Citation NR: 9634024	
Decision Date: 11/27/96		Archive Date: 12/04/96
DOCKET NO.  95-24 427	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, 
Wisconsin


THE ISSUES

1.  Entitlement to an effective date prior to December 4, 
1992 for the grant of disability compensation for left foot 
drop pursuant to the provisions of 38 U.S.C.A. § 1151 (West 
1991 & Supp. 1995).

2.  Entitlement to an increased disability evaluation for 
left foot drop, currently rated 40 percent disabling.


REPRESENTATION

Appellant represented by:	Wisconsin Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Michelle D. Doses, Associate Counsel



INTRODUCTION

The veteran had active service from March 1945 to July 1946.

This appeal arises from a February 1995 rating decision 
granting disability compensation for the veteran’s left foot 
drop, effective December 4, 1992, the date the veteran filed 
his claim.  A November 1995 rating action, implemented a 
hearing officer’s decision and assigned a 40 percent 
evaluation for left foot drop, effective December 4, 1992.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the Department of Veterans Affairs 
(VA) should compensate him for the period prior to December 
1992.  He asserts that he received an injury in 1968 by fault 
of VA physicians, has had a foot disability since then, and 
should be compensated for the period from 1968 to 1993.  He 
further asserts that he did not file for compensation at an 
earlier date because he was receiving pension and was told 
that he could not collect both.  Finally, he contends that, 
as the VA has acknowledged that his left foot drop has been 
established since 1968, and was aware of his condition at 
that time, he should be compensated from that time.  He has 
also contended that an increased disability evaluation should 
be assigned for his left foot drop.


DECISION OF THE BOARD

The Board of Veterans’ Appeals (Board), in accordance with 
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 
1995), has reviewed and considered all of the evidence and 
material of record in the veteran's claims 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 preponderance of the evidence is against the 
veteran’s claim for entitlement to an effective date prior to 
December 4, 1992 for the grant of disability compensation for 
a left foot disability pursuant to the provisions of 
38 U.S.C.A. § 1151 and is against the veteran’s claim for an 
increased evaluation for left foot drop.


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the veteran’s appeal has been obtained by the 
originating agency.

2.  The date of the veteran’s hospitalization during which 
left foot drop was incurred was August 27, 1968 and his 
initial claim for disability compensation for a left foot 
drop pursuant to the provision of 38 U.S.C.A. § 1151 was 
received by the VA on December 4, 1992.

3.  In a rating decision dated in February 1995 entitlement 
to disability compensation for left foot drop pursuant to the 
provisions of 38 U.S.C.A. § 1151 was granted, effective 
December 4, 1992.

4.  The veteran has complete left foot drop and the maximum 
evaluation for this disability has been assigned.


CONCLUSION OF LAW

1.  An effective date prior to December 4, 1992 for the grant 
of disability compensation for left foot drop pursuant to the 
provisions of 38 U.S.C.A. § 1151 is not for assignment.  
38 U.S.C.A. §§ 1151, 5107, 5110(c) (West 1991 & Supp. 1995); 
38 C.F.R. §§ 3.358, 3.400(i) (1995).

2.   A disability evaluation in excess of 40 percent for left 
foot drop is not for assignment.  38 U.S.C.A. §§ 1155, 5107 
(West 1991 & Supp. 1995); 38 C.F.R. §§ 4.68, Part 4, Codes 
5165, 8521 (1995).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran is seeking an effective date prior to December 4, 
1992 for the grant of disability compensation for a left foot 
drop pursuant to the provisions of 38 U.S.C.A. § 1151 and an 
increased disability evaluation for left foot drop.  The 
veteran’s claims are “well-grounded” within the meaning of 
38 U.S.C.A. § 5107(a).  That is, he has presented claims 
which are plausible.  The Board is also satisfied that all 
relevant facts have been properly developed and no further 
assistance to the veteran is required to comply with the duty 
to assist mandated by 38 U.S.C.A. § 5107(a).

I.  Effective date

A VA hospitalization report, dated from August 1968 to 
September 1968, shows that the veteran was admitted for 
chronic low back pain, and, after surgery, complained of 
decreased sensation over his left lower leg.  A claim for 
improved disability pension benefits was received by the 
Regional Office (RO) in September 1968.  A statement from the 
veteran received in November 1968 shows that the veteran 
disagreed with the rating decision dated in October 1968 
denying his claim for improved disability pension benefits.  
By rating action dated in January 1969 the veteran’s claim 
for improved disability pension benefits was granted based on 
his post operative status laminectomy for recurrent herniated 
nucleated pulposus with left foot drop and acute and chronic 
gout.  A claim for benefits pursuant to 38 U.S.C.A. § 1151 
for residuals of surgery at the VA Medical Center, Milwaukee, 
Wisconsin in 1968 was received by the RO on December 4, 1992.

38 U.S.C.A. § 1151 provides that, where a veteran suffers an 
injury or an aggravation of an injury resulting in additional 
disability to the veteran by reason of VA hospital, medical, 
or surgical treatment, disability compensation shall be 
awarded in the same manner as if such disability or 
aggravation were service connected.  The effective date of an 
evaluation and award of compensation based on disability due 
to hospitalization will be the date the injury or aggravation 
was suffered if the claim is received within 1 year after 
that date; otherwise it will be the date of receipt of the 
claim.  38 U.S.C.A. § 5110(c); 38 C.F.R. § 3.400(i).

A formal claim or any statement in a communication showing an 
intent to file a claim for disability resulting from 
hospitalization under VA laws may be accepted as a claim.  An 
informal claim is any communication or action, indicating an 
intent to apply for benefits.  Such informal claim must 
identify the benefit sought.  If a formal claim, application 
form, is received within 1 year from the date it was sent to 
the claimant, following the claimant’s prior to submission of 
an informal claim, it will be considered filed as of the date 
of receipt of the informal claim.  38 U.S.C.A. §§ 3.154, 
3.155 (West 1991 & Supp. 1995).

While the veteran contends, and the Board finds his testimony 
to be credible, that the effective date for the grant of 
disability compensation for left foot drop pursuant to the 
provisions of 38 U.S.C.A. § 1151 should be the date he 
incurred the disability, his claim was not received within 
one year after that date.  It is noted that neither the 
veteran’s claim for pension received in September 1968 nor 
the statement received in November 1968, which specifically 
stated that the veteran disagreed with the rating decision 
denying his claim for pension, can be construed as either a 
formal or informal claim for benefits pursuant to the 
provisions of 38 U.S.C.A. § 1151.  The veteran did not 
specify that the benefit he sought was compensation for a 
disability resulting from hospitalization and did not show an 
intent at that time to file a claim for disability resulting 
from hospitalization.  Thus, although VA was aware of a left 
foot disability in 1968, a claim for disability compensation 
pursuant to the provisions of 38 U.S.C.A. § 1151 was not 
received until December 1992, after which date it could be 
determined that the veteran’s left foot disability was the 
result of VA hospitalization.

Although the veteran states that he did not file for 
compensation at an earlier date because he was receiving 
pension and was told that he could not collect both, the 
Board is bound by the applicable laws and regulations, which 
provide that the effective date will be the date of receipt 
of the claim by VA when a claim is not submitted within one 
year of incurrence of the disability.  The Board notes that 
VA does not have a duty to provide veterans and their 
dependents with personal notice of their eligibility for 
benefits. Hill v. Derwinski, 2 Vet.App. 451 (1991).  
Accordingly, the effective date of the date of receipt of the 
veteran’s claim for disability compensation for left foot 
drop, pursuant to the provisions of 38 U.S.C.A. § 1151, as 
the effective date for the award of disability compensation 
pursuant to the provision of 38 U.S.C.A. § 1151, for the 
veteran’s left foot drop, was correctly assigned by the 
agency of original jurisdiction.  38 U.S.C.A. §§ 1151, 
5110(c); 38 C.F.R. §§ 3.358, 3.400(i).

II.  Increased evaluation

The veteran is also seeking an increased disability 
evaluation for left foot drop.  An April 1995 VA examination 
report shows that postoperatively, the veteran developed loss 
of feeling in the left leg and had left foot drop.  He 
complained of complete left foot drop with loss of feeling, 
severe weakness in the entire left leg, and atrophy of 
muscles.  He has worn a left foot drop brace for complete 
left foot drop since 1968.  On examination, he was found to 
have a complete left foot drop.  He walked with a total left 
steppage gait and had complete sensory loss in the 
distribution of the sural nerve, superficial peroneal nerve, 
and lateral cutaneous nerve of the calf.  He had an almost 
complete sensory deficit in the saphenous nerve distribution.  
He also had severe sensory deficit.  There was complete loss 
of strength in the left ankle and no dorsiflexion of the left 
ankle, and, in essence, no voluntary motion of the left 
ankle.  The diagnosis was complete left foot drop with severe 
left sided sciatica secondary to lumbosacral spine condition 
with herniated disk, status post multiple surgeries.  By 
rating action dated in April 1995, the veteran’s disability 
evaluation for his left foot drop was increased to the 
maximum allowed under the rating schedule, however, a 30 
percent disability evaluation was assigned as it was 
determined that he had a preexisting disability warranting a 
10 percent evaluation.

At an October 1995 hearing, the veteran testified that his 
left ankle swelled if he did a lot of walking and that he did 
not have control over his foot.  The Board finds his 
testimony to be credible.  By rating action dated in November 
1995, the veteran’s disability evaluation was increased to 40 
percent for his left foot drop based on the hearing officer’s 
decision that the medical evidence did not establish that the 
veteran had a preexisting disability of his left foot.

Diagnostic Code 8521 provides for a maximum evaluation of 40 
percent for complete foot drop.  “The combined rating for 
disabilities of an extremity shall not exceed the rating for 
the amputation at the elective level, were amputation to be 
performed.”  38 C.F.R. § 4.68.  The maximum evaluation that 
may be assigned for below the knee amputation is 40 percent.  
Diagnostic Code 5165.  As the maximum evaluation has been 
assigned for the veteran’s left foot drop, a disability 
evaluation in excess of 40 is not for assignment.  
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.68, Part 4, Codes 5165, 
8521.


ORDER

Entitlement to an effective date prior to December 4, 1992 
for the grant of disability compensation for left foot drop 
pursuant to the provisions of 38 U.S.C.A. § 1151 is denied.

Entitlement to an evaluation in excess of 40 percent for left 
foot drop is denied.



		
	MILO H. HAWLEY
	Acting Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures 
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 
(1994), permits a proceeding instituted before the Board to 
be assigned to an individual member of the Board for a 
determination.  This proceeding has been assigned to an 
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1995), 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.
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