Citation Nr: 1745532 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 05-38 897A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a higher rate of special monthly compensation (SMC) on the basis of loss of use of the right lower extremity. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from July 1982 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claim was remanded for an issuance of the statement of the case in November 2015, and for evidentiary development in September 2016. The Board issued a decision on this appeal in January 2017; however, the Veteran had requested information under the Freedom of Information Act (FOIA) which had not been acted upon at that time. In July 2017, the Board vacated the January 2017 decision. The Veteran has now indicated that he has no further evidence to submit and that he wishes the claim to be adjudicated on the evidence of record. The U.S. Court of Appeals for Veterans Claims (Court), in a February 2017 decision, vacated the Board's February 2015 decision which determined there was no clear and unmistakable error (CUE) in May 1995 and March 2009 Board decisions. The matter was remanded to the Board; however, as the undersigned participated in the initial adjudication of the March 2009 Board decision, he cannot participate as the reviewing Veterans Law Judge (VLJ) in addressing CUE. The CUE issues will thus be addressed in a separate decision issued by another VLJ. 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). FINDING OF FACT The Veteran's right lower extremity disability picture, to include the service-connected right knee disability acting alone and with other aspects of the limb, include a functionality that is greater than what would be served with an amputation stump and associated prosthesis. CONCLUSION OF LAW The criteria for SMC based on loss of use of the right lower extremity have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is currently in receipt of SMC on the basis of a loss of use of his left lower extremity and, he contends, that a higher rate of SMC should be paid as due to the loss of use of the right lower extremity. Service-connected compensation benefits have been awarded for a right knee disability SMC may be paid when there is demonstrated loss of use of the foot. The term "loss of use of a hand or foot" is defined by VA regulation as existing 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 elbow or knee with the use of a suitable prosthetic appliance." 38 C.F.R. § 3.350 (a)(2)(i). The determination regarding loss of use will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or 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). 38 C.F.R. § 3.350 (a)(2)(i) provides examples of loss of use as follows: extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more. While not an exhaustive description, these examples are the type of injury/disease residual which will constitute loss of use of the hand or foot involved for the purposes of entitlement to adaptive automotive equipment. 38 C.F.R. § 3.350 (a)(2)(i)(a). 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 in this regard. 38 C.F.R. § 3.350 (a)(2)(i)(b). In Tucker v. West, 11 Vet. App. 369, 373 (1999), the U.S. Court of Appeals for Veterans Claims (Court) stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. 38 C.F.R. § 3.350 (a)(2) and 38 C.F.R. § 4.63 only provide examples and not an exclusive list of manifestations of loss of use of a foot or hand. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease or disability are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21 (2016) (application of rating schedule); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the specified factors for each incremental rating were examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme). In September 2016, the Board remanded the claim for a higher rate of SMC based on allegations of worsening in the right lower extremity disability picture as regards "difficulties with ambulation and stairs." It was contended that the operation of the service-connected right knee and the foot, as a unit, was so diminished as to constitute loss of use. The Veteran through counsel argued that "instability of station" was present so as to equate to a loss of use. The Veteran was offered VA foot, ankle and knee examinations in October 2016. In the associated report of examination for the knee, instability in the right knee joint was expressly found not present at the time of examination and there was no evidence of ankylosis. Lateral, anterior, posterior, and medial stability was tested and all found within normal limits. The examiner noted that recurrent patellar dislocation was not present, and that there was no meniscal symptomatology associated with the right knee. The Veteran was found to utilize crutches on an "as-needed" basis. The Veteran was not found to need a wheelchair, cane, walker, and the use of crutches was not constant. The examiner expressly noted that the operation of the Veteran's service-connected right knee, to include "lower leg conditions" which may occur with the movement of the right lower extremity as a unit, was not so severe so that an amputation stump with prosthesis would serve equally as well. In other words, functional use above and beyond that associated with an amputation stump and prosthesis still remained in the right lower extremity. Based on objective testing, function remained in the extremity so as to provide propulsion and the balance of weight (with ambulation assistance only needed on a sporadic basis). The Veteran's right ankle was examined in October 2016 and found within normal limits and pain-free, to include during weight-bearing. The right foot did not present with any pain during an examination done in the same month, and there was no noted limitation of movement or functional limitation associated with the right foot and ankle. The Veteran did report some ankle pain on the left side, and needed a brace for that foot on occasion; however, both lower extremities were found to retain functionality above and beyond that which would be associated with an amputation stump and prosthesis. In December 2015, during an earlier VA examination addressing knee symptomatology, there was some documented limitation of motion of the knee joint and after "deep palpation," crepitus was also found. However, range of motion testing did not produce additional limitation after repeated usage of the joint, and no functional loss was assessed. Weakness, fatigability, and incoordination were not assessed. The Veteran did have bilateral knee braces and sometimes utilized a cane for stability, and as with the later examination, he was expressly found to have a greater level of functionality in the right knee joint than what would be expected with an amputation stump and prosthesis. Unlike the Veteran's service-connected left knee, the evidence does not document an extensive surgical history or loss of use in the joint in the right lower extremity. The Veteran is able to ambulate most of the time, with a cane or set of crutches to assist occasionally, which, while not a completely normal level of functionality, is greater than what would be expected if there was an amputation stump and prosthesis. This level of functionality has been objectively described on several occasions, and the VA examination reports in 2015 and 2016, when taken together, fully consider a worsening in symptoms and overcompensation by the right knee joint which produces pain and tenderness. Nonetheless, these examination reports also document remaining functionality for the right lower extremity, to include considerations of the right knee working alone and in concert with the foot and ankle. Based on the above, the Board must conclude that loss of use of the right lower extremity does not exist in this case. While there may very well have been some "instability of station" as alleged, the only evidence supportive of a loss of use of the foot comes from the Veteran's lay assertions, which amount to descriptions of pain and some joint instability necessitating occasional usage of a cane or crutches. Indeed, the Veteran's private physician specifically discussed loss of use of the left lower extremity in a 2007 submission. However, even from this private doctor familiar with the overall musculoskeletal disability picture, there was no opinion offered with respect to loss of use of the right extremity (even though such an extremity is, undeniably, influenced in total functionality by the disability in the left leg). As a layperson, the Veteran may report symptoms, but he may not opine as to something as complex as loss of use (which requires an understanding of joint limitations associated with amputation (propulsion, weight-bearing, etc.)). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, lay testimony with respect to functionality is of a limited probative value on its own. Objective medical examinations, however, which show some restriction of ambulation on an as-needed basis (and fully consider the lay reports of pain and instability), and which, categorically, describe a functionality remaining in the right lower extremity higher than that of an amputation stump, are much more probative. Given this, the claim for a higher rate of SMC based on loss of use of the right lower extremity must be denied. VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107 (b) (West 2014); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a higher rate of special monthly compensation (SMC) on the basis of loss of use of the right lower extremity is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs