate.

Because the Veteran does not have disability under conditions 
that would entitle him to two or more of the rates provided in 
38 U.S.C.A. § 1114(l) through 38 U.S.C.A. § 1114(n), no condition 
being considered twice, the criteria for SMC under 38 U.S.C.A. 
§ 1114(o) on that basis are not met.

As discussed above, the Board's action in August 2009 considered 
the other criteria for SMC under 38 U.S.C.A. § 1114(o) (i.e., 
loss of total bowel and bladder control or a separate service-
connected disability rated as 100 percent disabling) and found 
them to be not satisfied.  The joint motion did not assert any 
challenge to the Board's reasoning in this regard.

Based on the analysis above, the Board finds the Veteran's 
disability picture does not approximate the criteria for SMC 
under 38 U.S.C.A. § 1114(o).  Accordingly, the claim for SMC in 
excess of that currently awarded under 38 U.S.C.A. § 1114(n) must 
be denied.    


ORDER

Special monthly compensation in excess of that authorized under 
38 U.S.C. § 1114(n) is denied.


____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs