Citation Nr: 1815147 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 07-06 510A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to special monthly compensation (SMC) for loss of use of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1988. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2006 rating decision in which the RO denied entitlement to SMC based on loss of use of the right foot. Later that same month, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2007. The RO issued a supplemental SOC (SSOC) in April 2009. As regards the matter addressed herein, the Veteran offered testimony during the June 2011 hearing before the undersigned, and during the October 2014 hearing before another Veterans Law Judge (VLJ). Transcripts of both hearings are of record. In December 2011, May 2013, March 2015, and August 2017, the Board remanded this matter for further action, to include additional development of the evidence. After accomplishing further action, the AOJ continued to deny the claim (as reflected, most recently, in a December 2017 SSOC) and returned this matter to the Board for further appellate consideration. In a separate September 2017 decision, the Board denied service connection for diabetes mellitus, compensation under 38 U.S.C. § 1151 for right foot disability, and a rating in excess of 20 percent for left wrist carpal tunnel syndrome. As noted in the August 2017 remand, a claimant is entitled to a final decision of his claim made by the VLJ who conducted the hearing on appeal. See 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). The Board points out that because two different VLJs held separate hearings on the SMC claim, this matter was previously handled (and remanded) by a panel of three judges. Notably, after the second hearing on this issue, the Veteran waived his right to appear at yet another hearing before the third member of the panel in October 2014. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, as the VLJ who held the second, October 2014 hearing on the SMC issue has retired, single judge disposition of the SMC claim, by the undersigned, is now appropriate. While he Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA (Legacy Content Manager) claims processing systems. All records have been reviewed. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Competent, probative evidence weighs against a finding that service-connected right foot disability results in no effective function other than that which would be equally well served by an amputation stump at the site of election below the with use of a suitable prosthetic appliance. CONCLUSION OF LAW The criteria for SMC for loss of use of the right foot are not met. 38 U.S.C. §§ 1114, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b)). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The record reflects that, with regard to the claim for SMC for loss of use of the right foot herein decided, the RO provided the Veteran with the requisite notice in March 2006, prior to the initial August 2006 rating decision. Therefore, the Board finds that VA's duty to notify the Veteran has been satisfied. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of VA treatment records, private evaluation reports, and VA examination reports dated April 2006 and March 2016. Also of record and considered in connection with the claims are the transcripts of the Board's June 2011 and October 2014 hearings, and well as various written statements by the Veteran and his representative. As for the Veteran's June 2011 and October 2014 Board hearings, during the hearings, the presiding VLJs identified the issues on appeal, to include the claim herein decided. See 2011 and 2014 Hearing Transcripts (Tr,.) at p. 2. Also, relevant information as elicited regarding the claim for SMC due to loss of use of the right foot. Although neither presiding VLJs explicitly suggested the submission of any specific, additional evidence, on these facts, such omission was not prejudicial to the Veteran, inasmuch as, following the hearing, the claim was remanded for additional development on multiple occasions, as a result of which additional evidence was subsequently added to the record. The hearings were legally sufficient. See 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). This Board remanded this claim in December 2011, May 2013, March 2015, and August 2017. Pursuant to the Board's December 2011 remand, records from the Newington VA Medical Center (VAMC) dated from March 2009 forward were obtained and associated with the claims file. Pursuant to the May 2013 remand, treatment records from the VA Pacific Islands Health Care System, as well as records dated after August 2012 from the VA Connecticut Healthcare System, were obtained and associated with the claims file. Also, pursuant to the March 2015 remand, adjudication of the SMC claim was deferred pending resolution of the claim for compensation under 38 U.S.C. § 1151 for right foot disability, as the Board concluded that claim and the SMC claim were inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Finally, pursuant to the August 2017 remand, the SMC claim was readjudicated in a December 2017 SSOC. Under these circumstances, the Board finds that the AOJ has substantially complied with the prior remand directives with respect to the claim herein decided, to the extent possible, and that no further action in this regard is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). Significantly, moreover, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any existing, pertinent evidence, that has not been obtained. The record also otherwise presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. The Board also notes that while the Board found the instant SMC claim and the claim for claim for compensation under 38 U.S.C. § 1151 for right foot disability were inextricably intertwined, the Board may proceed to a decision on the SMC claim as the claim for compensation under 38 U.S.C. § 1151 for right foot disability was denied in a September 2017 Board decision, as discussed above. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. As such, the Veteran is not prejudiced by the Board proceeding to decision on these claims, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. SMC analysis The Veteran seeks SMC based upon loss of use of his right foot. His only service connected right lower extremity disability is bilateral flat feet, splay feet with fifth metatarsal callus, rated 50 percent disabling. SMC is payable at a specified rate if a veteran, as the result of service-connected disability, has suffered the loss of use of a foot. See 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350(a)(2), 4.63. 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 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 footdrop, 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 United States Court of Appeals for Veterans Claims (Court) has stated that "[t]he relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant 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 responsibility for determining loss of use lies with the adjudicator and not the examining physician. Tucker v. West, 11 Vet. App. 369, 373 (1998) (citing 38 C.F.R. §§ 3.350(a)(2), 4.63). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, as noted above, the Board has previously found that the instant claim for SMC was inextricably intertwined with the claim for compensation under 38 U.S.C. § 1151 for right foot disability due to March 2005 callus shaving procedure. See Harris, supra (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). As that claim was denied by the Board in September 2017 and is no longer pending, the Board may now proceed to adjudicate the claim for SMC. Regarding the sole service-connected disability of the right foot, flat foot (part of the service-connected bilateral flat feet), the Veteran was afforded a VA examination in April 2006. The Veteran reported significant limping and trouble walking up stairs. He also reported shooting pain in the right foot. The examiner noted that there were no right foot callouses, no pes planus and flexion was to 45 degrees, while dorsiflexion was to 20 degrees. There was no further limitation of motion on repetitive-use testing. During the June 2011 Board hearing, the Veteran related his right foot problems to the March 2005 callus shaving procedure performed at the VA Medical Center (VAMC). He testified that he was cut during that procedure and has experienced profuse bleeding and pain. He further testified that he has continued to experience excruciating pain since that time. During the October 2014 Board hearing, the Veteran testified that since the March 2005 procedure he has been unable to propel off the right foot and is also unable to put any weight on the right foot. The Veteran stated that he also experiences problems with balance. The Veteran explained that he was informed that he could undergo a nerve block to help alleviate pain, but he has decided against such. On VA examination in March 2016, the diagnosis of flat feet was confirmed. The Veteran reported constant right foot pain, which he described as excruciating. The Veteran reported wearing special shoes and orthotics. Physical examination revealed accentuated pain on use and manipulation. Tenderness of the plantar surface of the right foot was noted. The occasional use of a cane was noted. Pain on movement, weight-bearing and non weight-bearing was noted. There was disturbance of locomotion, interference with standing and sitting and lack of endurance. The examiner concluded that there was not functional impairment of the right lower extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis. VA treatment records generally note the same complaints that were raised at the VA examinations, namely pain in the right foot. The continued use of a cane and orthotic shoes are also noted. Initially, the Board notes that none of the situations delineated in 38 C.F.R. § 3.350(a)(2), which constitute loss of use of a foot, are present here. The Veteran does not experience 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 footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. However, as explained above, that list is not exhaustive and "[t]he relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant 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 Board acknowledges that the Veteran has experienced, and continues to experience, some functional loss of the right foot due to his service-connected flat feet. Indeed, it is readily apparent that he experiences substantial pain, difficulty ambulating, instability and difficulty putting weight on his right knee. However, the award of SMC for loss of use of the right foot requires that the Veteran effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. In this case, the evdence clearly indicates that the Veteran has maintained significant function of the right foot. Indeed, during at the April 2006 VA examination, the Veteran was able to fully flex his right foot and dorsiflexion of the right foot was to 20 degrees. Thus, he maintained the ability to move the foot. The April 2006 VA examiner noted that Veteran had trouble walking up stairs due to his flat fee; nonetheless, he was still able to do so and he was still able to walk, despite pain. Moreover, at the time of the March 2016 VA examination, the Veteran remained able to ambulate, albeit with the use of a cane and orthotic shoes. The Veteran's clinical presentation led the March 2016 VA examiner to conclude that that there was not functional impairment of the right lower extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis. The Board accepts the competent conclusions of the March 2016 VA examiner's opinion as probative evidence in the determination of whether the SMC criteria are met. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Indeed, that opinion was rendered following a comprehensive physical examination of the Veteran's foot. Further, the opinion is consistent with the other clinical evidence of record which, as discussed above, reveals that the Veteran continues to maintain function and movement in his right foot, despite the Veteran's complaints of constant pain. Indeed, as discussed above, the Veteran continues to use his right foot to ambulate and has maintained nearly full range of motion of the right foot. Given the examiner's clear opinion, which is consistent with, and supported by, the other clinical evidence of record, the Board concludes that competent, probative evidence weighs against the claim for SMC. The Board acknowledges the Veteran's complaints of constant pain due to his service-connected flat feet. He is certainly competent to attest to pain in his right foot. However, to the extent that he asserts that he experiences functional impairment of the right lower extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis, he is not competent to so attest, as that is a medical question beyond the knowledge of a layperson. See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As the Veteran is simply not shown to have such special knowledge, training, and experience, his assertions in this regard are not competent, and hence, not probative. As indicated, the opinion of the VA examiner is the only competent, probative opinion on this point, and that only weighs against the claim. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As the Veteran is simply not shown to have such special knowledge, training, and experience, his assertions in this regard are not competent, and hence, not probative. Under these circumstances, the Board finds that the claim for SMC based on the loss of use of the right foot must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER SMC for loss of use of the right foot is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs