Citation Nr: 1324665 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 08-38 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(k) for loss of use of the Veteran's right foot/leg. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1969. This specific matter comes to the Board of Veterans' Appeals (Board) from the United States Court of Appeals for Veterans Claims (Court). The procedural history as it pertains to the issue of SMC now before the Board must be discussed. A rating decision issued in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, denied entitlement to a total rating based on individual unemployability (TDIU) and to service connection for posttraumatic stress disorder (PTSD), continued a 40 percent evaluation assigned for degenerative disc disease of the lumbar spine, and granted a 10 percent rating for mild radiculopathy of the right lower extremity effective May 11, 2006. The Veteran appealed. In January 2012, the Board continued the 40 percent rating assigned for degenerative disc disease of the lumbar spine and granted a staged 40 percent rating for right leg neuropathy, effective August 9, 2007. The claims for entitlement to TDIU and entitlement to service connection were remanded. The Veteran appealed the Board's January 2012 decision to the Court and in a November 2012 Joint Motion for Partial Remand (Joint Motion), the parties requested that the Court partially vacate and remand the Board's decision to the extent that it did not consider the reasonably raised issue of entitlement to SMC. In a November 2012 Order, the Court granted the Joint Motion. The Board notes that the claims for entitlement to TDIU and entitlement to service connection that were remanded in January 2012 have not been recertified and remain pending before the agency of original jurisdiction (AOJ) pursuant to the previous remand. The Board also notes that the Veteran submitted an April 2013 employability evaluation, which was accompanied by a waiver of RO consideration and can be considered in this decision. 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the medical and lay evidence supports a finding that the Veteran retains effective function in his right foot/leg. CONCLUSION OF LAW The criteria for entitlement to special monthly compensation under 38 U.S.C.A. § 1114(k) for loss of use of the Veteran's right foot/leg have not been met. 38 U.S.C.A. §§ 1114(k), 5107 (West 2002); 38 C.F.R. § 3.350(a)(2) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Joint Motion determined that the Board erred when it failed to consider the reasonably raised issue of entitlement to SMC, which it stated was an "inferred issue" that is part and parcel of a claim for an increased rating pursuant to Akles v. Derwinski, 1 Vet. App. 118 (1991). The Joint Motion noted that the Board failed to discuss evidence favorable to the Veteran's claim, specifically his allegation that he had lost the use of his right leg. Given the findings in the Joint Motion, the Board will now address whether the Veteran is entitled to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of his right foot/leg. SMC under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one foot. 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 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., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2)(i). The regulations further provide that extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the foot involved; 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, will be taken as loss of use of the foot. 38 C.F.R. § 3.350(a)(2)(i)(a) and (b). The Board has reviewed the record and finds that the Veteran has made several assertions that are pertinent to the issue of SMC. In an undated statement received in September 2006, he reported that he could barely walk or stand and when he did, there was sciatic pain and intense pain from muscles forced to help support standing and walking. He also reported that he could no longer drive and that he had been prescribed a cane to aid with stability due to several falls. In a May 2007 statement, the Veteran reported that his back disability had caused loss of use to his right leg. In his November 2008 VA Form 9, he reported that he now required a walker and that he had an appointment to pick up a wheelchair for long distance travel. The Board acknowledges the assertions made by the Veteran and finds them both competent and credible. It does not find, however, that the preponderance of the evidence supports a finding that he is entitled to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of his right foot/leg. The regulations discussed above clearly define what loss of use of a foot entails, namely that it 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 election below knee with use of a suitable prosthetic appliance. The regulations further provide that the determination as to whether loss of use of the foot exists will be made on the basis of the actual remaining function, such as whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. The Veteran has not claimed that no effective function remains in his right foot/leg. Nor has he asserted that he is unable to balance or propel using his right foot/leg. Rather, the Veteran has reported that he is still able to walk and stand. While the Board acknowledges his contention that he has had difficulty both with balance (as indicated in his statement that he has fallen a few times and requires the use of a cane and wheelchair) and with propulsion (as indicated in his statement that he has pain when walking and had been issued a wheelchair for long distance travel), it is clear that the Veteran still retains effective function in his right foot/leg. The Board's finding that the preponderance of the evidence does not support the claim for entitlement to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of the Veteran's right foot/leg is not based solely on his assertions. Rather, the determination has been made in conjunction with review of the medical evidence of record, which the Board finds corroborates the Veteran's assertions and supports its determination that the Veteran still retains effective function in his right foot/leg. More specifically, a May 2006 HCHV community outreach note documents the Veteran's report of decreased ability to be on his feet, tiring more easily, pain and discomfort in his back, and increased numbness in his right leg. A June 2006 VA spine examination report noted the Veteran's complaint of chronic and constant low back pain with radiation down his right leg and foot, with resulting difficulty standing, walking and sitting. At the time of that examination, the Veteran reported the use of a cane in the past, but denied using one recently and was noted by the examiner to be walking unaided. The Veteran also reported being able to walk several blocks for a period of up to 30 minutes before needing to stop and rest. In November 2006, it was noted that the Veteran was able to walk straight, but fatigued easily and still had leg weakness. See physical therapy outpatient interim note. A December 2006 letter from a VA registered nurse reported that the Veteran had had 36 documented encounters with the nurse since May 2006 and continued to use a cane whenever he ambulated. The nurse noted that during their initial contacts in May, June and July, the Veteran ambulated without assistive devices. The nurse indicated that on the date of the letter, the Veteran was observed having difficulty climbing stairs. See statement by P.N.M. Records from the Social Security Administration (SSA) reveal that in May 2005, the Veteran had normal power and sensation in both feet. See Connecticut Disability Determination Services report. A June 2005 vocational analysis noted that he was able to walk/stand without any limitations. In December 2006, the Veteran was holding a cane in his left hand during ambulation for assistance. Id. Also in December 2006, it was noted that the Veteran used a cane to stabilize his undulating style of ambulation, that ambulatory device was indicated on all surfaces and walks, and that the Veteran could stand and walk about three hours per working day with usual breaks. It was expressly noted that although the Veteran had occasional limitations with climbing ramps/stairs, he had no limitations with balance. At that time, the Veteran's bilateral ankle was noted to have a stable hind foot and supple forefoot, but no distal sensory deficit or power loss was noted. See Forms SSA-4734-BK. A June 2007 VA record indicates that the Veteran's gait was steady. See primary care clinic visit note. The Veteran underwent a VA spine examination in August 2007, at which time he reported that his right leg was not working well and described an electric shock down the leg and feeling like he cannot control his right leg due to pain/sciatica radiating down it. The Veteran reported that he had fallen getting out of bed the week prior due to pain and his right leg giving out. He also indicated that he was unable to drive as he could not operate the brake pedal due to his right leg not operating properly and had turned in his license following a 2006 motor vehicle accident. The Veteran reported taking sponge baths as he was afraid he would fall in the tub and shower, and had difficulty going up or down stairs with down being worse due to an inability to put weight on his right leg. The Veteran reported that he was unable to walk unaided and was using a straight cane. He was able to walk one city block with his cane and pushing himself. A history of falls was reported due to the Veteran's problem moving his right leg and feeling like his leg was dragging. On physical examination, the examiner noted that the Veteran's gait was unsteady and he was using a straight cane for weight bearing and was putting a considerable amount of weight onto the cane while ambulating. He had decreased sensation in his right lower extremity as well as pain and vibration. In September 2008, the Veteran was seen requesting a manual wheelchair for community access. He presented to the clinic with a cane and was to see physical therapy regarding assistive devices following the appointment. His transfer methodology was noted to be standing and stepping. Pertinent physical findings included functional leg strength with right knee flexion slightly weaker than the rest. The assessment was that the Veteran was an appropriate candidate for wheelchair for distance mobility. See wheelchair consult note (emphasis added). The physical therapy consult note dated on the same date indicates that the Veteran was seen with subjective complaint that his standard cane did not provide enough support while walking and that it wobbled. He reported that his right lower extremity felt weak and gave out and that he had fallen six to eight times during the past year. He wanted a device that he could use outside the home for longer distances until his wheelchair arrived. There was objective evidence that the Veteran held a standard cane in his right hand with moderate limp. Strength in his bilateral lower extremity was within full limits. He was able to independently sit to stand with upper extremity push off for transfer. He underwent gait training with a quad cane and was noted to have difficulty sequencing and stabilizing with quad cane as he wanted to keep the cane in his right hand as well. The Veteran was more stable with gait training using a standard walker with fixed wheels and had decreased limp. The standard walker with fixed wheels was prescribed. The wheelchair was delivered in November 2008, at which time the Veteran reported that he planned on walking as much as he could and that his wheelchair was for longer distances. See wheelchair progress note. The Veteran was reportedly walking with a cane and wheelchair in March 2009. See primary care clinic visit note. In November 2009, the Veteran reported that his legs had felt weak three days prior, and that he had been unable to use his walker. The weakness had since resolved. See medical intern admission note. A September 2010 medical attending admission note reported chronic low back pain with gait imbalance secondary to pain, and that the Veteran was using a walker at baseline 9/10. In an April 2013 employability evaluation submitted by the Veteran's attorney in conjunction with the still pending claim for entitlement to a TDIU, certified rehabilitation counselor C.K.W. indicated that he had questioned the Veteran concerning activities of daily living and his own estimates of his ability to stand. The Veteran indicated that his right leg had ceased to function properly and that he had had to give up his driver's license based on this impairment. The Veteran reported using a walker to move anywhere in his residence and noted that the most time he could stand with the walker is 10 minutes and that he was unable to stand to prepare food. The VA and private records confirm that although he has problems with balance and standing without assistance for long periods of time, the Veteran is still able to walk/propel himself using his right leg. Therefore, this evidence, which, as noted above, corroborates the Veteran's assertions related to his mobility, also supports the Board's finding that the Veteran still retains effective function in his right foot/leg. The Board acknowledges the Veteran's need for a cane, walker and wheelchair. Their prescription, however, was not based on the Veteran's inability to walk or stand (i.e., absence of right foot/leg function), but rather on his need for an aid in using what function he does have to walk and stand for long periods of time or for long distances, as in the case of the wheelchair. The Board also notes at this juncture that the Veteran has not asserted that he has been prescribed any assistive device because he has no function remaining in his right foot/leg. There is also no evidence of extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or 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. Rather, the Veteran is still able to perform range of motion testing in his right lower extremity. See VA treatment records and VA examination reports. Moreover, even when resolving all doubt in favor of the Veteran, the evidence of record, as discussed in more detail in the Board's January 2012 decision, only supports a finding of moderately severe right leg neuropathy, not complete paralysis of the sciatic nerve (where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost) under Diagnostic Code 8520 or complete paralysis of the external popliteal nerve (common peroneal) (where foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes) under Diagnostic Code 8521. Given the foregoing, which, as mentioned above, was considered in conjunction with the Veteran's assertions that confirm he is still able to walk and propel himself, the Board finds that entitlement to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of the Veteran's right foot/leg is not warranted. VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran is seeking entitlement to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of his right foot/leg. This is a downstream issue stemming from the Veteran's previously-decided claim for an initial rating in excess of 10 percent for mild radiculopathy of the right lower extremity. As it is a downstream issue, it is clear that service connection has been granted and an initial disability rating and effective date have been assigned. Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). To the extent that notice specific to the claim for SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of the Veteran's right foot/leg was required, the Board finds that the Veteran had actual notice of the necessary evidence in the form of the Joint Motion, and that he has not been prejudiced by any technical notice deficiency in this regard. The Veteran has also waived any notice errors. See May 2013 attorney statement. Accordingly, the duty to notify has been fulfilled. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This duty has also been met as the Veteran's VA treatment records have been obtained, as were records from the SSA, and he underwent adequate VA examination in August 2007 in conjunction with his claims for increased ratings for his lumbar spine and right lower extremity disabilities. The Board acknowledges that no VA examination was conducted in conjunction with the issue of whether the Veteran is entitled to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of his right foot/leg. Remand for an examination is not warranted in the absence of any lay or medical evidence to suggest that the Veteran has no effective function remaining in his right foot/leg. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, the Board finds that no further notification or assistance is necessary, and deciding the appeal is not prejudicial to the Veteran. ORDER Entitlement to SMC under the provisions of 38 U.S.C. § 1114(k) for loss of use of the Veteran's right foot/leg is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs