Citation Nr: 1326975 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 10-04 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rate of special monthly compensation (SMC) higher than what is paid pursuant to 38 U.S.C.A. § 1114(m); 38 C.F.R. § 3.350(f)(ii), to include as a result of the need for regular aid and attendance of another person. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to September 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In that decision, the RO denied entitlement to a higher rating of SMC based on the need for regular aid and attendance. The Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in August 2011. A copy of the transcript is associated with the claims file. The case was remanded in February 2012 and November 2012 for additional development of the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is being paid a special monthly compensation (SMC) at a rate equal to that of 38 U.S.C.A. § 1114, subsection (m) on account of loss of use of one foot with the anatomical loss of one leg so near the hip as to prevent the use of a prosthetic appliance. 2. The Veteran is not bedridden and his service-connected disabilities, other than those of the lower extremities, do not result in the need for regular assistance with dressing, keeping himself clean and presentable, and feeding himself nor does he require care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 3. The Veteran's service-connected disabilities do not result in loss of use of any of the following: one knee and one hip; either upper extremity, loss of use of the buttocks, blindness, deafness, loss of bladder or bowel control, or the loss of use of three extremities. 4. The Veteran does not have an additional permanent disability or combination of permanent disabilities independently ratable at 50 percent or more that are separate and distinct and involve different anatomical segments or bodily systems from the leg disabilities and residuals thereof. CONCLUSION OF LAW The criteria for the assignment of a rate of special monthly compensation (SMC) higher than what is paid pursuant to 38 U.S.C.A. § 1114(m); 38 C.F.R. § 3.350(f)(ii), to include as a result of the need for regular aid and attendance of another person have not been met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. § 3.350, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in June 2008. This notification complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim for a higher rate of SMC and/or the need for aid and attendance; and, the relative duties of VA and the claimant to obtain evidence. The letter also provided notice regarding how disability ratings and effective dates are assigned, in compliance with the requirement in Dingess v. Nicholson, 19 Vet. App. 473 (2006) that the duty-to-assist letter must identify the five elements of a service connection claim, including the assignment of disability ratings and effective dates. The Veteran did not submit any authorization forms to obtain private treatment records relevant to his claim. Pursuant to the Board's February 2012 remand, the RO obtained all VA treatment records. Several attempts were made to obtain the results of a March 2010 EMG study, but it was later discovered that the Veteran did not undergo any EMG studies at that time. See April 2012 memorandum regarding the unavailability of 2010 EMG test results. The February 2012 remand also instructed the RO to have the Veteran examined to determine the severity of the Veteran's service-connected disabilities and to determine whether the Veteran met the criteria for entitlement to SMC for any other disabilities. The examination was held in March 2012. As that examination did not address all of the issues set forth in the February 2012 remand, the matter was remanded again in November 2012. Adequate examinations were held in February 2013. The examiner reviewed the claims file and addressed all of the remaining issues discussed in the February 2012 remand. The examinations are adequate because the examiner physically examined the Veteran's joints, genitourinary system and respiratory system and provided sufficient information so the Board can render an informed determination. The Veteran has presented oral testimony in support of his claim at a hearing before the undersigned Veterans Law Judge. The Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions. Following the hearing, the case was remanded in order to obtain additional VA treatment records and to afford the Veteran a VA examination. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The February 2013 remand also directed the RO to once again attempt to obtain private treatment records identified by the Veteran that were not currently of record, and obtained and associated with the Veteran's Virtual VA folder all outstanding VA treatment records. The Veteran did not respond to the request for private treatment records. The RO has substantially complied with the remand orders and no additional development is necessary in that regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In sum, VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. SMC and Aid and Attendance The Veteran seeks a higher rating for SMC, asserting that his service connected disabilities require the aid and attendance of another person. The Veteran's service connected disabilities include amputation of the left lower extremity with disarticulation at the hip, rated as 90 percent disabling; residuals of shrapnel wound, right lower extremity with drop foot and paralysis right common peroneal nerve and retained foreign body (rated as loss of use) rated as 40 percent disabling; diskogenic disease of the cervical spine, rated as 20 percent disabling; diskogenic disease of the lumbar spine, rated as 20 percent disabling; residuals of tracheotomy scar and chest wounds, rated as 10 percent disabling; residuals of chest wall injury associated with residual tracheotomy scar and chest wounds, rated as 10 percent disabling; degenerative joint disease with myositis, left shoulder and right shoulder, each rated as 10 percent disabling; right knee condition, rated as 10 percent disabling; service connection for urinary frequency, rated as 20 percent disabling; and, history of hookworm infestation, rated as 0% disabling. The combined schedular disability rating is 100 percent. Additionally, the Veteran has been awarded SMC pursuant to 38 U.S.C.A. § 1114, subsection (p) and 38 C.F.R. § 3.350(f)(1) at the rate equal to subsection (m) on account of loss of use of one foot with the anatomical loss of one leg so near the hip as to prevent the use of a prosthetic appliance. This rate of SMC has been in effect since September 27, 1971, and the Veteran asserts that he now needs the regular aid and attendance of another person, particularly given that his wife, who has helped care for him since service, has developed her own medical conditions which prevent her from caring for him as well as she once could. SMC is governed by 38 U.S.C.A. § 1114 and 38 C.F.R. § 3.350. SMC(k) is granted for the anatomical loss or loss of use of the following: * one foot; * one hand; * buttocks; * one or more creative organ; * blindness of one eye; * deafness of both ears; * complete organic aphonia (loss of voice); * loss of 25 percent or more of the tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy); or * when breast tissue has been subjected to radiation treatment. According to 38 CFR § 3.350(a)(2) and 38 CFR § 4.63, the loss or loss of use of a hand is held to exist when its function would be no better than if the hand were amputated and replaced by a suitable prosthesis. Complete ankylosis of two major joints of an upper extremity also establishes loss of use of a hand. The anatomical loss or loss of use of one foot is also found in 38 CFR § 3.350(a)(2) and 38 CFR § 4.63. As with a hand, the loss or loss of use of a foot is held to exist when its function would be no better than if the foot were amputated and replaced by a suitable prosthesis. Other factors that establish loss of use of a foot include: * extremely unfavorable complete ankylosis of the knee; * complete ankylosis of two major joints of an extremity; * shortening of the lower extremity three and one-half inches or more; or, * complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes. Loss of use of both buttocks exists when there is severe damage by disease or injury to muscle group XVII, bilaterally, resulting in the inability to rise without assistance from a seated or stooped position and the inability to maintain postural stability. 38 CFR §§ 3.350(a)(3), 4.64. This disability is described in Diagnostic Code 5317. Since the person must be able to perform the activities without assistance, if the Veteran's own hands or arms are used or, in the matter of postural stability, a special appliance is used, SMC will still be established. SMC for loss or loss of use of both lower extremities, as provided under SMC(l) through (n), will not preclude additional compensation under SMC(k) for loss of use of both buttocks where appropriate tests clearly substantiate that there is such additional loss. As the Veteran is not service-connected for erectile dysfunction, SMC(k) based on the loss of use of a creative organ is not for consideration. The Veteran is also not service-connected for an eye, hearing loss or aphonia disorder. SMC(l) is what is generally referred to as aid and attendance (A&A), but the A&A provisions actually encompass only part of (l). See 38 USCA § 1114(l); 38 CFR §§ 3.350(b), 3.352. SMC(l) is assigned where there is anatomical loss or loss of use of both feet, OR for loss of use of one hand AND one foot. Loss of use is defined in 38 CFR § 4.63 as existing when no effective function remains beyond that which would be equal to an amputation with use of a suitable prosthesis. SMC(l) is assigned for blindness in both eyes, with visual acuity of 5/200 or less or for being permanently bedridden. SMC(l) also is assigned for a factual need for regular A&A. A&A is actually defined in 38 CFR § 3.352(a). Factors are: * an inability to dress or undress oneself; * an inability to keep oneself ordinarily clean and presentable; * a need to frequently adjust prosthetics or appliances which cannot be accomplished without aid; * an inability to feed oneself due to a loss of coordination or extreme weakness; * an inability to "attend to the wants of nature;" * an inability to protect oneself from the hazards and dangers of daily life and environment. SMC(m) provides a higher level of SMC based on certain combinations of disabilities or levels of impairment. 38 USC 1114(m); 38 CFR § 3.350(c). SMC(m) is assigned for anatomical loss or loss of use of BOTH hands; for anatomical loss or loss of use of BOTH legs above the knee (or at a level that prevents natural knee action with a prosthetic in place); for anatomical loss or loss of use of one leg above the knee AND one arm above the elbow (at a level that prevents natural action of the joint with a prosthetic device); for blindness with light perception only bilaterally; or for blindness with 5/200 vision bilaterally and a need for A&A. The need for A&A must be based entirely on the blindness. 38 CFR §3.350(c)(1)(v). SMC(n) deals with increased levels of overall impaired function due to combinations of disabilities. See 38 USCA § 1114(n); 38 CFR § 3.350(d). SMC(n) is assigned for the anatomical loss or loss of use of both arms above the elbow, anatomical loss of both legs at hip level, anatomical loss of one leg AND one arm, and for a lack of light perception in both eyes. SMC(o) provides higher levels of compensation for various combinations of disabilities. See 38 USCA § 1114(o); 38 CFR § 3.350(e). SMC(o) is assigned for anatomical loss of both arms preventing use of prosthetics; for combinations of service connected blindness and deafness; for paraplegia via the loss of use of both lower extremities together with loss of anal and bladder sphincter control and with a showing of helplessness. SMC(o) is also assigned when a Veteran is entitled to two SMC rates under SMC(l), (m), or (n). Each SMC entitlement must be totally separate from the other; one disability cannot support both SMC entitlements. SMC(p) assigns whole or half steps of increased SMC depending on the combination of disabilities shown. See 38 USCA § 1114(p); 38 CFR § 3.350(f). It does not actually assign a rate as much as it provides a "bump up" for rates assigned under another SMC provision. SMC(p) is assigned for combinations of losses of two extremities as follows: Regulation Combination of Loss SMC 38 CFR § 3.350(f)(1)(i) foot and knee (l) + 1/2 38 CFR § 3.350(f)(1)(ii) foot and hip (m) 38 CFR § 3.350(f)(1)(iii) foot and elbow (l) + 1/2 38 CFR § 3.350(f)(1)(iv) foot and shoulder (m) 38 CFR § 3.350(f)(1)(v) knee and hip (m) + 1/2 38 CFR § 3.350(f)(1)(vi) knee and hand (l) + 1/2 38 CFR § 3.350(f)(1)(vii) knee and shoulder (m) + 1/2 38 CFR § 3.350(f)(1)(viii) hip and hand (m) 38 CFR § 3.350(f)(1)(ix) hip and elbow (m) + 1/2 38 CFR § 3.350(f)(1)(x) hand and elbow (m) + 1/2 38 CFR § 3.350(f)(1)(xi) hand and shoulder (n) 38 CFR § 3.350(f)(1)(xii) elbow and shoulder (n) + 1/2 SMC(p) is also assigned for combinations of bilateral loss of vision as well as blindness in connection with deafness and/or loss of an extremity; however, as this is not pertinent to the claim on appeal here, these provisions will not be provided. SMC(p) is assigned for the presence of additional disabilities (not involved in prior SMC determinations) rated 50 percent (additional 1/2 step) or 100 percent (additional whole step) disabling. SMC(p) is also assigned for loss or loss of use of three extremities. There are two parts to SMC(r): there is special aid and attendance that is identified by (r)(1), and a higher level of special aid and attendance that is designated (r)(2). See 38 USCA § 1114(r); 38 CFR §§ 3.350(h), 3.352. To be awarded SMC (r)(1), the Veteran must be entitled to SMC at the maximum (o) or (p) levels. Once this is established, the Veteran then also is entitled to A&A if the need is shown on a factual basis. For SMC (r)(2), the Veteran must be receiving compensation at the intermediate rate between (n) and (o) plus (k). Once this threshold is established, the Veteran must show that he is in need of A&A, or a higher level of care. A higher level of care means that in the absence of such care, the Veteran would be an inpatient or resident at a hospital or nursing home. SMC(s) is governed by 38 USCA § 1114(s) and 38 CFR § 3.350(i). SMC(s) is also referred to as housebound. The Veteran can be paid at the housebound rate if he has at least a single 100 percent rating, and separate and distinct disabilities independently ratable at 60 percent. The separate 60 percent disabilities must involve separate and distinct anatomical segments or body systems. However, the fact that the total disability and the independent 60 percent disabilities result from a common etiological agent will not preclude entitlement. There is no requirement that either the 100 percent or the 60 percent rating be permanent. To be awarded benefits based on housebound status, the Veteran must have a single 100 percent disability, and be permanently housebound as a result of service-connected disabilities. This means that he or she is confined to the place of residence or immediate premises or, if institutionalized, to the ward or clinic areas. Effective December 1, 2011, the pay scale for SMC for a Veteran with a dependent spouse is as follows: Without Children, SMC-L through SMC-N Dependent Status L L1/2 M M1/2 N Veteran with Spouse $3,601 $3,779 $3,958 $4,219 $4,481 Without Children, SMC-N 1/2 through SMC-S Dependent Status N1/2 O/P R.1 R.2 S Veteran with Spouse $4,735 $4,990 $7,064 $8,080 $3,255 In this case, the Veteran is currently being paid SMC at the "m" rate with a dependent spouse. To warrant a higher level of SMC, the evidence must show entitlement to SMC at any of the following rates: M1/2, N, N1/2, O/P, R.1 or R.2. Note that S pays less than what the Veteran is currently receiving. The Veteran is currently being paid SMC at the "m" rate based on the loss of use of one foot and one leg. Loss of two feet entitles the Veteran to SMC under the "l" rate, and loss of both legs entitles the Veteran to SMC under the "m" rate. In this case, the Veteran "exceeds" the criteria for the "l" rate because his loss of use of one leg up to the hip and one foot is more severe than loss of use of both feet. Loss of use of one foot and one leg is not one of the listed criteria under "m"; however, under "p", the Veteran's "l" rate is bumped up to the next higher "m" rate because the loss of use of one foot and one leg exceeds the criteria for the "l" rate, but does not meet the criteria for the "m" rate. In other words, the Veteran's assignment of SMC at the "m" rate is assigned pursuant to the language at 38 U.S.C.A. § 1114 (p) which states that in the event the veteran's service-connected disabilities exceed the requirements for any of the rates prescribed in this section, the Secretary may allow the next higher rate or an intermediate rate. See also 38 C.F.R. § 3.350(f)(1)(ii). Significantly, 38 U.S.C.A. § 1114(p) also notes that in the event the veteran has suffered the anatomical loss or loss of use or a combination of anatomical loss and loss of use of three extremities, the Secretary shall allow the next higher rate or intermediate rate. A February 2008 examination report indicates that the left leg had hip disarticulation and a crutch was needed at all times. The Veteran also had right foot drop with muscle atrophy. The Veteran did not have any restriction of the spine, neck or trunk. It was further noted that the Veteran had shortness of breath, a total inability to balance on his right leg, and that he spent most of the days in his studio. He was able to walk 5 or 6 blocks without the assistance of another person. It was noted that the Veteran was able to drive and leave his house at will but he did require crutches for walking or standing. The physician indicated that the Veteran required the daily personal health care services of a skilled provider without which the Veteran would require hospital, nursing home or other institutional care. VA examination in July 2008 indicates that the Veteran is in need of A&A due to the loss of use of the right and left legs, and due to his lung condition, which is also a service-connected disability. With regard to the respiratory/lung condition, the examiner commented that the Veteran had no productive cough with sputum. He had dyspnea on exertion. He had no asthma and did not use CPAP. The examiner noted the Veteran's tracheostomy but said he had no incapacitation. On examination there was no cor pulmonale, RVH, or pulmonary hypertension. There was no weight loss or gain, no restrictive disease, and no pectus excavatum. There was deformity of the chest wall, but breath sounds on the right and left lung were normal. The examiner explained that the Veteran did not need an attendant to report to the exam, and was not hospitalized or bedridden. The examiner found the Veteran to be capable of managing his own benefit payments, but indicated that the Veteran had no capacity to protect himself from hazards and dangers of the daily environment. The examiner indicated that the Veteran was not able to lift and carry. He could sit, but he could only stand with the use of crutches. The Veteran could not climb, kneel, bend, twist, pull or push. He could do simple grasping with the right hand and left hand. He could do fine manipulation. He could reach over the shoulder. He could attend to toileting, dressing, and bathing. In a statement received in March 2009, the Veteran reportedly felt that the VA was minimizing the effects of his tracheal resection. The Veteran reported that he often takes deep breaths that fail to complete itself as if something were stopping the air before filling all the chambers of his lungs. At those times, according to the Veteran, he experiences a feeling of constriction or tightening in his chest, slightly painful breathing which was relieved only when the next minute's deep breath occurs and gets his breathing pattern or cycle back on track. The Veteran also reported that he can choke on his own spittle even though it is a negligible amount of liquid and that happened at least once every ten days. In essence, the Veteran pointed out that his breathing regimen is exhausting particularly in concert with the exertions on his upper torso. A March 2010 VA muscles examination notes that the Veteran has myopathy of the upper extremity with weakness of the right and left shoulder and the upper extremity secondary to compression on the axillary area. The examiner noted that there was nerve damage in the shoulders and the joints of both shoulders were also affected. Significantly, the examiner noted that the Veteran could not lift and carry. The examiner noted that the Veteran could sit without limitation, but could only stand and walk with a crutch, limitedly less than 100 feet. Additionally, the Veteran could not climb, kneel, bend, twist, pull or push. The examiner noted that the Veteran could do simple grasping on the right, but did not indicate as to what, if any ability, the Veteran had with regard to his left hand. The Veteran could not reach with the shoulder. A March 2010 VA examination of the joints indicates that the Veteran's right upper extremity, left upper extremity, thoracolumbar spine, cervical spine, right knee and urinary conditions are at least as likely as not secondary to the service-connected amputation of the left lower extremity and residuals of shell fragment wounds of the right lower extremity. The examiner noted, however, that the Veteran can do his daily activities, despite his limited ability to walk and stand. The examination report also notes that the Veteran is able to drive short distances. He is not able to lift and carry. The Veteran could flex the right knee to 140 degrees, albeit with pain. McMurray drawer test was negative on the right. Motion of the lumbar and cervical spine segments was limited, but the Veteran could do activities of daily living. The Veteran had neuritis and neuralgia on the right, but no muscle wasting or atrophy. The Veteran had right foot drop and peroneal nerve palsy. At the Veteran's personal hearing in August 2011, the Veteran testified that he is having more trouble breathing as a result of the added difficulty that has resulted from all of his joint and muscle pain. The Veteran also testified that while he stays at home most of the time, he is able to paint, but needed assistance with preparing meals and getting in and out of the bath tub. He also reported that once in a while he might need assistance with getting on and off the toilet due to back spasms. The Veteran drove very little because he did not trust his foot on the brake. With regard to his service-connected rebuilt trachea, the Veteran testified that he often chokes when he eats and has to cut his food into little pieces to eat it. A March 2012 VA examination revealed weakness of movement in the arms and shoulders, left greater than right, due to decades of walking with crutches. The Veteran had numbness and tingling in his hands. A March 2012 EMG study confirms peripheral neuropathy. Examination of the shoulders revealed pain and weakness. The Veteran uses a crutch to walk, and, "he cannot due his occupation." He can do daily activities. The examiner determined that the Veteran's joint were painful on motion, but there was no additional limitation following repetitive use. There were no flare-ups or instability of the joint. Movement of the shoulder was painful, with abduction/adduction to 160 degrees on the right, 155 degrees on the left with pain. Adduction was 35 degrees on the right , and 40 degrees on the left with pain. Flexion was 160 degrees on the right and 165 degrees on the left with pain. Extension was 35 degrees on the right and 40 degrees on the left, with bilateral pain. Internal rotation was 50 degrees with pain on the left. External rotation was painful at 35 degrees on the right and 38 degrees on the left. The March 2012 EMG study was interpreted to show that the left ulnar sensory conduction was absent; left median sensory conduction showed normal amplitude and latency with slow condition velocity. Left radial sensory conduction was normal. Left median motor conduction showed normal amplitude and latency with slow conduction velocity. Left ulnar motor conduction was normal. Needle EMG part showed some chronic denervation in the muscles innervated from lower brachial plexus with nearly normal motor conductions in those nerves. The examiner indicated that the EMG study was inconclusive, and the above information did not suggest plexopathy or radiculopathy; only slow conduction may be due to mild neuropathy. The March 2012 examiner specifically noted that the Veteran did have use of both buttocks, with limitation noted on the left side; he did not meet the criteria for the standing test, rising from a stooped position test or postural stability test. With regard to the chest wall condition, the examiner found that the status was unchanged from the examination in 2010; however, a review of the record shows that the March 2010 examinations did not address the chest wall conditions. With regard to the lumbar and cervical spine conditions, the examiner in March 2012 indicated that those conditions were unchanged from the March 2010 examination. The Veteran could flex the lumbar spine to 60 degrees and extend to 30 degrees. He could lateral flex to 25 degrees on the right and to 30 degrees on the left. Forward flexion of the cervical spine was painful at 20 degrees, backward extension was painful at 34 degrees. At the time of the March 2012 examination, the Veteran was able to do daily activities, although he could not lift and carry. He could sit for an hour. He could stand and walk only with the help of the crutch and the wheelchair. Walking was very limited. He could not climb, kneel, bend, push, or pull. He could do simple grasping, fine manipulation, reach of the shoulder. The examination notes that the Veteran only drove short distances with a restricted license. The examiner specifically indicated that no loss of sphincter or bladder control was noted. The examiner specifically indicated that the Veteran did not meet any of the criteria for helplessness. The examiner noted that the Veteran was not bedridden, not hospitalized, and that the Veteran could travel beyond his current domicile, despite finding that the Veteran's impairments affected the ability of the Veteran to protect himself from the daily environment. The Veteran was able to travel to the examination unaccompanied, and he could perform all self care skills. The Veteran used a crutch and a wheelchair, but there is no indication that he had a prosthetic appliance. The examiner indicated mild or moderate impairment in upper extremity strength and coordination on the left, normal on the right. The Veteran had the ability to self feed, dress and undress, bathe, self groom and toileting was normal. Functional limitations of the lower extremities included a left leg amputation including hip, prosthesis not feasible; and, muscle weakness, atrophy and lack of coordination on the right. The examiner found that the Veteran could manage his own financial affairs and pay his bills. The examiner concluded that the Veteran was not in need of aid and attendance at that time. A VA aid and attendance examination from February 2013 similarly found that the Veteran was not bedridden and could travel. The Veteran did not need aid for ambulation, although he can only walk within the home. He could leave the home unrestricted. The examiner also described the Veteran's limitation of movement of the lumbar spine as mild. The examiner specifically noted the Veteran's reports of respiratory difficulty on exertion; however, examination of lung sounds and respiratory motion were normal. The examiner specifically indicated that the Veteran had urinary frequency, but did not have loss of bladder control. On respiratory examination from February 2013, the examiner noted the Veteran's history of severe combat injury including injury to the trachea. The examiner acknowledged the Veteran's reports of irregular breathing where he needs to take deep breaths which appear to happen in an involuntary manner; and, that the gasping for air can be debilitating when it occurred. The examiner referred to several respiratory examinations which were normal and did not suggest the need for PFTs. The examiner specifically indicated that a PFT was not indicated at that time. The examiner concluded that the Veteran had an atypical respiratory symptom which resulted in scarring and trachea narrowing. The examiner acknowledged significant neck and chest surgery which appeared to cause narrowing of the trachea and a rhythmic disturbance to the breathing pattern. There was no treatment for the condition, and the examiner felt that the Veteran was doing quite well from a respiratory perspective with the disabling symptom. A genitourinary examination report indicates that the Veteran has erectile dysfunction, but opined that such was not related to service or to a service-connected disability. The genitourinary examiner also found that the Veteran had urinary frequency that was related to his service-connected injuries. The examination report indicates that the Veteran's urinary condition required the use of an appliance every evening, but did not elaborate on what type of appliance. In a June 2013 email clarification, the examiner admitted that his indication of the use of an appliance was in error. In a June 2013 telephone conversation with the RO, the Veteran reported that he takes a jar with him everywhere he goes. The examiner determined that the Veteran did not have loss of use of the upper extremities. Examination of the neck revealed forward flexion of the cervical spine to 30 degrees with pain. The Veteran was not able to perform repetitive use testing because of pain. The Veteran did not have intervertebral disc syndrome of the cervical spine and no neurologic abnormalities were noted. Radiculopathy was not demonstrated. The examiner concluded that the Veteran's cervical spine disability does not cause loss of use of either upper extremity because the examiner specifically indicated, by checking the box marked "no" corresponding to the following question: "Due to a cervical spine (neck) condition, is there functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis? The Veteran had arthritis of the cervical spine. Despite the above finding regarding use of the upper extremities, the examiner remarked, "It is more likely than not that the Veteran's increasing neck pain and limitation of movement as well as both shoulders and upper arm weakness is secondary to his service-connected injuries and resultant walking on one leg with crutches for 4 decades. The loss of upper extremity use is clinically related to his needing to ambulate on one leg with crutches. His neck strain and DJD is advanced beyond his biologic year, also providing evidence for his condition being a secondary illness." In essence, the Veteran referred to the Veteran's functional limitation of the upper extremities as "loss of use" but also specifically indicated that the Veteran's upper extremity weakness did not meet the criteria for loss of use as it is defined in the regulations. The Veteran reported several back strain related episodes per month requiring bed rest, as well as cervical neck spasms and pain monthly that can be severe. Forward flexion of the lumbar spine was to 40 degrees, with pain beginning at 40 degrees. The Veteran was not able to perform repetitive use testing due to pain. Neurologic abnormalities and radiculopathy were not noted. The examiner concluded that the Veteran did not have loss of use of the extremities as a result of the thoracolumbar spine condition. In this regard, he checked the box marked "no" corresponding to the following question: "Due to a thoracolumbar spine (back) condition, is there functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis?" Despite the above finding regarding use of the lumbar spine, the examiner remarked, "It is more likely than not that the Veteran's increasing back pain and limitation of movement as well as back strain is secondary to his service-connected injuries and resultant walking on one leg with crutches for 4 decades. The loss of upper extremity use is clinically related to his needing to ambulate on one leg with crutches." The examiner also noted that, "His back strain and DJD is advanced beyond his biologic year, also providing evidence for his condition being a secondary illness." In essence, the Veteran referred to the Veteran's functional limitation of the upper extremities as "loss of use" but also specifically indicated that the Veteran's upper extremity weakness did not meet the criteria for loss of use as it is defined in the regulations. In sum, based on the Veteran's loss of use of the right foot and anatomical loss of the left leg at the hip, in addition to his other service-connected disabilities, there are only a few ways that he can qualify for a rate of SMC higher than "m." First, if the Veteran is found "helpless" in addition to his loss of use of both legs, his "m" rate would be bumped to the rate of "o." See 38 C.F.R. § 3.350(o)(2). However, the "helplessness" must be based on need resulting from pathology other than that of the extremities. Here, the Veteran has been awarded service-connection for a cervical spine disability, lumbar spine disability, a lung condition, disabilities of both upper extremities, and urinary frequency. The above disabilities, even when considered in combination, do not render the render the Veteran helpless or bedridden. The Veteran does not report nor does the evidence show that the Veteran is bedridden. As noted above, the Veteran is generally able to do activities of daily living. The Veteran has reported that he needs assistance with preparing meals and getting in and out of the bath tub as well as using the toilet, once in a while, when he has back spasms. However, the Veteran is generally able to dress and undress himself, keep himself clean and presentable, feed himself, and protect himself from the hazards and dangers of daily life and the environment. He is able to leave his house and drive himself to other locations. While one examiner found that the Veteran required A&A, the examiner determined that such was required in part due to the disabilities of the lower extremities. While the Veteran reports that he may need assistance with toileting once in a while due to the back disability, this does not indicate that the regular aid and attendance of another person is required. Accordingly, the criteria for helplessness are not met. Similarly, if the Veteran were found to have another service-connected disability, or combination of disabilities, independently ratable at 50 percent, SMC would be payable at the next higher rate, as long as these disabilities were separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under "m." Here, the Veteran's other service-connected disabilities of the cervical and lumbar spine segments, as well as the lung condition, urinary frequency and upper extremity conditions are not independently ratable at 50 percent or higher, independently from the loss of use of the lower extremities. If the Veteran can establish the loss of use of a third extremity, such as one of the upper extremities, or both buttocks (under "k"), then SMC would be payable at the next higher rate. In this case, the Veteran does not have loss of use of both buttocks, as clarified in the March 2012 examination report. At the February 2013 examinations, loss of use of the bladder was not found. Although the Veteran has urinary frequency, examiners specifically found no loss of bladder control. With regard to the Veteran's spine and upper extremities, the examiner in February 2013 noted limitation of motion of the spine and weakness of the upper extremities, but the findings do not show that the Veteran has loss of use of the upper extremities. Although the examiner referred to "loss of use" when evaluating the spine and upper extremities, the examiner also specifically indicated that the limitations of the spine and upper extremities did not meet the criteria for loss of use as it is defined in the regulation. The Board therefore concludes that the examiner's references to "loss of use" refer to limitation but not loss of use such that the remaining function is equal to that of an amputation stump with a suitable prosthesis in place. See 38 C.F.R. § 4.63. The Veteran does retain the ability to use his upper extremities as shown by VA examination reports. While weakness of each shoulder and the upper extremity was noted on examination, the Veteran was able to do simple grasping with each hand and fine manipulation. He could also reach above the shoulder. Thus, the record reflects that the Veteran does not have loss of use of a third service-connected extremity. Although the Veteran has erectile dysfunction (ED), examiners have determined that the Veteran's ED is unrelated to his service-connected disabilities. As such, the Veteran's ED cannot be considered loss of use for SMC purposes. Moreover, with respect to SMC(p), there is no anatomical loss of both legs so near the hip as to prevent use of prosthetic appliances or anatomical loss or loss of use of one leg at a level or with complications preventing natural knee action with a prosthesis in place with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance. In this regard, the VA examination in March 2010 indicates that the Veteran is able to extend the right knee to 0 degrees and flex to 140 degrees, albeit with pain. In addition, as was discussed above, the evidence does not show that the Veteran lost the use of one arm at a level or with complications preventing natural elbow action with a prosthesis in place. It is also noted that any visual acuity loss in this case is not service-connected, so the higher SMC rates based in part or in whole on blindness or near blindness do not apply. In addition, the Veteran does not meet the criteria for the assignment of two separate SMC ratings under (l), (m), or (n). In sum, the criteria are not met for the assignment of SMC at a higher rate than (m). Notably, the Veteran already meets the criteria for regular entitlement to aid and attendance under (l) and 38 C.F.R. § 3.352(a) because the evidence shows that the Veteran's incapacity as a result of loss of use of one leg and one foot required care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. Despite this finding, however, the Veteran is already receiving the greater benefit under (m) as a result of the loss of use of one leg and one foot. In addition, he does not qualify for a higher level of care under (r)(2) because his disabilities do not qualify for a rating of SMC at the (n) or (o) rate. The Board has found the Veteran's assertions credible regarding the limitations he experiences, including as a result of flare-ups of back spasms. However, the evidence as a whole does not show that the Veteran meets the criteria for a higher SMC rate based on the above findings. The Veteran is in receipt of a schedular 100 percent rating and SMC at the (m) level. There is no legal basis on which to award a higher rate for the reasons set forth above. ORDER A rate of special monthly compensation (SMC) higher than what is paid pursuant to 38 U.S.C.A. § 1114(m); 38 C.F.R. § 3.350(f)(ii), to include as a result of the need for regular aid and attendance of another person is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs