Citation Nr: 1126423	
Decision Date: 07/13/11    Archive Date: 07/19/11

DOCKET NO.  98-17 610	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for bowel and/or bladder incontinence (to include entitlement to special monthly compensation).

2.  Entitlement to service connection for sinusitis, including secondary to traumatic brain injury.

3.  Entitlement to restoration of the grant of service connection for left ear hearing loss disability, prior to October 20, 2009.

4.  Entitlement to a compensable rating for right ear hearing loss disability, prior to October 20, 2009.

5.  Entitlement to a compensable rating for bilateral hearing loss from October 20, 2009.  

6.  Entitlement to an increased rating for right hand weakness, status post carpal tunnel syndrome repair (major extremity), currently evaluated as 30 percent disabling.  
7.  Entitlement to special monthly compensation based on the loss of use of the right upper extremity.

8.  Entitlement to an initial evaluation in excess of 10 percent for a right knee disability.

9.  Entitlement to an increased rating for right leg incoordination, characterized as femoral nerve paralysis, currently evaluated as 10 percent disabling.

10.  Entitlement to special monthly compensation based on the loss of use of the right lower extremity.

11.  Entitlement to special monthly compensation based on the need for aid and attendance of another person or being housebound.  

12.  Entitlement to special monthly compensation at a rate in excess of the "m" rate at 38 U.S.C.A. § 1114(m) (West 2002).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S.J. Janec, Counsel


INTRODUCTION

The Veteran served on active duty during peacetime from February 1979 to November 1980.

This case initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Regional Office (RO).  By rating action dated in November 1997, the RO denied the Veteran's claims for an increased rating for bilateral hearing loss, then evaluated as noncompensable; an increased rating for right hand weakness, then evaluated as 20 percent disabling; and for a higher rate of special monthly compensation.  In a rating decision dated in February 1998, the RO denied an increased rating for right femoral nerve palsy.  An August 1998 rating action granted service connection for a right knee disability, and assigned a 10 percent evaluation for this disability.  The Veteran disagreed with the assigned rating.  In addition, the RO denied service connection for right carpal tunnel syndrome.  By rating action dated in November 1999, the RO granted service connection for right carpal tunnel syndrome and associated it with the previously service-connected right hand weakness.  In addition, the RO increased the evaluation assigned for the right hand disability to 30 percent.  The November 1999 rating decision also granted special monthly compensation based on loss of use of the left foot and the loss of use of the left arm.  

In a November 1999 rating decision, the RO proposed that service connection for hearing loss in the left ear be severed.  The Veteran was notified of the proposed action in a letter dated later that month.  He was provided the opportunity to submit additional evidence.  By rating action dated in February 2000, the RO severed service connection for hearing loss in the left ear.  

This case was previously before the Board in June 2002, at which time all issues were denied.  The Veteran submitted a timely appeal to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated January 30, 2003, granted a Joint Motion to Vacate and Remand and to Stay Proceedings (Joint Motion).  

In August 2003, the Board remanded the issues to the RO for further evidentiary development.  The Board also referred additional claims, including entitlement to special monthly compensation based on loss of use of the right upper extremity and the right lower extremity; bowel and bladder incontinence; the need for the regular aid and attendance of another person; and by reason of being housebound.  
In a March 2006 rating decision, the RO denied service connection for bowel and bladder incontinence, denied special monthly compensation based on the loss of use of the right upper extremity and the right lower extremity, and denied special monthly compensation based on the need for regular aid and attendance of another person or on housebound status.  In a November 2008 rating decision, the RO denied service connection for sinusitis, to include dizzy spells/light headedness and loss of balance.  The Veteran perfected appeals on these issues to the Board.  

In a September 2009 rating decision, the RO granted service connection for visual field deficit, bilateral eyes and assigned a 10 percent rating, effective February 20, 2009; granted service connection for dry eye with epiphoria and lid irritation of the right eye and assigned a 10 percent rating effective February 20, 2009; and continued a 50 percent rating for skull defect, residual of craniotomy, right frontal lobe and parietal region.  These issues are not in appellate status and will not be addressed in this decision.  

In an August 2010 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent rating effective October 20, 2009; granted service connection for left ear hearing loss effective October 20, 2009 and assigned a noncompensable rating for bilateral hearing loss as of that date.  

In a December 2010 rating decision, the RO granted service connection for peripheral vestibular disorder, residuals of gunshot wound to the head (claimed as inner ear damage) and assigned a 30 percent rating effective October 15, 2007; granted service connection for headaches and orbital pain, residuals of traumatic brain injury and assigned a 40 percent rating effective March 31, 2009; granted an increase to 30 percent for visual field deficit, bilateral eyes, effective April 28, 2010; and denied the claim for loss of use of the left hip and left shoulder finding that a 100 percent rating based on loss of use of the left arm and left leg were already in effect.  These issues are not in appellate status and will not be addressed in this decision.  

Additional evidence was associated with the claims file subsequent to the most recent Supplemental Statements of the Case and a waiver of RO review was provided in accordance with 38 C.F.R. § 20.1304 (2010).  

The Veteran had requested a personal hearing before a Veterans Law Judge in conjunction with his case.  However, he subsequently canceled the request.  


FINDINGS OF FACT

1.  There has been no demonstration by competent clinical, or competent and credible lay, evidence that the Veteran has current bowel and/or bladder incontinence, or that both lower extremities are paralyzed.  

2.  Sinusitis was initially demonstrated many years after active duty, and there has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran's currently diagnosed sinusitis is causally related to or aggravated by his self-inflicted gunshot wound or his traumatic brain injury.  

3.  A November 1999 RO rating decision proposed the severance of service connection for the Veteran's left ear hearing disorder, and the Veteran was given due notice thereof in a statement dated in that same month.  

4.  The RO's rating decision of February 2000, which severed service connection for impaired left ear hearing, correctly applied the standard of clear and unmistakable error in the review of the May 1997 decision that had granted service connection for "hearing loss," and was supported by the evidence of record; left ear hearing loss disability by VA standards was not demonstrated by any objective medical evidence prior to October 20, 2009.  

5.  Prior to October 20, 2009, service connection was only in effect for right ear hearing loss disability and audiometric studies showed level I hearing in that ear during this time period.  

6.  From October 20, 2009, audiometric studies showed that the Veteran has level I hearing in the right ear and level I hearing in the left ear.  

7.  The Veteran's service-connected right hand disorder is comparable to no more than moderate incomplete paralysis of the median nerve, does not more closely approximate substantial loss of use of the right arm, and is manifested by:  complaints of pain; objective evidence of moderate slowing of the median sensory and motor latencies; slight decreased sensation to light touch of the palmar aspect, except the fifth digit; some loss of function, strength, and mobility; 3.5/5 weakness of the thenar muscles; and decreased hand grip strength of the first three digits, as to grasping and twisting of objects.  

8.  There has been no demonstration by competent clinical, or competent and credible lay, evidence that the Veteran has lost the use of his right upper extremity; the acts of grasping, manipulation, etc. of the right hand would not be equally served by an amputation stump at a site of election below the elbow with use of a suitable prosthetic appliance.  

9.  The Veteran's service-connected right knee disorder is manifested by moderate instability; there is no X-ray evidence of arthritis and no limitation of either extension or flexion.  

10.  The Veteran's service-connected right leg incoordination, characterized as a femoral nerve paralysis (incomplete), is manifested by Grade 1 incoordination, atrophy of the right lower extremity, an unstable gait, and a right up-going toe.  

11.  There has been no demonstration by competent clinical, or competent and credible lay, evidence that the Veteran has lost the use of his right lower extremity; the acts of balance, propulsion, etc. of the right leg would not be equally served by an amputation stump at a site of election below the knee with use of a suitable prosthetic appliance.  

12.  The Veteran has been determined to be entitled to special monthly compensation at the rate under subsection (m) of 38 U.S.C.A. § 1114 based on loss of use of both left extremities, with additional disabilities of a skull defect, residual of craniotomy, right frontal lobe and parietal regions, left central facial weakness, right femoral nerve paralysis, right hand weakness with carpal tunnel syndrome, and bilateral ear hearing loss disability, and bilateral visual field deficit independently ratable at 50 percent or more.  

13.  There has been no demonstration by competent clinical, or competent and credible lay, evidence that the Veteran suffers from service-connected disability manifested by anatomical loss or loss of use of both right extremities, blindness in both eyes having only light perception, blindness in both eyes leaving him so helpless as to be in need of regular aid and attendance, or anatomical loss of both eyes or blindness without light perception in both eyes; or from service-connected disabilities separately ratable from that involving his left upper and lower extremities which would require the aid and attendance of another person on a regular basis.  

14.  There has been no demonstration by competent medical, or competent and credible lay, evidence that the Veteran's service-connected disabilities, separately ratable from that involving his left upper and lower extremities, render him unable to independently perform daily functions of self-care or to protect himself from the hazards and dangers incident to his daily environment.  


CONCLUSIONS OF LAW

1.  Neither bowel or bladder incontinence was incurred in or aggravated by active military service and special monthly compensation based thereon is not warranted.  38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.350 (e)(2) (2010).  

2.  Sinusitis was not incurred in or aggravated by active military service and is not proximately due to, or aggravated by, service-connected disability, including traumatic brain injury.  38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2010).  

3.  The criteria for restoration of service connection for left ear hearing loss disability, prior to October 20, 2009, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.105(d), 3.159, 3.385, 4.2, 4.7, 4.85, Diagnostic Code 6100 (2010).  

4.  The criteria for a compensable evaluation for right ear hearing loss disability, prior to October 20, 2009, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.85. Diagnostic Code 6100 (1999 & 2010).  

5.  The criteria for a compensable evaluation for bilateral hearing loss disability, from October 20, 2009, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.85. Diagnostic Code 6100 (1999 & 2010).  

6.  The criteria for an evaluation in excess of 30 percent for right hand weakness, status post carpal tunnel syndrome repair, have not been met at any time during the rating period on appeal.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8515 (2010).  

7.  The criteria for an award of special monthly compensation based on loss of use of the right upper extremity have not been met at any time during the rating period on appeal.  38 C.F.R. §§ 1114, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.350, 4.63 (2010).

8.  The criteria for an initial 20 percent rating for a right knee disability have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5257 (2010).  

9.  The criteria for a rating in excess of 10 percent for right leg incoordination, characterized as a femoral nerve disorder, have not been met at any time during the rating period on appeal.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8526 (2010).  

10.  The criteria for an award of special monthly compensation based on loss of use of the right lower extremity have not been met at any time during the rating period on appeal.  38 C.F.R. §§ 1114, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.350, 4.63 (2010).

11.  The criteria for the award of special monthly compensation based on the need for regular aid and attendance have not been met at any time during the rating period on appeal.  38 U.S.C.A. §§ 1114, 5103A, 5107 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.350, 3.351, 3.352 (2010).  

12.  The criteria for the award of special monthly compensation at a rate in excess of the rate at 38 U.S.C.A. § 1114(m) have not been met at any time during the rating period on appeal.  38 U.S.C.A. §§ 1114, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2010).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

Duty to Notify

The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim.  The requirements apply to all five elements of a service connection claim:  veteran status, existence of a disability, a connection between the 

veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  

Several of the Veteran's claims were initiated and adjudicated prior to the enactment of the VCAA.  In numerous letters during the course of his appeal, (some prior to the ratings on appeal) including in letters dated in December 2003, July 2004, June 2008, June 2010 and August 2010, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims.  He was advised of what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim.  In a March 2006 letter, and the June 2010 letter, he was advised of how disability ratings and effective dates are assigned.  

The Board also observes the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which focuses on VCAA notice requirements in an increased rating case, was recently overturned in part by the Federal Circuit.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Hence, it need not be further discussed in this decision.  

The Board finds that any deficiency with respect to the timing of the notices provided is harmless.  The notices discussed above fully complied with the requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. § 3.159, and the Veteran was fully informed of the evidence that was needed to support his claims.  Moreover, following the notices, the RO readjudicated the appeals, most recently in August 2010 and December 2010 Supplemental Statements of the Case.  Additionally, the Board observes that he has been represented throughout the length of his appeal by either a private attorney or a service organization and his and his former attorney's numerous letters to the RO and the Board demonstrate actual knowledge of the evidence obtained, the evidence required, and the status of his claims.  (See for example, April 2008, February 2009, October 2009 statements from the Veteran and a January 2004 letter from his former attorney).  Thus, the Board concludes that there is no prejudice to the Veteran due to any defect in the timing of the notices.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect).  Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his current representative has pointed out any specific deficiency to be corrected.  

Duty to Assist

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, post service VA and private treatment records, the relevant VA examination reports, various lay statements, and the Veteran's own statements.  

In conjunction with his claims, the Veteran was afforded more than 15 VA examinations.  In reviewing the VA examination reports as well as the other evidence in the file, the Board finds that record is adequate for adjudication and rating purposes.  The relevant reports were predicated upon a review of the Veteran's medical history, the pertinent evidence of record, the Veteran's statements, and a thorough clinical evaluation.  Moreover, the examinations contained clinical findings sufficient for rating purposes.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Consequently, the Board finds that VA's duty to assist has also been met in this case.  

Analysis

Procedural Overview

Due to the unique nature of the Veteran's disabilities and claims on appeal, most of which are medically related, a brief review of his medical history is appropriate, particularly in light of his assertions regarding both the severity of his current disorders, and their origin.  

Service medical records show that in November 1979 the Veteran was admitted to an Aurora, Colorado, private hospital where he was treated for a self-inflicted gunshot wound to the right temporal area of the head.  The wound included entrance and exit wounds, with loss of brain substance, initially with resulting global organic brain syndrome, triplegia of the left upper and both lower extremities, and a left gaze palsy.  A Physical Evaluation Board (PEB) found that the Veteran's brain damage and organic brain syndrome, with gaze palsy, resulted in complete social and industrial impairment, with complete paralysis of all left radicular groups, bilateral sciatic, and femoral nerves.  Both a preliminary civilian police investigation and a military line of duty investigation found that the incident was "accidental."  Significantly, the PEB determination was that the injury was incurred not "in the line of duty," but due to the veteran's own "misconduct."  Moreover, the Veteran was separated from the service of the military, effective in November 1980, with the specific determination that he was not entitled to disability benefits due to his misconduct.  

Entitlement to VA disability benefits for residuals of the above injury was granted by a Board decision dated in November 1982, upon a sympathetic review of the record regarding the circumstances of the incident.  Upon later VA examination, the RO established service connection for loss of use of the left hand and left foot, rated as 100 percent disabling, a skull defect, residuals of a craniotomy, with right frontal temporal and parietal regions, 50 percent disabling, left central facial weakness, rated as 20 percent disabling, and right femoral nerve paralysis, 10 percent disabling, with special monthly compensation at the rate (m) rate, effective from November 14, 1980.  As detailed in the Introduction above, the Veteran has also currently established service connection for several other disabilities, including hearing loss; peripheral vestibular disorder; visual field deficit, both eyes; residuals of traumatic brain injury with headaches and orbital pain; right hand weakness status post carpal tunnel syndrome release; a right knee disability; dry right eye; and tinnitus.  

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2010).  

Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2010).  

Service connection may be established for disability which is proximately due to or the result of a service-connected disability.  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439 (1995).  Significantly, however, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to provide that: 

VA will not concede that a nonservice-connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  

It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another.  Winsett v. West, 11 Vet. App. 420, 424-25 (1998).  The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).  If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the veteran's favor, and the claim should be granted.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010).  However, if the preponderance of the evidence is against the claim, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Bowel and Bladder Incontinence

The Veteran's service treatment records show that he sustained a self-inflicted gunshot wound to the head in the right temporal area in November 1979.  The November 1979 clinical record indicated that he was initially incontinent of bowel and bladder.  However, the current medical evidence demonstrates that he has bowel and bladder control and is not incontinent.  A January 2006 VA examination report noted that the Veteran initially had incontinence problems but the Veteran reported that he was not currently having problems.  An August 2008 VA treatment note stated that the Veteran was not incontinent of urine or stool.  A June 2009 VA traumatic brain injury examination noted no bowel and no bladder problems.  Upon VA genitourinary examination in October 2009, the Veteran related that he initially had bladder incontinence during the year after his injury.  However, the problem resolved after undergoing rehabilitation and he was able to urinate without difficulty.  Similarly, upon VA rectum and anus examination in October 2009, the Veteran stated with he had difficulty with bowel control for a year after his injury but has been able to control his bowel since that time.  Consequently, the Board finds that both the medical and lay evidence clearly show that the Veteran does not currently have bowel and bladder incontinence.  In the absence of any currently diagnosed disability, the claim of service connection bowel and bladder incontinence must be denied..  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability there can be no valid claim); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (service connection may not be granted unless a current disability exists).  

The Veteran and his former attorney alleged in January 2010 and November 2006 statements, respectively, that he was not required to currently be incontinent of bowel or bladder function in order to qualify for entitlement to special monthly compensation under 38 C.F.R. § 3.350 (e)(2) for his bowel and bladder.  His bowel and bladder incontinence could be overcome.  The Board disagrees.

The regulation to which the Veteran and his former attorney cite also requires that the Veteran be paraplegic.  It specifically states that there must be paralysis of both lower extremities together with loss of anal and bladder sphincter control in order for that benefit to be granted.  See 38 C.F.R. § 3.350 (e)(2) (2010) (emphasis added).  The Veteran is not a paraplegic.  The medical records show that he is hemiplegic and that his right lower extremity is not paralyzed.  In fact, he ambulates with a cane, which would not be possible if his right lower extremity were paralyzed.  (See for example, the October 2010 VA traumatic brain injury examination noting that the Veteran has left-sided hemiplegia and that he walked with the use of a cane.)  Since the Veteran has not met both parts of the regulation, he is not entitled to special monthly compensation based on bowel and/or bladder incontinence pursuant to 38 C.F.R. § 3.350 (e)(2).  Additionally, it is noted that the Veteran is not competent to diagnose himself with paralysis and his statements to this effect are not probative on the matter.  See Espiritu, supra.  Hence, the claim for special monthly compensation based on the bowel and bladder incontinence is also denied.  

Sinusitis

The Veteran's service treatment records do not show any complaints of, or treatment for, sinusitis.  He sustained a self-inflicted gunshot wound to the head in the right temporal area in November 1979.  A clinical record indicated that the entrance would was in the right temple with the exit wound in the mid bi-parietal region at the vertex of the skull.  Therefore, the Veteran has one of the elements required to substantiate a claim for service connection, namely evidence of in-service incurrence of head trauma.  

He also has another one of the elements required to substantiate a claim for service connection, namely a current disability.  Although the evidence is conflicting, the Board concedes that VA treatment reports as well as an August 2008 VA examination report establish that the Veteran has been diagnosed with chronic sinusitis.  

However, the most probative evidence with respect to the remaining element needed to establish a claim for service connection - evidence of a nexus between the claimed in-service symptoms and the present disability or another service-connected disability - does not support his claim.  Upon VA examination in September 2008, a VA examiner reviewed the record and concluded that, given the site of the Veteran's self-inflicted gunshot wound injury, it was unlikely that his sinusitis resulted from the injury.  This evidence was based on a complete review of the Veteran's clinical history.  

The Veteran has reported having continuity of sinusitis symptomatology since service.  He also alleges that one of his sinuses is "missing."  He is competent to provide testimony as to having experienced a runny or stuffed up nose during service as well as after his discharge.  Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses).  However, he is not competent to diagnose himself with sinusitis.  Id.  Simply stated, the Veteran's opinion regarding the presence or etiology of sinusitis disability in service or shortly thereafter lacks probative value and it does not constitute competent medical evidence.  See Espiritu, 2 Vet. App. at 492, 494-95.  Sinusitis is a complex disorder that requires specialized training for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone.  Additionally, the Veteran's assertion that he is missing a sinus cavity due to the trajectory of the bullet is patently false.  The September 2008 CT scan does not indicate that any sinus cavity is either missing or damaged due to the original injury in service.  Hence, the Veteran's statements therein cannot be accepted as competent medical evidence.  

Moreover, the Veteran's statements regarding continuity of symptomatology are not credible.  Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995).  In this case, although the Veteran has asserted continued sinusitis since his discharge from service, the evidence shows that he was initially diagnosed with sinusitis many years after his discharge and his claim was filed shortly thereafter.  There are also documents in the record denoting the Veteran's exaggeration of symptoms and fabrication of details surrounding the circumstances of his injury.  Based on the foregoing, which shows interest and bias in the Veteran's contentions related to his claim for VA benefits, the Board finds that the Veteran is not credible to the extent that he reports that he has had sinusitis symptoms since active service.  See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony).  Hence, the evidence does not support a finding of continuity of symptomatology following the in-service gunshot injury as required to establish service connection pursuant to 38 C.F.R. § 3.303(b).  

As the preponderance of the evidence is against the claim, the appeal is denied.  
Consequently, the Board concludes that service connection for chronic sinusitis is not warranted.  

Restoration of Service Connection for Left Ear Hearing Loss Prior to October 20, 2009

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010).  In the absence of any currently diagnosed disability, the claim of service connection must be denied.  See Brammer, Rabideau, supra.  

Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2010).  

Pursuant to 38 C.F.R. § 3.105(d), service connection will be severed only where evidence establishes that the grant of service connection was clearly and unmistakably erroneous (the burden of proof being upon the Government).  When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons.  The claimant will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained.  If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  38 C.F.R. § 3.105(d) (2010).  

In Russell v. Principi, 3 Vet. App. 310 (1992), the Court propounded a three-pronged test to determine whether clear and unmistakable error was present in a prior determination:  (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question.  In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court refined and elaborated on the test for clear and unmistakable error.  The Court noted that clear and unmistakable error is a very specific and rare kind of error.  It is the kind of error of fact or of law that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.

In the present case, service connection for "hearing loss" was established by RO rating decision dated in May 1997.  However, a review of the record reveals that the RO's intention was to grant service connection for the Veteran's only demonstrated "hearing loss" by VA standards-right ear hearing loss.  On VA audiologic examination in February 1997, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
50
65
80
LEFT
05
10
10
15
10

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear.  No tinnitus was reported.  The diagnosis was normal left ear hearing, and sensory hearing loss of the right ear (emphasis added).  

A private medical statement dated in April 1997 from L.A.K., M.D. with the Ohio State University Medical Center noted that the Veteran's left ear "shows normal hearing sensitivity . . . ."  

The audiology portion of an August 1997 VA examination revealed that the Veteran was fitted for a right ear form-fitting hearing aid device in July 1997.  Audiometry revealed a mild to severe sensory hearing loss for the right ear, with normal hearing sensitivity for the left ear.  The impression was sensory hearing loss of the right ear, with normal hearing for VA adjudication purpose for the left ear.  Test results were felt to show no indication of a hearing problem which would require any medical follow-up.  

February 1999 VA audiology result show pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
--
25
55
60
70
LEFT
--
5
5
15
10

Speech audiometry revealed speech recognition ability of 100 percent in the right ear, and 96 percent in the left ear.  The diagnosis was sensorineural hearing loss in the right ear and normal left ear hearing.  

On VA audiologic examination in April 2004, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
55
70
80
LEFT
0
5
0
10
20

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.  
On VA audiologic examination on October 20, 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
35
60
60
85
LEFT
10
10
10
40
55

Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 96 percent in the left ear.  The diagnosis was normal to severe sensorineural left ear hearing loss and normal to profound sensorineural right ear hearing loss.   The examiner noted that the Veteran's left ear hearing acuity was normal in April 2004.  

The Veteran has argued that service connection was established for left ear hearing loss as well as right ear hearing loss, and that the grant of service connection for the disability should remain in effect prior to October 20, 2009.  However, the May 1997 rating decision cites the February 1997 VA examination as well as the April 1997 record from the Ohio State University Medical Center as the basis for the grant of service connection for "hearing loss."  As detailed above, both of these reports clearly show only a right ear hearing loss, with specific, clear, and unambiguous notation that the Veteran's left ear hearing acuity was within normal limits.  Assuming that service connection for left ear hearing loss was, indeed, established, the Board finds that this sort of error compels the conclusion, to which no reasonable mind could differ, that service connection for left ear hearing loss, which is otherwise not demonstrated by any evidence of record at the time, is clearly and unmistakably erroneous.  

Moreover, proper notice procedures were followed.  The Veteran was notified of the proposed severance by correspondence sent to his address of record.  He was afforded the opportunity to present evidence that the action should not be taken - that is that he had left ear hearing loss disability by VA standards.  However, such evidence was not submitted.  The severance was effective within the timeline outlined in the relevant regulation.  
Finally, service connection was re-established when the medical evidence first showed that left ear hearing loss "disability" by VA standards was initially demonstrated, i.e., at the August 20, 2009 VA audiology examination.  There is no competent medical evidence in the file documenting left ear hearing loss "disability" by VA standards prior to October 20, 2009.  Additionally, the Veteran's lay statements alone are not probative because hearing loss disability by VA standards is not a disability for which lay testimony alone may establish its presence.  See Espiritu, supra.  Hence, the Board finds that the severance was proper and the appeal to restore service connection for left ear hearing loss disability prior to October 20, 2009 is denied.  

Increased Ratings and Special Monthly Compensation

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2010).  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Regulations require that a disability be viewed in relation to its recorded history.  38 C.F.R. §§ 4.1, 4.2 (2010).  In Fenderson v. West, 12 Vet. App. 119, 125-126 (1999), the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been service connected.  In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance.  In the Fenderson scenario, however, where the claimant  has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial award of service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  Fenderson, 12 Vet. App. 125-126.  The Court, incidentally, has since extended this practice to even claims that do not involve disagreement with the initial rating but, instead, an already established rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

Factual Background

On VA authorized consultation examination in April 1997, the Veteran was found to have "subjective" numbness of the left three fingers of the right hand, symptoms which were not reproduced on objective examination.  Additionally, right side strength was full throughout, with brisk reflexes of 3+.  Sensory examination was intact to all modalities including light touch, pin prick, position sense, and vibration.  Cranial nerves were intact on the right, except for cranial nerve 8, and cerebellar examination was intact for right upper and lower extremities.  There was no evidence of any functional impairment of the peripheral autonomic nervous system.  

On VA examination in August 1997, the Veteran reported some decreased function of the right hand.  On motor testing, the veteran had 5/5 strength in the muscles of the right arm, with some weakness in the intrinsic hand muscles revealed by a radius strength of 4/5.  He had excellent muscular development in the right arm.  Vibratory sense was normal.  (Left arm strength was 2/5 for biceps and 3/5 for supinatus, with all other muscles otherwise 0/5).  Right hip flexor, abductors, and adductor all had strength of 4/5, with both quadriceps and biceps femoris strength of 5/5 (with left leg hip flexor, abductors, adductors at 3/5 strength).  Both left and right quadriceps and biceps femoris had a strength of 5/5.  There was some increased tone in the right leg (markedly increased tone of the left leg), with normal rapid alternating movements on the right (non-existent on the left).  There was marked atrophy throughout the right leg, with the left leg being more affected than the right, but no evidence of fasciculation.  Deep tendon reflexes were 2/4 throughout the entire right side (3 /4 throughout the entire left side), with downward going right toe (upward going left toe).  Sensory testing was pertinent for normal vibratory sense.  Cerebral testing revealed normal finger-to-nose, and toe-to-finger on the right side (unable to test left due to weakness).  The Veteran's gait was markedly spastic on the left side, with inability to test Romberg or tandem gait.  The diagnostic impression was that the Veteran had some loss of function on the right side, including hand strength and mobility, as well as proximal right function.  He was noted to take no prescription medications.  

An undated lay statement of N.D., identified as someone who worked with the Veteran with his (physical) "therapy," received by the RO in May 1998, indicates that the Veteran had had problems with his right hand, including weakness and difficulty buttoning his shirts, and opening jars.  

In January 1998, the Veteran was seen for complaints of right knee pain which had started six months earlier.  X-rays of the right knee were negative for any pathology, and the recommendation was that he use a right knee brace, as well as a right wrist brace.  He stated he had such braces at home for use.  An orthopedic consultation was scheduled regarding the right knee.  

In May 1998, the examiner who had conducted the August 1997 VA examination noted that as the veteran had failed to appear for a scheduled EMG study, the VA claims file was reviewed in his absence.  The diagnostic impression was that the veteran's median nerve muscles had normal strength, without any sensory problems with respect to light touch or pin prick in the right hand, and that these findings were incompatible with a diagnosis of carpal tunnel syndrome.  Weakness of the right hand was noted and found to be a residual of the self-inflicted gunshot wound. 

A June 1998 VA electroneurography study reveals an assessment of moderate right carpal tunnel syndrome.  In December 1998, the Veteran's complaints of decreased right hand grip strength were noted to include falling down, and dropping objects.  In December 1998, a diagnosis of carpal tunnel syndrome was confirmed, and a carpal tunnel syndrome release was performed on January 29, 1999.  

The day before the surgery, January 28, 1999, the Veteran was seen at VA for neurologic evaluation.  At that time, upper extremity testing revealed that the right shoulder had a normal range of motion, with right arm muscular strength of 5/5.  Additional testing was negative for Tinel's test of the wrist and elbow, with no change to Phalen's test.  There was some decreased sensation of the entire right arm and hand.  As for the lower extremities, there was normal range of motion of the hips and knees, with a left ankle fusion solid.  The Veteran was able to walk with  difficulty but without a cane; he was more stable with a cane in the right hand.  The spine moved easily without pain.  The diagnoses were carpal tunnel syndrome, and left sided hemiparesis.  

The January 19, 1999 VA carpal tunnel syndrome surgery report is significant for note of moderate to severe compression of the median nerve.  In February 1999, note was made that the incision was healing nicely, with no infection and no swelling.  The only complaint the Veteran had was occasional nocturnal numbness in the tips of the index and middle fingers.  The examiner noted that the Veteran had no other complaints of the hands.  

In March 1999, the Veteran was seen for right hand and right knee complaints.  His chart was not available, however, note was made of his complaints of continued right hand numbness, but with improved right hand strength.  The Veteran also reported right knee weakness and falls.  The examiner noted the Veteran's assertion that his right knee problem is associated with his femoral nerve damage.  

On VA peripheral nerves examination in May 1999, note was made that the Veteran walked with a cane in his right hand.  He reported that he fell at least one time a week, maybe more often than once a week, due to what he described as right knee giving-way.  It was felt that the Veteran's up going right toe suggests that his right lower limb is involved in an upper motor neuron problem, with Grade I incoordination on attempting to put his right heel to his left shin.  The Veteran's gait was found to be remarkably unstable, with hyperextension of the right knee.  On physical examination, note was made that the Veteran's reflexes were graded only as 2.  There was no clinically significant weakness on muscle testing in the right lower limb, no arthritis in his knee or hip, and no crepitation, swelling, or tenderness.  Right upper limb weakness was 3.5/5 for the thenar muscles of the right hand.  There was a definite reduction in the appreciation of light touch on the palmar aspect of the right hand, excluding the digit #5 which had pretty much normal feeling.  The Veteran was able to make a full fist and extend it.  He did rapid alternating movements with his fingers, but with some slight loss in appreciation of light touch and weakness of his thenar muscle.  There was no other impairment in the right upper limb that the examiner was able to detect.  The final diagnoses were gunshot wound to the head resulting in a left hemiplegia, in which neither the left upper nor left lower limb has useful function; what appeared to be a right lower limb upper motor neuron problem, with resulting incoordination, and hyperextension of the knee on stance phase; a relatively unstable ankle, which tends to invert on uneven ground; status post carpal tunnel syndrome of the right wrist, with residuals of compromise of the right median nerve.  

VA treatment records of September to December 1999 were closely reviewed.  The Veteran was seen in September 1999 with complaints that there had been no improvement of his right hand with release surgery in January of that year.  

A November 1999 EMG and nerve conduction study revealed right ulnar nerve neuropathy involving the ulnar nerve segment across the elbow, residual carpal tunnel syndrome release versus recurrent carpal tunnel syndrome, with no evidence of any other lower motor neurologic pathology.  Note was made that the Veteran was continuing his home exercise program, and that he was using his right arm alone for ambulation, with his right hand gripping a cane.  

VA treatment records of October and November 1999 show notation of the Veteran's complaints of increased difficulty with grasping objects, and that this might be associated with his grasping of a cane with his right arm.  The Veteran also felt that he had ulnar neuropathy.  The assessment was nerve entrapment neuropathy which was "not fitting well into known patterns."  The plan was that the Veteran be examined, with the examiner reviewing the Veteran's documented clinical history.  Additionally, in December 1999, the Veteran was thought to have a good potential to benefit from his use of night splinting of the right wrist.  

A private consultation (VA requested) examination of the Veteran and his VA documented clinical history was performed on March 15, 2000.  The examining physician's VA Clinical Summary initially noted that the Veteran's case was "a very difficult examination to perform, since the Veteran was somewhat less than forthright with questioning" regarding the problems he has had.  The examiner noted that while the Veteran gave a history of an original gunshot wound injury in 1979 in Panama, received in the line of duty from an AK-47 with a Russian bullet, a review of the claims file showed otherwise.  The examiner was of the opinion that the VA claims file showed an original injury from playing Russian roulette with his roommate's pistol, not a rifle, and that the accident occurred in Aurora, Colorado, not Panama.  The examiner also noted that the Veteran was very upset with VA's evaluating system and stated that they are always trying to "screw him out of money," and that he was not going to let this continue to happen. 

The examiner also noted that immediately prior to physical examination, the Veteran was observed ambulating over 100 yards with use of a standard cane.  He was noted to ambulate off the elevator and into the examination waiting room, and then, from the waiting room back out to the front desk, and then, from the front desk back to the examining room.  However, during examination, the patient was noted to have an abnormal gait, dragging his left leg significantly, locking the left knee, which the examiner suspected would cause significant overuse of his right knee and right hand since the cane is used for balance.  

On associated examination of the right hand, thumb, and fingers, the examiner noted the Veteran's carpal tunnel surgery scar to be well-healed.  The Veteran reported that he had been diagnosed with ulnar neuropathy.  His other complaints were noted as well.  On EMG testing mild right carpal tunnel syndrome was found to persist, but there was no sign of any ulnar neuropathy.  The Veteran did have a decreased hand grip involving only the first three digits of his right hand.  Despite complaints of difficulty with objects, he was found to be able to do finger to thumb testing "rather easily."  The Veteran denied any flare-ups, reporting constant pain, and tingling in the arm.  There was some decreased pinprick sensation, but no obvious anatomical defects, and a demonstrated ability to approximate the fingers along the median transverse fold of the palm, with ability to do thumb to fingertip on each finger.  Some trouble grasping and twisting was noted, but with no apparent difficulty holding his cane on examination.  
On examination of the joint, the Veteran had a full range of motion of his right wrist, with no restriction of motion.  He denied any real pain or stiffness in his wrist, and admitted to neuropathy only of the first four digits of his right hand.  As for the right knee, he gave a history of hyperextension.  On examination, the Veteran denied any knee flare-ups, stating that his was a more constant pain.  He also reported weakness, stiffness, pain, and locking up, symptoms which were reportedly aggravated by cold weather and not relieved in any significant way.  The Veteran was said to ambulate with a cane, secondary to significant weakness of his left side.  He admitted that while VA gave him a knee brace, his physical therapist told him not to use it.  He denied any knee surgeries, and reported no history of dislocations, subluxations, or inflammatory arthritis.  He had full range of motion of his right knee with 150 degrees of  flexion and zero degrees of extension.  He was unable to hyperextend his knee on examination.  There were intact anterior and posterior cruciate ligaments, and medial and lateral collateral ligaments.  While the Veteran reported that when his knee gives out, his ankle twists and he falls to the ground, the examiner noted that the Veteran did not wear any brace or corrective shoe for this.  He did wear a special shoe, but for easier fastening and use, and not for gait correction.  

The examiner noted a somewhat unreliable nature of the medical history as given by the Veteran, and it was felt that the Veteran was trying to exaggerate his symptoms.  The impression was:  1) upper motor neuron lesion of bilateral lower extremities causing weakness of both lower extremities, the left greater than the right; 2) carpal tunnel syndrome, right hand; 3) unstable ankle joint per physical examination; 4) no evidence of ulnar neuropathy per electromyogram; 5) no evidence of lower motor neuron neuropathy of the right lower extremity, but spasticity of the right leg cannot be ruled out; 6) an abnormal gait, secondary to gunshot wound of the brain and left hemiplegia; and, 7) arthralgia right knee and right ankle.  

The associated March 2000 EMG study revealed mild carpal tunnel syndrome, with right ulnar motor conduction within normal limits.  The examiner felt there was no evidence of any right cervical or lumbosacral radiculopathy, or acute lower motor neuron problems.  
On July 2000 routine general physical check-up, the Veteran reported two recent falls secondary to lower extremity weakness.  On examination, the right lower extremity was within-normal limits, with no edema, and normal pulses.  The left lower extremity revealed a significant loss of muscle tissue, proximally and distally, but there was no edema.  On neurologic examination, the Veteran's cranial nerves were intact on the left, but right had some central facial-nerve palsy, with left-sided droop, and loss of sensation to the left aspect of the mouth.  Otherwise, the rest of the cranial nerves were intact.  Motor examination revealed the right upper extremity to be within normal limits.  The left upper extremity had l/6 motor function, proximally, with no significant motor function distally.  His reflexes were within normal limits on the right.  The impression was status post gunshot wound to the brain, with resulting left-sided hemiparesis, that allowed him to walk with the aid of a cane, but with recent increased falls secondary to lower extremity weakness.  The Veteran was thought to need occupational therapy, and therapy evaluation at home.  It was also felt that he needed to wear his left knee brace so as to more evenly distribute the weight from this right knee.  The need for intensive physical therapy was emphasized.  A superficial bruise of the left capillary area was noted, reported as due to a fall.  The examiner noted no shortness of breath, no evidence of fractures, and the lungs were clear and resonant.  

In September 2000, the Veteran was advised to be given and to use a different style of cane, such as a Lofstrand crutch, or a quad cane, so as to ease his ambulation and right wrist complaints.  However, he refused this recommendation.  The veteran's reports of increased falling were noted.  He was not to report again for another six months.  

On EMG testing of April 2001, the impression was that the Veteran still had mid- to moderate slowing of the median sensory and motor latencies, but with normal sensory latency of the radial and ulnar nerves, and normal motor study of the ulnar nerve.  There was no evidence of right ulnar neuropathy.  

A treatment record of February 2002 shows that the Veteran has a left lower extremity hallux claw toe deformity, with calluses, bilateral bunions, contracted digits, and left pes cavus.  
An August 2002 EMG consultation note indicated that studies were suggestive of right ulnar nerve neuropathy involving the ulnar nerve segment across the elbow.  There was no evidence of radiculopathy, myopathy or motor neuron disease.  

In a September 2002 statement, the Veteran acknowledged that he lied to the March 2000 examiner with regard to the circumstances regarding his gunshot wound.  

At a March 2004 VA Aid and Attendance Examination, the Veteran complained of right knee instability, weakness and pain.  He used a cane but not a brace.  He denied dislocation or recurrent subluxation.  He also complained of decreased sensation in the leg.  He denied flare-ups of nerve pain.  He complained of limited motion in the right hand when lifting objects.  Evaluation of the right hand showed adequate radius and ulnar pulses, intact grip strength, full range of motion of the wrist, no pain on motion testing and subjectively decreased sensation over the dorsal aspect of the hand.  There was no tenderness to palpation of the right knee, no crepitus and full range of motion with flexion to 150 degrees and extension to 0 degrees.  There was no pain and no ligamentous laxity.  Lachman's and McMurray's were negative.  The assessment was:  1) minor right hand degenerative joint disease status post trauma; 2) history of right carpal tunnel syndrome;3) minimal right knee degenerative joint disease; 4) left-sided hemiplegia.  The examiner concluded that although the Veteran had some physical limitations secondary to his left hemiplegia, he did not require the regular aid and attendance of another person.  

An April 2005 VA progress note revealed 5-/5 strength in finger abduction of the right hand and tingling sensation on the ulnar side of the hand.  The Veteran reported difficulty dressing, buttoning, and opening jars.  

A November 2005 VA progress note showed that the Veteran complained of limited range of motion of the right thumb.  

Upon VA examination in January 2006, it was noted that the Veteran lived alone and did not require the assistance of another person in feeding, bathing, and dressing himself although he did have difficulty with these tasks.  The examiner also noted that he is not currently bedridden.  He complained of increased problems with his right upper and lower extremities, including weakness, stiffness and tingling sensation in the right hand, and right knee instability and unsteadiness.  He reported that he fell a couple of times a week but acknowledged that he did not use a brace.  He walked with the use of a cane.  Clinical evaluation showed adequate radius and ulnar pulses, decreased sensation to pinprick in the median nerve distribution, full range of motion of the right wrist with dorsiflexion to 60 degrees; palmar flexion to 60 degrees, radial deviation to 20 degrees.  There was no pain on motion.  He had grip strength of 5/5 in the right upper extremity.  There was tenderness to palpation of the right knee but no crepitus and full range of motion.  There was also no additional decreased range of motion with repetitive testing.  There was subjectively decreased sensation over the area of the right femoral nerve.  The assessment was moderate-marked right carpal tunnel syndrome; minimal right knee degenerative joint disease; and right lateral femoral cutaneous nerve damage.  The examiner noted that clinical testing was consistent with the March 2004 evaluation and there was no significant loss of use of the right upper and lower extremity.  

In a May 2006 VA social work note, the Veteran emphasized that he had difficulty with cooking, cleaning and traveling.  He noted that for a time, he had a "bimbo" live with him, but she left and he needed to be able to hire someone to help him.  

In a May 2006 letter, D.A.H., CPO/LPO noted that the Veteran had difficulty with motor control of his right arm/hand, secondary to nerve damage.  He also had arthritic hip/knee pain on the right side, which made it difficult to bend and brush his teeth.  

In a June 2006 long-term care consult, it was noted that the Veteran did not need help with feeding himself, using the toilet, or transferring himself.  

In a July 2006 VA geriatrics note, it was reported that the Veteran was authorized to receive homemakers services for two hours one day per week.  

In an October 2006 VA note from the rehabilitation medicine service, it was noted that he had difficulty caring for his home and running errands.  He was hoping to qualify for aid and attendance so he could hire someone to help.  He was able to care for himself except for putting on certain shoes.  Clinical evaluation showed right grip strength of 4+/5 with decreased sensation to pinprick.  

In a February 2007 VA home health note, it was reported that the Veteran did not require assistance with his personal care.  He was authorized homemaker service for two hours two days per week.

In a March 2007 letter, a VA staff physician noted that the Veteran was not able to self-administer eye drops or cut pills in half as directed and his falls increased due to his incapacity to use one hand.  He concluded that the Veteran was in need of aid and attendance of another person.  

In an April 2007 VA physical medicine rehabilitation note, it was reported that the Veteran had increased difficulty with his activities of daily living.  

A June 2007 VA physical medicine rehabilitation note indicated that the Veteran was seen for complaints of right knee pain after a fall approximately nine days ago.  The impression was right knee pain, contusion.  

In a December 2007 private medical note, a nurse indicated that the Veteran was not able to use his hearing aid because he could not manipulate the battery, change the volume, etc.

In an April 2008 VA rehabilitation medicine service note, it was reported that it was getting harder for the Veteran to manage his home alone and he would benefit from assistance for housekeeping, cooking, dressing.  It was noted that he was mostly activity of daily living independent, but things were becoming more difficult.  

In a June 2008 VA physical medicine rehabilitation note, it was reported that the Veteran was able to use his right arm to position his left leg.  

Upon VA traumatic brain injury examination in June 2009, it was noted that the Veteran's left upper limb was paralyzed and he had no function in the elbow or wrist level.  He was not able to perform any function with this extremity.  He had numbness in the right upper extremity.  

Upon VA peripheral nerves examination in June 2009, the Veteran reported right thigh weakness.  Muscle strength of the right leg was 4, there was mild weakness/difficulty with knee extension due to the right femoral nerve.  There were no tremors, muscle atrophy, or abnormal muscle tone present.  Neuritis and neuralgia were present, but paralysis was absent.  There were mild to moderate effects on activities of daily living.  

Upon VA joints examination in October 2009, the Veteran reported right knee pain.  He stopped using a knee brace because of skin irritation.  There was no locking, subluxation, or dislocation.  There was no effusion.  There was pain, weakness and flare-ups.  There was no crepitation, clicking, grinding, instability, patellar abnormality or meniscus abnormality.  Flexion was to 140 degrees and extension was to 0 degrees.  There was no objective evidence of pain or additional range of motion loss following repetitive motion.  X-rays showed no bony abnormality and arthritis was not noted.  The impression was chronic right knee strain secondary to hemiplegic gait pattern with right knee pain.  

Upon VA hand examination in October 2009, the Veteran reported decreased sensation in his right hand.  The condition has been stable since his injury.  He also complained of difficulties with his right thumb following a fall in 2002.  The examiner noted that there was decreased hand strength and dexterity in both hands.  There was no ankylosis, no objective evidence of pain in the right thumb, no ankylosis and no loss of digits.  There was decreased light touch sensation in the right 4th and 5th digits.  The right hand exhibited normal flexion and extension of the fingers and thumb, and there was good grip strength.  The diagnosis was right carpal tunnel syndrome.  It was noted that there were mild to moderate, or no affects on usual daily activities.  It was also noted that he had difficulty with fine motor tasks of the right hand.  

In an April 2009 VA physician's note, it was reported that the Veteran had difficulty with his eye drops.  

In a June 2009 VA home care services note, it was reported that the Veteran maintained two homes and did not qualify for additional homemaker services.  He currently split the service between the two domiciles.

Upon VA aid and attendance examination in October 2009, it was noted that the Veteran was not bedridden and he was able to leave his domicile.  He did not use a wheelchair or walker.  It was noted that the Veteran could perform self-care activities independently with increased time.  The examiner reported that there was mild to moderate impairment of the right upper extremity with some difficulty with feeding, bathing, grooming, and toileting.  Weight-bearing on the right was normal.  

In an August 2010 VA physical medicine rehabilitation note, it was reported that the Veteran was having more difficulty with his activities of daily living, including with buttoning, tying, bathing, cleaning, cooking, etc.  He has also been having difficulty using his eye drops because he got dizzy when he tried to place them.  

Right Ear Hearing Loss and Bilateral Hearing Loss Prior to and From October 20, 2009

The relevant facts pertaining to rating the Veteran's hearing loss prior to October 20, 2009 have been outlined above in the section discussing the severance of service connection for left ear hearing loss and are incorporated herein by reference.  

The Veteran's hearing loss has been evaluated under the provisions of 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.  It is observed, however, that during the pendency of his appeal, VA issued new regulations for evaluating impairment of auditory acuity which became effective June 10, 1999.  62 Fed. Reg. 25,202-210 (May 11, 1999).  

The criteria for evaluating hearing impairment in effect prior to June 10, 1999, call for the consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests.  38 C.F.R. § 4.85 (1999).  These results are then charted on Table VI and Table VII, as set out in the Rating Schedule.  In order to establish entitlement to a compensable evaluation for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met.  If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation of I for hearing impairment.  38 C.F.R. § 4.85(f) (1999).  The Board has compared the previous versions of Table VI and Table VII, with the new versions of these tables, and finds that there has been no discernable change in them.  Further, we note that the revisions in the language in 38 C.F.R. § 4.85 do not change the method by which Tables VI and VII are interpreted, but only describe, in greater detail, how they are applied.  

As to the provisions of section 4.86, in effect prior to June 1999, it only provided information regarding the fact that the evaluations derived from the Rating Schedule were intended to make proper allowance for improvement by hearing aids.  The current regulations provide that hearing tests will be conducted without hearing aids.  It addresses exceptional patterns of hearing loss, for example, when the puretone threshold at 1000, 2000, 3000, and 4000 Hz are each 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  These exceptional patterns are not shown to be present in this case.  

Similarly, the current criteria for evaluating hearing impairment call for the consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests.  38 C.F.R. § 4.85 (2010).  These results are then charted on Table VI and Table VII, as set out in the Rating Schedule.  In order to establish entitlement to a compensable or higher evaluation for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met.  Again, if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation of I for hearing impairment.  38 C.F.R. § 4.85(f) (2010).  

Section 4.86 provides that hearing tests will be conducted without hearing aids.  It also addresses exceptional patterns of hearing loss, for example, when the puretone threshold at 1000, 2000, 3000, and 4000 Hz are each 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz.  38 C.F.R. § 4.86 (2010).  

Prior to October 20, 2009, the findings on the Veteran's multiple audiometric evaluations consistently correlate to a designation of level I hearing in the right ear and level I hearing in the left ear (since service connection was not in effect for the left ear during that time period).  Table VII of § 4.87 provides for a noncompensable evaluation under Diagnostic Code 6100 (1999 and 2010) when those levels of hearing loss are demonstrated.  More severe hearing loss disability has not been clinically demonstrated at any time during this time period.  Additionally, as noted above, an exceptional pattern of hearing loss was also not found on any of the clinical evaluations conducted during this time period.  Consequently, the Board finds that a compensable rating for right ear hearing loss disability is not warranted prior to October 20, 2009.  

From October 20, 2009 (when service connection for left ear hearing loss disability became effective), the findings on audiometric evaluation continue to correlate to a designation of level I hearing in the right ear and level I hearing in the left ear.  Hence, a compensable rating for bilateral hearing loss disability may also not be assigned from October 20, 2009.  

Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Here, a mechanical application of the rating schedule results in a noncompensable rating under Diagnostic Code 6100 throughout the appeal period.  Moreover, the objective audiometric findings are more probative than the Veteran's lay statements regarding his hearing ability because the tests were conducted and interpreted by an audiologist who is specifically trained in such matters.  

Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

Right Hand Weakness, Status Post Carpal Tunnel Syndrome Repair and Loss of Use of the Right Upper Extremity

The Veteran asserts that his service-connected right hand weakness with carpal tunnel syndrome is so severe as to warrant an increased rating, and to equate to loss of use of the hand, primarily on account of a claimed inability to squeeze, grasp, twist, and manipulate objects, or to button his clothes.  

The Veteran's service-connected right hand weakness with carpal tunnel syndrome, is evaluated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8515 for incomplete or complete paralysis of the median nerve.  The Veteran clearly does not have "complete paralysis" of the median nerve because he has maintained sensation and functional use of his right (major extremity) hand and fingers throughout the course of his appeal.  Thus, it is only necessary to consider the extent of his "incomplete paralysis" of the median nerves since a note in section 4.124a defines the term "incomplete paralysis" as a degree of lost or impaired function which is substantially less than that described in the criteria for "complete paralysis" of a given nerve regardless of whether the less than total paralysis of the nerve in question is due to the varied level of the nerve lesion or to partial regeneration of the nerve.  Significantly, this section also directs that if the nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree of incomplete paralysis.  

Paralysis of the median nerve is rated as 70 percent disabling for the major hand where the paralysis disability is complete, meeting the following criteria:  the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances.  38 C.F.R. § 4.124a, Diagnostic Code 8515 (2010).  

Where paralysis is incomplete, severe disability is rated as 50 percent for the major hand; moderate disability is rated as 30 percent for the major hand; and mild disability is rated as 10 percent for the major (or minor) hand.  38 C.F.R. § 4.124a, Diagnostic Code 8515 (2010).  

In the present case, the Veteran's right hand disorder is shown on numerous occasions to involve only moderate slowing of the median sensory and motor latencies, manifested primarily by some slight decreased sensation to light touch of the palmar aspect of the hand.  Thus, his right hand disorder is sensory, with no more than moderate slowing of the median sensory and motor latencies.  Moreover, although he has difficulty with specific tasks, he continues to have function in the hand.  Thus, the Board finds that the criteria for a 50 percent rating for severe incomplete paralysis of the median nerve have not been demonstrated during the course of the appeal.  In this regard, it is noted that the Veteran's carpal tunnel syndrome was always considered to be no more than mild to moderate, and initial post-surgery notes showed clear improvement in the disability.  Later treatment records indicate that the disability has been stable.  As the evidence does not more closely approximate, either complete paralysis of the median nerve, or severe incomplete paralysis, the Board concludes that a rating in excess of 30 percent may not be granted at any time during the appeal period.  

In finding so, the Board stresses that repeated VA examinations demonstrate that the Veteran has some loss of function of the right hand-but no more than that which is contemplated by the current 30 percent rating currently in effect.  That is, there is evidence of some difficulty in grasping or twisting objects and gripping a cane.  There is also some decrease in hand grip strength, but only in the first three digits, and some loss of strength and mobility.  However, there is no right upper extremity atrophy, loss of use of the right hand, or decreased grip strength weakness which would be more than moderate.  The Veteran is able to make a fist, with only slight loss of touch and weakness of the thenar muscle.  While his light sensation is diminished, there is no objective medical evidence that his right hand results in impairment which more closely equates to severe incomplete paralysis of the median nerve.  The Board has considered the Veteran's statements regarding his functional impairment in support of his claim for a higher rating.  The Board finds that the Veteran is competent to report any functional limitations. However, here, the clinical evidence pertaining to the Veteran's right hand disability is more probative for the purposes of assigning a current rating for the disability at issue in conjunction with the relevant rating criteria.  Consequently, a higher evaluation is not warranted.  38 C.F.R. § 4.124a, Diagnostic Code 8515.  

With regard to the claim for special monthly compensation based on the loss of use of the right upper extremity (or hand), the Board notes that the relevant regulation states that loss of use is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow with the use of a prosthesis.  38 C.F.R. § 4.63 (2010).  The determination will be made on the basis of the actual remaining function of the hand, whether the acts of grasping, manipulation, etc., in the case of the hand, could be accomplished equally well by an amputation stump with prosthesis.  Id.  

As outlined in the factual background and discussed above, the Veteran continues to have use of his right hand and the medical evidence shows that the right hand is functional.  He ambulates with a cane held in his right hand.  There is sensory impairment in the hand, but he is able to grip objects, dress himself, pay his own bills, and feed himself.  The Veteran's complaints with regard to increased difficulty with these tasks is acknowledged, but the evidence clearly demonstrates that he is much better served by his right hand than by an amputation stump at the site of election below the elbow as he would then no longer be able to ambulate with a cane.  The assertion that he has lost the use of his right upper extremity is without any medical or factual merit.  Consequently, the Board concludes that entitlement to special monthly compensation based on the loss of use of the right upper extremity is not warranted.  

Right Knee Disability

The Veteran's right knee disability is characterized as hyperextension and instability of the knee and is currently rated 10 percent disabling under Diagnostic Code 5257, which pertains to impairment of the knee based on recurrent subluxation or lateral instability.  Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is given a 10 percent rating if slight, and 20 percent if moderate.  A 30 percent maximum rating is warranted for those situations in which the evidence demonstrates "severe" impairment with recurrent subluxation or lateral instability.  

VA General Counsel has held that knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology.  VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9- 98, 63 Fed. Reg. 56,704 (1998).  Further, VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint.  VAOGCPREC 9-2004; 69 Fed. Reg. 59990 (2004).

Normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees.  38 C.F.R. § 4.71, Plate II (2010).  Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 10 percent rating is warranted where flexion of the leg is limited to 45 degrees, and a 20 percent rating is warranted where flexion is limited to 30 degrees.

A 10 percent rating is also appropriate where extension of the leg is limited to 10 degrees, and a 20 percent rating is warranted for extension limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261 (2010).  

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

The provisions of 38 C.F.R. § 4.40 concern lack of normal endurance, functional loss due to pain, and pain on movement and during flare-ups; the provisions of 38 C.F.R. § 4.45 concern weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concern the effects of the disability on the veteran's ordinary activity.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

However, the Board observes that since Diagnostic Code 5257 is not predicated on loss of range of motion, 38 C.F.R. §§ 4.40 and 4.45, as interpreted in DeLuca, supra do not apply.  Johnson v. Brown, 9 Vet. App. 7, 9 (1996).

In considering the evidence of record, as well as the Veteran's reported difficulties with balance and increased instability in the knee, the Board finds that his right knee instability may be characterized as moderate.  As noted above, the next higher 20 percent rating requires symptomatology compatible with a finding of moderate recurrent subluxation or lateral instability.  While the Veteran's prior VA examination in June 2003 showed mild medial ligamentous laxity in both knees, the current April 2009 VA examination report revealed no signs of medial or collateral ligament laxity of either knee; anterior drawer sign, Lachman's, McMurray's were all negative for both knees; muscle strength was 5+/5 ; and there was normal neurovascular status of the extremities.  However, there are medical reports in the record documenting increased falls due to instability in the right knee that support the Veteran's assertions.  For example, in a September 2010 eye examination report, it was noted that the Veteran lost balance while trying to put in eye drops.  A June 2007 physical medicine rehabilitation note showed that he fell and struck his right knee.  Additionally, he was advised to wear a knee brace.  Consequently, the Board finds that the clinical evidence supports a finding that there is a moderate level of instability to warrant a 20 percent rating under Diagnostic Code 5257.  The evidence is not compatible with a finding of severe instability - the Veteran is able to ambulate with a cane and clinical testing essentially shows that his ligaments are intact.  Hence, the Board finds that a rating in excess of 20 percent is not warranted at any time during the appeal period.  

The Board also finds that a separate rating based on X-ray evidence of arthritis and/or decreased range of motion of the right knee is not warranted because X-rays do not show arthritis and the Veteran has not demonstrated any decreased motion of the right knee at any time during the appeal period.  The medical evidence of record fails to reveal flexion or extension limited to even noncompensable levels.  Indeed, the VA examinations discussed above document full range of motion of the right knee with no additional functional limitation such as to render the Veteran's disability picture analogous to at least noncompensable levels under Diagnostic Code 5260 or 5261.  Therefore, the Board finds that a separate rating for arthritis is not assignable through application of VAOPGCPREC 23-97 and VAOPGCPREC 9-98 or with consideration of 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra.   

Right Leg Incoordination (femoral nerve paralysis)

Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123 (2010).

Neuritis and neuralgia of the peripheral nerves is to be rated with a maximum equal to moderate incomplete paralysis.  38 C.F.R. §§ 4.123, 4.124 (2010).

This disability is currently rated 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8526.  Pursuant to this regulation, complete paralysis of the anterior crural nerve (femoral), with complete paralysis of the quadriceps extensor muscles, warrants a 40 percent evaluation.  Incomplete paralysis of the anterior crural nerve (femoral) warrants a 30 percent evaluation if severe, a 20 percent evaluation if moderate, and a 10 percent evaluation if mild.  See 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2010).  

The Board observes that the Veteran's service treatment reports show that his December 1979 Physical Evaluation Board concluded that there was complete paralysis of the femoral nerve, bilaterally.  However, the relevant medical reports for the time period at issue do not comport with this finding.  Repeated VA examinations, including in January 1999, show no right femoral nerve paralysis on neurologic examination.  Moreover, repeated VA examinations show normal range of motion of the right hip and knee and he is able to ambulate with the assistance of a cane.  The Veteran has been awarded a 10 percent disability rating under Diagnostic Code 8526 based on demonstrated mild incoordination of the right lower extremity, as first noted on VA examination in January 1983.  Subsequent examinations do not show evidence of any actual femoral nerve impairment.  On VA examination in August 1997, the right leg hip flexor, abductors, and adductor muscles had 4/5 strength, with 2/4 deep tendon reflexes, and a diagnosis merely of some right side impairment.  Significantly, on VA neurologic testing of May 1999, there was no clinically significant weakness of muscle testing in the right lower limb.  The examiner was of the opinion that the incoordination and hyperextension of the right knee might be related to an upper motor neuron defect-but this has never been shown.  Upon VA peripheral nerves examination in June 2009, the Veteran reported right thigh weakness.  Muscle strength of the right leg was 4, there was mild weakness/difficulty with knee extension due to the right femoral nerve; but there were no tremors, muscle atrophy, or abnormal muscle tone.  Notably, it was reported that neuritis and neuralgia were present, but paralysis was absent.  

