Citation Nr: 1123167	
Decision Date: 06/16/11    Archive Date: 06/28/11

DOCKET NO.  10-42 572	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to special monthly compensation for the loss of use of both feet.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from November 1963 to October 1967.

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Buffalo, New York Regional Office (RO) of the United States Department of Veterans Affairs (VA).  In that decision, the RO denied entitlement to special monthly compensation for the loss of use of both lower extremities.

The Board notes that the Veteran submitted medical evidence suggesting he has peripheral vascular disease as a result of his diabetes.  If the Veteran wishes to file a claim for service connection for that disorder, he should do so with specificity at the RO.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The Board is remanding this case for the development of additional evidence and the provision of additional notice to the Veteran.  The service-connected disabilities affecting the Veteran's lower extremities include bilateral peripheral neuropathy, and residuals of a right fibula fracture.  He is seeking special monthly compensation for the loss of use of his lower extremities.

VA pays special monthly compensation for service-connected anatomical loss or loss of use of one foot or both feet.  38 U.S.C.A. § 1114(k), (l) (West 2002).  Loss of use of a foot is held to exist when no effective function remains in the foot other than that which would be equally well served by a below the knee amputation stump with use of a prosthesis.  38 C.F.R. § 3.350(a)(2) (2010).

The Veteran indicates that he uses a wheelchair or a walker to get around, and that he cannot walk more than 25 feet unassisted.  The claims file contains medical opinions and treatment records, but that evidence leaves some question as to whether the Veteran's service-connected peripheral neuropathy and fracture residuals produce disability equivalent to loss of use of the feet, and there is no current VA examination discussing such.  Accordingly, the Board remands the issue for a VA examination to address that question.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA neurology examination to address the extent of current bilateral lower extremity disability.  The claims file must be provided to and be reviewed by the examiner in conjunction with the examination.  The Veteran has service-connected bilateral lower extremity diabetic peripheral neuropathy and residuals of a right fibula fracture.  The examiner should note the effects of those disabilities on lower extremity function, including weightbearing and ambulating with and without assistive devices.  After examining the Veteran and reviewing the claims file, the examiner should state, for each lower extremity, whether there is no remaining effective function of the foot other than that which would be equally well served by a below the knee amputation stump and a prosthesis.  If there is no remaining function in either extremity, the examiner should indicate what condition(s) cause such level of impairment.  The examiner should explain the conclusions reached.

2.  After completion of the above, review the expanded record and determine if the Veteran's claim can be granted.  If the claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond.  Thereafter, return the case to the Board for appellate review.

The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2010).