Citation NR: 9703147 Decision Date: 01/29/97 Archive Date: 02/12/97 DOCKET NO. 95-23 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a higher rate of special monthly compensation based on a higher level of aid and attendance under 38 U.S.C.A. § 1114(r)(1) (West 1991). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active military service from June 1945 to November 1946. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected tinea manus of the left hand with loss of use of the left hand results in the need for aid and attendance. He further maintains that as aid and attendance is required for both the loss of use of the left hand and for his service-connected tinea pedis with loss of use of both feet, he is entitled to a special monthly compensation (SMC) in accordance with 38 U.S.C.A. § 1114(r)(1). DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports payment of SMC in accordance with 38 U.S.C.A. § 1114(r)(1). FINDINGS OF FACT 1. The veteran’s loss of use of the left hand results in the need for regular aid and attendance. 2. The veteran’s loss of use of both feet results in the need for regular aid and attendance. CONCLUSION OF LAW The veteran is entitled to special monthly compensation due to a need for regular aid and attendance. 38 U.S.C.A. §§ 1114(r)(1), 5107(b) (West 1991); 38 C.F.R. §§ 3.350, 3.352 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 1114(k), SMC is provided for loss of use of the hand as defined under 38 C.F.R. § 4.63. Loss of use of the left hand as a result of the veteran’s service- connected tinea manus of the left hand has been demonstrated. As noted above, the veteran contends that aid and attendance is required as a result of the loss of use of the left hand. Special monthly compensation at the rate authorized by 38 U.S.C.A. § 1114(l) is payable if the veteran is in need of regular aid and attendance of another person. The criteria for determining that a veteran needs regular aid and attendance are contained in 38 C.F.R. § 3.352(a). The following are accorded consideration: the inability to dress and undress, maintain ordinary cleanliness, feed oneself, attend to the wants of nature, frequently needing adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot done without aid, or incapacity, physical or mental, requiring care or assistance to protect the veteran from the hazards and dangers incident to his daily environment. In support of his contentions, the veteran submitted a need for aid and regular attendance report from his private physician, dated in January 1994, indicating that the veteran’s left hand was not functional and that he needed assistance when dressing, cutting food, opening and taking medications, and cleaning and maintaining his catheter. At the time of his February 1996 regional office (RO) hearing, the veteran testified that he had numerous problems with his daily living as a result of the loss of use of his left hand. The veteran indicated that he had difficulty changing his urinary incontinence leg bag in the morning. He testified that he used a Texas catheter for urinary control. The veteran reported that a sticky substance needed to be placed on the shaft and head of his penis and that a condom had to be placed over the sticky substance. He further indicated that a three-inch sponge tape then had to be placed around the head and the shaft of the penis to ensure that the catheter would not fall off. He reported that this procedure was performed at least one time per day. The veteran also testified that he needed assistance when washing, shaving, and showering. He also reported that he needed assistance when putting on his shirt, pants, and undergarments. He indicated that his wife was his primary caretaker. The veteran’s wife testified that she cut up the veteran’s food, did all his washing, and helped him bathe and dress. She further reported having to put the veteran’s catheter in place and having to clean the catheter on a daily basis. She also indicated that she would place a suppository in the veteran for bowel control. At his February 1996 VA orthopedic examination, the veteran was found to have no motion in any joint of his left hand and no useful function of the left hand. At his July 1996 hearing before the undersigned Board Member, the veteran testified as to his need for assistance when dressing, bathing, and putting on his catheter. He indicated that his wife was his primary caretaker. The veteran again testified about the necessary procedures for putting the catheter in place. He further reported that the placement of the catheter required the use of two hands, as one hand was required to hold the catheter in place and another was required to snap the buttons to hold the catheter in place. The veteran further testified as to the need for assistance when pushing his wheelchair. He also reported that his wife split and administered his medications for him. He further indicated that he was unable to feed himself if the meal involved cutting with a knife or having to open a can or jar. The veteran’s wife testified that she put the veteran’s catheter in place each day. She also testified that she helped him bathe and dress every day. The Board is of the opinion that the loss of use of the left hand is of sufficient severity as to require the need for aid and attendance of another. It has been demonstrated through the submission of medical evidence and the testimony of the veteran and his wife that the veteran is unable to properly maintain his catheter and attend to the wants of nature without the assistance of another individual. The Board also notes that the veteran requires assistance when bathing and eating. Therefore, the veteran would be entitled to receive SMC in accordance 38 U.S.C.A. § 1114(l) for his service- connected tinea manus of the left hand with loss of use of the left hand as a result of his need of aid and attendance. The provisions of 38 C.F.R. § 3.352(a) do not explicitly state that the need for the prosthetic appliance must be attributable to a service-connected disorder. The Board also notes that the veteran has been found to have loss of use of both feet as a result of his service-connected tinea pedis, which would warrant special monthly compensation under 38 U.S.C.A. § 1114(l). The need for aid and attendance as a result of loss of use of both feet has also been demonstrated. The veteran argues that as he is in need of aid and attendance for both the loss of use of his feet and for the loss of use of his left hand, he is entitled to SMC under 38 U.S.C.A. § 1114 (o) and (r)(1). To be entitled to benefits under the provisions of subsections "o" and "r(1)", an individual must establish entitlement to two or more rates of SMC (no condition being considered twice) provided in 38 U.S.C.A. §§ 1114(l) through (n). Entitlement can also be established through paraplegia with loss of anal and bladder sphincter control by reason of helplessness. See 38 U.S.C.A. § 1114(o); 38 C.F.R. § 3.350(e) (1995). An award of these benefits essentially establishes entitlement to the next level of aid and attendance, as set forth in 38 U.S.C.A. § 1114(r)(1); 38 C.F.R. § 3.350(h) (1995). In other words, entitlement to this level of SMC would require, in this case, that the veteran is in need of regular aid and attendance on two bases due to separate sets of service-connected disabilities. As the veteran has been found to have loss of use of the left hand, requiring aid and attendance, which would entitle him to SMC under the provisions of 38 U.S.C.A. § 1114(l), and as he has been found to have loss of use of both feet, entitling him to at least SMC under 38 U.S.C.A. § 1114(l), requiring aid and attendance, he has satisfied the necessary requirements for SMC under 38 U.S.C.A. § 1114(o). As he is entitled to SMC under 38 U.S.C.A. § 1114(o), and as the need for regular aid and attendance has been shown, he is also entitled to SMC under 38 U.S.C.A. § 1114(r)(1). ORDER Entitlement to a higher rate of special monthly compensation based on a higher level of aid and attendance under 38 U.S.C.A. § 1114(r)(1) is granted subject to the laws and regulations governing monetary benefits. JOHN E. ORMOND, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -