Citation Nr: 21022425 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 10-27 692A DATE: April 15, 2021 ORDER Entitlement to total loss of sphincter control is granted. Entitlement to special monthly compensation under 38 U.S.C. § 1114(m) is moot. Entitlement to special monthly compensation for loss of use of both lower extremities and loss of anal and bladder sphincter control under 38 U.S.C. § 1114(o) is granted. Entitlement to service connection for radiculopathy of the right upper extremity is granted. Entitlement to service connection for coronary artery disease is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for eye disabilities is remanded. Entitlement to service connection for a left hand disability is remanded. FINDINGS OF FACT 1. The probative evidence reflects that the Veteran’s bowel dysfunction manifested a complete loss of sphincter control for the entire appeal period. 2. The Veteran has paralysis of both lower extremities and loss of anal and bladder sphincter control. 3. As the Veteran’s claim for SMC under 38 U.S.C. § 1114(o) is being granted, entitlement to special monthly compensation under 38 U.S.C. § 1114(m) is moot as it is the lesser benefit. 4. The Veteran’s radiculopathy of the right upper extremity is proximately due to his service-connected cervical spine disability. 5. The Veteran does not have a current diagnosis of coronary artery disease. CONCLUSIONS OF LAW 1. For the appeal period, the criteria for a 100 percent disability rating for a service-connected bowel dysfunction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7332. 2. The criteria for special monthly compensation pursuant to 38 U.S.C. § 1114 (o) have been met. 38 U.S.C. § 1114 (o) (2014); 38 C.F.R. §§ 3.350, 3.352 (2017). 3. The criteria for entitlement to special monthly compensation under 38 U.S.C. § 1114(m) is moot. 4. The criteria for service connection for radiculopathy of the right upper extremity as secondary to service-connected cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for coronary artery disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from May 1971 to November 1974. Special home adaptation grant and entitlement to automobile and adaptive equipment or adaptive equipment only are not before the Board as they have not been appealed with the filing of a substantive appeal. The RO also did not accept a notice of disagreement for these issues in January 2011. See January 2011 letter. The issue of a higher evaluation for intervertebral disc syndrome (IVDS), postoperative discectomy, currently assigned a 60 percent evaluation, was withdrawn by the Veteran’s representative in an August 2017 statement prior to certification to the Board. Therefore, this issue is not before the Board. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for radiculopathy of the right upper extremity is granted. The Veteran seeks service connection for a right hand disability and notes that he has loss of use of the hand due to cerebral vascular accident. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The evidence shows that the Veteran has moderate neuropathy of the right hand due to his service-connected cervical spine disability. The Veteran appears to be describing symptoms of radiculopathy of his right and left upper extremity due to cervical spine disability. The Board concludes that the Veteran has a current disability that is secondary to his service-connected cervical spine disability. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Board acknowledges that the symptoms of generalized weakness of the right and left side are already considered under the service-connected for cerebral vascular accident with residuals generalized weakness on the right side and left side associated with diabetes mellitus, type II with hypertension under DC 8008. Despite this, the May 2013 Neck Disability Benefits Questionnaire (DBQ) examiner opined that the Veteran has quadriplegia of the upper and lower extremities that are at least as likely as not due to this thoracolumbar and cervical spine conditions. Specifically, the examiner diagnosed the Veteran with moderate radiculopathy of the right upper extremity. For these reasons, the Board will broadly characterize the Veteran’s symptoms to include radiculopathy of the upper extremities. The Veteran is already service-connected for peripheral neuropathy of the left upper extremity under DC 8513 due to his service-connected cervical spine disability. The evidence shows that service connection is warranted for the Veteran’s radiculopathy of the right upper extremity secondary to his service-connected cervical spine disability. The May 2013 examiner noted that the Veteran had radiculopathy due to the cervical spine disability that was moderate in severity. For these reasons, entitlement to service connection for radiculopathy of the right upper extremity is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for coronary artery disease is denied. The Veteran contends that he has a diagnosis of coronary artery disease that is related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of coronary artery disease and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The May 2013 VA examiner evaluated the Veteran and determined that he did not have a diagnosis of ischemic heart disease or heart failure. Further, despite consistent treatment, VA treatment records do not contain a diagnosis of coronary artery disease. The Veteran himself noted that his claim for ischemic heart disease may have been a mistake on his part, and he may have meant to file a claim for stroke. See February 2013 statement. At the time of this statement, service connection was already in effect for the Veteran’s cerebral vascular accident. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence provided by the May 2013 examiner. INCREASED RATING 1. Entitlement to total loss of sphincter control is granted. The Regional Office (RO) evaluated the Veteran’s bowel dysfunction under 38 C.F.R.§ 4.114, Diagnostic Code 7332 for impairment of sphincter control of the rectum and anus and assigned a 30 percent evaluation. The Veteran was originally granted service-connected for bowel dysfunction in April 2008 and has appealed the assigned 30 percent evaluation since that time. A noncompensable rating is assigned for healed rectum and anus or slight impairment of sphincter control without leakage. A 10 percent rating is assigned for constant slight impairment of sphincter control or occasional moderate leakage. A 30 percent rating is assigned for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. A 60 percent rating is assigned for extensive leakage due to impairment of sphincter control and fairly frequent involuntary bowel movements. A maximum 100 percent rating is assigned for complete loss of sphincter control. See 38 C.F.R. § 4.114, DC 7332. The Veteran has been diagnosed with a neurogenic bowel. See May 2008 VA treatment record; see also May 2013 Intestinal Conditions DBQ. It should be noted that in August 2008, the housebound examiner found that the Veteran was wheelchair bound. Although the January 2008 examiner noted that the Veteran had bowel dysfunction due to intervertebral disc syndrome (specifically the sciatic nerve involvement) and needed a pad one time per day, the examiner noted that he required a bowel regiment and had occasional accidents. The Veteran reported in May 2008 that he had extensive leakage and involuntary bowel movements and leakage occurring at least 4 to 5 times per week. An August 2010 examiner noted moderate bowel incontinence. He reported using 10 to 15 pads per day. The September 2014 examiner noted that the Veteran had a neurogenic bowel and bladder and had to use a catheter with assistance of a nurse and the nurse conducts total bowel care. The May 2013 examiner noted that the Veteran’s caretaker conducted a bowel regiment where the caretaker inserted enema every day and used a digital stimulation as required. An April 2017 VA treatment records notes that he has bowel care done by a caregiver three times a week. The caregiver uses two mini enemas followed by digital stimulation and manual disimpaction. Thus, affording the Veteran the full benefit of the doubt, the Board finds that 100 percent rating for total loss of sphincter control for the entire period on appeal. 2. Entitlement to special monthly compensation for loss of use of both lower extremities and loss of anal and bladder sphincter control under 38 U.S.C. § 1114(o) is granted. The Veteran, through his representative, asserts that his service-connected degenerative lumbar spine disability, status post laminectomy, and lumbar spine radiculopathy results in loss of use of both lower extremities together with loss of anal and bladder sphincter; thus, he contends, special monthly compensation (SMC) at the (o) rate is warranted. 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. 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. § 1114 (k). Higher levels of SMC are provided at 38 U.S.C. § 1114 (l), (m), (n), and (o). In the present case, the Veteran is in receipt of SMC at the (k) rate for loss of use of a creative organ and at the (s) rate for disabilities ratable at 60 percent or more from July 2012 to February 2013. SMC provided by 38 U.S.C. § 1114 (o) is payable for multiple conditions, including paralysis of both lower extremities together with loss of anal and bladder sphincter control will entitle a claimant to the maximum rate under 38 U.S.C. § 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). In the present case, the Veteran has been awarded service connection for, among other disabilities, both bowel and bladder impairment. In a May 2013 DBQ for Intestinal Conditions, a physician found that the Veteran had a neurogenic bowel which required a bowel regiment. The May 2013 examiner also found that he had neurogenic bladder with the use of bladder catherization. He had leakage of urine between these catherizations for which he wore an absorbent pad. The Veteran has loss of use of both lower extremities since at least August 2008. See October 2008 Housebound examination (noting that the Veteran was wheelchair bound). Furthermore, on VA genitourinary and rectal examinations in February 2008, the Veteran was noted to wear an adult diaper on a frequent basis and have lax rectal sphincter tone. Although the Veteran has been able to lessen the need for pads for accidents, he has done so by using strict bowel regiments. See October 2008 Housebound examination; see also 38 C.F.R. § 3.350 (e)(2). Based on these findings, the Board concludes the Veteran’s paralysis of both lower extremities together with loss of anal and bladder sphincter control warrant the award of SMC pursuant to 38 U.S.C. § 1114 (o) for the entire appeal period. 3. Entitlement to special monthly compensation under 38 U.S.C. § 1114(m) is moot As the compensation set forth at 38 U.S.C. § 1114 (o) is greater than the housebound rate set forth at 38 U.S.C. § 1114 (s), the Board finds entitlement to SMC for the lesser benefit rate is moot. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS FOR REMAND 1. Entitlement to service connection for eye disabilities are remanded. The Veteran claims that his eye disabilities are secondary to his service-connected diabetes, the fall in service or his service-connected cerebral vascular accident. The May 2013 examiner provided opinions as to the cause of the Veteran’s eye disabilities but not whether they were aggravated by his service-connected disabilities. A remand is needed so that this opinion can be obtained. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran has a current diagnosis of sleep apnea. He claims that his sleep apnea is secondary to his service-connected depressive disorder. A January 2013 examiner opined that it was less likely than not that depression caused his sleep apnea. The examiner did not provide an opinion as to whether his sleep apnea was aggravated by his depression. A remand is needed so that this opinion can be obtained. 3. Entitlement to service connection for a left hand disability is remanded. The Veteran claims that his left hand disability should be service-connected. It appears that the Veteran is claiming that he has mild left side loss of sensation, also claimed as loss of use of the left hand as secondary to cerebrovascular accident or degenerative disc disease of the cervical spine. The Veteran should receive an examination for his cerebrovascular accident to include any left side weakness and determine if a separate evaluation is need for loss of use of the left hand. The Veteran is already service-connected for peripheral neuropathy of the left upper extremity associated with degenerative disc disease of the cervical spine. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician as to whether the Veteran’s eye disabilities are at least as likely as not aggravated beyond their natural progression by service-connected disabilities, including service-connected diabetes, the fall in service or his service-connected cerebral vascular accident. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s sleep apnea is at least as likely as not aggravated beyond its natural progression by service-connected disabilities, including his service-connected depressive disorder. 3. Schedule the Veteran for a VA examination for his cerebral vascular accident and residuals to determine the impact of his cerebral vascular accident on his left upper extremity. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s left side disability, if found, at least as likely as not related to service or to his cerebral vascular accident? The RO should determine if a separate evaluation is needed for the Veteran’s left hand disability. Provide a rationale to support the opinions. (Continued on the next page)   4. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.