Citation Nr: 1633724	
Decision Date: 08/25/16    Archive Date: 08/31/16

DOCKET NO.  16-09 128	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a higher rate of special monthly compensation (SMC) as contemplated by 38 U.S.C.A. § 1114(o), (r)(1), and (r)(2).


REPRESENTATION

Appellant represented by:	John Dorle, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran, J.M., and C.B., M.D.


ATTORNEY FOR THE BOARD

M. Katz, Counsel


INTRODUCTION

The Veteran served on active duty from March 1971 to December 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  Jurisdiction of the Veteran's claims file rests with the RO in St. Petersburg, Florida.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2016.  A transcript of that hearing is associated with the claims file.

Since the RO last considered the Veteran's claim in February 2016, additional evidence has been added to the Veteran's claims file.  The additional evidence includes private treatment records.  Although the Veteran has not provided a waiver of RO consideration of this evidence, a waiver is not needed in this case.  An automatic waiver of Agency of Original Jurisdiction (AOJ) consideration applies in this case with respect to the evidence submitted by the Veteran because the Veteran's substantive appeal was received after February 2, 2013, and the Veteran has not requested the Board to remand the case for AOJ consideration of the evidence.  See 38 U.S.C.A. § 7105(e) (West 2014).  Accordingly, although the Veteran has not waived RO consideration of the private treatment records submitted in May 2016, no waiver is required.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's service-connected disabilities are manifested by paralysis of both lower extremities together with loss of anal and bladder sphincter control.

2.  The Veteran is in need of regular aid and attendance of another person due to his service-connected disabilities.

3.  The Veteran is entitled to SMC at the rate under subsection (o) of 38 U.S.C.A. § 1114 based on paralysis of both lower extremities together with loss of use of anal and bladder sphincter control.

4.  The Veteran is entitled to an additional monthly allowance of SMC at the rate under subsection (r)(1) of 38 U.S.C.A. § 1114 based on entitlement to the rate under subsection (o) and the need for aid and attendance.


CONCLUSION OF LAW

The criteria for an increased level of SMC based on the need for regular aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(1), and no higher, are met.  38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015).  Notice letters were sent to the Veteran in October 2010, November 2010, and September 2014.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence.  Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009).  Thus, the Board finds that the content requirements of the notice VA is to provide have been met.  See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

The duty to assist the Veteran has also been satisfied in this case.  The Veteran's VA medical treatment records and identified private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).

In addition, the Veteran was provided with a VA examination in November 2014.  Review of the examination report reflects that it is adequate in this case, as it was based on a review of the claims file, clinical examination, and interview of the Veteran.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Accordingly, the Board finds the November 2014 VA examination to be adequate.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge 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.  During the Veteran's Board hearing, the Veteran was assisted at the hearing by an accredited representative.  The representative and the Veterans Law Judge (VLJ) solicited information regarding any outstanding evidence pertinent to the claim on appeal.  The hearing focused on the evidence necessary to substantiate the Veteran's claim.  No pertinent evidence that might have been overlooked and that might substantiate the claim decided herein was identified by the Veteran or the representative.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  Accordingly, any error in notice or assistance by the VLJ at the May 2016 Board hearing constitutes harmless error.

Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

SMC is available when, as the result of service-connected disability, a Veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities.  See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350 and 3.352.  The rate of SMC varies according to the nature of the Veteran's service-connected disabilities.  Basic levels of SMC are listed at 38 U.S.C.A. § 1114(k).  Higher levels of SMC are provided at 38 U.S.C.A. § 1114(l), (m), (n), and (o).

SMC provided by 38 U.S.C.A. § 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance.  38 C.F.R. § 3.350(b). 

SMC provided by 38 U.S.C.A. § 1114(o) is payable for any of the following conditions: (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C.A. § 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less.  38 C.F.R. § 3.350(e)(1).

Paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle to the maximum rate under 38 U.S.C.A. § 1114(o), through the combination of loss of use of both legs and helplessness.  The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures.  38 C.F.R. § 3.350(e)(2).

SMC at the (o) rate is warranted for combinations.  Determinations must be based upon separate and distinct disabilities.  This requires, for example, that where a Veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities.  If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness.  Under no circumstances will the combination of "being permanently bedridden" and "being so helpless as to require regular aid and attendance" without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit.  The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement.  38 C.F.R. § 3.350(e)(3).

The maximum rate, as a result of including helplessness as one of the entitling multiple disabilities, is intended to cover, in addition to obvious losses and blindness, conditions such as the loss of use of two extremities with absolute deafness and nearly total blindness or with severe multiple injuries producing total disability outside the useless extremities, these conditions being construed as loss of use of two extremities and helplessness.  38 C.F.R. § 3.350(e)(4).

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 discussed in (r)(2).  See 38 USCA § 1114(r) (West 2015); 38 CFR §§ 3.350(h), 3.352.

To be awarded SMC (r)(1), under 38 U.S.C.A. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k).  The Veteran must also be in need of regular aid and attendance.  See 38 U.S.C.A. § 1114(r) (West 2015).

For SMC (r)(2), once the aforementioned threshold is met, the Veteran must show that, in addition to the need for regular aid and attendance, he is in need a higher level of care as specified.  See 38 U.S.C.A. § 1114(r)(2) (West 2015).

The regular or higher level aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 38 U.S.C.A. § 1114(o) or (p), or was based on an independent factual determination.  38 C.F.R. § 3.350(h)(1).

Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others.  In making such determinations, consideration is given to such conditions as the following:  Inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the 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).  "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed.  The fact that the 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. 

In Turco v. Brown, 9 Vet. App. 222 (1996), the United States Court of Appeals for Veteran's Claims (Court) held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance, but that such eligibility required at least one of the enumerated factors be present.  The Court added that the particular personal function that a Veteran is unable to perform should be considered in connection with his or her condition as a whole.  Also, it is only necessary that the evidence establish that a Veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  See Turco, 9 Vet. App. 222; 38 C.F.R. § 3.352.

Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed.  They must be based on the actual requirement of personal assistance from others.  Id.  

Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the Veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform.  A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.  38 C.F.R. § 3.352(b)(2).

The term "under the regular supervision of a licensed health-care professional" means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen.  The consultation need not be in person; a telephone call will suffice.  38 C.F.R. § 3.352(b)(3).

A person performing personal health-care services who is a relative or other member of the Veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.  38 C.F.R. § 3.352(b)(4).

Moreover, the provisions of 38 C.F.R. § 3.352(b) are to be strictly construed.  The higher level aid-and-attendance allowance is to be granted only when the need is clearly established and the amount of services required on a daily basis is substantial.  38 C.F.R. § 3.352(b)(5).

The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance.  38 C.F.R. § 3.352(c).

The Veteran is requesting an additional rate of SMC greater than his currently assigned rate of (l) 1/2.  Service connection is currently in effect for multiple sclerosis (MS), currently evaluated as 100 percent disabling; uveitis with glaucoma, associated with MS, currently evaluated as 60 percent disabling; urinary incontinence, associated with MS, currently evaluated as 60 percent disabling; neurogenic bowel, associated with MS, currently evaluated as 10 percent disabling; tinnitus, currently evaluated as 10 percent disabling; and erectile dysfunction, associated with MS, currently noncompensable.

The Veteran is in receipt of SMC for loss of use of both feet at the (l)(1) rate, effective September 30, 2010 and SMC for MS with loss of use of the bilateral lower extremities also claimed as fatigue, weakness, stiffness, numbness, walking and balance problems, and heat sensitivity with additional disabilities, urinary incontinence claimed as a bladder problem, uveitis with glaucoma independently ratable at 50 percent or more at the rate intermediate between subsection (l) and subsection (m), effective September 30, 2010.

In a May 2012 letter, C.B., M.D. noted that the Veteran was diagnosed with MS in 2008 based upon a 2007 study, and that he suffered a superimposed cerebrovascular accident and cervical spondylosis.  Dr. C.B. reported that the Veteran "now has serious complications from his MS with spasticity, fatigue, bowel/bladder incontinence, numbness, and depression, visual difficulties, weakness in left arm and hand, and is wheelchair bound."  Dr. C.B. further indicated that the Veteran could not walk and needed to use a wheelchair.

VA treatment records from 2010 through 2016 reflect that the Veteran used a wheelchair and was treated for recurrent urinary tract infections as well as constipation.  A May 2011 record reveals that the Veteran was using a home exercycle, and that he used a walker on a limited basis.  He indicated that "mobility is primarily transferring."  A July 2011 notation indicates that the Veteran used a wheelchair to ambulate, but was able to lift himself up with his arms and drag his feet to transport from his wheelchair to a toilet.  He reported worsening weakness.  Physical examination showed motor strength of 0-1/5 in the right lower extremity and +2/5 in the left lower extremity.  A September 2011 record indicates that the Veteran denied dysuria and there was no history of neurogenic bladder.  A September 2011 social worker notation reflects that the Veteran reported requiring assistance at home with activities of daily living.  A November 2011 record reflects that the Veteran was able to lift his thigh from his seat minimally.  He had to lift his right leg with his right arm to get his leg back on the wheelchair footrest.  He was not able to fully extend either leg at the knees and there was poor dorsiflexion and extension at the ankles.  A May 2012 administrative note reflects that the Veteran had muscle weakness with atrophy to the left biceps, triceps, deltoids, and bilateral lower extremities; spasticity in the lower extremities; decreased range of motion and abnormalities in deep tendon reflexes; cerebellar dysfunction; mixed sensorimotor peripheral neuropathy; recurrent urinary tract infections which "may be in part related to decreased muscle tone" and constipation due to "limitation of activity and decline in GI motility."

An August 2013 VA treatment record notes that the Veteran had a progressive disease and that he would require even more assistance as time goes on.  The physician reported that the Veteran required assistance dressing, bathing, eating as he could not prepare or cut food on his own, and transferring from bed to a chair.  Additionally, he could not walk although he was able to do some weight bearing.  He also required help attending to the wants of nature.  He denied bowel and bladder incontinence, but he reported urgency and the need for suppositories as well as nocturia and increased frequency of urination during the day.  He was partially able to use his upper extremities.  He did not have right or left hemiplegia, but he had significant weakness and also numbness in parts of the hand.  He could partially use his lower extremities for weight-bearing.  He was not able to live alone, as the physician stated that he required help with activities of daily living and was unable to perform his own medical care without help.  He was no longer able to write with his left hand and had decrease coordination and small muscle control.  He experienced limitation of neck range of motion and was unable to get out of bed for transfers without the use of transfer equipment.  He noted using an electric scooter for transportation.  In October 2013, the Veteran was instructed to take Lactulose for difficult bowel movements and to try to eat high fiber foods.  The records show that he was also using suppositories.

In April 2014, the Veteran submitted a disability benefits questionnaire (DBQ) for MS.  The DBQ is not signed, and does not indicate its author.  The DBQ reflects that the Veteran had weakness in the upper and lower extremities but did not have any pharynx, larynx, or swallowing conditions or respiratory conditions attributable to MS.  The DBQ states that the Veteran did not have any bowel functional impairment attributable to MS, but voiding dysfunction causing urine leakage and voiding dysfunction causing urinary frequency were reported.  Voiding dysfunction causing obstructed voiding, voiding dysfunction requiring the use of an appliance, and recurrent symptomatic urinary tract infections were denied.  Visual disturbances were also denied.  Gait was reported as abnormal, and it was noted that the Veteran was wheelchair-bound.  There were no signs of mental disorders or depression, cognitive impairment, or dementia.  The DBQ indicates that the Veteran was not substantially confined to his dwelling and the immediate premises.  With regard to aid and attendance, the DBQ reflects that the Veteran was not able to dress or undress without assistance; did not have sufficient upper extremity coordination and strength to feed himself; was not able to prepare his meals without assistance; was not able to attend to the wants of nature without assistance; was not able to bathe himself without assistance; and needed frequent assistance for adjustment of appliances.  The Veteran was not found to be bedridden and was not legally blind.  The DBQ concluded that the Veteran required care and/or assistance on a regular basis due to his physical disabilities in order to protect himself from the hazards and/or dangers incident to his daily environment.  The DBQ also indicated that the Veteran required a higher, more skilled level of aid and attendance, and noted that he used assistive devices as a normal mode of locomotion.

In November 2014, the Veteran underwent a VA examination.  The Veteran was confined to a wheelchair and unable to stand or walk.  He reported urinary incontinence, insomnia, and frequent urinary infections.  The examiner reported that there was muscle weakness in the upper and lower extremities, but no pharynx, larynx, or swallowing conditions due to MS.  Additionally, there were no respiratory conditions due to MS.  The Veteran endorsed insomnia due to MS as well as bowel functional impairment, described as constant slight leakage.  The examiner noted that there was voiding dysfunction causing urine leakage requiring absorbent material to be changed two to four times per day and voiding dysfunction causing urinary frequency of daytime voiding interval between two and three hours.  There was voiding dysfunction requiring the use of a catheter, but there was no voiding dysfunction causing obstructed voiding.  The Veteran reported a history of recurrent symptomatic urinary tract infections resulting in hospitalization more than two times per year, and that he was using long-term drug therapy.  There was also erectile dysfunction due to MS and visual disturbances causing blurring of vision and decreased visual acuity.  

Neurologic examination reflected that the Veteran used a wheelchair and gait could not be determined.  Strength was normal in the bilateral upper extremities, but 1/5 in the bilateral lower extremities.  Deep tendon reflexes were normal in the upper extremities, but decreased in the bilateral lower extremities.  Sensation was normal in the upper extremities and decreased in the lower extremities.  There was muscle atrophy of the bilateral quadriceps due to MS.  There was mild muscle weakness in the right upper extremity, no muscle weakness in the left upper extremity, and complete muscle weakness with no remaining function in the bilateral lower extremities.  There were no other pertinent findings or complications reported.  The diagnoses were MS and urinary incontinence secondary to MS.

The VA examiner found that the Veteran was not substantially confined to his dwelling and the immediate premises, although he was wheelchair bound for locomotion.  With regard to the need for aid and assistance, the examiner found that the Veteran was not able to dress or undress without assistance; he had sufficient upper extremity coordination and strength to feed himself without assistance; he was not able to prepare his own meals without assistance; he was not able to attend to the wants of nature without assistance; he was not able to bathe himself without assistance; he was not able to keep himself ordinarily clean and presentable without assistance; he was able to take prescription medications in a timely manner and with accurate dosage without assistance; he needed frequent assistance for adjustment of his wheelchair; and he was not bedridden.  The examiner concluded that the Veteran required care and assistance on a regular basis due to his physical and/or mental disabilities in order to protect himself from the hazards and/or dangers incident to his daily environment, noting that the Veteran used a wheelchair and sometimes the ramp became dislodged and required adjustment.  He was unable to stand and walk.  However, the examiner concluded that the Veteran did not require a higher, more skilled level of aid and attendance.

A May 2015 VA treatment record reflects diagnoses of MS, spinal canal stenosis, radicular leg pain, lower back pain, and paraplegia.  In November 2015, the Veteran requested additional home services, stating that he was receiving one hour per day, five days per week, which was not enough to accomplish all things that he needed assistance with, such as bathing and grooming.  Another November 2015 VA treatment record indicates that the agency providing the Veteran with home health aides reported that the Veteran required "a lot of care."  A February 2016 VA treatment record reflects that the Veteran was receiving nursing services at his home for two hours a day, five days per week.  The record notes that the Veteran inquired about receiving bowel care and having a caregiver certified to provide such care.  Another February 2016 VA treatment record notes that a nurse called the Veteran at home, and that the Veteran reported that he was wearing a diaper for bowel care.  The record reflects that the Veteran denied other interventions for bowel care, and declined the nurse's offer to send an agency to his home to perform bowel care.  

In a May 2016 opinion, Dr. C.B. opined that the Veteran qualified for SMC at the (r)(2) level based upon his MS with "total loss of use of his legs (MS related Paraplegia), VA rated 60% bladder dysfunction due to MS, 100% for bowel leakage due to sphincter incontinence due to MS and need for skilled care in his home, (A and A) under the supervision of a physician."  Dr. C.B. noted that the Veteran was totally wheelchair bound with "full bladder/bowel dysfunction due to paraplegia of his lower extremities and associated pelvic nerves."  Dr. C.B. explained that, "[b]ased on neuro-anatomy . . . it is nearly impossible for this patient to have central brain lesions and not have bowel, bladder and sexual dysfunction."  Dr. C.B. reported that these functions are controlled by many of the same lumbar plexus nerves which take their "commands from the higher up central brain areas which are damaged."  Dr. C.B. noted that the Veteran's "bowel, based on anatomy should be totally incontinent, as is his bladder."  He further indicated that he "prescribed a bowel digital stimulation program to patient along with diet and Chia seeds."  He also noted that the Veteran has historically used enemas, daily stool softeners, and glycerin suppositories for impaction problems.  Additionally, Dr. C.B. explained that both MS and spinal injuries are neuro impairments, and that the Veteran's MS symptoms were consistent with paraplegia.  Dr. C.B. stated that the Veteran had total loss of use of his legs and was wheelchair bound, and that examination showed 0/2 reflexes and 0/5 strength in his bilateral legs, as well as leg muscle atrophy.  With regard to his catheter use, Dr. C.B. noted that the Veteran used a condom catheter with a leg bag due to his loss of bladder sphincter control, and indicated that the Veteran bought his own condom catheters because the ones that he purchased outside of VA were more pliable with less leakage.  Dr. C.B. found that the Veteran had 100 percent bowel dysfunction, and in support, cited the lay evidence from the Veteran, his spouse, and the certified nurse's assistant of severe leakage day and night with three pads per day as well as the medical evidence showing that the Veteran used suppositories and stool softeners throughout the years.

In an April 2016 lay statement, the Veteran reported problems with his lower extremities, bowel, and bladder since 2010, and that he has required the aid and assistance of his wife and a home caregiver since 2010.  With regard to his bowel symptoms, the Veteran reported them to be severe.  He indicated that he did his best to implement means to control the problems and avoid bowel mishaps, but that they only partially helped, and that he still wore diapers due to accidents.  In a March 2016 statement, the Veteran's wife stated that, since 2010, the Veteran required assistance with toileting, and often had urine and fecal accidents.  She noted that the Veteran used adult diapers and a sit/stand machine to lower him onto his potty seat, but still required supervision.  He is also unable to clean himself after toileting.  The home aide helped him to get onto his potty seat, and she cleaned him up afterwards.  She indicated that the Veteran had no control over his bowel or bladder functions.

In an April 2016 statement, E.P., a certified nursing assistant, reported that she began working with the Veteran in 2015.  She indicated that he sits in his chair daily with little or no movement in his body.  She stated that the Veteran uses an external urinal bag, and that he uses a potty chair for bowel movements.  She explained that he wears adult diapers, and that the diapers are usually cut off when he uses the potty chair because he has already defecated in his diaper.  She indicated that the Veteran required assistance cleaning himself after using the potty chair, and that he has had many accidents, defecating in his clothes.  She stated that the Veteran had no control over urination and regular bowel accidents.

During a May 2016 hearing before the Board, the Veteran's representative indicated that the Veteran had been receiving aid and attendance since 2010 by his wife and a certified nursing assistant.  The Veteran reported that he has been unable to control his bladder since 2009, and explained that he soils three to four bed sheets each week.  He noted that he was unaware of when accidents occurred because he was unable to control his bowel.  He indicated that he began using stool softeners in 2009, and that they relieved the pain of constipation but did not help him control the accidents.  The Veteran's wife testified that the Veteran experiences bowel accidents in his undergarments and shorts, and that he wears an adult diaper every day and uses a potty chair.  She noted that she changed him on a daily basis, and that he used three adult diapers each day since 2009.  She also indicated that the Veteran used an external catheter, and that she changed the external catheter daily, and that a nurse had been providing care at the Veteran's home since 2002.  

Dr. C.B., a neuro-radiologist, provided testimony that the Veteran experienced loss of bladder and bowel control and the loss of use of his legs.  He noted that the Veteran used a catheter for many years.  He testified that the nerves which control the bladder, bowel, and sexual function are basically the same nerves, and that it is unlikely that the Veteran would experience total loss of bladder control without similar impairment with bowel control and sexual function.  He noted that the Veteran had a central lesion at a very high level, which affected all things downstream, including bowel function, bladder function, and sexual function.  Dr. C.B. noted that nurses taught the Veteran how to do digital stimulation, dieting, and about stool softeners during rehabilitation.  Dr. C.B. noted that he reviewed the entire record and conducted an interview and examination of the Veteran, and concluded that the Veteran had total lack of bladder control and required the use of diapers.

The Board finds that the Veteran is entitled to SMC at the (o) rate based upon evidence of paralysis of both lower extremities together with loss of anal and bladder sphincter control.  38 C.F.R. § 3.350(e)(2).  The medical evidence of record reflects that the Veteran has paralysis of both lower extremities, and is relegated to a wheelchair for ambulation.  The majority of the medical evidence of record reflects that the Veteran has had little, if any, function of his lower extremities throughout the time period on appeal.  He is unable to move to a potty seat to toilet without the use of a stand up/sit down machine, and there is objective medical evidence of muscle atrophy and muscle weakness of the lower extremities as well as spasticity of the lower extremities.  Additionally, a May 2015 VA treatment record reflects a diagnosis of paraplegia, and a May 2016 opinion from Dr. C.B. indicates that the Veteran had "total loss of use of his legs (MS related Paraplegia . . . ."  There is no evidence in the record suggesting any significant function of the lower extremities.  Accordingly, the Board finds that the evidence demonstrates paralysis of both lower extremities.

The weight of the probative evidence of record also demonstrates loss of anal and bladder sphincter control.  The evidence shows that the Veteran uses a catheter for urination due to loss of bladder control.  He is also in receipt of a 60 percent disability rating for urinary incontinence due to MS, which is the maximum rating available for such disability.  The medical evidence reflects that the Veteran suffered recurrent urinary tract infections as well as urgency and nocturia with increased frequency of urination during the day.  A November 2014 VA treatment record reveals that the Veteran required absorbent material to be changed two to four times per day due to urine leakage and that he experienced voiding dysfunction causing urinary frequency of daytime voiding interval between two and three hours.  The examination report reveals that there was voiding dysfunction requiring the use of a catheter.  In a May 2016 letter, Dr. C.B. noted that the Veteran used a condom catheter due to loss of bladder sphincter control.  Although the Veteran denied bladder incontinence in an August 2013 VA treatment record, the overwhelming evidence of record reflects that the Veteran experiences urinary incontinence requiring the use of a catheter due to his MS.  Accordingly, the weight of the objective evidence of record shows loss of bladder sphincter control.  

With regard to loss of anal sphincter control, there is evidence both in favor of and against such a finding.  In August 2013, the Veteran denied bowel incontinence, but reported the need for suppositories, and an October 2013 VA treatment record reflects that the Veteran was instructed to use suppositories, take Lactulose, and eat high fiber foods to treat difficult bowel movements.  An April 2014 DBQ reflects that the Veteran did not have any bowel functional impairment attributable to MS, and the November 2014 VA examination report indicates that there was some bowel impairment, described as constant slight leakage.  Although a February 2016 VA treatment record reflects that the Veteran denied interventions for bowel care, he reported that he was wearing a diaper.  In contrast, a May 2012 letter, Dr. C.B. reported that the Veteran experienced "bowel/bladder incontinence."  In a May 2016 opinion and during his May 2016 testimony before the Board, Dr. C.B. explained that the Veteran experienced complete total loss of bowel sphincter control due to MS, explaining that "[b]ased on neuro-anatomy . . . it is nearly impossible for this patient to have central brain lesions and not have bowel, bladder and sexual dysfunction" because these functions are controlled by many of the same lumbar plexus nerves which take their "commands from the higher up central brain areas which are damaged."  Dr. C.B. further noted that he prescribed digital bowel stimulation along with diet changes and Chia seeds, and that the Veteran used stool softeners and suppositories for impaction problems.  Additionally, the Veteran, his wife, and a certified nursing assistant who cares for the Veteran provided lay statements reflecting that the Veteran's bowel symptoms were severe, and that he was required to wear adult diapers on a consistent basis due to accidents.  The certified nursing assistant reported that the Veteran had no control over regular bowel accidents.  The Board finds the lay statements provided by the Veteran, his wife, and the certified nursing assistant to be both competent and credible evidence of the Veteran's bowel impairment.  These statements are based upon their own observations, and the Board finds them to be credible.  Additionally, the Board finds Dr. C.B.'s opinion that the Veteran experiences complete loss of bowel sphincter control to be highly probative, as Dr. C.B. explained why the Veteran must experience complete loss of bowel sphincter control based upon his MS.  He also provided his opinion based upon review of the claims file, examination, and an interview of the Veteran.  Accordingly, as the weight of the probative evidence of record demonstrates that the Veteran has loss of bowel sphincter control.

As the evidence shows that the Veteran has paralysis of both lower extremities together with loss of anal and bladder sphincter control, the Veteran is entitled to the maximum rate under 38 U.S.C.A. § 1114(o).  See 38 C.F.R. § 3.350(e)(2).

Additionally, the Board finds that the Veteran is in need of regular aid and attendance of another person due to his service-connected disabilities.  Beginning in September 2010, the Veteran was granted service connection for MS, rated as 100 percent disabling; uveitis with glaucoma, rated as 60 percent disabling; urinary incontinence, rated as 60 percent disabling; neurogenic bowel, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and erectile dysfunction, rated as noncompensable.  Although VA treatment records dated in 2011 reflect that the Veteran was able to lift himself off of his wheelchair to transport himself to a toilet, a September 2011 treatment record indicates that the Veteran required assistance at home with activities of daily living.  Further, an August 2013 VA treatment record shows that the Veteran required assistance dressing, bathing, eating, preparing food, transferring from bed to a chair, and attending to the wants of nature.  The physician found that the Veteran was not able to live alone, that he required help with the activities of daily living, and that he could not perform his own medical care without help.  An April 2014 DBQ also shows that the Veteran was not able to dress or undress without assistance, that he could not feed himself, that he was not able to prepare his own meals, that he was not able to attend to the wants of nature, that he could not bathe himself, and that he needed frequent assistance for adjustment of appliances.  The DBQ concluded that the Veteran required care and assistance on a regular basis due to his physical disabilities.  Further, a November 2014 VA examiner found that the Veteran required care and assistance on a regular basis due to his disabilities based upon his inability to dress himself, prepare his own meals, attend to the wants of nature, bathe himself, and keep himself ordinarily clean and presentable.  Additionally, VA treatment records in 2015 reflect that VA was contracting with a home care service to provide home health aides to assist the Veteran.  A November 2015 record indicates that the Veteran required "a lot of care."  During the Veteran's May 2016 hearing before the Board, and in lay statements submitted to the Board, the Veteran and his wife stated that the Veteran's wife had been providing substantial assistance to him at home, and that they had been using nursing services in their home to assist him since 2002.  The Veteran's wife reported that she helped the Veteran with toileting, cleaning the Veteran after using the toilet, and other activities of daily living.  In an April 2016 statement, a certified nursing assistant indicated that she assisted the Veteran with using the toilet and cleaning him after accidents.  There is no evidence in the claims file suggesting that the Veteran does not require the aid and attendance of another person due to his service-connected disabilities.  Accordingly, the Board finds that the Veteran is in need of regular aid and attendance of another person solely as a result of his service-connected disabilities.  

As the Veteran is entitled to SMC at the (o) rate and as the Veteran has been found to require the aid and attendance of another, the Veteran is entitled to aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(1).

However, the Veteran's disabilities do not warrant SMC at the (r)(2) (higher level of care) rate.  Although the Veteran is cared for by his wife and home healthcare is provided by a certified nursing assistant, the preponderance of the evidence is against a finding that the Veteran requires personal healthcare services provided on a daily basis in the Veteran's home by a person who is licensed to provide such service or who provides such service under the regular supervision of a licensed healthcare professional.  The Veteran's wife has reported that she provides care for the Veteran by changing the Veteran's adult diapers and changing an external catheter every day.  In an April 2016 statement, the certified nursing assistant caring for the Veteran reported that she assists the Veteran with toileting, changing his adult diapers, and cleaning him after accidents.  In November 2014, the VA examiner opined that, although the Veteran required aid and attendance, he did not require a higher, more skilled level of aid and attendance.  The VA examiner noted that the Veteran was able to take prescription medications in a timely manner and with accurate dosage without assistance.  Although the April 2014 DBQ found that the Veteran required a higher, more skilled level of aid and attendance, no explanation for this finding was provided and the DBQ does not indicate whether it was prepared by a physician; accordingly, the Board does not afford significant probative value to the April 2014 DBQ.  The Board acknowledges Dr. C.B.'s finding in the May 2016 opinion that the Veteran requires skilled care in his home and meets the criteria for aid and attendance at the (r)(2) level.  However, Dr. C.B. did not explain the basis for this conclusion, and his opinion does not reflect the reason for his finding that the aid and attendance provided to the Veteran must be skilled care.  Accordingly, the Board does not afford his conclusion that skilled care is required to be of significant probative value.  As the evidence reflects that the majority of the care provided to the Veteran centers around assisting him with his activities of daily living, rather than providing personal healthcare services on a daily basis, the Board finds that the weight of the evidence is against a finding that the Veteran requires aid and attendance at a higher level of care.  Although the Veteran is cared for by his family and is need of home care provided by a nursing assistant, the evidence does not establish that the care provided requires a licensed healthcare provider or an unskilled provider under the supervision of a licensed healthcare provider is needed on a daily basis.  As such, entitlement to SMC based on the need for aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(2) is denied.

ORDER

Entitlement to a higher special monthly compensation (SMC) based on the need for aid and attendance as contemplated by 38 U.S.C.A. § 1114(r)(1), and no higher, is granted.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs