Citation Nr: 0205327 Decision Date: 05/28/02 Archive Date: 06/03/02 DOCKET NO. 00-24 232A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to special monthly compensation (SMC) based on loss of use of the right foot. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Panayotis Lambrakopoulos, Associate Counsel INTRODUCTION The veteran served on active duty from August 1960 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a February 2000 RO rating that denied entitlement to special monthly compensation (SMC) based on loss of use of the right foot. (The file also indicates the veteran wants service connection for loss of use of the right foot declared in order to help him establish entitlement to automobile and specially adaptive housing benefits.) FINDINGS OF FACT 1. The veteran is service-connected for status-post lumbar laminectomy, which is evaluated as 60 percent disabling, and he is in receipt of a total disability rating based on individual unemployability (TDIU rating). 2. The veteran's service-connected low back disability affects his right lower extremity, but there is remaining function in the right lower extremity such that he would not be equally well served by a right leg amputation stump with prosthesis. CONCLUSION OF LAW The criteria for SMC based on loss of use of the right lower extremity have not been met. 38 U.S.C.A. § 1114(k) (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.350, 4.63 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The veteran served on active duty from August 1960 to October 1968. While on active duty, in February 1963, he was in a motorcycle accident that resulted in lumbosacral strain. Service medical records also reflect that the veteran had right leg shortening by half an inch with resulting chronic back pain. The RO awarded service connection for chronic lumbar strain at a noncompensable level in a July 1969 rating. In May 1974, the RO increased the rating for the service-connected chronic lumbar strain to 10 percent. After active service, in 1974, he suffered a work-related injury that aggravated his spinal condition, necessitating lumbar laminectomy surgery for herniated nucleus pulposus. In a February 1977 rating, the RO increased the rating for the veteran's service-connected low back disability, which was now described as status post laminectomy to 60 percent and awarded a TDIU rating. In August 1980, he underwent a lumbar laminectomy. In 1984, he was in an automobile accident, again requiring an operation on his lumbar vertebrae. The veteran underwent a VA spinal examination in May 1996. He reported numbness of the legs with severe low back pain with radiation to the right leg; he also reported severe noise in his right hip. Pain worsened when walking a lot or driving a car. Evaluation revealed a postural abnormality in which the right leg was shorter than the left leg by one inch. He also had severe lumbosacral scoliosis. There was evidence of a well-healed lumbar laminectomy scar associated with severe lumbosacral paravertebral muscle spasm. There was exquisite pain in all movements of the lumbar spine. He had generalized muscle atrophy of the lower extremities. Patellar and Achilles reflexes were 2+ bilateral and symmetric. He could not raise with the toes and heels with both feet. He had positive straight leg raising and Lasegue sign in both legs. He had severe weakness of both ankles, dorsiflexion muscles, extensor hallucis longus and plantar flexion muscles, and gastrocnemius with a muscle strength of 3/5, which was fair. He walked with the aid of Canadian crutches with a slow guarded gait and an abnormal posture with an increase in lumbar lordosis. The diagnosis was residuals of lumbar laminectomy times two. The VA examiner noted, however, that there was no loss of use of the lower extremities. VA treatment records from 1996 through 1999 show that the veteran was undergoing physical therapy for problems associated with iliolumbar myositis, including right foot drop; he also was being seen for various other problems, including severe osteoporosis. These records also reflect that he used forearm crutches to walk short distances and a self-propelled wheelchair. He also used a short right leg brace. A February 1997 record notes right snapping hip syndrome. September 1997 bone density testing revealed evidence of severe osteopenia within the region of the femoral neck and moderate osteopenia within the greater trochanter. In October 1997, he described 6/10 pain in the low back area that radiated to the dorsal area and the right lower extremity, with numbness in both legs; he again reported wheelchair use, forearm crutch use, and decreased tolerance on long standing positions. According to a January 1998 treatment record, the severe osteoporosis was in the lumbar area and in the hips. A February 1998 treatment record indicates that he had full range of motion of all joints of the lower extremities. In March 1998, while he presented with improvement of the lower extremities, there was still numbness of the legs, especially on the right, and he continued to use forearm crutches and a short leg brace at home and a wheelchair outside the house; there also was crepitus on movement of the right ankle. April 1998 X-ray reports showed mild diffuse osteopenia of the right foot, but no fractures, dislocations, or abnormal soft tissue calcifications; there also was diffuse osteopenia of both ankles, with adequate preservation of the intra-articular spaces, but no fractures or dislocations. He underwent a VA spinal examination in June 1998, at which time he reported moderate low back pain associated with numbness of the legs; but he denied any other symptomatology in his legs. He indicated that he used crutches to ambulate in his house and a wheelchair for long ambulation. He could walk when unassisted, but his legs tired easily. There was severe painful motion of the lumbar spine from the first degree to the last degree of the range of motion, along with muscle weakness, severe lumbar paravertebral muscle spasm, and severe tenderness. Neurologically, he had a normal gait cycle, positive straight leg raising and Lasegue sign in both legs. Knee jerks were 2+ bilaterally and symmetric. He had diminished ankle jerks +1 bilaterally. He also had diminished pinprick and smooth sensation of the right L4-L5- S1 dermatomes of the right leg. The diagnosis was status- post lumbar laminectomy, and it was further specified that there was no loss of use of the lower extremities. September 1998 VA bone density examination revealed mild to moderate osteopenia on the region of the greater trochanter. A February 1999 treatment record indicates that he had full range of motion of all joints of the lower extremities and positive straight leg raising at 65 degrees. In a November 1998 rating, the RO continued the 60 percent evaluation that was in effect for status post laminectomy; it also denied SMC based on loss of use of one foot, SMC based on loss of use of the right foot, and entitlement to automobile and adaptive equipment or adaptive equipment only. The veteran underwent a VA motor nerve conduction study in January 1999. There were prolonged sural nerve latencies (relating to the lower leg) as well as decreased conduction velocities on the left peroneal nerve (relating to the ankle and fibular head), resulting in an abnormal study with criteria comparable with a mixed sensori-motor peripheral neuropathy. In August 1999, the veteran filed a claim seeking SMC based on loss of use of the right leg. In October 1999, the veteran underwent several VA examinations. On peripheral nerves examination, he reported that he was not doing so well. He said that after back surgeries he developed a right hip problem and a right foot drop, and he always had a gait problem. He said the gait problems had become progressively worse; after the surgeries, he would walk with a cane at first, then with Canadian crutches, and in the past two years, with a wheelchair for long distances. He related he could walk short distances with the cane or the crutches inside his house, but if he tried to walk longer distances, his legs would get tired, his right knee would fail him, and he would fall. He complained of constant low back pain, radiating down the right lower extremity, and numbness in both lower extremities. He was able to get up from the wheelchair with difficulty and to give a few steps with a short leg brace on the right leg, with a very awkward and difficult gait. He was definitely unable to walk long distances, and he needed a wheelchair. He was unable to do Romberg and tandem tests. There was no dysmetria on the upper extremities. There was diminished pinprick on the right lower extremity as compared to the left. His deep tendon reflexes were symmetric all over, and there were no pathologic reflexes. The diagnosis was status post lumbar laminectomies for herniated nucleus pulposus. On VA examination of the spine from October 1999, it was also noted that he could not walk long distances and that he was unable to do household chores. There was symmetric right lower extremity with listing to the right side. He had atrophy of the right calf muscle, with foot drop on the right lower extremity. Manual muscle test of the right quadriceps was 4.5/5; of the hamstring, it was 5/5; of the tibialis anterior on the right, it was 2/5; of the extensor hallux longus on the right, it was 1/5; of the peroneus longus on the right, it was 2/5; of the gastrocnemius muscle on the right, it was 2/5. Straight leg raising was positive on the right, and there was genu recurvatum of the right lower extremity. He was able to put weight on the right lower extremity, and he was able to transfer with minimal difficulty. Deep tendon reflexes were plus 3 for the patellar, bilaterally, and plus 2 for the Achilles tendon, bilaterally. The right lower extremity was measured at 10 centimeters below the patellar as being 33 centimeters in circumference, whereas the left lower extremity was measured as being 36 centimeters at that level. Both thigh muscles were 48 centimeters in circumference when measured 14 centimeters above the patella. The diagnoses were herniated nucleus pulposus; status post laminectomy twice (1974 and 1984); genu recurvatum, right; and drop foot, right. The examiner noted that the veteran did not have loss of use of the right lower extremity because he was able to use the right lower extremity for transfers and to bear weight with and without ankle orthosis. In February 2000, the RO denied the veteran's claim for SMC based on the loss of use of the right foot under 38 U.S.C.A. § 1114(k). The veteran underwent a VA aid and attendance or housebound examination in October 2000. He was reported to be using two Canadian crutches to walk, but he could walk with the crutches for only short distances that did not exceed 200 feet. He had to use a wheelchair for longer distances due to severe pain in the low back. The veteran arrived at the VA examination by himself, that is, without an attendant, but he came using a wheelchair. He was described as not being permanently bedridden. On a typical day, the veteran would drive to a VA outpatient clinic, where he would assist in the processing of laboratory forms as a volunteer; in this capacity, he generally would sit at a desk. Afterwards, he also would walk to the occupational therapy section of the clinic using a wheelchair, where he also helped. After lunch, he returned home, where he would rest in bed and watch television later. On examination, he was noted as using Canadian crutches, but as being wheelchair-ridden for most of the time. He could walk well with the crutches, but his walking was affected by pain in the low back and right hip by distances that should not exceed 200 feet. No limitations of motion or deformities of the spine were noted. The diagnoses were status post lumbar laminectomy L4-L5 and L5-S1, status post operative; arterial hypertension; degenerative joint disease of the spine; osteoporosis; a history of autonomic dysreflexia; and a history of angina pectoris. The RO had the case reviewed by a rating board staff physician who provided a written opinion in September 2001. The doctor reviewed the history and recent examination findings, and concluded there was no indication to support loss of use of the right foot or right lower extremity. The doctor noted that the evidence of right foot drop did not confirm a complete right common peroneal nerve paralysis that would be equivalent to loss of use. II. Legal analysis Through discussions in correspondence, the rating decision, the statement of the case, and the supplemental statement of the case, the RO has informed the appellant of the evidence necessary to substantiate his claim. Pertinent medical records have been obtained and VA examinations have been provided. The Board finds that the notice and duty to assist provisions of the law have been satisfied. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001) (Veterans Claims Assistance Act of 2000), Pub. L. No. 106-475, 114 Stat. 2096 (2000)); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). In pertinent part, SMC may be awarded if the veteran, as the result of a service-connected disability, has suffered anatomical loss or "loss of use" of a foot. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). 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 the election below knee with use of a suitable prosthesis. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2), 4.63. Examples of loss of use of a foot include extremely unfavorable ankylosis of the knee or complete ankylosis of two or more major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more. Another example of loss of use of a foot is complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Id. The evidence shows that the veteran has undergone laminectomies for his service-connected low back disability and that he is has related problems with his right lower extremity. However, various VA examinations have specifically ruled out the possibility that he has lost the use of his right foot. The evidence shows right foot drop for several years, and he has difficulties in walking. He says that at home he walks in the house for short distances with the aid of crutches and a short leg brace on his right leg, and outside the house he uses a wheelchair to ambulate. While the veteran has right foot drop and testing shows mixed sensori-motor peripheral neuropathy, there is no evidence of complete paralysis of the peroneal nerve (one of the possible examples of loss of use of a foot described in the pertinent regulation). In addition, there is no evidence of ankylosis to warrant a similar finding of loss of use of the right foot. The veteran still retains some use of his right foot, as evidenced by his ability, albeit compromised, to walk around the house with crutches and a brace. The evidence demonstrates that although the veteran's service-connected low back disability affects his right lower extremity, there is remaining function in the right foot and leg such that he would not be equally well served by a right leg amputation stump with prosthesis. Under the criteria of the cited legal authority, there is no loss of use of the right foot. Thus the Board finds that the requirements for SMC based on loss of use of the right foot are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to SMC based on loss of use of the right foot is denied. L.W. TOBIN Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.