Citation Nr: 1800952 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-34 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a special monthly compensation (SMC) based on the loss of use of both feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and son ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for a left below-the-knee amputation (BKA), evaluated as 40 percent disabling, and right lower extremity peripheral neuropathy, evaluated as 10 percent disabling. The Veteran filed timely notice of disagreements. In November 2008, the Veteran was awarded special monthly compensation (SMC) based on anatomical loss of one foot. In November 2015, the Veteran testified at a Travel Board hearing before the undersigned Veteran's Law Judge at the RO in St. Petersburg, Florida. A transcript of the hearing is associated with the claims file. In January 2016, the Board denied an initial disability rating in excess of 10 percent for right lower extremity peripheral neuropathy and granted an initial disability rating of 60 percent for left BKA. The Board did not address SMC. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2017 decision, the Court set aside the January 2016 Board decision to the extent that it failed to address a reasonably raised claim for a higher rate of SMC based on loss or loss of use of both feet and remanded the case for further development, if necessary, and adjudication consistent with its decision. The issue has returned to the Board. As discussed below, the issue of entitlement to special monthly compensation based on loss of use of both feet has been raised by the record during the course of appeal. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (holding that the Board must adjudicate claims for SMC that are reasonably raised by the record). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran is in receipt of SMC based on anatomical loss of one foot pursuant to 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a). The Veteran is service-connected for a left below-the-knee amputation (BKA) at 60 percent from April 1, 2008 and peripheral neuropathy of the right lower extremity at 10 percent from June 26, 2008. The Veteran contends that a higher rating for SMC is warranted under 38 U.S.C. § 1114(l) based on anatomical loss or loss of the use of both feet. The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.350(a)(2) as that condition where "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or 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 grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis." See also 38 C.F.R. § 4.63. Examples under 38 C.F.R. § 3.350(a)(2), which constitute 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 of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. These examples provided in the regulations are not an exhaustive list of manifestations of loss of use of a foot or hand. The medical record of evidence reflects that after his left BKA, the Veteran made very poor progress in physical therapy and the use of his left prosthesis because he reported stump pain. The Veteran's prosthesis was found appropriate and the clinician concluded that the Veteran needed to utilize socks throughout the day. See May 2010 VA treatment records. In late 2011, the Veteran was found to have poor monofilament sensation in the right foot and treated for a right diabetic foot ulcer, resulting in debridement and skin grafts. A May 2012 VA examination report reflects the Veteran used a wheelchair as his normal mode of transportation due to his right leg condition and his weight. However, the examiner found that the Veteran's diabetic peripheral neuropathy did not impact his ability to work, noting that the Veteran reported that his toes and legs felt like pins and needs with tingling sensation. In November 2015, the Veteran testified he had several surgeries for his right leg and heel and that doctors instructed him to not put weight on his right leg, resulting in him being wheelchair bound. He stated that because of this, he was not able to use his left leg prosthesis and that he only got out of his wheelchair to transfer to bed. Social Security Administration records reflect that although the Veteran had obtained a left leg prosthesis and was in gait training, right leg neuropathy factored into his residual functional capacity. The medical evidence of record raises the question of whether the Veteran's service-connected peripheral neuropathy is so disabling that "no effective function remains" in the right lower extremity such that "balance, propulsion, etc. . . . could be accomplished equally well by an amputation stump with prosthesis." 38 C.F.R. § 3.350(a)(2)(i). However, the Board finds that the medical evidence of record is insufficient to determine whether the Veteran's right lower extremity neuropathy is so disabling such that no effective function remains. Since the Veteran's last VA examination, it appears the Veteran's right leg disability may have worsened, and the severity of symptoms the Veteran is experiencing secondary to his diabetes, to include peripheral neuropathy, and the effects of said symptoms on the Veteran's ability to function are unclear. Furthermore, as the claim of entitlement to an increased rating for SMC has been inferred, no notice has been provided and development has not yet been conducted. In order to determine whether the Veteran is entitled to SMC based on loss or loss of use of both feet, the Veteran must be provided the proper notice and a VA medical examination. Any outstanding, pertinent VA outpatient treatment records and identified private treatment records should be obtained. The most recent VA outpatient treatment records on file are dated in March 2016. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA outpatient treatment records dated since March 2016 and any private treatment records identified by the Veteran. 2. Provide the Veteran with the required information under VA's duty to notify and assist for his claim of entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(l). Particularly, the Veteran must be notified of how to substantiate a claim for entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(l). 3. Provide the Veteran with a VA examination to address the nature and severity of the Veteran's right lower extremity peripheral neuropathy and any other symptoms secondary to his service-connected diabetes. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to whether the remaining function of the Veteran's lower right extremity due to peripheral neuropathy could be accomplished equally well by an amputation stump with prosthesis. If the Veteran experiences any other symptoms in his lower right extremity that are secondary to his service-connected diabetes, the examiner is asked to comment as to whether those symptoms also affect the remaining function of the Veteran's lower right extremity. For purposes of the opinion, the examiner is asked to provide the following: (a) A detailed, objective description of the remaining function of the Veteran's lower right extremity. (b) A quantitative assessment of strength. (c) A description of any pain that affects use. Functions that may be considered include whether there is lack of balance; lack of propulsion; the inability to ambulate; the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion; complete foot drop; weakness; muscle atrophy and use; the ability of a foot to support the Veteran's weight. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).