Citation Nr: 1718530 Decision Date: 05/25/17 Archive Date: 06/05/17 DOCKET NO. 15-42 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. 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)). 2. Entitlement to an effective date prior to June 30, 2015, for the payment of SMC at the "R-2 rate" (pursuant to 38 U.S.C.A. § 1114(r)(2)). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Daughter, and Dr. Craig N. Bash ATTORNEY FOR THE BOARD William Skowronski, Associate 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 remand from the U.S. Court of Appeals for Veterans Claims (Court). A September 2016 Court Order remanded the matter for compliance with instructions in a September 2016 Joint Motion for Remand (JMR) by the parties. The matter was initially before the Board on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Appeals Management Office (formerly the Appeals Management Center). An interim (September 2015) rating decision granted SMC at the R-1 rate, effective June 30, 2015. The claims file is in the jurisdiction of the Los Angeles, California VA Regional Office (RO). In May 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. A June 2016 Board decision denied entitlement to an effective date prior to June 30, 2015, for the payment of SMC at the "R-1 rate." The Veteran appealed the matter to the Court, resulting in the Joint Motion. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND On review of the Joint Motion and the since-expanded record, the Board finds that further development of medical evidence and AOJ adjudicatory action are necessary before the claims on appeal may be properly readjudicated. A July 2016 rating decision granted the Veteran SMC at the increased R-2 rate, effective June 30, 2015. He filed a notice of disagreement with the effective date assigned by the July 2016 decision in August 2016. The RO has not issued a statement of the case (SOC) in the matter. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when such occurs, the Board must remand the case for issuance of an SOC. The Veteran is advised that this matter is not fully before the Board at this time, and will be so only if he timely files a substantive appeal after a SOC is issued. The Veteran contends he is entitled to SMC at the R-1 rate due to loss of use of both feet or lower extremities from September 27, 2007. In the September 2016 JMR, the parties stated the Board failed to consider whether the Veteran's reported lower extremity pain (including as noted in January 2014, March 2014, and June 2015 VA treatment records) resulted in sufficient functional loss, so that remaining function could be accomplished equally well by an amputation stump with prosthesis. For VA SMC entitlement purposes, loss of use of a foot will is held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of 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 and 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. Id. In written opinions and testimony presented to the Board, the Veteran's private medical consultant, Dr. Bash, asserted the medical evidence demonstrated loss of use of both feet or both lower extremities years earlier than the current effective date of June 30, 2015 and at least as early as in June 2013. In April 2016 and May 2016 letters, the Veteran's VA treatment provider noted that the Veteran had peripheral neuropathy of the lower extremities and balance problems and had required the use of a wheelchair for the last 8 or 9 years as a result of the progression of his service-connected disabilities. Neither physician addressed whether lower extremity pain caused functional loss. Notably, contemporaneous evidence, including VA and private treatment records from throughout the period under consideration, suggests the Veteran was in fact ambulatory, at times with the assistance of a walker or cane. Accordingly, the Board finds the medical evidence is inadequate to adjudicate whether the Veteran had "loss of use" of both feet and/or lower extremities (as defined by regulation) prior to June 30, 2015. A remand for an advisory medical opinion that addresses the medical questions remaining (and resolves the apparent inconsistencies in the medical evidence currently of record) is necessary. The case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should review the record and issue an appropriate SOC addressing the claim seeking an effective date prior to June 30, 2015, for the payment of SMC at the R-2 rate. The Veteran and his representative must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have full jurisdiction in the matter, he must timely file a substantive appeal. If that occurs, these matters should also be returned to the Board. 2. Thereafter, the AOJ should arrange for the Veteran's record (including this remand) to be forwarded to an orthopedist for review and an advisory medical opinion. The examiner should also have available for review the 38 C.F.R. § 3.350(a)(2)(i) definition "loss of use" of both feet and/or lower extremities. Upon review of the record, the examiner should respond to the following: Is it at least as likely as not (a 50 % or better probability) that at any time from September 27, 2007 to June 30, 2015 the Veteran was shown to have "loss of use" of both lower extremities? If so, please identify the earliest point in time that "loss of use" of both legs was shown. The rationale for the response to this question should specifically address the effect of pain on lower extremity function, i.e., whether or not evidence in the record suggests that pain impacted on (limited) function to a degree consistent with loss of use (as defined). The examiner must explain the rationale for all opinions. The rationale must include comment on Dr. Bash's testimony and written opinions, the VA treatment provider's April 2016 and May 2016 opinions (and the reasoning provided therein), and contemporaneous evidence of record describing the Veteran as ambulatory. 3. The AOJ should then review the entire record, arrange for any further development indicated, and readjudicate the claim. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).