Citation Nr: 1603434 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 15-14 253A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only. 2. Entitlement to a higher rate of special monthly compensation, to include based on the need for aid and attendance. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service with the United States Navy from July 1957 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2013 and November 2014 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied entitlement to assistance regarding automobile and adaptive equipment or adaptive equipment only, as well as special monthly compensation based on the need for aid and attendance. The Veteran appealed the denials, and the matters are now before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Service-connected disabilities result in functional loss of use of both feet. 2. The Veteran's service-connected disabilities, by themselves, cause the need for aid and attendance. CONCLUSIONS OF LAW 1. The criteria for a certificate of eligibility for automobile or adaptive equipment have been met throughout the period on appeal. 38 U.S.C.A. §§ 3901, 3902, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.808 (2015). 2. The criteria for special monthly compensation at the SMC(l) rate have been met throughout the period on appeal. 38 U.S.C.A. §§ 1114(l), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352(a) (2015). 3. The criteria for two separate awards of special monthly compensation at the SMC(k) rate have been met throughout the period on appeal. 38 U.S.C.A. §§ 1114(k), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350, 3.352(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Automobile and Adaptive Equipment or for Adaptive Equipment Only Service connection has previously been established for coronary artery disease, bilateral arthroplasties, bilateral hearing loss, degenerative joint disease and degenerative disc disease, chronic Achilles tendonitis, left foot plantar fasciitis associated with chronic Achilles tendonitis, a right medial meniscus tear, tinnitus, radiculopathy of the right lower extremity, and traumatic arthritis of the right elbow. The Veteran asserts that, as a result of his service-connected disabilities, he has lost the use of his feet, and is therefore entitled to a grant either for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only. VA provides to "eligible persons" certain financial assistance to purchase an automobile or adaptive equipment. 38 U.S.C.A. § 3902 (West 2014) An "eligible person" - as defined by 38 U.S.C.A. § 3901 - includes any veteran entitled to compensation under Chapter 11 of Title 38 of the US Code for a disability that is the result of an injury incurred or disease contracted in or aggravated by military service (i.e., a service-connected disability) that involves the loss or permanent loss of use of one or both feet. 38 U.S.C.A. § 3901(1)(A)(i) (West 2014). See also 38 C.F.R. § 3.808(a)(1), (b)(1) (2015). The "loss of use" of a foot exists "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) (2015). In a May 2013 letter, the Veteran indicated that the brace he wears on his left foot restricts "all side movement and limits up and down movement." In addition, "bilateral metal knee braces are very restrictive, heavy and uncomfortable when sitting." Sitting with further uncomfortable due to stenosis of the back, and he reported that his crutches "present a problem when storing in vehicle." Treatment records from September and October 2012 show that the Veteran was issued foot, ankle, and leg orthotics, including "rigid supports" for both knees. In July 2013, the Veteran endorsed low back, and right buttock pain, along with a three week history of groin pain. On evaluation, it was noted that going from a standing to seated position was "uncontrolled" and he was "moderately nonfunctional" in his ability to effectively do so. There was excessive lumbar flexion, and "poor biomechanics for feet placement and momentum shift." On VA examination in January 2014, the Veteran reported being able to stand for 10 minutes, walk for one half blocks, and drive short distances. Limitation in function in the lower extremities included limitation of joint motion, and an antalgic, slow, hesitant gait requiring crutches. The examiner opined that the Veteran's "multiple, severe, skeletal abnormalities, require use of extensive walking/standing aids, and limit his mobility severely." During VA examination in December 2014, chronic pain in the ankles was described as a dull, nagging, aching sensation along the top of the left ankle and along the Achilles tendon. The Veteran wore an Arizona brace, and used crutches "to ensure gait stability." Functional losses related to the ankles prevented stair climbing due to the pain in the left ankle. Additionally, the Veteran was unable to walk farther than 100 yards, and could not stand for more than 10 minutes. A brace was used regularly, and crutches were in constant use for normal locomotion. The examiner reported that pain was "noted on examination and causes functional loss," though the examiner failed to describe the level or extent of such loss. The examiner affirmatively denied that the Veteran's ankle disabilities alone resulted in "functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis." At the same time, examination of the spine revealed that generalized muscular spasms throughout the lumbar spine region resulted in antalgic gait. Following a very detailed examination, the examiner opined that the Veteran had "functional loss for all but purely sedentary activity due to pain and radicular symptoms." On VA examination in March 2015, the Veteran was using recommended crutches to ensure gait stability, but was leaning more on his left lower extremity due to his service-connected lumbar radiculopathy in the right lower extremity, which was aggravating left ankle and foot pain. Regarding functional loss and impairments referable to the feet, the Veteran again reported that he was not able to claim stairs due to the pain in his left ankle and foot. He was also unable to walk more than 100 yards without stopping to rest, or stand for longer than 10 minutes due to the same pain. Both feet were fully examined, and it was determined that the Veteran's feet were not functionally impaired to the extent that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran is capable of describing the extent of his daily symptoms, including the limitations which result from his service-connected disabilities. Thus, his descriptions of symptoms including pain and a limited ability to walk, are admissible and have been considered appropriately. However, loss of use of the feet is expressly defined by VA regulation to exist only 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). Ascertaining whether the retained function of a lower extremity is limited to being "equally well served by an amputation stump" is a complex medical determination, and well beyond the Veteran's lay expertise. VA regulations go on to indicate that the determination of loss of use "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." Id. VA regulation also provides that "[c]omplete 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." The Board recognizes that the Veteran is limited in his mobility, and is largely dependent upon crutches and braces for locomotion. However, examiners have repeatedly opined that the level of functional impairment is not such that he would be equally served by amputation of both legs below the knee. To that end, both VA examinations and treatment records confirm some function remains in both feet and ankles, and the Veteran's limitations associated with walking and standing are predominantly related to the left foot and ankle. In support of his claim, the Veteran draws attention to his 2012 prescription for rigid supports for both knees. In examining and evaluating the Veteran in 2014 and 2015, VA examiners evidently disregarded the impact of service-connected low back, radiculopathy, and knee disabilities, and their opinions were focused entirely on the feet and ankles in isolation. In January 2014 the Veteran argued that his "need to use crutches does meet the threshold requirements for establishing loss of use of the foot," and noted that 38 C.F.R. § 3.809 (2015) defines "loss of use" as occurring when locomotion is precluded "without the aid of braces, crutches, canes, or a wheelchair." The Veteran correctly described this standard as "much less onerous and exacting than it is for special monthly compensation." However, the use of the definition of "loss of use" as it appears under 38 C.F.R. § 3.809 is limited in its application to defining a disability for the purposes of establishing entitlement to specially adapted housing under 38 U.S.C.A. § 2101(a)(2)(A)(i). 38 C.F.R. § 3.809. In a May 2015 letter, a private healthcare professional indicated that that the Veteran had "ongoing atrophy and disuse or loss of use and function of his lower extremities." Lower extremity symptoms were causing "progressive weakness, numbness and loss of function on his right lower extremity making it very difficult to ambulate without the aid of crutches and [ankle foot orthosis braces]." It was his opinion that the Veteran had "a loss of use of his right lower extremity in addition to his left." The Board finds this opinion to be a great probative value, especially given that the physician who provided the opinion was a specialist in treatment of the lower extremities, and had been following the Veteran for many years, and consideration of the totality of the Veteran's disability picture. The Board is left with confliction opinions regarding the Veteran's level of functionality of both lower extremities. Although the Board may appropriately favor the opinion of one competent medical authority over another, see Wensch v. Principi, 15 Vet. App. 362, 367 (2001), here the Board finds the evidence to be in equipoise. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Accordingly, resolving doubt in the Veteran's favor, the Board finds that the combined effects of service-connected disabilities have resulted in the equivalent of permanent loss of use of both feet. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran is therefore entitled to a grant either for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only, under 38 U.S.C.A. § 3902. SMC, Generally The Veteran maintains that he is entitled to a higher level of special monthly compensation (SMC), specifically as a result of loss of use of the lower extremities. Generally speaking, SMC provides for additional levels of compensation above the basic levels of compensation afforded by the schedular rating criteria in 38 C.F.R. Part 4. These additional levels of compensation are awarded for various types of losses or levels of impairment, due solely to service-connected disabilities, and for specific combinations of such impairments. The different types of SMC available are commonly referred to by their alphabetic designations, such as SMC(k), SMC(l), etc., which correspond to the paragraphs of 38 U.S.C.A. § 1114 which provides the statutory authority for SMC. These same paragraphs are codified in VA regulation predominantly at 38 C.F.R. § 3.350(a) - (i). As indicated previously, service connection has been established for coronary artery disease, bilateral arthroplasties, bilateral hearing loss, degenerative joint disease and degenerative disc disease, chronic Achilles tendonitis, left foot plantar fasciitis associated with chronic Achilles tendonitis, a right medial meniscus tear, tinnitus, radiculopathy of the right lower extremity, and traumatic arthritis of the right elbow. In addition to the schedular ratings assigned for the foregoing disabilities, he has also been awarded SMC under section (s). See 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015). In the decision on appeal the RO denied compensation based on Aid and Attendance (i.e., SMC(l)), and in both his January 2015 notice of disagreement and subsequent statements, the Veteran has argued that he is entitled to SMC(l), and in his May 2015 substantive appeal to the Board he specifically indicated that he is seeking benefits under SMC(l), SMC(m) +1/2, and SMC(k) rather than the current award of benefits under SMC(s). All veterans are presumed to be seeking the maximum benefit possible, AB v. Brown, 6 Vet. App. 35, 38 (1993), and as SMC entitlements are both factually and legally complex, the Board does not expect the Veteran to specify the exact nature and bounds of the benefit sought. Regardless of how he has asserted himself, the Board recognizes that the Veteran is seeking entitlement to a higher level of compensation, and has considered all possible entitlements. SMC(s), or "housebound," is awarded where a veteran has a single service-connected disability rated as 100 percent and, either (1) has additional service-connected disabilities independently ratable at 60 percent, or (2) is permanently housebound by reason of service-connected disabilities. 38 C.F.R. § 3.350(i) (2015). See 38 U.S.C.A. § 1114(s) (West 2014). As it relates to the Veteran, SMC(s) has been granted based on his service-connected coronary artery disease/ischemic heart disease which is rated as 100 percent disabling, and service-connected left knee arthroplasty which independently rated as 60 percent disabling - this is also known as "statutory housebound," because it is triggered by the combination of disabling evaluations as opposed to "housebound in fact" which contemplates a factual determination that a veteran is permanently housebound due to service-connected disabilities. The monetary benefit for each is the same. While the Board has considered all possible avenues for entitlement to a higher level of SMC, only four are discussed below. SMC(k) Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, or complete organic aphonia with constant inability to communicate by speech. As discussed in detail above, 38 C.F.R. § 3.350(a)(2) defines loss or loss of use of a foot to exist when its function would be no better than if the foot were amputated and replaced by a suitable prosthesis. Other factors that establish loss of use of a foot include extremely unfavorable complete ankylosis of the knee; complete ankylosis of two major joints of an extremity; shortening of the lower extremity three and one-half inches or more; or, complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes. 38 C.F.R. § 3.350(a)(2). The Board has found that the Veteran has functional loss of use of both feet, and thus is eligible for benefits under SMC(k) for each foot. SMC(l) SMC(l) is payable on anatomical loss or loss of use of both feet, OR loss of use of one hand AND one foot. Here again, because the Board has found that the Veteran has service-connected loss of use of both feet, entitlement to SMC(l) is established. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2015). The benefit is also warranted if, as the result of service-connected disability, a veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2015). The criteria for determining that a veteran is so helpless as to be in need of "regular aid and attendance" are contained in 38 C.F.R. § 3.352(a) (2014). Those criteria include: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). On examination in January 2014, the Veteran reported that during a typical day he wakes up, makes coffee, and watches TV. His wife makes his meals, does the shopping, and takes care of household chores. Generally, he watches TV in reclining position, and while he is able to enter his walk-in shower, he depends on his wife to help with wash his back and feet. Once a week, he attends an evening event at The American Legion. The examiner determined, however, that the Veteran was unable to self-feed, dress and undress, bathe, groom, and toilet without assistance. While the examiner did not specify which of the Veteran's eleven separate service-connected disabilities caused such limitations, or whether the limitations would be present but for one or more of the disabilities, the Board finds - based on extensive review of treatment records - that his service-connected disabilities in concert cause the need for regular aid and attendance. The Veteran thus meets three of the five criteria used in determining the need for "regular aid and attendance," and thus even if entitlement to SMC(l) were not warranted due to loss of use of both feet, entitlement would nonetheless be established due to such need based on limitations associated with service-connected degenerative joint disease and degenerative disc disease, right meniscus tear, and radiculopathy of the right lower extremity. SMC(m) SMC(m) provides a higher level of SMC based on certain combinations of disabilities or levels of impairment. 38 U.S.C.A. 1114(m); 38 C.F.R. § 3.350(c). SMC(m) is assigned for anatomical loss or loss of use of BOTH hands; for anatomical loss or loss of use of BOTH legs above the knee (or at a level that prevents natural knee action with a prosthetic in place); for anatomical loss or loss of use of one leg above the knee AND one arm above the elbow (at a level that prevents natural action of the joint with a prosthetic device); for blindness with light perception only bilaterally; or for blindness with 5/200 vision bilaterally and a need for A&A. The need for A&A must be based entirely on the blindness. 38 CFR §3.350(c)(1)(v). The Veteran is not service-connected for any hand or upper extremity disability or blindness. Thus, the only rout by which SMC(m) may be awarded is for the loss or loss of use of both legs above the knee. To that end, although there is evidence that the Veteran uses knee braces, there is no suggestion - to include from the Veteran himself - that he has lost use of both legs above the knee. Furthermore, while the need for A&A has been established, such need relates only limitations which do not involve blindness. Accordingly, entitlement to SMC(m) is not warranted. SMC(p) SMC(p) may be awarded - among other reasons - for the presence of additional disabilities, not involved in other SMC determinations, which are rated as 50 percent or 100 percent disabling. Such an award creates "entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114." 38 C.F.R. § 3.350(f)(3). Put another way, SMC(p) affords "a half-step" or "full step" increase in the level of compensation. The disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n). The only disabilities for which the Veteran is rated 50 percent or greater are coronary artery disease (rated as 100 percent disabling), left knee arthroplasty (rated as 60 percent disabling), and right knee arthroplasty (rated as 60 percent disabling). All three of the forgoing have already been considered in the award of various levels of SMC. Specifically, the award of SMC(s) is based on the 100 percent rating for coronary artery disease combined with the 60 percent rating for left knee arthroplasty, while limitations associated with the right knee arthroplasty (i.e., functional loss of use of the right foot), have been considered in the grant of SMC(k). In May 2015 the Veteran suggested that his hearing loss (rated as 40 percent disabling) and tinnitus (rated as 10 percent disabling) should be considered as a single disability evaluated as 50 percent. When considering additional 50 percent or 100 percent ratings for the purposes of SMC(p), the regulations specify that such evaluations are for "independent . . . disabilities" rather than combined evaluations. Given that VA regulations otherwise specify the use of combined evaluations in some cases, the regulatory text in this case clearly indicates that each disability is to be considered in isolation when evaluating whether additional compensation under SMC(p) is warranted. Based on the foregoing, benefits at the SMC(p) rate are not warranted. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A notice letter was sent to the Veteran in February 2015. The notice included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Although VA's duty to notify was satisfied subsequent to the initial adjudication of the issues on appeal, the issues was readjudicated, most recently, with the issuance of a supplemental statement of the case in May 2015, thus curing any timing defect. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The duty to assist was further satisfied by numerous relevant VA examinations including in January 2014, December 2014, and March 2015 over the course of which examiners conducted physical examinations of the Veteran, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2015); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claims and no further notice or assistance is required. ORDER Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment is granted. SMC benefits, pursuant to 38 U.S.C.A. § 1114(l) based on the need for aid and attendance, 38 U.S.C.A. § 1114(k) based on loss of use of the right foot, and 38 U.S.C.A. § 1114(k), based on loss of use of the left foot, are granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs