Citation NR: 9802978	
Decision Date: 01/30/98		Archive Date: 02/03/98
DOCKET NO.  97-06 975			)	DATE
						)
						)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUES

1.  Entitlement to special monthly compensation (SMC) at the 
rate provided by 38 U.S.C.A. § 1114(o), based on paraplegia 
of both lower extremities with loss of anal and bladder 
control.

2.  Entitlement to additional SMC at the rate provided by 38 
U.S.C.A. § 1114(r)(1) based on the need for the regular aid 
and attendance (A&A) of another person.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. M. Ferris, Associate Counsel



INTRODUCTION

The appellant served on active duty from June 1936 to July 
1940.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an August 1996 rating determination by 
the Department of Veterans Affairs (VA) Regional Office (RO), 
located in Houston, Texas.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he is entitled to a higher rate of 
SMC based on the fact that he suffers from paralysis of both 
lower extremities together with loss of anal and bladder 
sphincter control and the fact that his need for A&A has been 
demonstrated.


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered 
all of the evidence and material of record in the veteran's 
claims file.  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 veteran is entitled to SMC 
under 38 U.S.C.A. § 1114(o) based on paralysis of both lower 
extremities together with loss of anal and bladder sphincter 
control, and that since he is entitled to the SMC rate under 
38 U.S.C.A. § 1114(o) and requires the A&A of another, he is 
entitled to additional SMC at the rate provided by 
38 U.S.C.A. § 1114(r)(1).


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the instant appeal has been obtained by the 
RO.

2.  A rating dated in September 1942 reflects that the 
veteran’s service-connected disabilities included paraplegia 
of the lower extremities.

3.  By a rating dated in February 1955, veteran’s service-
connected disabilities included a 100 percent rating for loss 
of use of both feet under Diagnostic Code 5110 and a separate 
100 percent rating for intra spinal injury with loss of anal 
and bladder sphincter control.  Service connection was also 
established for nephrectomy, left, rated as 30 percent 
disabling under Diagnostic Code 7500.

4.  As a result of the February 1955 rating, the veteran has 
been paid SMC at the rate provided by 38 U.S.C.A. § 1114(m) 
(previously designated as 38 U.S.C. 314(m)) on the basis that 
the veteran met the criteria for SMC at the rate provided by 
38 U.S.C.A. § 1114(l) and had additional disability 
independently ratable at 100 percent.

5.  In a rating decision dated in April 1988, the RO held 
that the veteran had protected 100 percent schedular 
evaluations for loss of use of both feet as well as for 
residuals intra spinal injury with loss of anal and bladder 
sphincter control; the RO also held that the veteran was 
entitled to special housing assistance based loss of use of 
both lower extremities which required the aid of braces, 
crutches, canes, or a wheelchair for locomotion.

6.  It has been shown that the veteran's service-connected 
disabilities render him unable to adequately attend to the 
needs of daily living without the regular assistance of 
another person.

CONCLUSIONS OF LAW

1.  The criteria for an award of SMC at the rate provided by 
38 U.S.C.A. § 1114(o) based on loss of use of both legs and 
helplessness have been met.  38 U.S.C.A. §§ 110, 1114, 1155, 
1159, 5107 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.102, 
3.350(e)(2), 3.951(b), 3.953(c), 3.957 (1996).

2.  The criteria for an additional award at the rate provided 
by 38 U.S.C.A. § 1114(r)(1) based on the need for regular A&A 
of another person have been met.  38 U.S.C.A. §§ 1114(r)(1), 
5107 (West 1991); 38 C.F.R. § 3.350(h)(1) (1996).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board finds that the veteran's claims are well-grounded 
within the meaning of 38 U.S.C.A. § 5107(a).  That is, we 
find that he has presented claims which are plausible.  
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).  We are 
satisfied that all relevant facts have been properly 
developed.  No further assistance to the veteran is required 
to comply with the duty to assist the veteran mandated by 38 
U.S.C.A. § 107(a) (West 1991).

Factual Background.  The veteran, who was born in June 1916, 
served on active duty from June 1936 to July 1940.  He was 
injured in August 1939 while a passenger on a motorcycle.  He 
was diagnosed with flaccid paralysis of both lower 
extremities and loss of sphincter control.  Following a 
laminectomy he regained sphincter control and motor power of 
both legs.  He still had a residual of a partial bilateral 
foot drop.  He was unable to return to duty and was 
recommended for separation from the service.  

By a rating dated in September 1940, service connection was 
established for residuals of intra spinal injury, fractures 
12th thoracic and 1st lumbar vertebrae with laminectomy, and 
bilateral partial foot drop, rated 70 percent disabling from 
July 1940.

Examination in January 1941 revealed a partial paralysis of 
the lower extremities with atrophy of the calves of both 
legs.  The veteran walked with an ataxic gait.  The organic 
reflexes, bladder and rectum were slightly impaired.  
Diagnoses included paraplegia, moderate; scar, postoperative, 
over lower portion of spine, mild; and fracture, healed, with 
exostosis, 1st lumbar vertebra.

When examined by VA in September 1942, the veteran reported 
that he had very little strength in his ankles and had to 
hold onto something when standing.  He reported a history of 
difficulty in voiding urine and in evacuating the bowels.  He 
used a cane when walking.  Examination revealed slight 
muscular atrophy of the muscles below the knees and bilateral 
foot drop.  Diagnoses included paraplegia, lower extremities, 
and chronic cystitis.

By a rating dated in September 1942, the veteran's service-
connected disabilities were listed as residuals interspinal 
injury, fracture 1st right thoracic and 1st lumbar vertebra, 
with laminectomy, and paraplegia, lower extremities.  The 
disabilities were rated as 100 percent disabling from 
September 1942.

VA examination in April 1948 noted that the veteran had 
sustained widespread damage at about the level of D-12 and 
below as a result of the 1939 accident.  There had been no 
subjective improvement in the condition during the past 6 
years.  The symptoms included recurring cystitis and 
difficulty in control of the bowels, which would indicate 
that there had probably been downward extension of the 
lesion.  Gait was the dragging type.  Feet and legs were 
discolored, cold and clammy.

VA examination in January 1949 noted that the veteran had 
little control of his bowel movements and that his urinary 
bladder was weak.  All muscles below the knee bilaterally 
showed marked evidence of atrophy.  The veteran had a typical 
"slapping the pavement walk."  There was a mild, strained 
continence, both of the rectal and of the urinary bladder 
sanctor.

VA examination in September 1950 resulted in a diagnosis of 
paralysis of bladder, partial, post traumatic.

The veteran was hospitalized from April to July 1953 at which 
time a left nephrectomy was performed.

In a statement dated in October 1954, a physician reported 
that the veteran had to have a cane for standing and walking 
and that he used abdominal muscles for voiding urine.  He 
offered his opinion that the veteran should be considered for 
loss of use of his lower extremities as well as 70 percent of 
kidney function.

Diagnoses on VA examinations in December 1954 included 
partial paralysis of bladder, sphincter, and rectal 
sphincter, as well as incontinence of urine.

By a rating decision dated in February 1955, it was 
determined that the evidence showed loss of use of both lower 
extremities and loss of anal and bladder sphincter control.  
The veteran was found to be entitled to SMC on account of 
loss of use of both feet, with additional disability, loss of 
anal and bladder sphincter control, independently ratable at 
100 percent.  The following ratings were established:  

100 percent under Diagnostic Code 8010 for residuals 
intra spinal injury with loss of anal and bladder 
sphincter control;

100 percent under Diagnostic Code 5110 for loss of use 
of both feet;

30 percent under Diagnostic Code 7500 for nephrectomy, 
left, directly due to and proximately the result of the 
above disability of service origin.

Subsequent award sheets reflect that the veteran was paid 
compensation at the 100 percent rate plus the rate for 
benefits under subparagraph "M" on the basis that the veteran 
met subparagraph "L" and had additional disability 
independently ratable at 100 percent.

In April 1960, the veteran was accorded an examination to 
determine his entitlement to specially adapted housing.  It 
was noted that the veteran had functioned for some 7 years as 
a Justice of the Peace with no restrictions.  Genitourinary 
examination noted that the veteran had to empty his bladder 
by means of a Crede maneuver and that a urinal bag to be 
strapped to the thigh was being prescribed.  GU examination 
resulted in the following diagnoses:  cord bladder with 
partial loss of urinary control; and chronic cystitis, 
secondary to #1.  Orthopedic examination revealed that the 
muscles of the lower legs and the feet showed no effective 
function.  Residuals of traumatic paraplegia was the 
orthopedic diagnosis.  On neurological examination the 
examiner noted that the onset, nature, and course of the 
injury had been described many time previously and repetition 
at this time would serve no useful purpose.  The examiner 
noted that it had been shown on several occasions that the 
veteran was not a true paraplegia, but that several findings 
warranted the continuation of that diagnosis.  It was noted 
that the veteran reported that he spilled his urine if he 
coughed and that he stayed constipated all the time.  On 
examination the veteran was well preserved from the knees 
upward with the exception of the buttocks which were 
atrophied.  The neurologist concluded that no new findings 
were elicited and that the veteran's condition was static 
neurologically.  Paraplegia, traumatic, moderate, was the 
diagnosis.

VA examination in January 1988 revealed that the veteran 
walked slowly and had difficulty elevating both feet.  He 
required a cane to walk and was extremely weak in all areas 
of both legs.  The veteran reported that he had had 
difficulty with bowel and bladder incontinence and that he 
catheterized himself on a regular basis, about 3 times a day.  
He reported that he did not have much feeling or control of 
his bowel movements.  Diagnoses included status post lumbar 
laminectomy for spinal injury in 1939 with paraparesis of the 
lower extremities and loss of bladder sphincter control and 
stools, by history.

In a rating decision dated in April 1988, the RO held that 
the veteran had protected 100 percent schedular evaluations 
for both residuals intra spinal injury with loss of anal and 
bladder sphincter control and loss of use of both feet, as 
well as additional service-connected disability of left 
nephrectomy evaluated as 30 percent disabling from October 
20, 1954.  The RO held that the veteran was entitled to 
special housing assistance based on a determination that due 
to loss of use of both lower extremities, the service-
connected diagnosis was permanent and total.  The RO cited 38 
U.S.C. § 801(a) (now codified as 38 U.S.C. § 2101(a)).

In June 1996, the veteran filed a claim for increased 
compensation.  It was asserted that the loss of use of the 
lower extremities required the veteran to use a wheelchair or 
scooter for locomotion.

A report of VA hospitalization reflects that the veteran was 
hospitalized during May and June 1996 for inpatient 
rehabilitation for functional mobility training and 
strengthening and endurance training.  The veteran had 
undergone a left lower lobectomy with en bloc to chest wall 
resection, stage I, T2N0M0 for lung mass in April 1996, and 
had become weak since discharge from the hospital on April 
29, 1996.  It was also noted that he had been diagnosed with 
colon cancer approximately 5 years previously at which time 
he had undergone colostomy surgery of the colon cancer.  The 
history indicated that the veteran was active and ambulated 
with crutches and an electric scooter for long distances.  He 
was a retired Judge.  Physical examination revealed that the 
extremities had normal tone with no contractures.  There was 
no clubbing, cyanosis or edema, however, there was tibialis 
anterior atrophy.  A neurological examination showed that the 
upper bilateral extremities were 5/5.  Hip flexion was 5/5 as 
was hip abduction.  Knee extension was 5/5 bilaterally.  
Ankle dorsiflexion, toe extension and plantar flexion were 
0/5.  There was no ankle clonus or plantar reflex.  There was 
decreased light touch bilateral feet to above ankles and 
decreased pin prick L4 and below bilaterally.  Tests were 
positive for vibratory sense bilaterally at the wrist, elbow, 
and knee, and negative at the ankle.  The examiner stated 
that after training, the veteran reached the goals of 
independence in all areas of self care, including bathing and 
reached the goals of supervision with transfers including bed 
to chair, bed to toilet, and chair to tub.  The veteran was 
considered unsafe with regard to using a walker.  He was 
assigned a home health aid who visited him on a daily basis 
and who was to continue his outpatient therapy.  The veteran 
also became independent in his intermittent catheter program 
although he did require occasional reminders to perform his 
intermittent catheter program.

A VA examination for housebound status or permanent need for 
regular A&A was conducted on June 24, 1996, the day the 
veteran was released from the hospital.  At that time, the 
veteran’s posture was stooped and he had difficulty in moving 
his lower extremities to transfer to a wheel chair.  It was 
noted that the veteran had extremely decreased endurance and 
that this decreased his ability and increased the time it 
took to perform activities of daily living and other tasks.  
The range of motion of the veteran’s lower extremities, 
bilaterally were grossly within functional limits with 1 
degree loss decrease of knee extension.  Range of motion 
strength was not functional for ambulation or unassisted 
transfers.  It was noted that the veteran’s ankle strength 
was zero and significantly limited.  Balance was noted to be 
poor requiring assistance with transfers and standing. Range 
of motion of the spine trunk and neck was within functional 
limits for bed, medical office building, and sitting, but was 
not functional for ambulation.  It was noted that the veteran 
fatigued easily.  It was also noted that due to dizziness and 
loss of memory at times, as well as increased weakness, the 
veteran required stand-by/assistance with transfers.  The 
veteran was not able to walk without the assistance of 
another person.  If he was assisted with loading/securing a 
mobility device he would be able to leave home as long as he 
has assistance with obstacles (e.g. doors).  The veteran was 
not found to be bedridden.  The examiner stated that the 
veteran was able to dress/undress himself, attend to the 
wants of nature, keep himself ordinarily clean, protect 
himself from hazards or danger.  The veteran was found 
competent and able to handle government funds.  He was 
diagnosed with a cauda equina injury which caused paraplegia, 
status post resection of left lung, resection of colon, 
colostomy, shingles, nephrectomy and left hip fracture.

A hearing was held at the RO in April 1997.  At that time, 
the veteran testified that he could get up from bed and into 
a wheelchair unassisted.  He said that he could take care of 
his personal needs including care associated with his 
colostomy and catheter.  He had an aide which assisted him 
with drying his body, especially his backside after taking a 
bath or shower.  He was able to dress himself.  He was also 
able to feed himself.  He testified that he went to physical 
therapy out of the home twice a week.

Pertinent laws and regulations.  The statutory and regulatory 
provisions regarding SMC, despite the technicalities and 
complexities, are of great importance to those veterans who 
have service-connection for catastrophic disability, 
primarily as a result of spinal cord injury or disease.  The 
provisions for these catastrophic disabilities are contained 
in 38 U.S.C.A. § 1114 and 38 C.F.R. § 3.350.  The statutory 
provisions of 38 U.S.C.A. § 1114 regarding SMC are divided 
into numerous subsections, identified by letters of the 
alphabet, beginning with the letter (k).

SMC awards identified as (k) are granted for disabilities 
essentially involving only one hand or one foot or one eye.  
Inasmuch as the veteran’s service-connected disabilities 
include loss of use of both feet, subsection (k) is not 
applicable.

The next three letters of the alphabet apply, in increasing 
levels of disabilities, to the most severe combinations of 
anatomical losses or losses of use.  The basic requirement 
for any award from (l) to (n) is that a veteran should have 
suffered the anatomical loss or loss of use of both hands, or 
both feet, or of one hand and one foot, or be blind in both 
eyes, or be permanently bedridden, or so helpless as to be in 
need of regular A&A.

The (l) award is payable when the losses involving the 
extremities are below the level of the elbow or knee.  The 
need for regular A&A establishes entitlement at the (l) 
level.

The ratings are increased to the (m) level when the losses 
prevent natural elbow or knee action.

Entitlement at the (n) level is established only by the 
anatomical loss of any two extremities so near the shoulder 
or hip as to prevent the use of a prosthetic appliance.

The next letter, (o), provides for the maximum rate of SMC 
and is payable when a veteran has established entitlement to 
any two combinations of disabilities ratable under 
subsections (l), (m), or (n).

The letter (p) provides of intermediate steps of SMC where 
the veteran’s service-connected disabilities exceed the 
requirements for any of the levels of SMC, (l) through (n).  
Under (p), an additional full step is authorized if there is 
an additional service-connected disability independently 
ratable at 100 percent, but not above the (o) rate.

Finally, is the subsection designated by the letter (r) which 
is payable in addition to the (o) rate when a veteran is in 
need of regular and attendance.  A veteran must qualify for 
the (o) rate before he can even be considered for the (r) 
rate.  The (r) rate

With this overview in mind, subsections 1114 (l), (m), (n), 
(o), (p) and (r) of title 38, United States Code Annotated, 
in pertinent part, are as follows:

(l) if the veteran, as the result of service-connected 
disability, has suffered the anatomical loss or loss of 
use of both feet, . . . or is permanently bedridden or 
so helpless as to be in need of regular A&A, the monthly 
compensation shall be $2,207;

(m) if the veteran, as the result of service-connected 
disability, has suffered the anatomical loss or loss . . 
. of one arm and one leg at levels, or with 
complications, preventing natural elbow and knee action 
with prostheses in place . . . , rendering such veteran 
so helpless as to be in need of regular A&A, the monthly 
compensation shall be $2,432;

(n) if the veteran, as the result of service-connected 
disability, . . . has suffered the anatomical loss of 
one arm and one leg so near the shoulder and hip as to 
prevent the use of prosthetic appliances, . . . the 
monthly compensation shall be $2,768;

(o) if the veteran, as the result of service-connected 
disability, has suffered disability under conditions 
which would entitle such veteran to two or more of the 
rates provided in one or more subsections (l) through 
(n) of this section, no condition being considered twice 
in the determination, . . . the monthly compensation 
shall be $3,093;

(p) in the event the veteran’s service-connected 
disabilities exceed the requirements for any of the 
rates prescribed in this section, the Secretary may 
allow the next higher rate or an intermediate rate, but 
in no event in excess of $3,093;

(r) if any veteran, otherwise entitled to compensation 
authorized under subsection (o) of this section, is in 
need of regular A&A, then, in addition to such 
compensation -- (1) the veteran shall be paid a monthly 
A&A allowance at the rate of $1,328; or (2) if the 
veteran, in addition to such need for regular A&A, is in 
need of a higher level of care, such veteran shall be 
paid a monthly A&A allowance at the rate of $1,978.

38 U.S.C.A. § 1114 (l)-(r) (West 1991 & Supp. 1993). 

The applicable regulatory provisions are found at 38 C.F.R. § 
3.350 and contain the following pertinent provisions:

The SMC provided by 38 U.S.C. 1114(o) is payable for 
conditions entitling to two or more of the rates (no 
condition being considered twice) provided in 38 U.S.C. 
1114(l) through (n).  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. 1114(o), through the combination of loss of 
use of both legs and helplessness.  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 A&A, 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.

38 C.F.R. § 3.350(e) (1996) (emphasis added).

In addition to the statutory rates payable under 38 
U.S.C. 1114 (l) through (n), additional single permanent 
disability independently ratable at 100 percent apart 
from any consideration of individual unemployability 
will afford entitlement to the next higher statutory 
rate under 38 U.S.C. 1114 or if already entitled to an 
intermediate rate to the next higher intermediate rate, 
but in no event higher than the rate for (o).  In the 
application of this subparagraph the single permanent 
disability independently ratable at 100 percent must be 
separate and distinct and involve different anatomical 
segments or bodily systems from the conditions 
establishing entitlement under 38 U.S.C. 1114 (l) 
through (n) or the intermediate rate provisions outlined 
above.

38 C.F.R. § 3.350(f)(4) (1996).

A veteran receiving the maximum rate under 38 U.S.C. 
1114(o) who is in need of regular A&A is entitled to an 
additional allowance during periods he or she is not 
hospitalized at United States Government expense.  
Determination of this need is subject to the criteria of 
§ 3.352.  The regular or higher level A&A allowance is 
payable whether or not the need for regular A&A or a 
higher level of care was a partial basis for entitlement 
to the maximum rate under 38 U.S.C. 1114(o), or was 
based on an independent factual determination.

38 C.F.R. § 3.350(h)(i) (1996).

The provisions of § 3.352 provide that the following will be 
accorded consideration in determining the need for regular 
A&A:

Inability of claimant to dress or undress himself 
(herself), or to keep himself (herself) ordinarily clean 
and presentable; frequent need of adjustment of any 
special prosthetic or orthopedic appliances which by 
reason of the particular disability cannot be done 
without aid (this will not include the adjustment of 
appliances which normal persons would be unable to 
adjust without aid, such as supports, belts, lacing at 
the back etc.); inability of claimant to feed himself 
(herself) 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 or her daily environment. . . .  
It is not required that all of the disabling conditions 
enumerated in this paragraph be found to exist before a 
favorable rating may be made.  The particular personal 
function which the veteran is unable to perform should 
be considered in connection with his or her condition as 
a whole.  It is only necessary that the evidence 
establish that the veteran is so helpless as to need 
regular A&A, not that there be a constant need.

38 C.F.R. § 3.352(a) (emphasis added).

Entitlement to a higher rate of SMC based on paraplegia of 
both lower extremities with loss of anal and bladder control.  

As early as 1947 VA regulations provided for payment of SMC 
at the 38 U.S.C. 314(o) (now 1114(o)) rate to veterans with 
paralysis of both lower extremities and loss of anal and 
bladder sphincter control.  The theory upon which entitlement 
is established is that the loss of anal and bladder sphincter 
control establishes that the person is “so helpless as to be 
in need of regular aid and attendance” (as set forth in 
subsection (o) of 38 U.S.C.A. 1114) in that the veteran is 
unable to attend to the wants of nature.  This, plus the loss 
of use of the lower extremities, entitles the person to two 
rates between (l) and (n), thus establishing entitlement at 
the (o) rate.

As noted above, service connection has been in effect for 
paraplegia of both lower extremities since the 1940's.  The 
grant of service connection for paraplegia of both lower 
extremities is protected.  38 U.S.C.A. § 1159; 38 C.F.R. §§ 
3.951(b), 3.953(c), 3.957.  By a rating dated in February 
1955, the veteran’s service-connected disabilities included a 
100 percent rating for loss of use of both feet under 
Diagnostic Code 5110 and a separate 100 percent rating for 
intra spinal injury with loss of anal and bladder sphincter 
control under Diagnostic Code 8010.  As a result of the 
February 1955 rating, the veteran has been paid SMC at the 
rate provided by 38 U.S.C.A. § 1114(m) on the basis that the 
veteran met the criteria for SMC at the rate provided by 38 
U.S.C.A. § 1114(l) and had additional disability 
independently ratable at 100 percent.  In a rating decision 
dated in April 1988, the RO held that the veteran had 
protected 100 percent schedular evaluations for both 
residuals intra spinal injury with loss of anal and bladder 
sphincter control and loss of use of both feet; the RO also 
held that the veteran was entitled to special housing 
assistance based loss of use of both lower extremities which 
required the aid of braces, crutches, canes, or a wheelchair 
for locomotion.

In a statement of the case dated in November 1996, the RO 
acknowledged the above adjudicatory history.  Nevertheless, 
the RO stated that entitlement to a higher level of SMC was 
not warranted 

“because the criteria regarding 
paraplegia of lower extremities and loss 
of anal and bladder have not been met. . 
. .  In this case the veteran has loss of 
use of lower extremities below the knee 
and loss of bladder control, but no 
longer has loss of anal sphincter 
control.  In order to be entitled to 
special monthly compensation under 38 
U.S.C. 1114(o) loss of use of loser (sic) 
extremities must be shown at the hip 
level with loss of both anal and bladder 
control.”

After the veteran testified at a hearing in April 1997, the 
hearing officer held that even though the veteran was service 
connected at 100 percent for loss of anal and bladder 
sphincter control and 100 percent for loss of use of both 
feet, he was not entitled to SMC at the (o) rate because the 
medical evidence showed that he did not have paralysis of 
both lower extremities.  The hearing officer relied upon 
medical evidence which reflected that hip flexion and 
abduction were 5/5 and knee extension was 5/5 bilaterally.  
However, the Board notes that the diagnoses of that same 
examiner was paraplegia secondary to cauda equina injury.

In the Board’s opinion, the grant of service connection for 
paraplegia of both lower extremities is protected and cannot 
be challenged at this point.  38 U.S.C.A. §§ 110, 1159; 38 
C.F.R. §§ 3.951(b), 3.953(c), 3.957.  In an opinion dated 
September 29, 1989, VA General Counsel considered the 
question of whether a protected, erroneous disability rating 
must be used as a basis for an award of SMC under subsection 
(s) or whether the actual level of disability should be used 
to determine eligibility for this benefit.  General Counsel 
held that in determining the veteran’s eligibility for SMC, 
the protected, erroneous rating as opposed to an accurate 
rating must be used, as neither the protection statute nor 
the statute authorizing SMC offers any exception for, or 
discretion in, disregarding protected, erroneous ratings in 
favor of the actual level of disability.

The regulatory provisions regarding SMC of 38 C.F.R. § 3.350 
contain a subsection entitled “Extremities” which 
specifically provides that the criteria for loss and loss of 
use of an extremity contained in 38 C.F.R. § 3.350(a)(2) are 
applicable.  The provisions of 38 C.F.R. § 3.350(a)(2) 
provide that loss of use of a foot will be held to exist when 
no effective function remains other than that which would be 
equally well served by an amputation stump at the site of 
election below the knee with use of a suitable prosthetic 
appliance.  It has long been VA practice that if a veteran 
has lost the use of both of his lower extremities, regardless 
of whether below or above the knee, and has also been 
service-connected for loss of bowel and bladder control, he 
qualifies for entitlement to the maximum rate of (o).  The 
veteran’s Paralyzed Veterans of America representative, as 
part of his very compelling presentation on behalf of the 
veteran, attached a copy of a decision of the Director, 
Compensation and Pension Service, in another veteran’s case, 
dated in February 1994, which reflects that the Director held 
that a veteran who was able to stand and to extend his knees 
nevertheless had “loss of use of the lower extremities with 
normal knee action” and that this disability, combined with 
loss of anal and bladder sphincter control, entitled the 
veteran to SMC under 38 U.S.C.A. § 1114(o) and (r)(1).  In 
any event, the criteria provided by 38 U.S.C.A. § 1114(o) 
require that the veteran has suffered disability under 
conditions which would entitle such veteran to two or more of 
the rates provided in one or more subsections (l) through 
(n).  The criteria for entitlement to subsection (l) requires 
loss of use of both feet or that the veteran be so helpless 
as to be in need of regular and attendance (neither of which 
require loss of use of lower extremities at the hip level).  
The veteran has protected ratings reflecting that he meets 
both these criteria.  The decision of the hearing officer 
which indicted that the veteran did not meet the criteria for 
(o) because he did not have paralysis of both lower 
extremities is not persuasive inasmuch as service connection 
was granted for paraplegia of the lower extremities more than 
50 years ago and has never been severed.  

Entitlement to an additional rate of SMC based on the need 
for the regular A&A of another person.

The remaining issue is whether the service-connected 
disabilities render the veteran in need of the regular A&A of 
another under the provisions of 38 U.S.C.A. §  1114(r)(1) and 
38 C.F.R. § 3.350(h).

The applicable provisions provide that an increased rate of 
SMC is payable to the veteran where, as a result of service-
connected disability for which the maximum amount of 
compensation is being paid as provided for in 38 U.S.C.A. § 
1114(o), he is in need of regular A&A.  38 U.S.C.A. § 
1114(r); 38 C.F.R. § 3.350(h).

As noted above, the veteran has lost the use of both feet 
which entitles him to SMC under 38 U.S.C.A. § 1114(l).  In 
addition, he has lost anal and bladder sphincter control 
which entitles him to a separate rate under (l) because of 
helplessness.  Entitlement to two separate rates under (l) 
qualifies for SMC entitlement under 38 U.S.C.A. § 1114(o).  
When a veteran is entitled to SMC under (o) and requires A&A, 
he is entitled to the SMC rate under 38 U.S.C.A. § 1114(r)(1) 
even though the need for A&A was already considered in 
establishing entitlement under (o).

It can be argued that that the veteran's entitlement to the 
(o) rate on the basis of loss of use of both feet and on the 
basis of helpless resulting from loss of anal and bladder 
sphincter control establishes by itself that he also meets 
the basic eligibility criteria for subsection (r).  The 
provisions of 38 C.F.R. § 3.350(e)(2) liberally assumes that 
“helplessness” results from loss of anal and bladder control, 
thus leaving no room for further analysis in cases in which 
there is paraplegia with loss of anal and bladder sphincter 
control, i.e., that entitlement under 38 U.S.C.A. § 1114(r) 
arises automatically in such cases.  Inasmuch as the 
provisions of 38 C.F.R. § 3.350(e)(2) presume the need for 
regular A&A for such incontinence for purposes of 1114(o), it 
would seem to be incongruous for VA to interpret the similar 
A&A language of 1114(r) otherwise, especially since one of 
the criteria for consideration in A&A determinations under 
subsection 1114(r) is “inability to attend to the wants of 
nature.”  In the Board's opinion, the veteran's service-
connected disabilities warrant the assignment of the maximum 
amount of compensation provided for in 38 U.S.C.A. § 1114(o), 
as well as the assignment of additional compensation provided 
for in 38 U.S.C.A. § 1114(r)(1), based on his need for 
regular A&A.


ORDER

Entitlement to special monthly compensation (SMC) at the rate 
provided by 38 U.S.C.A. § 1114(o), based on paraplegia of 
both lower extremities with loss of anal and bladder control, 
is allowed, subject to controlling regulations applicable to 
the payment of monetary benefits.

Entitlement to additional SMC at the rate provided by 38 
U.S.C.A. § 1114(r)(1) based on the need for the regular aid 
and attendance (A&A) of another person is allowed, subject to 
controlling regulations applicable to the payment of monetary 
benefits.


		
	GARY L. GICK 
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1997), 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 -