Citation Nr: 20004831 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 09-24 356 DATE: January 21, 2020 ORDER Special monthly compensation (SMC) on account of the loss of use of both lower extremities is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not demonstrate that the Veteran’s peripheral neuropathy of the left lower extremity is so disabling as the Veteran would be equally well served by an amputation with prosthesis in place. 2. The preponderance of the evidence does not demonstrate that the Veteran’s peripheral neuropathy of the right lower extremity is so disabling as the Veteran would be equally well served by an amputation with prosthesis in place. CONCLUSIONS OF LAW The criteria for special monthly compensation on account of the loss of use of both lower extremities have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to July 1965, and from April 1966 to April 1987. The case was previously before the Board in April 2018. At that time SMC on account of the loss of use of each lower extremity was denied. The appellant appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court), and the Board’s decision was vacated pursuant to an October 2018 Joint Motion for Remand (JMR). The parties agreed that the February 2017 VA examination of record, including the October 2017 addendum, was not adequate for rating purposes. The Court granted the JMR and remanded the case to the Board. The Board remanded the issues for additional development in May 2019. This has been accomplished and the case has been returned for further appellate consideration. The Veteran and his representative contend that the Veteran should be awarded SMC for the loss of use of both of his lower extremities. It is specifically asserted that the Veteran’s use of a rollator for ambulation demonstrates that he has such difficulties with balance and propulsion that meets the schedular criteria for SMC due to loss of use of the lower extremities. In additional support of this contention, it is noted that during the most recent examination the Veteran needed assistance from his spouse to remove and replace his shoes and socks. As such, it is asserted that the evidence shows that the Veteran would be equally well served by an amputation with prosthetic in place. Finally, the representative argues that the most recent VA examiner opinion is not responsive to the orders in the Board’s May 2019 remand. It is requested that, if the appeal is not granted, an additional examination be obtained. Review of the record shows that service connection is currently in effect for peripheral neuropathy of each of the Veteran’s lower extremities that is associated with the Veteran’s service-connected diabetes mellitus. Each lower extremity is rated as 20 percent disabling under Diagnostic Code 8520. For complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of the muscles below the knee and flexion of the knee is weakened or even lost, an 80 percent rating is warranted. For incomplete paralysis, a 60 percent rating is warranted for severe impairment with marked muscular atrophy; a 40 percent rating is warranted for moderately severe disability; a 20 percent rating is warranted for moderate disability and a 10 percent rating is warranted for mild disability. 38 C.F.R. § 4.124a, Code 8520. Loss of use of a hand or a foot, for the purpose of special monthly compensation, will be 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 elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of 2 major joints of an extremity, or shortening of the lower extremity of 3\1/2\ inches (8.9 cms.) or more, will be taken as loss of use of the hand or foot involved. (b) 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. 38 C.F.R. § 4.63. As noted, the February 2017 VA examiner’s opinion regarding whether the Veteran had lost the use of either of his lower extremities was found to be inadequate for rating purposes. Specifically, the examiner opined that the Veteran “would not be favored or improved by amputation” and that although he had physical limitations in his lower extremities as a result of his service-connected disabilities, these “fail[ed] to equate to ‘no effective function.” In October 2017, the examiner submitted an addendum opinion in which it was opined that the Veteran would “not be equally well served” by amputation with prosthesis, as he did not have loss of use of either the right or left lower extremity. The examiner explained that the Veteran’s symptoms and disabilities related to peripheral neuropathy “[fell] far short of any condition which might justify or medically indicate amputation,” and that amputation “would be tantamount to medical malpractice, as it [was] below the medical community standard, to suggest such a treatment.” In the October 2018 JMR, the parties agreed that the examiner’s opinions were inadequate because they focused primarily on whether amputation was warranted rather than whether the Veteran had effective function remaining 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. See 38 C.F.R. § 4.63. As such, an additional examination was found to be warranted. An examination was conducted by VA in August 2019. At that time, the primary diagnoses included diabetic peripheral neuropathy of both lower extremities. The examiner described the right lower extremity peripheral neuropathy symptoms as severe constant pain, moderate paresthesias and/or dysesthesias, and severe numbness. Left lower extremity neuropathy was described as mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. No other symptoms were described. Strength in both lower extremities was rated at 3/5 in both knees and ankles. Deep tendon reflexes were decreased to 1+ in both knees and ankles. Light touch was decreased in both knees and ankles, and absent in each foot and the toes. Position sense and vibration sensation was normal. The Veteran did not have any muscle atrophy. There were no trophic changes attributable to diabetic peripheral neuropathy. The diabetic peripheral neuropathy was found to involve mild incomplete paralysis of each sciatic nerve. The anterior crural nerve was found to be normal. Functional impact was described as limitations for standing, walking, and climbing. Regarding an opinion on loss of use of the lower extremities, the examiner noted that the Veteran’s peripheral neuropathy was of moderate severity. It was noted that the Veteran also had peripheral vascular disease of the lower extremities the comorbidity of which overlapped. The examiner noted that the Veteran continued to use both lower extremities for balance and propulsion with a rollator and that his spouse helped him with some of the activities of daily living involving his feet. For example, the examiner witnessed the spouse assisting with removal and replacement of shoes and socks. The Veteran exhibited significant impairments as a result of peripheral neuropathy, peripheral vascular disease as well as severely and diffusely deconditioning from disuse and lack of exercise. He had not, however, lost the use of a foot and continued to rely upon a degree of physical functioning. The examiner additionally stated that it was unequivocally clear that amputation with prosthetics would increase his disability. After review of the record, the Board finds that the Veteran has not met the criteria for loss of use of either of his lower extremities. In this regard, it is initially noted that, while the rationale for the most recent VA opinion is not as comprehensive as the Board would like, it is found that, when the examination report is taken in its totality, the basis for the opinion, which is that the Veteran had not lost the use of either foot is well supported by the examination results. While the statement that an amputation with prosthetics would increase the Veteran’s disability is similar to the rationale given in the prior, 2017, rationale for the opinions that were found inadequate for rating purposes, this is found by the Board to be one observation and, strictly speaking, is not the sole basis for the opinion rendered in August 2019. As such, the Board finds that an additional examination is not necessary in this case. Regarding the merits of the claim, the Board finds that the level of the Veteran’s right lower extremity to be somewhat more severe than that of the left, but it is not found that he has lost the use of either of his lower extremities. The examiner described the Veteran as having constant, severe pain in the right leg as well as severe numbness. The pain and numbness of the left leg were quantified as being mild in nature. Despite the severe pain in the right leg, the examiner found strength to be decreased to only 3/5 throughout and sensation to light touch to be absent in only each foot. The Veteran did have reflexes present, although diminished in both knees and ankles. There was no muscle atrophy of either lower extremity. These symptoms are not consistent with total loss of use of either lower extremity. Moreover, such symptoms such as complete paralysis of a nerve such as the external popliteal nerve, footdrop, characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of a nerve were not demonstrated. Rather, disability of the Veteran’s sciatic nerves was found to be productive of mild incomplete paralysis, which does not equate with the criteria necessary for a finding of loss of use of a lower extremity. Finally, while the Veteran does require an assistive device, described as a rollator, to aid with balance and propulsion and requires aid from his spouse for his socks and shoes, the Board does not find that he 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 Veteran is able to utilize his lower extremities for propulsion and, as noted by the examiner, the Veteran’s disability would be greater by amputation and use of a prosthetic appliance. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for SMC based on loss of use of either lower extremity, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.