Citation Nr: 1601226 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 05-30 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to special monthly compensation based on loss of use of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO), located in Newington, Connecticut. In December 2008, the Board remanded the claim for additional development. The Board again remanded the case in August 2010 to schedule the Veteran for a Board hearing. In June 2012, the Veteran testified via videoconference before the undersigned; a transcript of that hearing is of record. Following the hearing, in September 2012, the Board remanded the case yet again for further development. The case returned to the Board in August 2013, at which time the Board, in pertinent part, denied special monthly compensation based on claimed loss of use of the right leg. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2014 memorandum decision, the Court vacated that part of the August 2013 Board decision denying the special monthly compensation based on claimed loss of use of the right leg, and remanded the claim for further action in accordance with its decision. The case returned to the Board in March 2015, at which time, the Board remanded the claim for further development consistent with the Court's decision. That development having been completed, the claim has since returned to the Board. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran has had loss of use of the right lower extremity due to the manifestations of his service-connected right lower extremity radiculopathy, right hip arthritis, right knee patellofemoral syndrome, and residuals of a ruptured right Achilles tendon. CONCLUSION OF LAW The criteria for special monthly compensation at the rate between 38 U.S.C. 1114(l) and (m), based on anatomical loss of the left foot with loss of use of the right leg at a level, or with complications preventing natural knee action with prosthesis in place, are satisfied. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION If a Veteran, as the result of service-connected disability, loses the use of a lower extremity, he is entitled to additional monthly compensation, which is referred to as special monthly compensation (SMC). 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2014). Here, the Veteran contends that he is entitled to special monthly compensation based on loss of use of his right lower extremity due to the manifestations of his service-connected disabilities affecting his right leg. In this case, the disabilities for which service connection has been granted include: below the knee amputation of the left lower extremity; posttraumatic stress disorder (PTSD); degenerative joint disease of the lumbosacral spine; arthritis of the hands associated with below the knee amputation of the left lower extremity; neuropathy of the right lower extremity, associated with degenerative joint disease of the lumbosacral spine; residuals of prostate cancer, status post radiation therapy; right knee patellofemoral syndrome with instability, associated with below the knee amputation of the left lower extremity; tinnitus; arthritis of the right hip associated with below the knee amputation of the left lower extremity (consisting of separate ratings for limitation of flexion, limitation of extension and impairment of the thigh); ruptured right Achilles tendon associated with below the knee amputation of the left lower extremity; organic mental impairment; residuals of hookworm infestation; bilateral high frequency sensorineural hearing loss; erectile dysfunction associated with residuals of prostate cancer, status post radiation therapy; and non-Hodgkin's lymphoma. His combined disability rating is 100 percent. Additionally, the Board notes that the Veteran has already been granted special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of anatomical loss of use of one foot (the service-connected below the knee amputation of the left lower extremity). He has also been granted special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. He has also been granted special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) on account of residuals of prostate cancer status post radiation therapy rated 100 percent and additional service-connected disabilities of arthritis of the hands, patellofemoral syndrome of the right knee associated with left below the knee amputation of the left lower extremity, degenerative joint disease of the lumbosacral spine, PTSD, tinnitus, below the knee amputation left lower extremity, independently ratable at 60 percent or more from June 26, 2007 to October 1, 2013. The Veteran has also been found entitled to automobile and adaptive equipment, specially adapted housing and basic eligibility under 38 U.S.C. Chapter 35. As pertinent to the present claim, VA regulations provide special monthly compensation under 38 U.S.C.A. § 1114(k) 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 the knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2)(i). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet. 38 C.F.R. § 3.350(b) Special monthly compensation under 38 U.S.C. 1114(m) is payable for anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place. 38 C.F.R. § 3.350(c)(1)(ii). In determining whether there is natural knee action with prosthesis in place, consideration will be based on whether use of the proper prosthetic appliance requires natural use of the joint, or whether necessary motion is otherwise controlled, so that the muscles affecting joint motion, if not already atrophied, will become so. If there is no movement in the joint, as in ankylosis or complete paralysis, use of prosthesis is not to be expected, and the determination will be as though there were one in place. 38 C.F.R. § 3.350(c)(2). The special monthly compensation provided by 38 U.S.C. 1114(n) is payable for anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance. 38 C.F.R. § 3.350(d)(2). Additionally, intermediate rates, established at the arithmetic mean, rounded to the nearest dollar, between two rates are payable under certain circumstances, including anatomical loss or loss of use of multiple extremities. See 38 C.F.R. § 3.350(f). Specifically, as relevant to this appeal, anatomical loss or loss of use of one foot with anatomical loss or loss of use of one leg at a level, or with complications preventing natural knee action with prosthesis in place, warrants the rate between 38 U.S.C. 1114(l) and (m). 38 C.F.R. § 3.350(f)(1)(i). Anatomical loss or loss of use of one foot with anatomical loss of one leg so near the hip as to prevent use of prosthetic appliance shall entitle to the rate under 38 U.S.C. 1114(m). 38 C.F.R. § 3.350(f)(1)(ii). Anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114(m) and (n). 38 C.F.R. § 3.350(f)(1)(v). Turning to the evidence of record, at his May 2007 VA examination, the Veteran reported experiencing nearly continuous, severe sharp pain in his right knee with additional right knee symptoms including weakness; swelling on activity; instability and giving way; excess fatigability, and lack of endurance. The Veteran also reported symptoms including numbness, pain, and fatigability in the right ankle and foot. The Veteran stated his right leg disability frequently required him to use a wheelchair, rather than the cane or crutches he sometimes used for ambulation. The Veteran also reported requiring assistance with activities of daily living such as getting in and out of the shower due to the lack of right leg stability, and stated that he was unable to do basic yard work or chores. The Veteran further stated he could not walk any distance without resting, sitting due to pain in the right lower extremity. Additionally, daily flare-ups of pain and inability to ambulate requiring immobilization and/or the use of a wheelchair were reported. A physical examination of the right knee revealed that the joint was painful on motion and the range of motion or joint function was additionally limited by pain, fatigue, weakness and a lack of endurance following repetitive use. The VA examiner noted that a right knee brace was customized for the Veteran. A physical examination of the right ankle revealed the ankle was painful on motion and the range of motion of the joint function was additionally limited by pain, fatigue, weakness following repetitive use. The Veteran was diagnosed with degenerative joint changes in the right knee, causing increased pain and instability of the right knee, as well as right Achilles tendonitis. In a June 2007 letter, the Veteran's private physician, S.C.D., M.D. reported that the Veteran had increasing disability and/or increasing inability to walk due to pain and instability in his right lower extremity, specifically the right knee. The physician stated that, due to the Veteran's injury to the left lower extremity, the Veteran had overcompensated with the use of his right lower extremity, which had led to a 2003 rupture of his Achilles tendon. He also reported the Veteran had progressive osteoarthritis in the right knee with laxity of his collateral ligaments and an unstable knee. S.C.D., M.D., noted that the Veteran's VA treatment providers had provided him a customized support brace for his right knee. He further stated that the Veteran was unable to ambulate without a cane and/or crutches and additionally required a wheelchair to aid in his mobility. In an August 2007 VA examination, the Veteran reported that he had pain in the right hip, which at its worst was at an eight out of 10 in severity. He also complained of right hip stiffness, instability, giving out, pain, weakness, fatigability and a lack of endurance. The Veteran reported he would need to shift his weight to the left hip due to pain and some weakness. Flare-ups were reported with increased activity. Pain with flare-ups was rated as an eight to nine out of 10 in severity, which occurred several times a week and lasted for a couple of hours until he rested. Assistive devices included crutches, right knee brace, cane and wheelchair, depending on the amount of activity during the day. A physical examination of the right hip revealed painful, limited motion, and the range of motion and joint function was additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use with two to three repetitions. The Veteran was diagnosed with right hip sprain/strain related to his status post left below-knee amputation. In a September 2007 statement, the Veteran's wife reported that he had experienced a significant decrease in mobility over the past several years due to the disabilities affecting his right hip, right knee, and right Achilles tendon and ankle, noting that he usually had to remove his prosthesis and brace and use a wheelchair to get around. She further stated that activities such as getting into or out of a tub or shower were limited and asserted that he had become dependent on her for assistance. In a subsequent December 2008 statement, the Veteran's spouse reported that the Veteran had decreased functionality due to the pain from his right knee, right hip and spine. She stated that he required assistance for simple daily activities. She noted that, although he sometimes was able to use a walker, cane and crutches, she had to help him with showers, baths and, at most times, getting into and out of vehicles. Furthermore, his right leg symptoms increasingly required him to use a wheelchair for ambulation. At a March 2009 VA examination, the Veteran reported experiencing right hip, right knee and right ankle pain. He and his wife reported he was very unstable and noted two recent falls that year. He stated his right knee gave way while standing and walking with his prosthesis or crutches. The Veteran reported requiring a wheelchair most of the time, specifically for covering distances more than 30 feet. Additional assistive devices consisted of a left below-knee amputation prosthesis, crutches, cane, right knee metal hinged brace, scooter, and walker. He reported having a wheelchair ramp in his house, however, his house had not yet been retrofitted with handicapped bars and safety devices to allow for safer gripping and transfers when in the bathroom or going up or down stairs. As a result of his right lower extremity conditions, the Veteran reported significant impairments including dependence with activities of daily living requiring assistance with bathing, moving onto and off of the toilet, dressing, ambulating and positioning. Regarding his right Achilles tendon, the Veteran reported having no pain with sitting, however, if he stood or walked for greater than 10 minutes, he developed a sharp burning pain that was a six out of 10 in severity. He also reported having right ankle joint stiffness, weakness and fatigability, instability, and increased pain on weight bearing. The only significant alleviating factor was rest. With respect to the right knee patellofemoral syndrome, the Veteran reported having no significant pain when not weight bearing, however, after standing or walking for two or three minutes, he developed pain which was a nine out of 10 in severity. Pain was described as burning pain at the distal portion of the mid-patella. The Veteran reported having right knee joint weakness, stiffness, giving way, fatigability, lack of endurance, and increased pain on weight bearing. Regarding the right hip, the Veteran reported having right hip pain with weight bearing that was at an eight out of 10 in severity. Pain was relieved after 10 minutes of sitting. He reported having a feeling of right hip weakness with stiffness, instability, fatigability, lack of endurance, and increased pain on weight. Following a physical examination of the Veteran, the VA examiner diagnosed right hip greater trochanteric bursitis, right knee patellofemoral syndrome and right ankle joint degenerative joint disease. He also noted the Veteran was status post right Achilles tendon rupture repair. The examiner found the combination of the right greater trochanteric bursitis, right patellofemoral syndrome, right ankle degenerative joint disease and right Achilles tendon condition, collectively resulted in moderate to severe degrees of impairment of the right lower extremity with instability with standing and walking and a very poor ability to transfer his body weight through the use of the right lower extremity. The examiner stated that, during such body transfers, using the right lower extremity, the Veteran had a very significant reduction in the use of the right lower extremity combined as a result of pain, fatigue, weakness, lack of endurance, and incoordination resulting in very poor stability. Additionally, the Veteran was incapable of repetitively transferring himself based on these limitations. The examiner found that, as a result of the right lower extremity impairment, the Veteran was not independent with activities of daily living, including bathing and toileting, walking and standing. The examiner also found that, based on a recent history of two falls over the past two months, the Veteran had a significant risk for future falling. In a June 2012 video conference hearing, the Veteran testified that his right knee symptoms included locking and collapsing, which occurred periodically. He also reported problems with falling due to his right knee having given out on him, which occurred several times a week. The Veteran testified that he had fallen in the shower and had to go to the emergency room for treatment. He required a knee brace, and used a wheelchair, crutches and a cane. His car was also specially adapted. He reported right knee symptoms including pain and swelling, limited flexion and extension, and instability. He reported having gone to physical therapy for the right knee and using cortisone injections for the right knee. With respect to the right hip, the Veteran testified that his right hip had impaired mobility of his hip joint, limitation of motion, and limitations with bending, stretching, and sitting for any period of time. He further stated his right hip also exhibited frequent clicking in the joint and swelling. Regarding the right Achilles tendon, the Veteran testified that he experienced severe pain, at an eight to nine out of 10 in severity, which traveled from his heel up his calf. He stated he had difficulty pushing off his foot and the weight bearing strained his Achilles area, causing pain. The Veteran testified that he had a popping, snapping sound in the heel whenever he extended his foot too far. With respect to his claim for loss of use of the right leg, the Veteran reported that his disabilities combined to render him incapable of completing many activities of daily living without his wife's assistance, and further noted that he was unable to walk any distance, as he was limited by his right leg symptoms. In a July 2012 letter, the Veteran's private physician, S.C.D., M.D., reported that due to the stressors on the Veteran's right lower extremity he had developed serious osteoarthritis in the right hip, patellofemoral syndrome of the right knee and a ruptured Achilles tendon. S.C.D., M.D. also noted the Veteran had degenerative disc disease of the lumbar spine with sciatica and peripheral neuropathy. The Veteran's treating physician opined that these disabilities impaired the Veteran's ability to function in a reasonably normal fashion. He found the Veteran needed a suitable prosthetic device for his right lower extremity to decrease pain and suffering and increase functionality. Physical examination of the Veteran in April 2015 reflected diagnoses of ruptured right Achilles tendon, status post repair, of moderate severity, productive of weakened movement and limitation of motion; right knee patellofemoral syndrome productive of limited motion and "significant" instability; severe osteoarthritis of the right hip, productive of limited flexion, extension, and abduction of the right hip, as well as constant pain, including on weight bearing; and right lower extremity neuropathy classified as "mild" incomplete paralysis of the sciatic nerve. The VA examiner additionally noted that, as a result of the manifestations of his right lower extremity disabilities, the Veteran required "regular" use of a wheelchair, crutches, and a cane, although his "capacity to move around [his] home or outside is mostly accomplished with his motorized wheelchair." When he was able to stand and walk, his gait was slow and antalgic. Furthermore, the Veteran necessitated the installation of an electric chairlift in his home. The VA examiner characterized the manifestations of the Veteran's right lower extremity disabilities as "resulting [in] moderate/severe functional loss." In sum, the aforementioned medical and lay evidence establishes that the Veteran's right lower extremity disabilities are productive constant, severe right lower extremity pain, painful limited motion of his right hip, knee, and ankle, impaired gait, and balance problems. These symptoms require the use of assistive devices for ambulation, including crutches, walkers, chair lifts, braces, and canes, and have resulted in the Veteran's confinement to a wheelchair "most of the time," including any time he leaves the house. Furthermore, as a result of his balance and propulsion difficulties, the Veteran requires assistance with activities of daily living, including "bathing and toileting, walking, and standing." Although the September 2015 VA examiner found that the Veteran's service connected disabilities did not have such a severe effect, either individually or in combination, equivalent to loss of use of the right lower extremity, the Board finds that, at the least, the evidence for and against the claims is in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected right lower extremity radiculopathy, right hip arthritis, right knee patellofemoral syndrome, and residuals of a ruptured right Achilles tendon resulted in symptoms and functional limitations equivalent to loss of use of the right leg. Furthermore, given the evidence of record reflecting symptoms affecting the entire right lower extremity, so from the hip to the foot, the Board finds that the Veteran's right lower extremity disability picture more closely approximates the criteria for loss of use of his right leg at a level, or with complications, preventing natural knee action with prosthesis in place. See 38 C.F.R. § 3.350(c)(1)(ii), (c)(2). This is the highest level available absent anatomical, or actual, loss of the lower extremity at the hip. See 38 C.F.R. § 3.350(d)(2) (describing SMC based on "anatomical loss" of the lower extremities "so near the hip as to prevent use of a prosthetic appliance"). As noted, the Veteran has been in receipt of SMC at the "k" rate based on anatomical loss of the left foot for the entire appellate period. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). However, considering the decision herein establishing his entitlement to SMC based on loss of use of his right leg at a level, or with complications, preventing natural knee action with prosthesis in place, the Board finds that, for the entire appellate period, entitlement to SMC at the higher intermediate rate between 38 U.S.C. 1114(l) and (m) is warranted. See 38 U.S.C.A. § 1114(l), (m); 38 C.F.R. § 3.350(f)(1)(i) ("Anatomical loss or loss of use of one foot with anatomical loss or loss of use of one leg at a level, or with complications preventing natural knee action with prosthesis in place shall entitle to the rate between 38 U.S.C. 1114(l) and (m)."). ORDER Entitlement to special monthly compensation at the rate between 38 U.S.C. 1114(l) and (m) based on anatomical loss of the left foot with loss of use of the right leg at a level, or with complications preventing natural knee action with prosthesis in place, is granted for the entire appellate period, subject to the law governing payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs