BVA9502419 DOCKET NO. 91-41 945 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for osteoarthritis of the cervical spine on a secondary basis for the purpose of accrued benefits. 2. Entitlement to service connection for residuals of a compression fracture of the cervical spine on a secondary basis for the purpose of accrued benefits. 3. Entitlement to service connection for herniated disc of the cervical spine on a secondary basis for the purpose of accrued benefits. 4. Entitlement to service connection for gastrointestinal disabilities, including an ileostomy, on a secondary basis for the purpose of accrued benefits. 5. Entitlement to service connection for bladder dysfunction on a secondary basis for the purpose of accrued benefits. 6. Whether the evidence is new and material to reopen the claim of entitlement to service connection for impotency for the purpose of accrued benefits. 7. Entitlement to service connection for encephalopathy on a secondary basis for the purpose of accrued benefits. 8. Entitlement to service connection for other neurological disability on a secondary basis for the purpose of accrued benefits. 9. Whether the evidence is new and material to reopen the claim of entitlement to service connection for cardiac disability, including hypertension, for the purpose of accrued benefits. 10. Entitlement to service connection for ulcer disease on a secondary basis for the purpose of accrued benefits. 11. Entitlement to service connection for headaches on a secondary basis for the purpose of accrued benefits. 12. Entitlement to special monthly compensation benefits based on the need for regular aid and attendance for the purpose of accrued benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The appellant is the veteran's surviving spouse. The veteran had active military service from October 1957 to July 1960 and from August 1960 to March 1965. This appeal arises from a June 1993 rating decision of the No. Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In the above rating decision, the RO granted the appellant's claim of service connection for an acquired psychiatric disorder (generalized anxiety disorder) for the purpose of accrued benefits, therefore, the claim will not be considered by the Board of Veterans' Appeals (Board). On the issue of whether the evidence is new and material to reopen the claim of service connection for impotency, the RO did not adjudicate the claim in the context of new and material evidence to reopen a finally denied claim. As the accrued-benefits claimant, the appellant stands in the exact position vis-a-vis adjudication of the deceased veteran's underlying disability-compensation claims as did the veteran immediately prior to his death, including all evidentiary requirements then applicable to the veteran's underlying claims and all final rating decisions then in effect. In other words, the appellant is required to pick up the veteran's claim to reopen the denial of service connection for impotency in August 1979 because the veteran, having been finally denied service connection by the RO, could have achieved service connection prior to his death only through a reopening supported by new and material evidence. See VDA de Landicho v. Brown and Oseo v. Brown, 7 Vet.App. 42, 52 (1994). As for the procedural status of this claim, pursuant to 38 U.S.C.A. § 7105(c) (West 1991), when a claim is denied by a decision of the RO, and the claimant fails to file a timely appeal, that decision becomes final and the claim may not thereafter be reopened or allowed, except when "new and material evidence" is presented or secured with respect to that claim. In the August 1979 rating decision, the RO denied service connection for loss of use of a creative organ (the evidence considered described the condition as impotency). After the RO notified the veteran of the decision and of his appellate rights, he did not file a Notice of Disagreement within one year from the date of the notice and that decision became final. In November 1989, the veteran submitted an application to reopen his claim of service connection for impotency secondary to service-connected Charcot-Marie-Tooth disease (CMT). After the veteran died, the appellant pursued the claim for the purpose of accrued benefits. As to the appellant, the RO characterized the issue as service connection for impotency secondary to service-connected CMT for the purpose of accrued benefits. The RO, by its silence, apparently conceded that the evidence was sufficient to reopen the claim, however, this procedure question must be fully resolved. The United States Court of Veterans Appeals (Court) has held that when the Board addresses in its decision a question that had not been addressed by the RO, the Board must consider whether the claimant has been given adequate notice to respond and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). As the Board will explain later, the evidence added to the record since August 1979 is sufficient to constitute new and material evidence to reopen the claim. King v. Brown, 5 Vet.App. 19 (1993). The matter having been wholly resolved in the appellant's favor, no prejudice arises from the Board's determination that the evidence is new and material to reopen the finally denied claim. Another preliminary matter to resolve is what post-death evidence may be considered. In a claim for accrued benefits, 38 U.S.C.A § 5121(a) and the implementing regulation, 38 C.F.R. § 3.1000(a), provide, as relevant here, that a veteran's surviving spouse may receive accrued benefits to which the veteran was entitled based on evidence "in the file" at the date of death. In this case, the death certificate is acceptable as post-date-of-death evidence under subsection (d)(4)(i) of the regulation. As for other post-date-of-death evidence, namely, the autopsy report from a private hospital and the July 1994 opinion from an independent medical expert at a state university medical school, the Board finds the evidence acceptable as verifying or corroborating evidence "in the file" at death. See Hayes v. Brown, 4 Vet.App. 353, 358-361 (The Court held, in part, that hospital reports from a state university and a private hospital submitted after death must be considered in the appellant's claim for accrued benefits for service connection as the reports fell within the scope of 38 C.F.R. § 3.327(b)(1) (scheduling re- examinations in compensation cases, providing, in relevant part, that any hospital report and any examination report from a State hospital or recognized private institution which contain descriptions, including diagnoses...adequate for rating purposes may be deemed to be included in the term Department of Veterans Affairs examination) and within the scope of VA's Veterans Benefits Manual, M21-1, Part VI, para. 5.25(b)(Change 3 Sept. 21, 1992) (accrued rating: evidentiary requirements: evidence essentially complete) having the force of law and providing that 38 C.F.R. § 3.1000(d)(4) and 38 C.F.R. § 3.327(b)(1) "also provide for the acceptance of evidence after death for verifying or corroborating evidence 'in file' at death"). As for the post-date-of-death, April 1993, statements of J. R. Paine, D.O., and B. S. Tan, M.D., and the May 1993 statement of C. P. McCarty, M.D., this evidence was relevant to the issue of service connection for the cause of the veteran's death -- an issue resolved by the RO in the appellant's favor. In this decision, the Board does not reach the question of whether post- date-of-death evidence from private physicians should also be permitted and the Court in Hayes at 361 did not reach the question either. If the appellant intends to rely on this evidence to support other claims on appeal that the Board is deferring action on, then the RO must determine if the evidence is acceptable considering the governing statutory and regulatory provisions as well as the pertinent provisions of M21- 1, Part IV, para. 27.08, and Part VI, para. 5.25(b). The Board is deferring action on the claims of service connection for compression fracture of the cervical spine, gastrointestinal disabilities, including an ileostomy, encephalopathy, ulcers and headaches. See Harris v. Derwinski, 1 Vet. App. 180 (1990) (holding that only a final decision of the Board is appealable to the Court, avoiding piecemeal review). The Board is remanding for further development the issue of whether the evidence is new and material to reopen the claim of service connection for cardiac disability, including hypertension. In its April 1992 remand, the Board requested the RO to adjudicate the claim of special monthly compensation for loss of use of the buttocks. It does not appear that this was done in the June 1993 rating decision. This issue as well as the claim for special monthly compensation based on the need for regular aid and attendance for the purpose of accrued benefits will also be addressed in the remand section of this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the claims are well-grounded and that, with resolution of reasonable doubt, osteoarthritis of the spine, herniated disc of the cervical spine, bladder dysfunction, impotency and other neurological disability were the result of service-connected CMT. The appellant argues that, if the Board relies, in rendering its decision, on evidence obtained by it subsequent to the issuance of the Statement of the Case, then the Board must provide her reasonable notice of the evidence and of the reliance to be placed on it and a reasonable opportunity for her to respond to it in accordance with Thurber v. Brown, 5 Vet.App. 119, 126 (1993). She argues too that it would be fundamentally unfair for the Board to deny a claim for reasons not addressed by the Statement of the Case. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that secondary service connection for the purpose of accrued benefits is established for osteoarthritis and disc disease of the cervical spine with resolution of reasonable doubt and for bladder dysfunction, impotency and neurological disability due to CMT and/or cervical disc disease, affecting the upper extremities by the preponderance of the evidence. FINDINGS OF FACT For the purpose of accrued benefits: 1. Arthritic changes of the cervical spine were causally related to service-connected CMT. 2. Degenerative disc changes of the cervical spine, C4-5 and C5- 6, were causally related to service-connected CMT. 3. Bladder dysfunction was causally related to service-connected CMT. 4. In an August 1979 rating decision, the RO denied the veteran's claim of entitlement to service connection for loss of use of a creative organ (impotency) on the grounds that the disability was not caused by service-connected CMT; after notification of the determination was sent to the veteran the same month, he did not file a Notice of Disagreement within one year thereafter. 5. Since August 1979, the additional evidence, namely, the October 1989 and July 1991 statements of Dr. Gaines and Dr. O'Sullivan that relate impotency to CMT are not cumulative of other evidence of record and the evidence is relative to and probative of whether the veteran's impotency was related to service-connected disability and raises a reasonable possibility that when the additional evidence is viewed in the context with all the evidence, both old and new, the outcome of the claim might be different. 6. The overall evidence establishes that impotency was causally related to service-connected CMT. 7. Neurological impairment, affecting the upper extremities, was either causally related to service-connected CMT or service- connected osteoarthritis and degenerative disc disease of the cervical spine. CONCLUSIONS OF LAW 1. Osteoarthritis of the cervical spine was proximately due to or the direct result of service-connected disability for the purpose of accrued benefits. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. Disc disease of the cervical spine, C-4-5 and C5-6, was proximately due to or the direct result of service-connected disability for the purpose of accrued benefits. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.310(a) (1993). 3. Bladder dysfunction was proximately due to or the direct result of service-connected disability for the purpose of accrued benefits. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.310(a) (1993). 4. The August 1979 rating decision by the RO, denying the claim of entitlement to service connection for loss of use of a creative organ (impotency) was not appealed and that application became a finally adjudicated claim. 38 U.S.C.A § 7105(c) (West 1991); 38 C.F.R. § 3.160(d) (1993). 5. The reports of private physicians and an opinion from an independent medical expert constitute new and material evidence and the claim of service connection for impotency is reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). 6. Impotency was proximately due to or the direct result of service-connected disability for the purpose of accrued benefits. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.310(a) (1993). 7. Neurological disability, affecting the upper extremities, was proximately due to or the direct result of service-connected disabilities for the purpose of accrued benefits. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order to address the appellant's contentions and arguments, the Board summarizes the record under: Factual and Procedural Background The service medical records, including Medical Board and Physical Evaluation Board proceedings, disclose that in November 1964, the veteran was admitted to Walter Reed General Hospital with a history of progressive leg weakness of three years' duration. Examination of the extremities revealed marked atrophy in the legs distal to the knees in both the anterior and posterior muscle compartments. There was obvious weakness in the lower extremities and in the muscles about the hip. There was mild peripheral neuropathy manifested by decrease in pain and light touch sensations below the knees and decreased vibratory sensation. The diagnosis was CMT (peroneal muscle atrophy) manifested by weakness and atrophy in the muscles of the legs and mild peripheral neuropathy. He was placed on the Temporary Disability Retired List and permanently retired in October 1969. On initial VA examination, including neuropsychiatric evaluation, in July 1965, the Chief of Psychiatry and Neurology Service stated that CMT was a progressive disease that took about 20 years to get to a full-blown case involving severe disability in the lower extremities with the inability to walk without braces and finally involves the upper limbs. The pertinent diagnosis was bilateral peroneal neuromuscular atrophy (Charcot-Marie-Tooth disease). In January 1977, the VA Director of Compensation and Pension Service determined, on the basis of difference of opinion, that the evidence established service connection by aggravation for CMT, effective from September 5, 1975, the date of receipt of the veteran's reopened claim of service connection for the disability. In a July 1977 rating decision, the evaluation of service-connected CMT disability was elevated to 100 percent disabling and the veteran was granted special monthly compensation (SMC) for loss of use of the lower extremities, warranting SMC at the level of (m) of 38 U.S.C. 314 (recodified as § 1114(m)). In May 1979, the veteran submitted an application for loss of use of a creative organ secondary to service-connected CMT. The evidence then of record consisted of the following: An October 1977, VA neurology consultation, disclosing a three month history of impotency; a November 1978 record of VA outpatient treatment, disclosing the veteran's concern about impotency; and a May 1979 entry that he had developed a marginal degree of impotency since hospitalization that same month. In an August 1979 rating decision, the RO denied service connection for loss of use of a creative organ (impotency) on the grounds that it was unrelated to service-connected CMT. After the veteran was provided notice of the denial and of his appellate rights, he did not file a Notice of Disagreement within one year from the date of the notice. In November 1989, the veteran submitted a claim of service connection for osteoarthritis of the spine, compression fracture, herniated disc, ileostomy and other bowel-related problems, bladder condition, impotency, encephalopathy and other neurological problems as secondary to service-connected CMT. He also sought service connection for anxiety due to service- connected CMT that caused ulcers, high blood pressure, a heart attack and headaches. He included a claim for special monthly compensation based on the need for regular aid and attendance of another person. He then timely appealed a September 1990 rating decision, denying his claims. In April 1992, the Board remanded the case for further development, including adjudication of the issue of special monthly compensation for loss of use of the buttocks as an inferred issue. In November 1992, the veteran died. The death certificate reveals that the immediate cause of death was myocardial infarction due to coronary atherosclerosis. CMT syndrome was listed as a significant condition contributing to death, but not resulting in the underlying cause of death. In December 1992, the appellant applied for dependency and indemnity compensation, including accrued benefits and death compensation. In a June 1993 rating decision, the RO granted service-connection for the cause of the veteran's death. In June 1994, the Board referred this case to an independent medical expert (IME) at a state university medical school for an opinion, in part, on whether osteoarthritis and herniated disc involving the spine, bladder dysfunction and impotency were causally related to CMT. In accordance with 38 C.F.R. § 20.903, the appellant was notified of the Board's intention to seek the opinion and, in August 1994, the appellant's representative indicated that there was no further evidence or argument to submit after review of the IME opinion. Analysis The appellant argues that the veteran's health problems at issue were caused by service-connected CMT. Under 38 C.F.R. § 3.310(a), a disability that is proximately due to or the result of service-connected disability shall be service connected. The appellant has not argued and the RO has not adjudicated the claimed disabilities on the basis of other principles relating to the establishment of service connection, i.e., direct or presumptive incurrence. In favorably deciding the issues in this decision, the Board does not have to consider any other principles of service connection either. In considering secondary service connection, the record establishes that service-connection was granted for CMT -- a progressive neuromuscular disease that involves the lower and upper extremities. As explained in INTRODUCTION the Board considers the evidence cited below as "in the file" at the date of the veteran's death. Secondary Service Connection for the Purpose of Accrued Benefits Osteoarthritis and Degenerative Disc Disease of the Spine The evidence favorable to the claim consists of the following: Reports of Baptist Memorial Hospital and the Memphis Neurosurgical Clinic disclose that, in February 1975, the veteran was evaluated for neck and right upper extremity pain. There was a four to five year history of intermittent neck pain as well as a recent history of several falls in which he caught himself on his palms. Cervical spine films showed a spur at C4-5. The pertinent diagnosis was probable cervical osteoarthritis. In October 1981, X-rays revealed degenerative changes and spurs at C5-6. The impression was cervical osteoarthritis. On hospitalization that same month for further evaluation the diagnosis was cervical disc disease. On hospitalization in December 1981, he had partial hemilaminectomy at C4-5 because of a herniated nucleus pulposus. He had the same procedure for a similar problem at the C5-6 level in December 1984. On VA examination in June 1977, the veteran complained that he was having muscle spasms and that he could not hold his head up and that he was having pain in his right shoulder. The veteran was in a wheelchair. The examiner found that the veteran's grip strength was weaker. On VA examinations in October and November 1977, the veteran was described as essentially wheel-chair bound. There was decreased motor activity in the upper extremities. Records of VA outpatient treatment disclose that in July 1978 the veteran fell, spraining his right ankle and, in November 1978, CMT was affecting the upper extremities. In January 1989, magnetic resonance imaging (MRI) revealed osteophytes and disc defect in the C4-5 area and a disc defect at C-5. In October 1989, K. J. Gaines, M.D., of the Semmes-Murphey Clinic attributed the veteran's degenerative osteoarthritis of the spine and disc herniation to neuromuscular weakness and a number of falls associated with service-connected CMT. On VA examination in April 1990, the veteran stated that he had had falls, but there was no specific fall-injury prior to surgery in 1981. In the July 1994 IME opinion, the physician attributed the veteran's cervical arthritis and cervical disc disease to service-connected Charcot-Marie-Tooth disease on the grounds that the disease caused the veteran to fall several times before he became wheel-chair bound that led to cervical injuries. The evidence against the claim consists of the following: In July 1990, a VA physician expressed the opinion that, on the basis of the medical literature, herniated disc[s] were unrelated to CMT. Balancing the Evidence The record clearly establishes the presence of osteoarthritis and disc disease of the cervical spine at the levels of C4-5 and C5- 6. The only controversy here is whether the conditions were related to service-connected CMT. As for the relationship between osteoarthritis and disc disease of the cervical spine and service-connected CMT, Dr. Gaines and the IME stated that they were related on the basis that CMT caused the veteran to fall on occasion, resulting in cervical injury. A VA physician stated that disc disease of the cervical spine was not causally related to CMT. In the Board's view, the opinions of Dr. Gaines and the IME account for the progressive complications of CMT as it affected the veteran's neuromuscular system, resulting in muscular weakness, e.g., the inability of the musculature to support the limbs and neck. The VA physician's opinion was apparently focused on the pathogenic nature of the diseases. In any event, the record results in an approximate balance of positive and negative evidence on the merits of whether osteoarthritis and disc disease of the cervical spine was causally related to service-connected CMT. With application of the benefit-of-the-doubt rule, the Board concludes that secondary service connection is established for osteoarthritis and disc disease of the cervical spine for the purpose of accrued benefits. Bladder Dysfunction The evidence in favor of the claim consists of the following: In a May 1982 evaluation, R. M. Pearson, M.D., reported that urologic evaluation revealed severe bladder trabeculation with outlet obstruction that may be related to CMT. In October 1989, K. J. Gaines, M.D., of the Semme-Murphey Clinic, stated that CMT caused difficulty with control of the urinary bladder. On VA neurology examination in August 1990, history was positive for the inability to evacuate the bladder. The impression was advanced CMT. In a July 1991 statement, P. O'Sullivan, M.D., of the Semme- Murphey Clinic, stated that the veteran's bladder problems were related to CMT. In the July 1994 IME opinion, the physician stated that it was likely that the bladder dysfunction was related to CMT, a disease of the peripheral nerves, as bladder function is known to be sensitive to the nerve pathology of CMT. The evidence against the claim consists of the following: In a July 1990 statement, a VA physician expressed the opinion that, on the basis of the medical literature, the veteran's bladder problem was unrelated to CMT. Balancing the Evidence On weighing the evidence, the evidence shows that bladder obstruction was first possibly associated with CMT in 1982. After that, two private physicians from the Semme-Murphey Clinic indicated a positive link between bladder problems and CMT as did the IME. Except for the reference to the "medical literature," the July 1990 VA physician's opinion is not persuasive as it fails to discuss what if anything the literature actually revealed about bladder dysfunction and CMT. On the positive side, the IME explained that CMT affects the peripheral nerves and bladder function is known to be sensitive to the nerve pathology of CMT. The July 1990 VA physician's opinion does not directly account for this and is therefore of less probative value. For these reasons, the Board finds that the preponderance of the evidence favors a causal relationship between bladder dysfunction and CMT, establishing secondary service connection for bladder dysfunction for the purpose of accrued benefits is established. Impotency In an August 1979 rating decision, the RO denied service connection for loss of use of a creative organ (impotency) on the grounds that it was unrelated to service-connected CMT. The evidence of record consisted of VA records disclosing a history of impotency beginning in 1977. After the veteran was provided notice of the denial and of his appellate rights, he did not file a Notice of Disagreement within one year from the date of the notice. Pursuant to 38 U.S.C.A. § 7105(c) (West 1991), when a claim is denied by a decision of the RO and a claimant fails to file a timely appeal, that decision becomes final and the claim may not thereafter be reopened or allowed, except as may otherwise be provided by regulation not inconsistent with Title 38, United States Code. In a precedent opinion of the United States Court of Veterans Appeals, Suttmann v. Brown, 5 Vet.App. 127, 135-136 (1993), the Court concluded that the finality rule in § 7105(c) is subject to the exception in 38 U.S.C.A. § 5108 (West 1991), that requires the Secretary to reopen and readjudicate a claim when "new and material evidence" is presented or secured with respect to that claim. To reopen a previously and finally disallowed claim, the Board must conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior disallowance of the claim is new and material. Second, if the evidence is new and material, then the case is reopened and the Board must evaluate the claim in light of all the evidence, both new and old. New evidence is that which is not merely cumulative of other evidence of record. Material evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 90 (1993); Justus v. Principi, 3 Vet.App. 510, 512-13 (1992). The evidence submitted since the August 1979 rating decision on the merits of the claim is now for consideration in determining new and material evidence to reopen. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994) In seeking to reopen the claim, the appellant would have to produce new and material evidence bearing on the question of secondary service connection. The evidence added to the record since the August 1979 rating decision by the RO consists of the following: (1) a February 1982, private medical record, disclosing that the veteran's problems with impotency may be related to CMT or medications, (2) a May 1982 evaluation by a private physician of the veteran's complaint of organic, erectile impotency that was consistent with a pattern of impotency produced by medication; (3) an August 1982, Baptist Memorial Hospital record pertaining to the implant of a penile prosthesis; (4) and (5) October 1989 and July 1991 statements of Dr. Gaines and Dr. O'Sullivan of the Semme-Murphey Clinic that impotency was related to CMT; (6) a July 1990 report from a VA physician; and (7) the July 1994 IME opinion. For the purpose of reopening the claim, the Board finds that items (4) and (5), pertaining to impotency and service-connected CMT, are new because they have not been previously considered and material as the evidence tends to establish an etiologic link between the two conditions. Since the evidence is new and material and raises a reasonable possibility of changing the prior outcome, the claim is reopened and the merits of the claim will be addressed, considering all the evidence of record. The evidence in favor of the claim consists of the following: In a February 1982, private medical record, Dr. H. Friedman, noted that the veteran was having problems of impotency that may be related to CMT or his medications. In a May 1982 evaluation, Dr. Pearson indicated that the veteran's impotency was consistent with a pattern produced by medication and he recommended that the veteran's hypertensive medication be altered. In June 1982, the physician reported that the veteran's medication had been modified. An August 1982, Baptist Memorial Hospital record pertains to the insertion of a penile prosthesis. In an October 1989 statement, Dr. Gaines of the Semme-Murphey Clinic stated that impotency was related to CMT. In a July 1991 statement, Dr. O'Sullivan of the Semme-Murphey Clinic stated that loss of use of creative organ was related to CMT. In the July 1994 IME opinion, the physician stated that it was likely that impotency was related to CMT, a disease of the peripheral nerves, as sexual function is known to be sensitive to the nerve pathology of CMT. The evidence against the claim consists of the following: In a July 1990 statement, a VA physician expressed the opinion that, on the basis of the medical literature, the veteran's impotency was unrelated to CMT. Balancing the Evidence The evidence shows that initially impotency was thought to be due to medication or CMT. When the veteran's medication was adjusted, normal sexual function was not restored as evidenced by the implant of a penile prosthesis. After that, two private physicians from the Semme-Murphey Clinic indicated a positive link between impotency and CMT as did the IME. Except for the reference to the "medical literature," the July 1990 VA physician's opinion is not persuasive as it fails to discuss what if anything the literature actually revealed about impotency and CMT. On the positive side, the IME explained that CMT affects the peripheral nerves and sexual function is known to be sensitive to the nerve pathology of CMT. The July 1990 VA physician's opinion does not directly account for this and is therefore of less probative value. For these reasons, the Board finds that the preponderance of the evidence favors a causal relationship between impotency and CMT, establishing secondary service connection for the purpose of accrued benefits. Other Neurological Disability On initial VA examination in July 1965, CMT was described as a progressive disease that took about 20 years to get to a full-blown case involving the lower and upper extremities. During his lifetime, the veteran was service connected for CMT and the Board in this decision has granted service-connection for osteoarthritis and disc disease of the cervical spine. The record is replete with references to neurological findings involving the upper extremities that were either associated with CMT or disability of the cervical spine, e.g.: neck and right upper extremity pain with electromyogram findings of denervation activity in the right biceps, triceps and brachial radialis (February 1975 reports of Baptist Memorial Hospital); probable development of the upper extremity form of CMT (May 1975, physician's statement); shoulders and left upper extremity pain (April 1977 VA outpatient record); weakened grip strength (June 1977 VA examination); motor weakness upper extremities (October 1977 VA neurological examination and VA hospitalization); CMT affecting upper extremities (November 1978 VA outpatient record); neck and upper extremity pain (October 1981 and December 1984 reports of Baptist Memorial Hospital); weakness upper extremities (March to September 1989 records of Semmes-Murphey Clinic); weakness and no reflexes in upper extremities (VA neurosurgical and neurology examinations in July and August 1990); loss of active movement upper extremities (December 1990 Helena Regional Medical Center); progressive CMT with moderate weakness of the upper extremities (February 1991 Baptist Memorial Hospital record); neuropathy upper extremities due to CMT (July 1991 statement of P. O'Sullivan, M.D.); and progressive weakness of upper extremities (June 1992 VA examination). The above neurological findings of the upper extremities attributable to either service-connected CMT or disc disease of the cervical spine are of course service-connected for the purpose of accrued benefits. If the appellant is seeking some other neurological disability, she should be more specific on remand. ORDER Service connection for osteoarthritis of the cervical spine and degenerative disc disease of the cervical spine, C4-5 and C5-6, for the purpose of accrued benefits is granted. Service connection for bladder dysfunction for the purpose of accrued benefits is granted. Service connection for impotency for the purpose of accrued benefits is granted. Service connection for neurological disability of the upper extremities due to CMT and/or disc disease of the cervical spine for the purpose of accrued benefits is granted. REMAND On the issues of whether the evidence is new and material to reopen the claim of service connection for cardiac disability, including hypertension, the claim was not adjudicated in the context of new and material evidence to reopen a finally denied claim. Service connection for hypertension was denied by rating decision in August 1965 on the grounds that it was unrelated to service and in an August 1979 rating decision on the grounds that it was unrelated to service-connected CMT. Under the holding in VDA de Landicho and Oseo, as the veteran could have achieved service connection prior to his death only through a reopened claim supported by new and material evidence and as the appellant is required to pick up the veteran's claim to reopen the denial of service connection for hypertension in August 1979, correction of the procedural defect is required. Also, in light of the grant of service connection for additional disabilities and because the issue of special monthly compensation for loss of use of the buttocks was not adjudicated, the Board determines that further development is necessary and, therefore, remands these matters to the RO for the following action: 1. Adjudicate the issue of whether the evidence is new and material to reopen the claim of service connection for cardiac disease, including hypertension. 2. Adjudicate the issue of entitlement to special monthly compensation based on loss of use of creative organ due to service- connected impotency and loss of use of the buttocks. The evidence in the file at the date of the veteran's death and evidence deemed to be in the file at death, the autopsy report and IME opinion, may be considered if pertinent. 3. After these issues have been adjudicated, readjudicate the issue of special monthly compensation based on the need for regular aid and attendance. During the veteran's lifetime, he was receiving special monthly compensation at the intermediate rate between (m) and (n). The issue, therefore, is: Whether he was entitled to SMC at the level of (r)(1) under subsection (o), on the basis that entitlement to two or more of the rates provided in one or more subsections of (l) through (n), no condition being considered twice, warrants SMC at the level of (r)(1). In other words, do the additional service- connected disabilities of the cervical spine and the disability associated with CMT, involving the upper extremities, establish that the veteran was in need of regular aid and attendance to satisfy the criteria of 38 C.F.R. 3.352(a) and subsection (o). If a determination remains adverse to the appellant, then she and her representative should be furnished a Supplemental Statement of the Case and they should be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).