Citation Nr: 1040495 Decision Date: 10/28/10 Archive Date: 11/04/10 DOCKET NO. 07-14 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to special monthly compensation (SMC) based on loss of use of both feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from February 1970 to May 1983. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that, although the Veteran requested either an RO hearing or a BVA hearing in his substantive appeal (VA Form 9), when contacted via telephone to clarify his wishes, he specifically withdrew his request for any hearing. In the decision on appeal, the RO characterized the claim as one for "service connection for loss of use of both feet as secondary to the service-connected disability of bilateral flat feet and right [ankle] degenerative arthritis and left ankle degenerative arthritis." This is consistent with the wording used in the Veteran's claim. FINDINGS OF FACT 1. As a result of service-connected disabilities, the function of the Veteran's feet regarding balance and propulsion could be accomplished equally well by amputation stumps with prosthetic appliances. 2. The Veteran has not lost the use of either lower extremity at a level, or with complications, preventing natural knee action with prostheses in place. CONCLUSION OF LAW The criteria for SMC under 38 U.S.C.A. § 1114(l), but not higher, are met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. § 3.350 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). However, as the Board is granting the maximum rating available for loss of use of both feet, and is granting a certificate of eligibility for financial assistance in the purchase of one automobile or other conveyance, and of basic entitlement to necessary adaptive equipment, those claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Regarding entitlement to SMC, as higher levels are available beyond what is granted here, the VCAA requires that VA inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a January 2006 pre rating letter, the RO notified the Veteran of the evidence needed to substantiate his claim. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, to the extent of any notice error, the Veteran has demonstrated actual knowledge of the evidence necessary, as he has identified and submitted medical opinions relating a loss of use of his feet to his service-connected disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that actual knowledge of the evidence needed to substantiate a claim is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained all of the identified and available treatment records, as well as the records of the Social Security Administration's (SSA's) disability determination. In addition, the Veteran was afforded two VA examinations as to loss of use of his feet. The most recent examination in February 2010 was adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The resulting diagnosis, opinion, and rationale were consistent with the examination and the record. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). II. Analysis The Veteran is seeking service connection for loss of use of both feet, due to service-connected foot and ankle disabilities. Service connection is in effect for bilateral pes planus, rated at 50 percent, degenerative joint disease of the right ankle, rated at 10 percent, degenerative joint disease of the left ankle, rated at 10 percent, tinnitus, rated at 10 percent, and for a hearing loss disability, tinea pedis, rhinitis, hemorrhoids, and esophagitis, each noncompensably rated. The Veteran is also receiving a TDIU, effective February 1, 2004. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A 100 percent rating is available for loss of use of both feet due to service-connected disability. 38 C.F.R. § 4.71a, Diagnostic Code 5110. Loss of use of a hand or a foot is determined to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. Also considered as loss of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Under 38 C.F.R. § 4.124a, Diagnostic Code 8521, complete paralysis also encompasses foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. A veteran who, as the result of a service-connected disability, has suffered the anatomical loss or loss of use of both feet shall receive SMC under the provisions of 38 U.S.C.A. § 1114(l). See 38 C.F.R. § 3.350(b). A veteran who, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prostheses in place shall receive SMC under the provisions of 38 U.S.C.A. § 1114(m). See 38 C.F.R. § 3.350(c). A veteran who, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both legs so near the hip as to prevent the use of prosthetic appliances shall receive SMC under the provisions of 38 U.S.C.A. § 1114(n). See 38 C.F.R. § 3.350(d). A veteran who, as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n) of this section, no condition being considered twice in the determination shall receive SMC under the provisions of 38 U.S.C.A. § 1114(o). See 38 C.F.R. § 3.350(e). In this case, there is essentially no dispute regarding whether the Veteran has effectively lost the use of his feet. While some function is retained, the record is replete with findings that such retained function is quite limited, and is the functional equivalent of loss of use. A January 2007 neurological addenda reveals that the Veteran was given bilateral ankle braces to offload the feet while ambulating, but has not been able to maintain functional ambulation with these braces. It was noted that the Veteran has lost function of both feet and is "treated as though he's an amputee." A July 2006 report notes complaint of ongoing, daily, unrelenting, burning, stabbing, dull aches in the feet, and up just above the ankles. The diagnosis was chronic bilateral foot pain with severe pes planus, and bilateral ankle pain. It was noted that the Veteran has lost the use of his feet to drive a car due to his LE pain from arthritis and pes planus. The Veteran was afforded a VA contract examination in February 2010. That examiner specifically acknowledged a loss of use of both feet, and noted that the Veteran "basically became wheelchair bound." He noted that the Veteran has had many different types of footwear, including AFO hinged braces, but that these seem to provide no relief on his chronic ankle and foot pain. It was also noted that he has maximized his other medical treatments, but with no relief of foot pain. The examiner concluded that severe pain made him unable to put weight on both ankles and feet, and he has lost use of both lower extremities. The matter that remains in dispute is whether such loss of use is entirely or primarily the result of service-connected disability. The RO has concluded that it is not, but is in part due to nonservice-connected neuropathy. The Board concludes that, while neuropathy clearly plays a role in the Veteran's overall level of disability, the extent of that role cannot be determined through medical evidence, and therefore, the loss of use must be considered service-connected. When asked to address this matter, it was the opinion of the February 2010 examiner that the loss of use of both feet is most likely a result of his severe chronic bilateral feet and ankle pain and severe primary neuropathy. However, he stated that he could not determine which condition caused the predominant disability. As to whether the peripheral neuropathy is related to or caused by service-connected bilateral flat feet, the examiner concluded that it was not. However, the examiner clearly found that the combined effect of the service-connected disabilities and the nonservice-connected neuropathy resulted in loss of use of both feet. Although the Board may compensate the Veteran only for service-connected disability, the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Here, not only does the evidence not provide such differentiation, the examiner concluded that such differentiation could not be determined. As such, it would be pure speculation for the Board to reach a conclusion that the service-connected disabilities do not result in loss of use of the feet. Indeed, the Board is precluded from attributing any specific portion of the loss of use to the nonservice-connected neuropathy. Moreover, none of the other evidence provides an adequate medical basis for attributing any quantifiable portion of loss of use to nonservice-connected disability, or for that matter, for distinguishing the neuropathy as a separate disability. In particular, the Veteran's nonservice-connected neuropathy has repeatedly been described as idiopathic, or of unknown etiology. A February 2008 neurology consultation includes a diagnosis of primarily axonal neuropathy (etiology unknown). A January 2007 neurological addenda also describes the peripheral neuropathy as being of unknown etiology. In most cases, the Veteran's service-connected arthritis and pes planus have been discussed in concert with the neuropathy, but without distinguishing which is responsible for the Veteran's overall functional impairment. A March 2008 pain service consultation notes that the Veteran is unable to stand or walk due to debilitating pain in his lower extremities. The diagnosis was chronic pain with neuropathic characteristics. A February 2008 neurology consultation notes a diagnosis of an approximately 30-year history of progressive foot and ankle pain with evidence of primarily axonal neuropathy. It was noted that his primary disability is related to his pain, but the pain was not specifically attributed to any particular disorder. A January 2007 neurological addenda reveals that the Veteran's foot and ankle pain is due to a combination of mechanical and neurological problems, most notably the severe peripheral neuropathy. As the Board has determined that the Veteran has lost the use of both feet due to service-connected disability, he is entitled to SMC at the level prescribed in 38 U.S.C.A. § 1114(l). However, the Veteran is not entitled to SMC under the provisions of 38 U.S.C.A. § 1114 (m), or (n). The Veteran does not contend, and the record does not reflect, loss of use of both legs at a level, or with complications, preventing natural knee action with prostheses in place. The Veteran is not service-connected for a knee disability, and neither his statements nor the medical evidence suggests that the effect of his service-connected disabilities prevents natural knee action. Similarly, the Veteran does not contend, and the record does not reflect the anatomical loss or loss of use of both legs so near the hip as to prevent the use of prosthetic appliances, in accordance with 38 U.S.C.A. § 1114(n). See 38 C.F.R. § 3.350(d). Finally, the Board notes that the Veteran is not entitled to SMC under 38 U.S.C.A. § 1114(o) as he is not entitled to two or more of the rates provided in one or more subsections (l) through (n) of 38 U.S.C.A. § 1114, with no condition being considered twice in the determination. As the Board finds that the Veteran has lost the use of his feet as the result of his service-connected disabilities, but not the use of his lower extremities so as to prevent natural knee action with prostheses in place, the Veteran is entitled to SMC under the provisions of 38 U.S.C.A. § 1114(l). ORDER Special monthly compensation based on loss of use of the feet the rate specified under 38 U.S.C.A. § 1114(l), but not higher, is granted, subject to the criteria governing the award of monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs