Citation Nr: 1622623 Decision Date: 06/06/16 Archive Date: 06/21/16 DOCKET NO. 15-42 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date prior to June 30, 2015, for the payment of special monthly compensation (SMC) at the "R-1 rate" (pursuant to 38 U.S.C.A. § 1114(r)(1)). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Daughter, and Dr. Craig N. Bash ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1960 to May 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2015 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC). Jurisdiction over the Veteran's claims-file resides with the VA Regional Office (RO) in Los Angeles, California. In May 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The June 2015 RO rating decision included a determination updating and revising the details of the Veteran's SMC entitlement in connection with the Board's May 2015 grant (on previous appeal by the Veteran) of service connection for lung cancer and for diabetes mellitus; the June 2015 RO rating decision also implemented the Board's grants of service connection for diabetes mellitus and for lung cancer. In August 2015, the Veteran filed a notice of disagreement seeking higher rates of SMC and seeking earlier effective dates for the awards. A September 2015 RO rating decision further revised the Veteran's SMC entitlements, including the following determination: "Based on the evidence from the VA treatment records we have decided to grant the R-1 level of special monthly compensation due to loss of use of both lower extremities from the peripheral neuropathy as a result of diabetes mellitus type II." The September 2015 RO rating decision established service connection for "Loss of use, bilateral feet" effective from June 30, 2015; the RO's award of SMC at the R-1 rate based upon that loss of use of the bilateral feet was made effective from the same date. A September 2015 statement of the case (SOC) addressed the issues raised by the Veteran's notice of disagreement: (1) "Entitlement to an earlier effective date (earlier than September 27, 2007) for service connected disabilities," and (2) "Entitlement to a higher level of special monthly compensation to include SMC at the R-1 level." The Veteran's timely November 2015 substantive appeal on VA Form 9 expressly limited the appeal, stating: "I AM ONLY APPEALING THESE ISSUES: earlier effective date to be Sept 27, 2007." The awards of service connection for the Veteran's diabetes and lung cancer have both already been assigned an effective date of September 27, 2007; accordingly, the VA Form 9 did not perfect any appeal concerning the effective date of those awards (as the Veteran is already in receipt of the effective date sought) and those effective dates are not before the Board for review at this time. The November 2015 VA Form 9 does not otherwise perfect any appeal for a different or a higher rating of SMC, it is expressly limited to seeking an "earlier effective date." The November 2015 VA Form 9 thus limits the appeal to seeking an earlier effective date for the award of SMC. The contents on the Veteran's submission of the November 2015 do not entirely clarify his contentions, but the accompanying supporting letters make multiple references concerning entitlement to SMC at the R-1 rate from September 27, 2007. The Veteran's presentation at the May 2016 Board hearing further clarified that his contention is that he is entitled to SMC at the R-1 rate prior to June 30, 2015 because he had loss of use of his lower extremities (upon which the RO's award of the R-1 rate was based) prior to that date. The Veteran's representative confirmed this characterization of the scope of the appeal on the record during the May 2016 Board hearing and again in written correspondence submitted later the same month. The Board briefly notes that a number of statements submitted by the Veteran's medical consultant (Dr. Bash) have alleged clear and unmistakable error (CUE) in prior VA decisions. Some of these statements, including in November 2015, make reference to challenging the effective dates for SMC rates and awards (other than the R-1 rate) that were not part of the determination from which the effective date issue now on appeal arises. To the extent that these contentions implicate the effective dates assigned in determinations that are not currently on appeal before the Board, the Board shall not address them in this decision. The Board further notes that Dr. Bash is not the Veteran's duly appointed and accredited representative in this case, and does not have the authority to raise new claims on the Veteran's behalf without a statement from the Veteran or his duly appointed accredited representative raising those claims. The Veteran and his duly appointed and accredited representative shall have the opportunity to file new claims for consideration at the RO if they so wish. (The Veteran is advised that any claim of CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom, Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). Specifically, when attempting to raise a claim of CUE, a claimant must identify a particular rating decision and describe the alleged error in fact or law with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. See Fugo v. Brown, 6 Vet. App. 40, 43-4 (1993).) During the May 2016 Board hearing, the undersigned advised the Veteran of his right to request that this appeal be advanced on the Board's docket, and granted the Veteran's request for such an advance on the record, and then also granted the Veteran's request for case to be held in abeyance 60 days for the submission of additional evidence. Later in May 2016, the Veteran's representative submitted additional evidence with a letter stating: "Due to receipt of this additional evidence, the veteran has no further evidence to submit and request[s] that the remaining portion of his extension be closed; allowing BVA to render their decision including the additional evidence." The Board also notes that discussion at the May 2016 Board hearing established agreement that the scope of the issue currently in appellate status before the Board is entitlement to an effective date prior to June 30, 2015, for the payment of SMC at the R-1 rate. Following the hearing (on the same day), the Veteran's medical consultant (Dr. Bash) submitted correspondence that requests that the Board furthermore award a higher R2 rate of SMC. The Board again notes that Dr. Bash is not the Veteran's duly appointed and accredited representative in this case. The Veteran's duly appointed and accredited representative from The American Legion subsequently submitted a May 2016 letter that addressed Dr. Bash's request and made clear that it is not the request of the Veteran and that the Veteran does not believe consideration of entitlement to an R2 rate of SMC is a claim on appeal: "Included in Dr. Bash's statement are references to SMC R-2. Because the issue that is currently on appeal (earlier effective date prior to June 30, 2015) AND as discussed during the hearing for the same issue, we request that [the Board] pay close attention to the statements only concerning SMC R-1 earlier effective date [emphasis in original]." The Veteran's representative went on to explain that "[t]he veteran will follow proper procedure and submit a claim shortly referencing SMC R-2 with supporting evidence." The Veteran's representative, including in a May 2016 signed statement, has clearly expressed that the Veteran desires to waive Agency of Original Jurisdiction (AOJ) review of the new evidence recently submitted to the Board in this case. The Veteran has not requested AOJ consideration of any submitted evidence not already reviewed by the AOJ in this case. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, § 501, Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (amending 38 U.S.C.A. § 7105 by adding new paragraph (e) and providing that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration). The Board briefly observes that in May 2015 the Board issued a decision in a different appeal from this Veteran that granted service connection for diabetes and for lung cancer, while remanding the issue of service connection for hearing loss to the AOJ. Notably, an August 2015 RO rating decision granted service connection for hearing loss, a complete grant of that claim on appeal that fully resolved the matter. That issue is therefore no longer in appellate status and is not before the Board at this time. 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). FINDING OF FACT It is not factually ascertainable that the Veteran had loss of use of both lower extremities prior to June 30, 2015. CONCLUSION OF LAW The criteria for an effective date earlier than June 30, 2015, for the assignment of SMC under 38 U.S.C.A. § 1114 (r)(1), are not met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.350(a)(2)(i), 3.400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regarding the issue of entitlement to an earlier effective date for the award of SMC at the R-1 rate, the June 2015 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award together with a further assignment of SMC; a September 2015 rating decision revised the SMC assignment. In light of the nature of the June and September 2015 rating decisions, statutory notice has served its purpose, and additional notice is not required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that an RO official or VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. The testimony and argument elicited at the hearing before the undersigned in May 2016 focused on the elements necessary to substantiate the claim on appeal, and the hearing included direct discussion contemplating additional evidence and development that may assist the Veteran in supporting his claim. The hearing transcript reflects that the Veteran is aware of what remains necessary to substantiate his claim. A deficiency in the conduct of the hearing is not alleged. As was explained above, the Veteran was afforded ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). All evidence relevant to the claim being decided has been secured. Notably, determinations regarding effective dates of awards are based essentially on what is already in the record, and when it was received, and generally further development of the record is not necessary. The type of evidence or information that might help support the Veteran's claim was identified and discussed during the May 2016 Board hearing, and the Veteran has stated (through his representative) that he has submitted all of the evidence he seeks to bring to the Board's attention. The Board finds that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with VA's duty to assist. He has not identified any pertinent evidence that is outstanding. Legal Criteria, Factual Background, and Analysis SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350 and 3.352. The rate of SMC varies according to the nature of the veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C.A. § 1114(k). Additional levels and provisions of SMC are provided at 38 U.S.C.A. § 1114(l), (m), (n), (o), (p), (r), (s), and (t). One additional allowance that may be payable to a Veteran in need of regular aid and attendance is specified in 38 U.S.C.A. § 1114(r)(1), the "R-1 rate." This additional allowance is payable if the Veteran is entitled to compensation under 38 U.S.C.A. § 1114(o); or is entitled to the maximum rate authorized under 38 C.F.R. § 1114 (p); or is entitled to compensation at the intermediate rate authorized between the rates authorized under subsections (n) and (o) of 38 U.S.C.A. § 1114, and at the rate authorized under subsection (k). 38 U.S.C.A. § 1114(r)(1). The effective date for an award of compensation based on aid and attendance and housebound benefits, except as provided in 38 C.F.R. § 3.400(o)(2), is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.401. However, when an award of compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.401. In seeking the assignment of an effective date prior to June 30, 2015 for the award of SMC at the R-1 rate; the Veteran has indicated (including in a November 2015 Form 9) that he desires assignment of September 27, 2007 as the effective date for this award. The Board notes that September 27, 2007 is the earliest effective date assigned for any service-connected disability and the earliest effective date assigned for any rate of SMC in this case. The June 2015 RO rating decision on appeal included an award of SMC (at the S-1 rate) effective from September 27, 2007. A September 2015 RO rating decision awarded service connection for loss of use of both feet and SMC at the R-1 rate during the pendency of the Veteran's appeal concerning effective date and SMC assignments (as addressed in the September 2015 SOC prior to the Veteran limiting the scope of the appeal in the November 2015 VA Form 9 substantive appeal). Accordingly, the Board finds it appropriate to consider assignment of an effective date for the award of SMC at the R-1 rate from any date upon which it is factually ascertainable that the basis of the award of SMC at the R-1 rate (the loss of use of both feet) existed during the period from September 27, 2007 (the earliest effective date of any established service connection or SMC entitlement in this case) to June 30, 2015 (the effective date currently assigned for the award of SMC at the R-1 rate). (The Board notes, in passing, that the Veteran does not contend, and the record does not reflect, that a formal or informal claim for SMC was received prior to September 27, 2007.) The September 2015 RO rating decision that awarded SMC at the R-1 rate explained that this was an award of "the R-1 level of special monthly compensation due to loss of use of both lower extremities from the peripheral neuropathy as a result of diabetes mellitus type II." The Board notes that service connection is in effect for type-II diabetes mellitus effective from March 18, 2008; service connection for loss of use of both feet associated with diabetes and related peripheral neuropathy is in effect from June 30, 2015. The September 2015 RO rating decision indicates that the award of SMC at the R-1 level followed the award of SMC at the P-2 level based on "the fact that [the Veteran has] additional 100 percent service connected evaluations to warrant a higher level of special monthly compensation." The associated codesheet explains that the P-2 rate was found warranted on the basis of "several SC conditions rated at 100 percent including aphonia," and later lists various disabilities "independently ratable at 100 percent from 4/14/2014." The RO also noted that SMC at the L-1 rate was awarded "on account of loss of use of both feet from 6/30/2015." The codesheet of the September 2015 rating decision explains that SMC at the R-1 rate was awarded "on account of entitlement under subsection (o) and being in need of regular aid and attendance from 6/30/2015." "Subsection (o)," or 38 U.S.C.A. § 1114(o), contemplates that the Veteran has suffered disability under conditions which would entitle him to two or more of the rates provided in one or more subsections (l) through (n), with no condition being considered twice in the determination (or that the Veteran has service-connected deafness and blindness meeting certain rating thresholds or anatomical loss of both arms). Subsections (l), (m), and (n) generally involve combinations of deafness, blindness, and loss of use of upper and/or lower extremities. The Board notes that the criteria for the various SMC provisions that may serve as predicate foundations for SMC at the R-1 rate generally involve combinations of deafness, blindness, and loss of use of upper and/or lower extremities. See 38 U.S.C.A. § 1114(n), (o), (p). In this regard, the Veteran's contentions in this case have exclusively raised contentions concerning his loss of use of the lower extremities, and loss of use of the lower extremities was cited by the RO (in the September 2015 rating decision) as the essential basis for the award of SMC at the R-1 rate effective from June 30, 2015. The Veteran's service connected eye disability (bilateral diabetic retinopathy, cataract, and glaucoma) is rated 20 percent and his service connected hearing loss is rated 0 percent since September 27, 2007. The Veteran has not argued that his vision or hearing loss are more disabling than the currently assigned ratings reflect, nor has he alleged that his vision and hearing loss otherwise meet the criteria for the award of SMC at the R-1 rate prior to June 30, 2015. The Veteran has also not raised any argument to suggest that his service-connected peripheral neuropathy of either upper extremity (service connected and rated 10 percent in each arm from June 23, 2015) has otherwise manifested in loss of use of an upper extremity in combination with other applicable factors so as to warrant an award of SMC at the R-1 rate prior to June 30, 2015. As discussed during the May 2016 Board hearing, the Veteran's contentions specifically feature the assertion that his loss of use of the bilateral feet or lower extremities was factually ascertainable prior to June 30, 2015; the Board's analysis shall focus upon that theory of entitlement. The basis upon which SMC at the R-1 rate has been awarded by the RO features a finding that the Veteran, due to his service-connected disabilities, has "loss of use of both feet from 06/30/2015." This finding appears to arise from a June 30, 2015 letter written by the Veteran's VA nurse practitioner describing "lower extremity weakness requiring supervision and assistance at all times," involving "unsteady gait" and "multiple falls." The Veteran and his representative specifically argue that the Veteran's service-connected disabilities resulted in the loss of use of both feet or lower extremities prior to June 30, 2015, with a specific contention that September 27, 2007 (as asserted on the November 2015 VA Form 9 substantive appeal) would be the appropriate effective date for assignment. The Veteran and his representative have not raised any other theory of entitlement to an effective date prior to June 30, 2015, for SMC at the R-1 rate in this case. Accordingly, the Board shall consider and address the Veteran's contentions in this case with focus upon the essential question of whether the Veteran is shown to have lost the use of both feet or lower extremities as of September 27, 2007 or any subsequent date prior to June 30, 2015. Neither the Board's review of the record nor the arguments presented by the Veteran and his representative have identified another theory of entitlement to an earlier effective date for the award of SMC at the R-1 level. For VA SMC entitlement purposes, 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board may not make its own independent medical determinations; the Board must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. During the May 2016 Board hearing, the Veteran's daughter testified that she has "been taking care of [the Veteran] since 2006 [] due to all of his issues, all the way down to when he started using a wheelchair in April of 2006." The Veteran's daughter described the Veteran's severe level of disability requiring "24-hour care since 2006." The Veteran's daughter cited a letter from Dr. Chonkich that discusses the Veteran "being in the wheelchair since 2007." During the May 2016 Board hearing, the Veteran was accompanied Dr. Craig Bash. Dr. Bash presented a statement discussing that "the Loma Linda records when [the Veteran] had his aspiration, there's a lot of records there ... it talks about he had a stroke and he's unable to walk." Dr. Bash states: "So in my opinion, that 2013 time period is very strongly supportive of loss of use." Dr. Bash asserts that the records associated with the Veteran's recovery from his June 2013 stroke provide "the point where you can document loss of use." He further directs attention to an "examination by Dr. Vu, a VA doctor in [April] 2014 who also documents that he was dizzy -- got dizzy, poor balance and had falls. So that's another point where the VA documents that he had loss of function of []his feet." At this point, the Board notes that the evidence of record documents that the Veteran has experienced symptoms of dizziness and poor balance (with occasional falls) during at least some of the period for consideration in this case. The Board certainly recognizes that impairments such as dizziness and poor balance impact the effectiveness of the Veteran's ability to ambulate. However, the Board is unable to conclude that the described dizziness and poor balance, in and of themselves, constitute loss of use of either or both feet or lower extremities or otherwise demonstrate loss of use of both feet or both lower extremities in the manner contemplated by the applicable regulatory definition. As discussed in more detail below, the Board finds that the contemporaneous medical evidence of record repeatedly shows that the Veteran used his feet and lower extremities in ambulating generally effectively throughout the period prior to June 30, 2015 (including from 2013 to 2015, sometimes with the assistance of a walker or cane). Neither Dr. Bash nor the Veteran have asserted that the contemporaneous medical treatment reports showing that the Veteran was "ambulatory" throughout the pertinent period are erroneous or otherwise incorrect. No evidence of record shows that the remaining function of both feet or lower extremities would have been accomplished equally well by amputation stumps with prostheses prior to June 30, 2015. No evidence of record shows lower extremity impairment during the pertinent period comparable to extremely unfavorable complete ankylosis of both knees, complete ankylosis of two major joints of both lower extremities, or shortening of both lower extremities by 3 1/2 inches or more, nor complete paralysis of the external popliteal nerve (and consequent footdrop) in both lower extremities. See 38 C.F.R. § 3.350(a)(2)(i). (The examples presented in the regulation are not an exhaustive list of impairment that may be considered "loss of use" of both feet or lower extremities, but in the absence of a showing of impairment of comparable severity contemplated by the regulatory definition of "loss of use" for SMC purposes, the Board is unable to find that the Veteran met the criteria for a finding of such "loss of use" during the pertinent period.) During the May 2016 Board hearing, the undersigned suggested development of the evidence that may help the Veteran demonstrate entitlement to the benefit sought on appeal, specifically: "what we have to establish is when the peripheral neuropathy amounted to loss of use ... of each lower extremity.... [W]e'll be looking at those records, but it would help if you point us to some specific ones to look at because it is a big record." Dr. Bash replied: "I will go do that for you if I can find it.... I need the full C-file, 5,000 pages." In a subsequent May 2016 letter, Dr. Bash indicated that he had reviewed the "5000 pages' records concerning his peripheral neuropathy ... as it related to his retroactive SMC R-1." He stated that "[t]he patient has long standing lower extremity peripheral neuropathy and the following are important record locations in the 5000-page file: ...." The presented list of six items is (1) the entire set of records "1998-2016" from "Dr. Chonkich and Loma Linda," as discussed during the Board hearing; (2) the documentation of the purchase of a wheelchair for the Veteran in 2006, as discussed during the Board hearing; (3) "2013 June VA records concerning aspiraton which supports LOSS OF USE OF BOTH FEET ... due to peripheral neuropathy and anoxia due to aspiration," as discussed at the Board hearing; (4) "2014 April VAE Dr. Vu" with attention to "incontinent of bladder ... dizziness ... poor balance and falls...," which Dr. Bash describes as "supports LOSS OF USE OF BOTH FEET ... peripheral neuropathy and anoxia due to aspiration," as discussed at the Board hearing; (5) "2016 3 May ... hearing testimony;" and (6) another reference to a set of records from Dr. Chonkich (particularly, records described as having been recently "re-creat[ed]"), without identification of any specific reports of significance. With regard to the reported "re-creation" of records, Dr. Bash explains that "some of the Loma Linda records have been destroyed from storage," but there is no indication of record (nor any evidence presented by Dr. Bash) that pertinent records of the Veteran's treatment by Dr. Chonkich in the VA Loma Linda healthcare system have been destroyed as described. Regarding Items 1 and 6 from the list, no specific record is identified by Dr. Bash as showing loss of use of both lower extremities at a particular pertinent time. The Board shall discuss its own careful review of the medical records below. Regarding Item 2 from the list, it is factually established (as was discussed during the Board hearing) that a wheelchair was purchased for the Veteran's use in 2006. The Board considers this fact to be established and has considered it in analyzing the significance of the other evidence of record in this case. However, the Board does not find the fact that a wheelchair was purchased for the Veteran's use to be sufficient to demonstrate that he had lost the use of both lower extremities as contemplated by the applicable regulatory definition (the Board observes that the Veteran had documented difficulties with symptoms such as dizziness that affected his ability to ambulate without resulting in the loss of use of both lower extremities). Regarding Item 3 from the list, the Veteran's receipt of treatment for aspiration with anoxia is factually established. No specific record from this treatment has been identified by Dr. Bash as showing loss of use of both lower extremities as contemplated by the applicable regulatory definition. The Board shall discuss its own careful review of those records below. Regarding Item 4 from the list, the identified 2014 VA examination report by Dr. Vu is cited by Dr. Bash (as discussed during the Board hearing) for its description of incontinence, dizziness, poor balance, and falls. The Board considers the presence of each of these symptoms to be factually established and shall consider the information in analyzing the significance of the other evidence of record in this case. However, the Board does not find the fact that the Veteran experienced incontinence, dizziness, poor balance, and falls to be sufficient evidence to demonstrate that he lost the use of both lower extremities as contemplated by the applicable regulatory definition. Item 5 from the list merely refers to the May 2016 Board hearing transcript without otherwise identifying evidence showing loss of use of both lower extremities at any pertinent time. The May 2016 Board hearing includes the lay testimony of the Veteran and his daughter together with the statements of Dr. Bash (including as repeated in his written correspondence) discussed and considered in this decision. Regarding Item 6 from the list, the May 2016 letter from Dr. Bash is accompanied by a May 2016 letter from Dr. Chonkich, which appears to constitute the "re-creation" of records described by Dr. Bash. The May 2016 letter from Dr. Chonkich presents a medical summary and opinion regarding the author's treatment of the Veteran. The letter states, in pertinent part, that the Veteran "has been under my care at the Loma Linda VA Hospital for the past 15 years," cites his service-connected disabilities, notes the need for insulin for his diabetes, and describes that "[i]n 2007 he began to experience unsteadiness while walkin[g]." Dr. Chonkich's letter further explains that medications and the progression of diabetes "has resulted in peripheral neuropathy and balance problems," and that "[t]his has resulted in the loss of normal use of his lower extremities and the need for a wheelchair for the past 9 years." This medical evidence from Dr. Chonkich, citing long-term and direct involvement in the evaluation and treatment of the Veteran's health, is probative and the Board considers it to be significant. The Board has considered this letter together with the medical treatment reports of record from Dr. Chonkich and other physicians. However, the Board notes that Dr. Chonkich describes "unsteadiness" and "balance problems" together with the peripheral neuropathy of the lower extremities such that loss of use of both feet or lower extremities (meeting the applicable regulatory definition for VA SMC purposes) is not clearly indicated. The description of "loss of normal use of his lower extremities and the need for a wheelchair for the past 9 years" [emphasis added] indicates abnormal function, or some functional deficit, of the lower extremities without clearly indicating that he lost the use of both lower extremities in the manner contemplated by the applicable regulatory definition at any identified time. Additionally, the 2016 reference to "the need for a wheelchair for the past 9 years," when read together with the Veteran's contemporaneous medical records (discussed in more detail below) showing him to be ambulatory, sometimes with the assistance of a cane or walker but generally without indication of a need for a wheelchair, does not clearly indicate loss of use of both feet or lower extremities meeting the applicable regulatory definition for VA SMC purposes. The Board notes that Dr. Chonkich submitted a similar letter in April 2016 that discussed the Veteran's "peripheral neuropathy and balance problems" and states that the Veteran "has had to use a wheelchair for the past 8 years as a result of the progression of his multiple service connected diseases." Again, the Board has carefully considered this competent medical evidence. However, again, the Board finds that reading this statement together with the Veteran's contemporaneous medical records (discussed in more detail below) showing him to be ambulatory, sometimes with the assistance of a cane or walker but generally without indication of a need for a wheelchair, does not clearly indicate loss of use of both feet or lower extremities meeting the applicable regulatory definition for VA SMC purposes. Additionally, the April 2016 letter refers to peripheral neuropathy as part of a constellation of "multiple service connected diseases" resulting in the Veteran becoming "unsteady" with "balance problems." This description appears to reflect, in part, unsteadiness from dizziness as described in Dr. Bash's statements rather than loss of use of the lower extremities meeting the particular applicable regulatory definition for VA SMC purposes. The Board finds that Dr. Chonkich's statements, especially when read together with the contemporaneous medical evidence, do not indicate that the Veteran had no remaining effective function of the feet or lower extremities 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, such as through the examples featuring complete ankylosis, complete paralysis, shortening the leg, etc). See 38 C.F.R. § 3.350(a)(2)(i). The Board has carefully, thoroughly, and sympathetically reviewed the complete contents of the claims-file in an attempt to identify any date prior to June 30, 2015 upon which it is shown that the Veteran had lost the use of both lower extremities. Unfortunately, the Board is unable to find that loss of use of both lower extremities (meeting the applicable regulatory definition) is shown on any date prior to June 30, 2015. Initially, the Board notes that the medical evidence of record does not indicate that the Veteran had loss of use of both lower extremities prior to the sought effective date of September 27, 2007. The Board observes, for instance, that a May 2005 VA hospitalization discharge summary shows that the Veteran was "Fully Ambulatory [emphasis added]" at the time. The Board's review of the medical records found no indication of loss of use of either or both lower extremities in any medical evidence from records of treatment or evaluation in 2006, 2007, 2008, 2009, 2010, 2011, or 2012. A September 2010 VA medical record discusses the Veteran's health and examination findings, pertinently commenting: "He walks normally [emphasis added]." An October 2010 VA medical record includes a diabetic foot examination report that shows abnormal findings for both feet including sensory deficits, but not loss of use of both lower extremities or feet as contemplated by the applicable regulatory definition; a VA nursing note from the same day specifically notes that the Veteran was "ambulatory", and the report indicates that he presented without the use of a walker, cane, or wheelchair. VA medical reports from February 2013 show that the Veteran was still "Ambulatory," although with indications that he ambulated "with assistance." An April 2013 VA medical report shows that the Veteran was noted to be "Fully Ambulatory." Another April 2013 VA medical report describes the Veteran observed to be "ambulating well in room, gait steady." May 2013 VA medical reports show that the Veteran "Ambulates self." During his VA hospitalization around this time, the Veteran was noted to have "non-skid socks on while ambulating." Although he was assessed as requiring attention for a risk of falling and his gait was characterized as "weak," he did not require an ambulatory aid ("Ambulatory Aid (used during walking): None/Bedrest/Nurse Assist/Wheelchair = 0"). The Veteran was elsewhere noted to be "ambulatory to the bathroom" during this time. He was also noted to have "some dizziness with ambulation." At one point he suffered a fall when he lost consciousness while walking (notably, not attributed to a failure of function in his feet or legs). June 2013 records documenting the Veteran's rehabilitation treatment note that the Veteran was chair bound following his stroke and his rehabilitation included "Gait Training." The reports associated with the rehabilitation program indicate that the reason for referral was "due to exacerbation of increased need for assistance from others, reduced ability to ambulate, decrease in strength, reduced static and dynamic balance and reduced functional activity balance...." This was described as a recent development, and the "Prior Level of Function" was described as follows: "He was independent with ADLs, IADLs, and even drove.... He ambulated independently without AD [assistive device]." Clinical impressions included "decreased LE strength, impaired standing balance...." A physical therapy report indicates that the "Abnormality of gait" had "onset" in June 2013. Other June 2013 medical reports from the rehabilitation center describe treatment of diabetic ulceration and abrasions on the feet. The Board finds that the June 2013 records show that the Veteran had not lost the use of his feet or lower extremities prior to June 2013. Further, although they show that the Veteran has developed greater impairment in June 2013, such impairment did not include loss of use of both feet or lower extremities as contemplated by the applicable regulatory definition. Reports from the Veteran's rehabilitation facility in late June 2013 and early July 2013 describe events involving descriptions of the Veteran standing and ambulating effectively (including notation of the Veteran "wandering" around the facility at night, "standing at the doorway," "wandering and getting up unassisted," and "walking" around). Upon discharge, the Veteran was advised to use an "[a]ssistive device for safe functional mobility," but was not noted to have lost the use of both feet or lower extremities as contemplated by the applicable regulatory definition. VA medical records from 2014 include reports describing the Veteran as "Ambulatory" (including in March 2014 and April 2014), with a May 2014 VA report specifying that he "ambulates to clinic without the use of walking aids." A July 2014 VA medical report describes the Veteran as "Fully Ambulatory." He was again described as "Ambulatory," "Fully Ambulatory," and was observed to be "ambulating with no noted distress" in VA medical reports from September 2014. An October 2014 VA medical report shows that the Veteran was at that time ambulatory with the assistance of a walker and with the assistance of a cane; the checkbox to indicate the use of a wheelchair was not marked. Another October 2014 VA medical report describes the Veteran as "Ambulatory." Notably, another October 2014 VA medical report shows that the Veteran had a "sore L knee after a fall when he stood on a bucket[;] relieved with ice, can ambulate fine now." VA medical reports from December 2014 describe that the Veteran was "Ambulatory," "ambulatory with cane," "ambulating w/ cane or walker." Another December 2014 VA medical report shows that the Veteran had "abn[ormal] gait, abn[ormal] stance and ambulation, favors right leg per daughter[;] he has cane & walker at home." The Board finds that the descriptions of the Veteran's ambulating capacity reflect that, albeit somewhat and progressively impaired, the Veteran had not yet lost the use of both feet or lower extremities as contemplated by the applicable regulatory definition. A January 2015 VA medical report describes the Veteran as "ambulatory with cane." VA medical reports from March 2015 describe the Veteran as "Fully Ambulatory," "[a]mbulating independently around the unit w/o assist," "ambulatory with cane," "ambulatory with cane and walker," and "[a]mbulatory with assist." Significantly, one March 2015 VA medical report shows "Muscle strength 5/5 in all 4 extremities. Sensation are grossly intact, ambulates without assistance to bathroom with steady gate." Again, the Board finds that the descriptions of the Veteran's ambulating capacity reflect progressive impairment, but do not show the loss of use of both feet or lower extremities as contemplated by the applicable regulatory definition. The evidence clearly shows that the Veteran experienced impairment of his walking ability prior to the June 30, 2015 effective date for SMC at the R-1 rate; however, the Board finds that the contemporaneous medical evidence throughout the period prior to June 30, 2015 clearly documents that he had not lost the use of both lower extremities as contemplated by the applicable regulatory definition. The Board finds that the medical documentation discussed above shows that the Veteran was generally fully ambulatory prior to June 2013, and was still generally able to ambulate effectively (even if increasingly over time utilizing a walker or cane) during the period from June 2013 to June 30, 2015. The Veteran retained medically reported fully normal muscle strength of both lower extremities as recently as in March 2015. A January 2015 submission from Dr. Bash describes that the Veteran "has poor motor control due to brain stroke from anoxia. He uses a wheelchair.... He is Dizzy often." The letter is accompanied by a written statement from the Veteran's daughter that states: "he now requires the assistance of a walker, cane and sometimes a wheelchair." Reading these statements together, it is clear that the Veteran's referenced use of a wheelchair occurred "sometimes." Again, the Board is unable to conclude that the described episodic dizziness with use of a wheelchair "sometimes" during this period reflects "loss of use" of both feet or lower extremities as defined by the applicable regulatory definition for VA SMC purposes. The medical evidence does show that in June 2013 the Veteran underwent rehabilitation following a decline in his functional level, but even during this rehabilitation he was noted to be standing and walking, only sometimes with assistance. Following the June 2013 rehabilitation, the Veteran was again repeatedly noted to be ambulatory. Even as the Veteran was increasingly noted to use the assistance of a walker or cane, none of the evidence in 2013, 2014, or prior to June 30, 2015 shows the loss of use of both lower extremities as contemplated by the applicable regulatory definition. The Board recognizes that testimony presented by Dr. Bash, the Veteran's medical consultant, has presented his medical opinion that the Veteran had loss of use of both lower extremities at any factually ascertainable date prior to June 30, 2015. During the May 2016 Board hearing, consistent with some of his written statements, Dr. Bash (1) asserted that an April 2014 VA examination report showing the Veteran experienced dizziness, poor balance, and falls demonstrated loss of use of both feet, (2) asserted that June 2013 records associated with the Veteran's stroke reflect loss of use of both feet, and (3) suggested that the Veteran's documented acquisition of a wheelchair in 2006 was due to loss of use of both feet. Regarding the first point, the Board finds that the cited April 2014 VA examination report does not include any clear indication of loss of use of the lower extremities. The April 2014 VA examination report documents impairments such as "forgetful, dizzy quite often," "poor balance and frequent falls per daughter," "dizzy often," "occasional ... incontinence, dizz[i]ness, memory loss." It also shows that the Veteran was able to walk 1 block in distance with the assistance of a "cane/walker" (not a wheelchair). The Board does not identify amongst these impairments a loss of use of both feet as contemplated by the applicable regulatory definition. The Board recognizes the significant difficulty posed by these impairments regarding the Veteran's ability to get around effectively and safely, but is unable to conclude that such impairments are of a nature that represents loss of use of the feet or lower extremities as contemplated by 38 C.F.R. § 3.350(a)(2)(i). Furthermore, the Board notes that the numerous 2014 medical treatment reports discussed above repeatedly show that the Veteran was medically observed to be ambulatory. Similarly, regarding the second point, the Board has thoroughly and sympathetically reviewed the Veteran's medical records from 2013, including the records referenced by Dr. Bash, and finds that the evidence simply does not reflect loss of use of both feet or lower extremities (as contemplated by the applicable regulatory definition) when the evidence throughout the period repeatedly notes that the Veteran was medically observed to be ambulatory with the use of the feet and without indications of the type of impairment contemplated by 38 C.F.R. § 3.350(a)(2)(i). Again, regarding the third point, and acknowledging that the Veteran came into possession of a wheelchair in 2006, the Board is unable to find that the Veteran lost the use of both feet or lower extremities when the contemporaneous medical evidence from the period from 2007 to June 30, 2015 repeatedly documents that he was ambulatory, often unaided and, when assisted, assisted with no more than a walker or cane. The Board must reconcile the conflict between contemporaneous medical reports repeatedly showing the Veteran to be "ambulatory" (sometimes with the assistance of a walker or cane) and Dr. Bash's recent assertions that the Veteran had lost the use of both feet and/or lower extremities. The Board finds that contemporaneous documentation of the Veteran being medically observed to be "ambulatory" is probative and persuasive evidence that he was ambulatory at the pertinent times. The critical question then is essentially reduced to whether or not the then-ambulatory Veteran's difficulties with dizziness and balance problems in 2013 (or any time in the period prior to June 30, 2015) constitute the loss of use of both feet or lower extremities for VA SMC purposes. Significantly, Dr. Bash has not explained how the Veteran's dizziness and balance problems prior to June 30, 2015 might be medically considered a loss of function of both beet or lower extremities such that their remaining function would have been accomplished equally well by an amputation stump with prosthesis, nor has Dr. Bash explained how lower extremity impairment during the pertinent period was comparable to extremely unfavorable complete ankylosis of both knees, complete ankylosis of two major joints of both lower extremities, or shortening of both lower extremities by 3 1/2 inches or more, or complete paralysis of the external popliteal nerve (with consequent footdrop) in both lower extremities. See 38 C.F.R. § 3.350(a)(2)(i). Dr. Bash's reference to documentation showing that the Veteran experienced difficulties with dizziness and loss of balance from the time of the cited 2013 records references evidence that the Veteran experienced difficulties with dizziness and loss of balance around the time of those records. However, the Board is unable to conclude that the evidence shows that the dizziness and balance difficulties constituted "loss of use" of both feet or lower extremities under the applicable regulatory definition for VA SMC purposes prior to June 30, 2015. It is not clear whether Dr. Bash's assertion contemplates the particular definition of "loss of use" applicable in this case. If Dr. Bash's medical opinion regarding the loss of use of both feet or lower extremities was based upon a definition of "loss of use" other than the definition for VA SMC purposes provided by 38 C.F.R. § 3.350(a)(2)(i), then the opinion does not establish a basis of entitlement to an earlier effective date for SMC at the R-1 rate. Even if the Board infers that that Dr. Bash was implicitly referencing the applicable regulation definition of "loss of use" for VA SMC purposes, the opinion is unpersuasive in the absence of any rationale or explanation explaining how the Veteran's impairment met the definition of "loss of use" of both feet or lower extremities during a period when he was shown by contemporaneous medical evidence to be ambulatory and without any suggestion of impairments of the nature and severity of complete ankylosis of pertinent joints or complete paralysis of a pertinent nerve of either foot or lower extremity. Dr. Bash has not indicated that his medical opinion is informed by involvement in directly treating or evaluating the Veteran's feet or lower extremity functionality during a pertinent period. The Board finds that Dr. Bash is clearly competent to provide a medical opinion, as he is a trained medical professional, but the Board finds greater probative value in the accounts of the Veteran's history of lower extremity function shown by contemporaneous competent medical evidence from various medical professionals who were directly examining and treating the Veteran during the pertinent period on appeal. The Veteran's contemporaneous medical treatment records repeatedly describe him as ambulatory to an extent reflecting that he had not lost the use of both lower extremities in the manner contemplated by the applicable regulatory definition; the repeated notations of the Veteran being ambulatory are based upon direct examination and interview of the Veteran and his caregivers at the pertinent times. The Board finds these contemporaneous assessments by medical professionals to be more probative than Dr. Bash's current assertion that the Veteran had lost the use of both feet or lower extremities, in the manner contemplated by 38 C.F.R. § 3.350(a)(2)(i), at times when he was medically documented to be ambulatory with the use of this feet and lower extremities. The Board has also considered the testimony of the Veteran's daughter, including during the May 2016 Board hearing, describing the Veteran's longstanding requirement for significant aid and attendance from her and others due to various disabilities. The Veteran's longstanding need for significant aid and attendance in caring for his medical needs is clearly established and is not in dispute in this case. The Board's determination in this case is merely that the basis for the rise in the Veteran's SMC award to the R-1 rate effective June 30, 2015 was not shown prior to that date because he is not shown to have had loss of use of both feet or lower extremities (under the regulatory definition of "loss of use" governing VA SMC determinations) at any factually ascertainable time prior to June 30, 2015. To the extent that the Veteran's daughter's testimony at the May 2016 Board hearing refers to his "being in the wheelchair since 2007," the Board notes that this statement is clarified by reading the daughter's earlier written statement in January 2015 (discussed above) that "he now requires the assistance of a walker, cane and sometimes a wheelchair [emphasis added]." This statement, thus clarified, is essentially consistent with the contemporaneous medical documentation of record showing that the Veteran was usually ambulatory without a wheelchair, though sometimes using a cane or walker, such that he was not experiencing loss of use of both feet or lower extremities meeting the applicable regulatory definition prior to June 30, 2015. The Board emphasizes that it is clear that the Veteran has been severely disabled by numerous service-connected disabilities, and the Board sympathizes with the Veteran and his family with regard to his illness and his need for aid and attendance to manage his service-connected impairments. The Board is simply unable to conclude, based upon the evidence of record, that the basis for the award of SMC at the R-1 rate (loss of use of both feet / lower extremities) was present at any factually ascertainable date prior to June 30, 2015. As the preponderance of the evidence is against the Veteran's claim, the claim for an effective date prior to June 30, 2015 for the award of SMC at the R-1 rate must be denied. The Board briefly notes that the Veteran's service connected eye disability (bilateral diabetic retinopathy, cataract, and glaucoma) is rated 20 percent and his service connected hearing loss is rated 0 percent since September 27, 2007. He has not argued that his vision or hearing loss are more disabling than the currently assigned ratings reflect, nor has he suggested that his vision and hearing loss otherwise meet the criteria for the award of SMC at the R-1 rate prior to June 30, 2015. The Veteran has also not raised any argument to suggest that his service-connected peripheral neuropathy of either upper extremity (service connected and rated 10 percent from June 23, 2015) has otherwise manifested in loss of use of an upper extremity in combination with other applicable factors to warrant an award of SMC at the R-1 rate prior to June 30, 2015. The only suggestion of any basis for finding that the criteria for SMC at the R-1 rate were met prior to June 30, 2015 is the Veteran's argument that the loss of use of both lower extremities (established from June 30, 2015 as the basis for the award of SMC at the R-1 rate) was present well prior to June 30, 2015. As discussed above, the Board finds that the most probative evidence, featuring numerous contemporaneous medical reports describing the Veteran's ability to ambulate with use of his lower extremities throughout the years for consideration prior to June 30, 2015, shows that he had not lost the use of both lower extremities at any factually ascertainable time prior to June 30, 2015. Neither the Veteran nor the Board's own review of the record has identified evidence showing that loss of use of both lower extremities was factually ascertainable date prior to June 30, 2015. It is not factually ascertainable that entitlement to SMC at the R-1 rate arose prior to June 30, 2015. Thus, an effective date earlier than June 30, 2015, is not warranted. ORDER An effective date prior to June 30, 2015 for the award of SMC at the R-1 rate is denied. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs