Citation Nr: 1801227 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 15-04 068A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for peripheral neuropathy of the left lower extremity. 2. Entitlement to an evaluation in excess of 30 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to a higher level of special monthly compensation (SMC) based on loss of use of bilateral lower extremities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from June 1976 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2017, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing. A copy of the hearing transcript has been associated with the record. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the bilateral lower extremities is manifested by bilateral foot drop. 2. The Veteran is service-connected for peripheral neuropathy of the bilateral lower extremities. 3. The Veteran has diminished function in his bilateral lower extremities, but the weight of the evidence does not support the conclusion that it is as likely as not that he would be equally well served by amputation and the use of a suitable prosthetic appliance. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability evaluation for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124; Diagnostic Code 8521 (2017). 2. The criteria for a 40 percent disability evaluation for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124; Diagnostic Code 8521 (2017). 3. The criteria for SMC for loss of use of the bilateral lower extremities have not been met. 38 U.S.C. § 1114 (k) (2012); 38 C.F.R. §§ 3.350 (a) (2), 4.63 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings for Peripheral Neuropathy of the Bilateral Lower Extremities Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's peripheral neuropathy of the left and right lower extremities is currently rated at 30 percent. The schedule of ratings for neurological conditions and convulsive disorders is covered by diagnostic code 8521, paralysis of the external popliteal nerve (common peroneal). See 38 C.F.R. § 4.124a, DC 8521 (2017). Under diagnostic code 8521, a 10 percent rating is assigned for mild incomplete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis, and a 30 rating evaluation is assigned for severe incomplete paralysis. Comparatively, a 40 percent rating is assigned for complete paralysis manifested by: foot drop and slight droop of the first phalanges of all toes, the inability to dorsiflex the foot, and lost extension (dorsal flexion) of proximal phalanges of toes; lost abduction of the foot, weakened adduction; anesthesia covering the entire dorsum of the foot and toes. See Id. Here, the Veteran contends that he is entitled to a higher, 40 percent rating for peripheral neuropathy of both his left and right lower extremities, respectively. He states that ever since the in-service helicopter crash which resulted in the injuries to his lower extremities physicians have consistently diagnosed him with drop foot in both legs and that he has been unable to lift his feet. See Hearing Transcript. The Veteran's most recent VA examination supports his contentions, indicating that he has bilateral foot drop. See October 2016 VA Examination. As such, the Board finds that a 40 percent evaluation per lower extremity is warranted for the Veteran's peripheral neuropathy. 40 percent is the highest rating under this Diagnostic Code. SMC The Veteran seeks entitlement to special monthly compensation based on the loss of use of his bilateral lower extremities. See 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350(a) (2) (2017). The loss of use of the foot is held to exist when no effective function (including balance, propulsion, etc.) remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis. 38 C.F.R. §§ 3.350(a) (2), 4.63 (2017). Examples constituting loss of use of a foot include extremely unfavorable 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. Id. For purposes of special monthly compensation, loss of use must be caused by service-connected disabilities. Also considered as loss of use of a foot under section 3.350(a)(2) is 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 this nerve. Under 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2017), complete paralysis of the external popliteal (common peroneal) nerve also encompasses foot drop and slight drop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. Examining the pertinent evidence in its entirety, the Board finds that the weight of the evidence fails to demonstrate that the Veteran experiences loss of use of his bilateral lower extremities. Although there is no question that the Veteran has significant problems with his lower extremities, as evidence by his assigned schedular disability ratings, the question the Board must address is whether the service-connected lower extremity disabilities are of such significance to cause "loss of use," a term that conveys a specific meaning for VA purposes. The Veteran experiences constant pain in his lower legs that requires medication. He reports that he cannot lift his feet and has to wear high top shoes constantly as he cannot walk barefooted because of a lack of balance. This symptomatology is caused by his service-connected peripheral neuropathy of the bilateral lower extremities. Despite the significance of his disability, he maintains the limited ability to ambulate as shown when he attended his VA Examination and Board hearing, which he walked into. The examiner at the Veteran's VA examination noted that the Veteran experienced mild intermittent pain and numbness, and decreased sensation in his bilateral lower extremities. While the Veteran's gait was abnormal due to bilateral foot drop, he could place weight on both feet. Further, no trophic changes or circulatory disturbances and other concomitants confirmatory of complete paralysis of the external popliteal nerve were noted. The examiner did not find that there was functional impairment of the Veteran's bilateral lower extremities such that no effective function remained other than that which would be equally well served by amputation with prosthesis. See October 2016 VA Examination. The Board assigns great weight to the October 2016 examiner's report, but notes that it is the Board's responsibility, not the examiner's to determine whether "loss of use" exists. Tucker v. West, 11 Vet. App. 369 (1998). In this case, the preponderance of the evidence demonstrates that the Veteran maintains effective function of the bilateral lower extremities, in that he can ambulate freely without the use of traditional assistive devices, such as a wheelchair, brace, crutch or cane. Medical evidence does not support a finding that the Veteran's ambulation would be equally well served by an amputation and prosthesis. The Board appreciates the Veteran's assertion that he has "lost the use" of his bilateral lower extremities, and has considered his reported symptomatology. While he is competent to report symptomatology, Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011), the determination of whether "loss of use" exists is a legal determination. Here, the Veteran's lay reports fail to demonstrate that he is unable to ambulate with his lower extremities. As such, the Board finds that the preponderance of the evidence demonstrates that the level of impairment does not rise to the level of "loss of use," and thus does not warrant special monthly compensation based on his disability of the bilateral lower extremities. ORDER Entitlement to an evaluation of 40 percent for peripheral neuropathy of the left lower extremity is granted. Entitlement to an evaluation of 40 percent for peripheral neuropathy of the right lower extremity is granted. Entitlement to a higher level of special monthly compensation (SMC) based on loss of use of bilateral lower extremities is denied. ____________________________________________ Bradley W. Hennings Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs