Citation Nr: 1427872 Decision Date: 06/19/14 Archive Date: 06/26/14 DOCKET NO. 12-02 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a left ankle disability. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the left hip. 3. Entitlement to special monthly compensation (SMC) based on the loss of use of the left lower extremity. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2012, the Veteran requested a hearing before a Veterans Law Judge at his local VA office, but in August 2013, he, through his representative, withdrew his hearing request. FINDINGS OF FACT 1. In a July 2013 letter, the Veteran's representative requested to withdrawal the issues of (1) entitlement to a rating in excess of 20 percent for a left ankle disability and (2) entitlement to a rating in excess of 10 percent for DJD of the left hip. 2. Loss of use of the left lower extremity is due to nonservice-connected chronic diabetes mellitus and post-polio syndrome. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the substantive appeal regarding the issue of entitlement to a rating in excess of 20 percent for a left ankle disability have been met. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for the withdrawal of the substantive appeal regarding the issue of entitlement to a rating in excess of 10 percent for DJD of the left hip have been met. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 3. The criteria for SMC based on the loss of use of the left lower extremity have not been met. 38 U.S.C.A. § 1114; 38 C.F.R. §§ 3.350, 4.63 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues The Veteran has withdrawn the issues of (1) entitlement to a rating in excess of 20 percent for a left ankle disability and (2) entitlement to a rating in excess of 10 percent for DJD of the left hip. There remain no allegations of errors of fact or law for appellate consideration with regard to these issues. The Board does not have jurisdiction to review these issues, and dismissal is warranted. Notice and Assistance As to the issue of entitlement to SMC, upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in May, June, and September of 2010 satisfied the duty to notify provisions. These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. The claim was subsequently readjudicated, most recently in a July 2013 supplemental statement of the case. The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any outstanding treatment records pertinent to the appeal. VA examinations were conducted in August 2008, March 2010, October 2010, March 2012, and March 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. Special Monthly Compensation The Veteran seeks SMC for loss of use of the left lower extremity. During service the Veteran incurred a left ankle disability that caused him to walk with a limp but left him with full range of motion in the ankle joints. The Veteran asserts that the current loss of use of the left lower extremity began when he injured his left ankle during active duty. He reports that he needed an ankle brace and a cane to walk, and that he was unable to do many of the physical activities he enjoyed before the injury. Over time, the functionality of the left ankle declined. In 2004, the left lower leg was paralyzed. The Veteran does not dispute that paralysis is due to nonservice-connected post-polio syndrome. An August 2008 VA examination report shows that the Veteran required a wheelchair for ambulation. The examiner opined that the Veteran's decreased mobility is due to increased peripheral neuropathy. He explained that neuropathy is related to the Veteran's nonservice-connected diabetes mellitus and post-polio syndrome. In a March 2010 VA examination report, the examiner agreed with the August 2008 opinion and added that the Veteran's service-connected disabilities do not cause or aggravate his diabetes mellitus and chronic post-polio syndrome. VA medical opinions rendered in October 2010, March 2012, and March 2013 arrived at the same conclusion. When a veteran, as the result of service-connected disability, loses the use of a lower extremity, including the foot, he is entitled to SMC. 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 the knee, with use of a suitable prosthetic appliance. The determination will be made on the basis of actual remaining function, i.e., whether the acts of balance or propulsion could be accomplished equally well with prosthesis. Id. at (a)(2), § 4.63. The Veteran is competent to report the actual function of his left lower extremity, which is within the realm of his personal experience. See Layno v. Brown, 6 Vet.App. 465, 469-71 (1994). However, the issue of whether the Veteran has lost use of the left lower extremity is a legal determination reserved for the finder of fact. 38 C.F.R. §§ 3.350(a)(2), 4.63. The Board finds that the Veteran lost use of his left lower extremity in 2004, when he initially reported paralysis of the left leg. Prior to 2004, the Veteran was able to ambulate and walk with the use of crutches. Since 2004, he has been confined to a wheelchair, and he would be equally well served by an amputation stump below the knee with a prosthetic device. An opinion as to the etiology of the loss of use of the left lower extremity is a complex medical question, especially given the presence of chronic post-polio syndrome and diabetes mellitus. The Veteran has not shown that he is qualified through education, training, or experience to offer opinions on complex medical questions. He is not competent to offer an opinion as to the etiology of the loss of use of the left lower extremity; his opinion in this regard is of no probative value. The competent medical evidence of record pertaining to the etiology of the loss of use of the left lower extremity consists of VA medical opinions rendered in August 2008, March 2010, October 2010, March 2012, and March 2013. All of the opinions agree that the Veteran's current loss of use of the left lower extremity is caused by polyneuropathy, which is attributable to chronic diabetes mellitus and post-polio syndrome. Beyond that, some of the opinions explain that the Veteran's service-connected left ankle disability does not cause or aggravate his polyneuropathy. SMC is only warranted for loss of use of a lower extremity due to a service-connected disability. The preponderance of the evidence is against the claim for SMC based on the loss of use of the left lower extremity; there is no doubt to be resolved; and SMC is not warranted. ORDER 1. The appeal of the claim for a rating in excess of 20 percent for a left ankle disability is dismissed. 2. The appeal of the claim for a rating in excess of 10 percent for DJD of the left hip is dismissed. 3. SMC based on the loss of use of the left lower extremity is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs