Citation Nr: A24021586 Decision Date: 04/26/24 Archive Date: 04/26/24 DOCKET NO. 240205-413853 DATE: April 26, 2024 ORDER The issue as to the propriety of severance of service connection for loss of use of both feet effective March 11, 2010, was improper, the appeal is granted. The issue as to the propriety of a rating reduction from 60 percent to 0 percent effective March 20, 1996, for multiple sclerosis with rectal incontinence was improper, and the appeal is granted. The issue as to the propriety of a rating reduction from 60 percent to 0 percent effective March 20, 1996, for urinary incontinence was improper, and the appeal is granted. The issue as to the propriety of a rating reduction from 40 percent to 0 percent effective March 20, 1996, to March 11, 2010, for right lower extremity spasticity was improper, and the appeal is granted. The issue as to the propriety of a rating reduction from 20 percent to 0 percent effective March 20, 1996, to March 11, 2010, for left lower extremity weakness was improper, and the appeal is granted. The issue as to the propriety of a rating reduction from 20 percent to 0 percent effective March 20, 1996, for right upper extremity condition was improper, and the appeal is granted. The issue as to the propriety of a rating reduction from 10 percent to 0 percent effective March 20, 1996, for left upper extremity weakness was improper, and the appeal is granted. The issue as to the propriety of severance for SMC under 38 U.S.C. § 1114(l), (o), (p), and (r)(2) was improper, the benefits are restored, and the appeal is granted. The discontinuance of entitlement to automobile and adaptive equipment was improper, the benefit is restored, and the appeal is granted. The discontinuance of entitlement to specially adapted housing was improper; the benefit is restored, and the appeal is granted. The discontinuance of entitlement to eligibility to Dependents' Educational Assistance (DEA) under 38 USC Chapter 35 was improper; the benefit is restored, and the appeal is granted. FINDINGS OF FACT 1. The weight of the evidence is against a finding of fraud on account of the Veteran, and the evidence demonstrates that the Veteran's disabilities are due to his multiple sclerosis. 2. The Veteran's multiple sclerosis is of the nature that it is a relapsing disease, which means that the Veteran will have varying levels of disability. 3. The restoration of the Veteran's evaluations related to his disabilities due to his multiple sclerosis restores the Veteran's eligibility for SMC under 38 U.S.C. § 1114(l), (o), (p), and (r)(2). 4. The restoration of the Veteran's evaluations related to his disabilities due to his multiple sclerosis restores the Veteran's eligibility of entitlement to automobile and adaptive equipment. 5. The restoration of the Veteran's evaluations related to his disabilities due to his multiple sclerosis restores the Veteran's eligibility to specially adapted housing. 6. The restoration of the Veteran's evaluations related to his disabilities due to his multiple sclerosis restores the Veteran's eligibility to DEA benefits under 38 USC Chapter 35. CONCLUSIONS OF LAW 1. The severance of service connection for loss of use of both feet was improper; restoration is warranted. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. The criteria for restoration of a 60 percent rating for multiple sclerosis with rectal incontinence have been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A DC 7332. 3. The criteria for restoration of a 60 percent rating for urinary incontinence have been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A DC 7542. 4. The criteria for restoration of a 40 percent rating for right lower extremity spasticity have been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A DC 8620. 5. The criteria for restoration of a 20 percent rating for left lower extremity weakness have been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A DC 8620. 6. The criteria for restoration of a 20 percent rating for right upper extremity condition have been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A DC 8615. 7. The criteria for restoration of a 10 percent rating for left upper extremity weakness have been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A DC 8615. 8. The discontinuance for SMC under 38 U.S.C. § 1114(l), (o), (p), and (r)(2) was improper. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.105, 3.350. 9. The discontinuance of automobile and adaptive equipment was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 10. The discontinuance of specially adapted housing was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 11. The discontinuation of DEA benefits, pursuant to 38 U.S.C. Chapter 35 was improper. 38 U.S.C. §§ 3501, 3512; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1989 to February 1994. The rating decision on appeal was issued in January 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the February 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c). 38 U.S.C. §§ 7107(a)(2). As an initial matter, to prevent any confusion or ambiguity regarding the issues on appeal, the Board has revised the issues on appeal to reflect the issues that were initially reduced, severed, or discontinued as effectuated in the January 2021 rating decision due to fraud. 1. The issue of the propriety of severance of service connection for loss of use of both feet effective March 11, 2010 2. The issue as to the propriety of a rating reduction from 60 percent to 0 percent effective March 20, 1996, for multiple sclerosis with rectal incontinence 3. The issue as to the propriety of a rating reduction from 60 percent to 0 percent effective March 20, 1996, for urinary incontinence 4. The propriety of a rating reduction from 40 percent to 0 percent effective March 20, 1996, for right lower extremity spasticity 5. The issue as to the propriety of a rating reduction from 20 percent to 0 percent effective March 20, 1996, for left lower extremity weakness 6. The issue as to the propriety of a rating reduction from 20 percent to 0 percent effective March 20, 1996, for right upper extremity condition 7. The issue as to the propriety of a rating reduction from 10 percent to 0 percent effective March 20, 1996, for left upper extremity weakness By way of history, in a September 1994 rating decision, the Veteran was granted service connection for multiple sclerosis with a 30 percent evaluation effective February 15, 1994, the date after his release from active military service. In a May 1995 rating decision, the AOJ granted service connection for various conditions related to his service-connected multiple sclerosis to include a bowel condition rated at 10 percent, right lower extremity condition rated at 10 percent, left lower extremity condition rated at 10 percent, right upper extremity condition rated at 10 percent, and left upper extremity condition rated at 0 percent, all effective from February 15, 1994. In a November 1996 rating decision, the AOJ granted increased ratings for the Veteran's right lower extremity condition to 60 percent, 40 percent for the right upper extremity, 20 percent for left lower extremity, 10 percent for left upper extremity, and granted SMC(l) on account of loss of use of one hand and loss of use of one foot due to multiple sclerosis. The effective dates of these grants were from March 20, 1996, the date the AOJ received the Veteran's claim. The AOJ found clear and unmistakable error regarding the Veteran's right lower extremity condition evaluation and the evaluation for his right upper extremity rating in a June 1997 rating decision. The AOJ reduced the Veteran's right leg disability from 60 percent to 40 percent effective March 20, 1996, and reduced the Veteran's right upper extremity condition to 20 percent effective March 20, 1996. The AOJ also proposed to end the Veteran's aid and attendance benefits. The AOJ granted eligibility to DEA benefits from March 20, 1996. In a March 1998 rating decision, the AOJ found that the Veteran did not need the aid and attendance of another person to accomplish activities of daily living, nor did he suffer from loss or loss of use of one upper extremity and one lower extremity. As such, the AOJ severed SMC benefits at the aid and attendance level from May 31, 1998. The AOJ granted SMC based on the need for regular aid and attendance effective January 12, 2000, in a November 2000 rating decision. In a March 2010 rating decision, the AOJ combined the right lower extremity spasticity as 40 percent disabling and left lower extremity weakness as 20 percent disabling to a 100 percent evaluation for loss of use of both feet, effective March 11, 2010, the date the evidence showed the loss of both feet. The AOJ also granted SMC for loss of use of both feet and SMC based on an additional amount of SMC based upon separate disabilities compensable at a rate greater than 50 percent in addition to the 100 percent rating for loss of use of both feet. In the same rating decision, the AOJ granted entitlement to automobile and adaptive equipment for adaptive equipment only, specially adapted housing, and special home adaptation. In a September 2011 rating decision, the AOJ granted SMC based on aid and attendance at the next higher level (SMC O) based on loss of both feet and the need for aid and attendance to include rectal incontinence and urinary continence, effective March 11, 2010. The AOJ granted SMC at the R-2 level for a higher level of aid and attendance based on a higher level of care requiring personal, daily, in home health care services by a person under the regular supervision of a licensed health care professional effective March 11, 2010, in an August 2017 rating decision. In a September 2019 rating decision, the AOJ, based upon a finding of fraud in conjunction with an investigation conducted by the VA's Office of Inspector General (OIG), proposed to terminate compensation for the loss of use of both feet retroactively to March 11, 2010, all levels of SMC under 38 U.S.C. 1114(l), (o), (p), and (r)(2), reduce the 60 percent evaluation for rectal incontinence to 0 percent retroactively to March 20, 1996, reduce the 60 percent evaluation for urinary incontinence retroactively to March 20, 1996, reduce the 40 percent evaluation for right lower extremity spasticity to 0 percent for the period from March 20, 1996, to March 11, 2010, reduce the 20 percent evaluation for left lower extremity weakness to 0 percent for the period from March 20, 1996, to March 11, 2010, reduce the 20 percent evaluation for right upper extremity condition to 0 percent for the period from March 20, 1996, reduce the 10 percent evaluation for left upper extremity weakness to 0 percent for the period from March 20, 1996, and propose to terminate basic eligibility to DEA benefits, automobile and adaptive equipment allowance, and specially adapted housing. The AOJ effectuated the proposed reductions and termination of benefits as outlined in the September 2019 proposed rating decision in a January 2021 rating decision. The Veteran filed a NOD in April 2021and October 2021 to the January 2021 rating decision. In May 2023, the Board remanded the matter as the VA's proposal and AOJ decision regarding the reductions, severance, and discontinuance based on fraud lack a summary of the laws and regulations applicable to the claims under 38 C.F.R. 3.1(aa)(2). The Board determined that the Veteran had to be notified of the applicable regulations affecting the payment of his VA compensation benefits. In an August 2023 rating decision, the AOJ confirmed the findings in the January 2021 rating decision. The Veteran disagreed with the August 2023 rating decision and submitted his NOD in August 2023. The Board issued another remand in November 2023 as it found that the AOJ did not provide the fraud notice until the August 2023 rating decision and did not allow the Veteran or his attorney a reasonable amount to time to respond prior to issuing the August 2023 rating decision. The AOJ sent the Veteran the proper notice regarding fraud in a November 2023 correspondence. Thereafter, the AOJ issued the decision on appeal in January 2024 and confirmed and continued the prior decisions that reduced, severed, and discontinued the Veteran's various benefits. Severance and Rating Reductions Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id. However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. A decision that is reversed or amended based on CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted). Service connection for any disability which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud, or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). 38 C.F.R. § 3.957. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. If additional evidence to show compensation payments should be continued at their present level are not received within 60 days of the proposed rating action, the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of the notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). A rating of total disability or permanent total disability which has been made for compensation, pension, or insurance purposes under laws administered by the Secretary, and which has been continuously in force for twenty or more years, shall not be reduced thereafter, except upon a showing that such rating was based on fraud. A disability which has been continuously rated at or above any evaluation for twenty or more years for compensation purposes under laws administered by the Secretary shall not thereafter be rated at less than such evaluation, except upon a showing that such rating was based on fraud. The 20-year period will be computed from the date determined by the Secretary as the date on which the status commenced for rating purposes. 38 U.S.C. § 110. Typically, when severance of service connection or a reduction in evaluation is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). Fraud In addition, when fraud is found to have formed the basis for an award of service-connected benefits, regardless of the length of time a claimant has been in receipt of those benefits, severance of the award can be made upon a showing of fraud alone. Roberts v. Shinseki, 23 Vet. App. 416, 428-29 (2010). Fraud is defined in VA regulations as an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. 38 U.S.C. § 501; 38 C.F.R. § 3.1(aa)(2). As an initial matter, the Board must address whether the Veteran's service-connected evaluations are protected. To reiterate, controlling VA laws provide that evaluations in effect for 20 years or more are "protected" from such actions. 38 C.F.R. § 3.951. In this case, the ratings for rectal incontinence, urinary incontinence, right upper extremity condition, and left upper extremity weakness have been in effect since March 20, 1996. Therefore, the evaluations for these disabilities had been in effect for more than 20 years and the Veteran is afforded protection under 38 C.F.R. § 3.951. Regardless of the length of time a claimant has been in receipt of VA benefits, severance of the award can be made upon a showing of fraud alone. Roberts v. Shinseki, 23 Vet. App. at 428-29 (2010). Thus, the Board must determine whether the awards of the various evaluations were based on fraud. Turning to the evidence of record, a private treatment record from June 1994 shows that the Veteran's physician stated that the Veteran is clearly disabled from multiple sclerosis but due to an unusual perseverance of character and will, he is managing to go forward with this life. The Veteran was examined by the VA in April 1996. The Veteran was diagnosed with multiple sclerosis in 1992 and all of his symptoms since 1989 are consistent with a diagnosis of multiple sclerosis. The Veteran noted that in the past several months, he has noted increased fatigue, including falling asleep repeatedly during the day. The examiner diagnosed the Veteran with relapsing/remitting multiple sclerosis which may have been becoming progressive and is now interfering with the activities of daily living (ADLs). A private treatment record from May 1997 documents that the Veteran has cognitive deficits from his multiple sclerosis that have been documented on neuropsychological testing. He has severe fatigue, urinary frequency and incontinence, and weakness. The Veteran was afforded a VA examination in January 1997. The Veteran reported progressive right lower extremity weakness with increased spasticity and urinary incontinence which is progressing. Objective findings on examination were that the Veteran was able to walk twenty-five feet in five seconds. The upper extremities showed normal testing with normal strength in the lower extremities although he does have spasticity in the lower extremities bilaterally. The examiner noted that the Veteran has periodically spontaneous involuntary evacuation of his stool, with no control at all. The Veteran is always scared he has to defecate at unsympathetic times. The examiner also noted that the Veteran has constant urinary incontinence and that occasionally he has a voluntary urination, but he wears diapers at all times as he has a constant dribbling. A December 1999 private treatment record notes that the patient continues to describe ongoing difficulty with imbalance, fatigue, weakness, ambulation, and personal care. He now requires help at home for balance, ambulation, walking, cooking, and hygiene. He also complained of difficulty driving his car and over the past month has developed right-sided ataxia, with falls. An August 2000 private treatment record from the Veteran's treating physician reflects that the Veteran has developed progression of his multiple sclerosis despite being treated with immunomodulating medication. He is not capable of cooking and cleaning for himself, nor transporting his children. His bowel and bladder difficulties preclude him from doing this on a regular basis. He requires assistance for these matters and daily care and remains under the care of a Board-certified neurologist for treatment of his multiple sclerosis disorder. At a September 2000 VA peripheral nerves examination, the Veteran reported that he is unable to work and cannot walk for more than a quarter mile without having to rest. By the end of the day the pain is so severe that he is completely debilitated and has to rest to get ready for the next day. The examiner noted that in the right lower extremity he has partial paralysis and has total loss of sensation on the right side. On the left side, he has diminution of sensation at L4 which gets worse as it progresses caudally. An October 2007 VA aid and attendance examination documents that the Veteran can only walk about fifty feet before he needs to stop. He has poor balance and therefore needs a walker to ambulate. He needs help traveling beyond the premises of his home. Upon physical examination, the Veteran had weakness in his left side and a footdrop. He has poor balance and needs a walker. A January 2010 private treatment record notes that the Veteran was presently showing clinical evidence of worsening of his condition, characterized mainly by progressive weakness of the right leg and worsening balance. In a September 2010 private treatment record, the Veteran reported that he stated that his balance is completely off, and he had sustained multiple falls since his last visit to the office. Additionally, he complained of worsening fatigue and leg weakness. The Veteran expressed that many of his ADLs like showering, getting dressed, and walking around the house are extremely hard for him to perform. A March 2013 VA treatment record reflects that the Veteran continued to have difficulty with intermittent bowel and bladder incontinence, severe decreased balance, and generalized weakness in the upper and lower extremities. A July 2013 VA treatment record notes that the Veteran had difficulty with ambulation due to severe decreased balance and used a rolling walker. The Veteran was examined by the VA for his multiple sclerosis in July 2016. The examiner indicated the Veteran has muscle weakness in the upper and lower extremities attributable to multiple sclerosis. He also had involuntary bowel movements necessitating wearing of a pad and voiding dysfunction causing urine leakage attributable to multiple sclerosis that required absorbent material. The examiner also noted that the Veteran was unable to dress or undress himself without assistance, he was unable to prepare meals without assistance, he was unable to attend to the wants of nature (toileting) without assistance, he was unable to bathe himself without assistance, was unable to keep himself ordinarily clean and presentable without assistance and was unable to take prescribed medication in a timely manner and with accurate dosage without assistance. The examiner found that the Veteran required care and/or assistance on a regular basis due to his physical and mental disabilities in order to protect himself from the hazards and/or dangers incident to his daily environment. The Veteran was afforded a VA examination for aid and attendance in November 2016. The examiner noted that the Veteran has had a companion/caregiver in the home for the last seven years twenty-four hours a day. The caregiver is non-licensed; however, she was taught by a Home Health Nurse that came in and examined the Veteran daily. The examiner stated that with his multiple sclerosis being a chronic, eventually fatal disease, the Veteran has need for on-going personal care daily. He is dependent for all of his care/ADLs with incontinence of urine and stool, requiring skin care for prevent of skin breakdown. The Veteran cannot bath himself and requires assistance. His caregiver does all of the cooking, cleaning, and laundry. The Veteran cannot drive or transport himself outside of his home and his caregiver provides his transportation, driving him to appointments and necessary travel. The examiner concluded that in the absence of his caregiver, the Veteran would require hospitalization, nursing home care, or other residential institutional care that would provide for his ADLs as well as administer his medications. An April 2019 private treatment record documents that the Veteran had urinary incontinence that occurs both day and night described as without awareness (just seeps out). In a September 2019 private treatment record, another treating physician, Dr. J.W. noted that the Veteran has been his patient for over ten years. He suffers from multiple sclerosis with spasticity of right arm and right leg. He has occasional falls despite using a quad cane for ambulating. He is under the care of a neurologist, Dr. R.B. for his multiple sclerosis. He has some urinary incontinence despite being on Myrbetriq, wetting himself in most afternoons without warning. He is under the care of Dr. T.P., urologist. He has some incontinence of stool in the mornings. The Veteran submitted correspondence in October 2019 regarding his multiple sclerosis. He noted that his multiple sclerosis is unpredictable. He has moderate effects daily, but at times the impact can be severe and totally disabling. The Veteran submitted a statement from his treatment podiatrist in November 2019. The podiatrist noted that the Veteran has been under his care for various foot conditions since October 2015 and that he suffers from multiple sclerosis which has contributed to multiple foot pathologies over the years. He has had multiple foot surgeries for neuromas in both of his feet and nerve pain is common in individuals with multiple sclerosis. In June 2020, the Veteran submitted a statement from his treating physician for multiple sclerosis, Dr. R.B. The doctor stated that the Veteran has relapsing remitting multiple sclerosis (RRMS), which can lead to periods of relative normality, however, such remissions are often followed by worsened symptoms. The Veteran also submitted another statement from another treating physician, Dr. J.C. who stated that the Veteran is under her care for multiple sclerosis. She explained that multiple sclerosis typically starts as a relapsing disease, which means that patients have varying levels of disability and can be completely disabled during a relapse, but then can fully recover. In response to the fraud allegations, the Veteran submitted a statement in September 2020. He stated that these observations by the OIG were confused to a period of remissions and failed to note many pertinent issues. Furthermore, he attached a statement from the National Multiple Sclerosis Society that was addressed specifically to the Veteran. The statement addressed that RRM attacks- also called relapses or exacerbations are followed by periods of partial or complete recovery (remissions). During remissions, all symptoms may disappear, or some symptoms may continue and become permanents. However, there is no apparent progression of the disease during the periods of remission. The VA OIG Investigative Report was associated with the file in February 2021. The report stated that the Veteran said he has exaggerated his condition, stating he is able to walk, bathe, cook, drive, dress himself, and use the restroom properly without assistance. The report noted that in January 2018, a VA OIG agent observed the Veteran driving his pickup truck and unloading boxes from the truck and walking unassisted. There were several other instances where it was observed the Veteran was driving his truck and walking unassisted. In October 2018, the agent presented various documents to his primary care physician, Dr. J.W., who confirmed that it was his legitimate signature on all VA documentation presented, stating that none of the signatures looks forged. The report also mentioned that there were numerous Facebook Live videos showing the Veteran conducting activities associated with daily living with no apparent physical limitations. An October 2021 private treatment record documents that the Veteran was assessed for a wheelchair due to falling a lot and his right leg giving out on him. He walks around the house with a cane or leans on his wife for ambulating. He gets help with going to the bathroom, kitchen, meals, bedroom, and grooming and dressing. A January 2022 private treatment record reflects that the Veteran was seen for multiple sclerosis surveillance as he has been worsening. The Veteran explained in a December 2022 correspondence that he had a remission in 2018 which allowed him to attend his adopted son's ball games which he was not able to stay through. He was unable to attend his fifty-year graduation renewal and that he did dance at his seventieth birthday by standing with his caregiver's father. The Veteran was examined for his conditions related to multiple sclerosis in a June 2023 VA examination. Regarding the extremities, the Veteran was diagnosed with bilateral lower extremity and bilateral upper extremity weakness due to multiple sclerosis. The examiner stated that the diagnoses have been confirmed on examination. He was also diagnosed with impairment of rectal sphincter control and rectal/fecal incontinence. The examiner stated that this affects all aspects of his social and occupational life. The examiner indicated that the diagnosis of multiple sclerosis with rectal incontinence has been confirmed on examination. The examiner also noted a diagnosis of neurogenic bladder and urinary incontinence. He confirmed the diagnosis of urinary incontinence secondary to multiple sclerosis on examination. The Veteran submitted correspondence in December 2023 in which he attested that when in remission he can do most things and can ambulate fairly well. However, when he has relapses, he is in poor shape, mentally and physically. On these facts, the Board finds that the Veteran did not make any intentional misrepresentations of fact concerning the manifestations, symptoms, and severity of his multiple sclerosis for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentations may result in the erroneous award or retention of such benefits. The medical evidence discussed above demonstrate that the Veteran's conditions related to his multiple sclerosis waxed and waned throughout the years as his RRMS is the type that can lead to relatively normalcy. The Veteran's actions therefore do not warrant the characterization of fraud as defined for VA purposes. 38 C.F.R. § 3.1(aa)(2). The procedural history has been discussed earlier in this decision. The Veteran requested a hearing in October 2019. It appears that a predetermination hearing was held in December 2020, however, the transcript is not of record. Although the transcript is not of record, the Board finds that since a favorable decision is being rendered, there is no need to remand for the transcript. The Board finds that all due process requirements were met in reducing the evaluations. See 38 C.F.R. § 3.105(d). Nevertheless, the Board finds that the reductions of the evaluations related to the conditions due to multiple sclerosis was improper because there is probative evidence, that is not clear and unmistakable, that the Veteran's conditions continued to warrant the evaluations and there are no findings of fraud. As previously noted, and discussed, the Veteran's medical records document a long history of the Veteran ailments due to multiple sclerosis. The Veteran's type of multiple sclerosis is such of the nature that it may appear that his conditions have improved, followed by periods in which the symptoms return. The only evidence that reflects disagreement on this is the February 2021 OIG Report that casts some doubt on the Veteran's ability to walk. However, the findings of the OIG Report were not conclusive and appears to be based on a period of remission of multiple sclerosis symptoms. Accordingly, the Board finds that the 60 percent evaluation for the Veteran's urinary incontinence from March 20, 1996, 60 percent evaluation for rectal incontinence from March 20, 1996, 20 percent for right upper extremity disorder from March 20, 1996, and 10 percent for left upper extremity weakness from March 20, 1996, which is not shown to have been procured by fraud, are legally "protected" from reduction because the awards are considered to have been in effect for more than 20 years. Regarding the evaluation for loss of use of both feet, the 40 percent for the right lower extremity spasticity from March 20, 1996, to March 11, 2010, and 20 percent for the left lower extremity weakness from March 20, 1996, to March 11, 2010, the Board finds that these evaluations are not protected, but that because there has not been a finding of fraud in this case, these evaluations should be reinstated as the basis of the reductions were due to fraud and the AOJ has not provided any other basis to discontinue the evaluations. 8. The issue as to the propriety of severance for SMC under 38 U.S.C. § 1114(l), (o), (p), and (r)(2) effective March 20, 1996 The Veteran has been in receipt of various levels of SMC under 38 U.S.C. § 1114(l), (o), (p), and (r)(2) as discussed above. By virtue of this Board decision restoring the various reductions, the Veteran once again meets the criteria for the previous SMC levels that were established. As such, the SMC levels are restored from their respective dates in which entitlement was established. 9. The discontinuance of entitlement to automobile and adaptive equipment 10. The discontinuance of entitlement to specially adapted housing Entitlement to the ancillary benefits of automobile and adaptive equipment and specially adapted housing were granted as secondary to the service-connected loss of use of both feet in the March 2010 rating decision. This Board decision restores service connection for loss of use of both feet. There is not clear and unmistakable evidence establishing that the Veteran is not otherwise entitled to these ancillary benefits. Accordingly, the discontinuance of entitlement to automobile and adaptive equipment and specially adapted housing benefits was improper, and the appeal is granted. See 38 C.F.R. §§ 3.105(d), 3.310. 11. The discontinuance of entitlement to eligibility to DEA under 38 USC Chapter 35 In the June 1997 rating decision that determined that the Veteran was deemed to be permanent and total due to his service-connected disabilities from March 20, 1996, the Veteran was also deemed to be entitled to benefits under 38 U.S.C. Chapter 35 from March 20, 1996, as he had a 100 percent rating. The grant of eligibility for DEA, pursuant to 38 U.S.C. Chapter 35 was discontinued as the Veteran was no longer rated at a combined 100 percent rating. (CONTINUED ON NEXT PAGE) Since the Board has reinstated the Veteran's ratings related to his multiple sclerosis and these restorations combine to a 100 percent rating, the grant of eligibility for DEA, pursuant to 38 U.S.C. Chapter 35, is restored from March 20, 1996. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.