The Board can find no basis for an evaluation in excess of 10 percent for the Veteran's incoordination of the right lower extremity which is characterized as femoral nerve impairment on the basis of demonstrated symptoms.  While the Veteran asserts that he cannot walk, the voluminous medical records contained in the file clearly show that he continues to ambulate on his own with the assistance of a cane.  He does not use a wheelchair and he lives alone.  Additionally, while he also asserts that his right femoral nerve disorder has increased in severity to include loss of balance and more frequent falls, the Board has considered these symptoms in awarding a higher rating for his right knee disability.  To consider them again in awarding a higher rating here would result in pyramiding.  See 38 C.F.R. § 4.14 (2010).  

In reaching its decision, the Board has considered the Veteran's statements regarding his pain level and functional impairment, as well as the lay statements that he submitted in support of his claim for a higher rating.  The Board finds that the Veteran is competent to report that he has pain and to observe and report any functional limitations.  However, here, the clinical evidence pertaining to the Veteran's disability is more probative for the purposes of assigning a current rating in conjunction with the relevant rating criteria.  Consequently, the Board concludes that impairment due to neuritis or neuralgia of the femoral nerve may be characterized as no more than mild.  Hence, a higher rating is not warranted.  The Board has also considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims that doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.  

Special Monthly Compensation Based on Loss of Use of the Right Leg

Special monthly compensation based on the loss of use of the right lower extremity (or foot) is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis.  38 C.F.R. § 4.63 (2010).  The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.  Id.  Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more, will constitute loss of use of the foot involved; complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.  38 U.S.C.A. § 1114 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.350, 4.63 (a), (b) (2010).  

As outlined in the factual background and discussed above, the Veteran continues to have use of his right foot and lower extremity and the medical evidence shows that the right foot is functional.  He ambulates with a cane held in his right hand.  There is sensory impairment in the right leg, but he is able to stand, walk, perform physical therapy exercises, get in and out of a car, etc.  He does not use a wheelchair.  The Veteran's complaints with regard to increased difficulty with these tasks is acknowledged, but the evidence clearly demonstrates that he is much better served by his right leg and foot than by an amputation stump at the site of election below the knee as he would then no longer be able to ambulate with a cane.  Additionally, the medical evidence does not demonstrate that his right knee is ankylosed (in fact, he has complete range of motion) and he does not have complete paralysis of the external popliteal nerve (common peroneal) with foot drop, etc.  The Veteran has cited to his service treatment records which show that he had complete paralysis of the sciatic nerve, bilaterally, and the femoral nerve, bilaterally as well as a diagnosis of triplegia to support his contention that he has lost the use of his right lower extremity.  However, the current medical reports clearly show that he is hemiplegic, not triplegic.  Moreover, as discussed above, the current clinical reports clearly show that he is able to ambulate with the aid of a cane.  Consequently, the Board concludes that entitlement to special monthly compensation based on the loss of use of the right lower extremity is not warranted.  
Special Monthly Compensation Based on the Need for Aid and Attendance or on Housebound Status Including in Excess of the (m) Rate

The Veteran is currently in receipt of special monthly compensation at the "m" rate at 38 U.S.C.A. § 1114(m) based on loss of use of both left extremities with additional service-connected disabilities independently ratable at 50 percent or more.  See 38 C.F.R. § 3.350(f)(3) (2010).  The Veteran asserts that he is entitled to special monthly compensation at a rate in excess of the "m" rate at 38 U.S.C.A. § 1114(m), including based on the need for regular aid and attendance of another person.  His primary argument is that of substantial loss of use of the right hand and/or right lower extremity, so as to warrant special monthly compensation at a rate in excess of the "m" rate.  

Additional special monthly compensation is available under 38 U.S.C.A. § 1114(n) only for:  anatomical loss or loss of use of both extremities, blindness in both eyes having only light perception, blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance, or anatomical loss of both eyes or blindness without light perception in both eyes.  

Additional special monthly compensation is also available under 38 U.S.C.A. § 1114(o) only if an individual establishes entitlement to two or more rates of special monthly with no condition being considered twice as provided in 38 U.S.C.A. § 1114(l) through (n).  In other words, entitlement to this level of special monthly compensation would require, in this case, that the Veteran be in need of regular aid and attendance due to service-connected disabilities other than those involving his left upper and lower extremities for which the (m) rate has already been assigned.  

Special monthly compensation at the aid and attendance rate under subsection (l) is payable when the claimant, due to service-connected disability, has the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or has such significant disabilities as to be in need of regular aid and attendance.  38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352 (a) (2010).  Special monthly compensation at the housebound rate under subsection (s) is awarded where the claimant has a service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound due to such service-connected disability or disabilities.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i) (2010).  

The following will be accorded consideration in determining the need for regular aid and attendance:  inability of claimant to dress or undress himself, or to keep himself 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 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 daily environment.  38 C.F.R. § 3.352(a) (2010).

Not all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) must be found to exist before a favorable rating may be made.  The particular personal functions which the claimant is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need.  38 C.F.R. § 3.352(a) (2010); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (noting that at least one factor listed in section 3.352(a) must be present for a grant of special monthly pension based on need for aid and attendance).  

For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the claimant is in need of regular aid and attendance of another person.  "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed.  The fact that a 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.  38 C.F.R. § 3.352(a) (2010).  

The record clearly shows that the Veteran is not bedridden and he is not housebound.  He is able to leave the house to attend appointments, etc. and he splits his time between two homes.  Hence, special monthly compensation based on housebound status is not warranted.  Moreover, the Board finds that the preponderance of the evidence is against his claim for a rate of special monthly compensation higher than the "m" rate, including based on the need for the regular aid and attendance of another person.  The Board recognizes the severity of the Veteran's service-connected disabilities affecting his left upper and lower extremities, as well as his right hand, right knee and right lower neurologic disorders, vision disabilities, and hearing loss disability.  However, the most probative evidence does not establish that he meets the criteria for the regular aid and attendance of another person based on these disabilities.  

As discussed above, the Veteran's complains of substantial loss of use of the right hand and/or right lower extremity.  However the objective medical evidence continues to show that function remains in both of those extremities.  Moreover, the evidence shows that he is able to live alone and ambulate without the use of a wheel chair or the assistance of another person.  He has been determined to be competent and able to manage his own financial affairs, which in light of his monthly income and his ownership of at least two homes is significant.  Upon VA aid and attendance examinations in March 2004 and October 2009, and upon VA examination in January 2006, the examiners concluded that the Veteran was not in need of the regular aid and assistance of another person to attend to the needs outlined in 38 C.F.R. § 3.352(a), even though it was becoming more difficult to perform some of the tasks.  Specifically, the Veteran was found to be able to dress himself, attend to the wants of nature, and feed himself.  It was not shown that he requires assistance for frequent adjustment of special prosthetic or orthopedic appliances that cannot be done without aid or to keep himself ordinarily clean and presentable.  The Board acknowledges the medical statements in support of his claim, in particular those noting that the Veteran needed assistance with placing eye drops or cutting pills in half.  (See for example, the March 2007 letter from a VA staff physician).  However, neither one of these actions is listed in 38 C.F.R. § 3.350(a); hence, those findings alone are not sufficient to base a grant of an award of special monthly compensation based on the need for aid and attendance.  See Turco, supra.  Additionally, the record shows that more than one examiner has questioned whether the Veteran is an accurate historian in his case so his report of his difficulties have limited probative value in comparison to the objective medical evidence established through examinations tailored for this specific purpose.  While significant impairment is conceded and clearly compensated for, the Veteran's disabilities do not approach, or more closely approximate, a level of impairment that warrants a higher level of special monthly compensation in excess of the "m" rate, including based on the need for the regular and aid and attendance of another person during the appeal period.  

In conclusion, the Board finds that, as the facts do not demonstrate an entitlement to an award of special monthly compensation benefits at a rate in excess of the rate above 38 U.S.C.A. § 1114(m), including based on the need for the regular and aid and attendance of another person the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert, supra.  


ORDER

Service connection for bowel and/or bladder incontinence (to include entitlement to special monthly compensation) is denied.

Service connection for sinusitis, including secondary to traumatic brain injury, is denied.  

Severance of service connection for left ear hearing loss was proper and restoration of the grant of service connection for left ear hearing loss disability prior to October 20, 2009 is denied.

A compensable rating for right ear hearing loss disability prior to October 20, 2009 is denied.

A compensable rating for bilateral hearing loss disability from October 20, 2009 is denied.

An increased rating for right hand weakness, status post carpal tunnel syndrome repair (major extremity) is denied.

Special monthly compensation based on loss of use of the right upper extremity (hand) is denied.

An initial 20 percent rating for a right knee disability is granted subject to the regulations governing the payment of monetary awards.  

An increased rating for right leg incoordination (characterized as femoral nerve paralysis) is denied.  

Special monthly compensation based on loss of use of the right lower extremity (foot) is denied.  

Special monthly compensation based on the need for aid and attendance of another person or on housebound status is denied.  

Special monthly compensation at a rate in excess of the rate at 38 U.S.C.A. § 1114(m) is denied.  



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs