Citation Nr: 9913936 Decision Date: 05/21/99 Archive Date: 05/26/99 DOCKET NO. 97-11 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bladder condition with urinary incontinence secondary to service connected fractures of the cervical spine. 2. Entitlement to a higher rate of special monthly compensation based on the need for regular aid and attendance. 3. Entitlement to a higher rate of special monthly compensation based on the loss of use of a creative organ. 4. Entitlement to service connection for a seizure disorder secondary to service connected fractures of the cervical spine. 5. Entitlement to a higher rate of special monthly compensation based on the loss of use of the left lower extremity and impaired use of the left upper extremity. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant, appellant's wife ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active military service from September 1982 to October 1985. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 1997, the RO denied a claim of entitlement to special monthly compensation based on the loss of use of the left lower extremity and impaired use of the left upper extremity. In October 1997, the RO denied the veteran's claims of entitlement to service connection for a bladder condition with urinary incontinence secondary to service connected fractures of the cervical spine, entitlement to service connection for a seizure disorder, and claims of entitlement to special monthly compensation based on the need for regular aid and attendance of another person, or being housebound, as a result of service-connected disability, and based on the loss of use of a creative organ. The veteran's representative's informal brief, dated in February 1999, raised the issues of entitlement to increased ratings for service-connected partial paralysis of the left lower extremity, service-connected left knee avascular necrosis, and service-connected left wrist condition, status post repair of tendon sheath. These issues have not been adjudicated by the agency of original jurisdiction, and are referred to the RO for appropriate action. The veteran's claim of entitlement to service connection for a seizure disorder, and his claim for special monthly compensation based on the loss of use of the left lower extremity and impaired use of the left upper extremity, are the subject of the REMAND portion of this decision. FINDINGS OF FACT 1. There is no current competent medical evidence of a bladder condition with urinary incontinence. 2. By a rating dated in October 1997, veteran's service- connected disabilities included a 100 percent rating for loss of use of right upper and lower extremities secondary to cervical spine fracture to include avascular necrosis of the right knee, a separate 50 percent rating for cognitive deficit due to cervical spine fracture to include post- traumatic stress disorder, a 40 percent rating for C3-C4 fracture, with loss of motion of the cervical spine, a 20 percent rating for partial paralysis of the left lower extremity secondary to cervical spine fracture, a 20 percent rating for left knee avascular necrosis secondary to cervical spine fracture, and a 0 percent (noncompensable) rating for a left wrist condition, status post repair of tendon sheath secondary to cervical spine fracture. Service connection was also established for residual scar, donor site, left iliac crest rated as noncompensable. 3. The veteran is in receipt of special monthly compensation pursuant to 38 U.S.C.A. § 1114(m) on account of loss of use of the right upper and right lower extremities, and is receiving compensation at the rate intermediate between subsection (m) and (n), pursuant to 38 U.S.C.A. § 1114(p), on account of additional disabilities independently ratable at 50 percent or more. 4. 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. 5. The veteran does not have a loss or loss of use of a creative organ as a result of service-connected disability. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a bladder condition with urinary incontinence is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The requirements for special monthly compensation by reason of being in need of aid and attendance of another person have been met. 38 U.S.C.A. §§ 1114(l), 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.350, 3.352(a) (1998). 3. The criteria for an award of special monthly compensation for the loss of use of a creative organ have not been met. 38 U.S.C.A. § 1114(k) (West 1991); 38 C.F.R. § 3.350(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bladder Condition, to Include Urinary Incontinence Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). If a condition noted during service is not shown to be chronic, then generally a continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for a "[d]isability which is proximately due to or the result of a service- connected disease or injury." 38 C.F.R. § 3.310(a) (1998); Harder v Brown, 5 Vet. App. 183, 187-89 (1993). The Board also notes that the U.S. Court of Appeals for Veterans Claims (Court) has held that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). However, the threshold question to be answered with respect to any claim for VA benefits is whether the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded; that is, a claim which is plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To establish that a claim for service connection is well grounded, a veteran must demonstrate a medical diagnosis of a current disability; medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d. 1464 (1997). Alternatively, the Court has recently indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. It should also be emphasized that a claim based on a secondary basis must be well-grounded, and in this regard, the Court has found that medical evidence of a link between a current disorder and a service-connected disability is necessary to well-ground such a claim. Martin v. Derwinski, 1 Vet. App. 411 (1991) (applying well-grounded requirement to claims based on secondary service connection under 38 C.F.R. § 3.310(a)). Service medical records are silent as to complaints, treatment or a diagnosis of a bladder condition, to include urinary incontinence. A review of post-service medical records shows that in January 1997, the veteran complained of urinary urgency. He repeated this complaint in VA outpatient records, dated in February and September of 1997. The February 1997 report indicates that the veteran denied bowel and bladder incontinence. A VA bones examination report, dated in February 1997, shows that the veteran complained of incontinence characterized by chronic urgency which required intermittent self- catheterization and which occurred about three times per week. The examiner indicated that the veteran's bowel function was intact. A VA nephrological examination report, dated in June 1997, shows that the examiner noted that the veteran had had a Foley catheter placed shortly after his motor vehicle accident (in 1985), and that a cystometrogram revealed a normal bladder. The examiner reported that the Foley catheter was subsequently discontinued prior to the veteran's discharge from the hospital, in about May 1985, and that the veteran's bowel control was noted to be intact at that time. The examiner stated that patients with spinal difficulties tended to have their most severe deficits shortly after the trauma, and that if function is regained, it is not lost as a result of the initial injury. He concluded that any current complaints of impaired sexual function or urinary incontinence could not be attributed to the veteran's cervical spine injury. Service connection is currently in effect inter alia for C3- C4 fracture, with loss of motion of the cervical spine, evaluated as 40 percent disabling. The claims file does not contain competent evidence showing that the veteran has a chronic condition involving his bladder, to include urinary incontinence. Without such a diagnosis, the claim of entitlement to service connection for a bladder condition, to include urinary incontinence is not well grounded, to include on a direct basis, as secondary to a service-connected disability, and as aggravated by a service-connected disability. Accordingly, the claim must be denied. See 38 C.F.R. § 3.303; Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Martin, Allen, supra. In reaching this decision, the Board has considered the veteran's assertions, and the arguments made in the representative's statement, dated in August 1998, to the effect that the veteran has a bladder condition, to include urinary incontinence, as a result of his service-connected residuals of C3-C4 fracture, with loss of motion of the cervical spine. However, the veteran, as a lay person untrained in the fields of medicine, is not competent to offer an opinion as to a diagnosis, or as to the etiology of the claimed disorder. Espiritu v. Derwinski , 2 Vet. App. 492 (1992). Similarly, the representative's arguments are not competent to show a diagnosis. Hence, these arguments do not provide a factual predicate upon which service connection may be granted. The Board views the above discussion as sufficient to inform the veteran of the elements necessary to submit a well- grounded claim for service connection for the claimed disability. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). II. Special Monthly Compensation The veteran asserts that he is entitled to special monthly compensation based on the need for regular aid and attendance of another person, or being housebound, as a result of service-connected disability, and based on the loss of use of a creative organ. The Board finds that the veteran's claims of a higher rate of special monthly compensation based on the need for the aid and attendance of another person and loss of use of a creative organ are well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible, Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990), and the Board is 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. § 5107(a) (West 1991). A. Aid and Attendance Special monthly compensation may be paid to a veteran who is, by reason of service-connected disability, permanently bedridden or so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l). The following criteria will be considered in determining whether the veteran is in need of regular aid and attendance of another person: the inability of the veteran to dress or undress himself, or to keep himself 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; inability of the veteran to feed 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 daily environment. 38 C.F.R. § 3.352(a). All of the foregoing criteria need not be found to exist before a favorable rating may be made. Id. The evidence need only show that a veteran is so helpless as to need regular, rather than constant, aid and attendance of another person. Id. In addition, determinations that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco v. Brown, 9 Vet. App. 222, 224 (1996). The veteran and his representative contend, in essence, that the veteran is entitled to special monthly compensation based on the need for regular aid and attendance or by reason of being housebound because he is unable to perform functions of daily living by himself, such that he requires regular assistance from another. The claims file includes a VA examination report for housebound status or regular need of aid and attendance, apparently completed in 1996. The report notes that the veteran has weakness in all extremities, and that all motor functions, especially grip and fine movements, to include dressing, are difficult. The veteran was unable to ambulate and required a wheelchair to leave the home. He had concentration difficulties and poor balance. The examiner indicated that his marked decrease in mobility significantly interfered with his ability to perform activities of daily living. The diagnoses were C3 incomplete quadriplegic, traumatic brain injury and left knee internal derangement. A VA examination report for housebound status or regular need of aid and attendance, dated in September 1997, shows that the veteran requires help in dressing, especially his lower extremities. The report indicates that the veteran is able to feed himself, and that he complained of decreased upper extremity strength as well as muscle jerking. The examiner further indicated the following: the veteran has incomplete quadriplegia and avascular necrosis of the knees. He could not tolerate standing secondary to weakness and pain. He requires help with most transfers, can manage only limited self-propulsion of his wheelchair, and uses his wheelchair for most mobility. He has difficulties with memory and narcoleptic symptoms, and he cannot drive because he is taking morphine for knee pain. He can leave the home only with assistance. The diagnoses were C3, incomplete, knee avascular necrosis and chronic pain. At his hearings, held in January and December of 1997, the veteran asserted that he requires assistance to bathe, dress and shave. He reported that he had the assistance of a dog which helped him to retrieve dropped items and help move his wheelchair. The veteran's wife testified that she came home in the morning on her break from work to assist the veteran with his medicine and with breakfast, and during lunch. She stated that she had to leave work to return home for various emergencies about once or twice a week, and that her friend also often came over to help the veteran during the day. The critical question to be determined in this case is whether the veteran's service-connected disabilities have resulted in the need for regular aid and attendance of another person because of resultant helplessness due to mental and/or physical impairment. Based on its review of the record, the Board concludes that there is an actual requirement of personal assistance from others, and that the veteran requires this care or assistance on a regular basis to protect and assist him. Accordingly, he is in need of regular aid and attendance. 38 U.S.C.A. §§ 1114(l), 5107; 38 C.F.R. §§ 3.350, 3.352(a). As special monthly compensation based on the need for regular aid and attendance is a greater benefit than special monthly compensation by reason of being housebound, see 38 U.S.C.A. § 1114(s) (West 1991), the veteran's claim for housebound benefits is moot. As a final matter, the Board notes that the basis of the RO's denial of this claim is somewhat unclear. In its October 1997 decision, the RO stated that, "Since the current compensation is to his advantage, compensation based on aid and attendance is not granted." A review of the RO's decision indicates that, when read in context, the RO did not dispute that the veteran met the criteria for special monthly compensation based on the need for regular aid and attendance. Rather, the RO determined that as such an award would not result in a greater benefit to the veteran because the need for regular aid and attendance establishes entitlement at the (l) level, which is less than the veteran's current award under 38 U.S.C.A. § 1114(m) and (p). However, in the April 1998 supplemental statement of the case, the RO stated that the criteria for aid and attendance had not been met. The veteran has been granted special monthly compensation under 38 U.S.C.A. § 1114(m), based on loss of use of the right upper and right lower extremities. In addition, the veteran's rate of compensation was increased to an intermediate rating between (m) and (n) because he has other disabilities independently rated as 50 percent or more disabling. See 38 C.F.R. § 3.350(f)(3). A review of the laws and regulations involving special monthly compensation shows that although a grant of entitlement to aid and attendance does not currently result in a greater benefit to the veteran, such a grant is a prerequisite to greater levels of compensation under 38 U.S.C.A. § 1114(o),(r). Specifically, should the veteran establish entitlement to two separate rates under (l), he would qualify for entitlement to special monthly compensation at a rate under 38 U.S.C.A. § 1114(o). In turn, when a veteran is entitled to special monthly compensation under (o) and requires aid and attendance, he is entitled to the special (higher) monthly compensation rate under 38 U.S.C.A. § 1114(r)(1). The Court has previously held that it is error for the Board to deny a claim of entitlement to service connection merely because compensation may not result, if compensation is but one of the potential Title 38 benefits which can flow from a determination that the disability is service connected. Barela v. West, 11 Vet. App. 280 (1998). In this case, the denial of the veteran's claim of entitlement to special monthly compensation based on the need for aid and attendance affects his potential eligibility for a higher rate of special monthly compensation under provisions of 38 U.S.C.A. § 1114 that are not currently in issue. Therefore, the Board finds that the criteria for special monthly compensation based on the need for regular aid and attendance has been met, and that entitlement to this benefit is established. B. Loss of Use of a Creative Organ The law provides that if a veteran, as the result of a service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs, special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a)(1). The veteran contends that he has in effect lost the use of a creative organ because he has impaired sexual function. Specifically, in a February 1997 VA examination report, he reported that although he could obtain an erection, he could not achieve orgasm or have an ejaculation. There was no relevant diagnosis. At his hearing, held in December 1997, he stated that he could not have children. Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that: (a) the diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) the diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) if neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the veteran, establishes the absence of spermatozoa. 38 C.F.R. § 3.350(a)(1)(i). A VA nephrological examination report, dated in June 1997, shows that the examiner recorded the veteran's symptomatology of sexual problems but also reviewed the veteran's medical history, and noted that there was no evidence of sexual dysfunction through the late 1980's. The examiner stated that patients with spinal difficulties tended to have their most severe deficits shortly after the trauma, and that if function is regained, it is not lost as a result of the initial injury. He concluded that any current complaints of impaired sexual function could not be attributed to the veteran's cervical spine injury. Based on the foregoing, the Board finds that the veteran has not shown that he has loss of use of a creative organ as a result of service-connected disability. 38 U.S.C.A. § 1114(k). Therefore, his claim of entitlement to special monthly compensation based on loss of use of a creative organ must be denied. ORDER Entitlement to service connection for a bladder condition, to include urinary incontinence, is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance of another person is granted, subject to provisions governing the payment of monetary benefits. Entitlement to special monthly compensation based on the loss of use of a creative organ is denied. REMAND I. SMC-Left Lower and Left Upper Extremity In a letter, dated in February 1999, subsequent to the veteran's case being transferred to the Board, additional evidence was received by the Board. Specifically, the Board received documents from the veteran's representative that included an opinion from Craig N. Bash, M.D., Neuroradiologist. Dr. Bash stated, in part, that the veteran has lost the use of his left lower extremity. This evidence has not previously been considered by the RO. In this respect, regulations provide that any pertinent evidence submitted by the veteran or representative which is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case (SSOC), unless this procedural right is waived by the appellant. See 38 C.F.R. § 20.1304 (c) (1998). In this case, the veteran's representative specifically stated that the veteran's procedural rights were not being waived. Therefore, the Board has determined that the veteran's claim of entitlement to special monthly compensation based on the loss of use of the left lower extremity and impaired use of the upper left extremity must be remanded for consideration of Dr. Bash's report, and issuance of an SSOC, under 38 C.F.R. § 20.1304 (c). II. Seizure Disorder With regard to the claim for a seizure disorder, the Board initially notes that this condition is claimed as secondary to service-connected disability, and that on remand, the RO should include a discussion of 38 U.S.C.A. § 3.310 in its decision. VA outpatient records, dated in 1996 and 1997, show complaints of what the veteran termed "seizures." These records also indicate that the veteran was prescribed Diazepam through at least all of 1996. However, the records show that the use of Diazepam was associated with spinal myoclonus. Furthermore, a record dated in August 1998 indicates that the veteran had narcolepsy, and that he had not experienced a seizure or myoclonus for the last six months. Finally, the veteran was afforded a VA epilepsy and narcolepsy examination in May 1997. However, the last page of the examination report is missing from the claims file, and there is no indication of the diagnoses. A review of the veteran's transcript, dated in December 1997, shows that he referred to his seizures as consisting of spinal myoclonus and narcoleptic episodes. The evidence shows that the veteran has been noted to have spinal myoclonus and narcolepsy. However, it is unclear whether the veteran's claim is limited to these disorders. Accordingly, the Board finds that a remand is required so that the veteran can clarify the disabilities in issue. In addition, the RO should obtain the missing page(s) of the May 1997 VA epilepsy and narcolepsy examination. Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is desirable. Accordingly, this case is REMANDED for the following action: 1. With regard to the veteran's claim for a seizure disorder, the RO should contact the veteran and clarify the exact condition(s) for which he is requesting service connection. 2. The RO should obtain the missing page(s) from the veteran's May 1997 VA epilepsy and narcolepsy examination report. 3. The RO should then adjudicate the issues of entitlement to service connection for a seizure disorder, and entitlement to special monthly compensation based on the loss of use of the left lower extremity and impaired use of the upper left extremity, on a de novo basis, with consideration of all applicable laws, regulations, and case law, to include Dr. Bash's February 1999 opinion. If the any of the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. R. F. WILLIAMS Member, Board of Veterans' Appeals