Citation Nr: 20021870 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 06-03 829A DATE: March 27, 2020 REMANDED An effective date earlier than January 23, 2002, for the award of special monthly compensation (SMC) based on the loss of use of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1942 to November 1945. He died in May 2015. The appellant is a surviving child who has been substituted in the appeal that was pending at the time of the Veteran’s death. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2004 rating decision. In that decision, the agency of original jurisdiction (AOJ) granted service connection for residuals of injury, status post total right hip replacement, with an assigned 90 percent disability rating, effective May 6, 2002; granted service connection for pelvic asymmetry with a mechanical short left leg, with an assigned 10 percent disability rating, effective November 16, 2004; granted eligibility for dependents’ educational assistance (DEA) benefits, effective November 16, 2004; and granted special monthly compensation (SMC) based on the loss of use of the right lower extremity, effective May 6, 2002. In July 2005, the AOJ granted an effective date of January 23, 2002, for each of these disabilities or benefits. During his lifetime, the Veteran had appealed the July 2005 decision, seeking an effective date of July 9, 1974, for the grant of service connection. He and his son testified at a Board videoconference hearing in March 2010; a transcript of the hearing is associated with the claims file. Subsequently, the Board had denied the issues on appeal and the Veteran (and appellant after the Veteran died) appealed each decision to the Court of Appeals for Veterans Claims (Court). In March 2018, the Board granted an effective date of February 26, 1974, for the grant of service connection for residuals of a right leg/hip injury and for associated pelvic asymmetry and remanded the remaining issues for additional development. A November 2018 rating decision effectuated the Board’s decision. In December 2018, the Board denied an effective date earlier than January 23, 2002, for the award of SMC based on the loss of use of the right lower extremity and for the award of DEA eligibility. The appellant appealed the Board’s decision regarding the effective date for SMC based on the loss of use of the right lower extremity. In a July 2019 Order, the Court vacated that part of the Board’s December 2018 decision consistent with a June 2019 Joint Motion for Partial Remand (Joint Motion). In November 2019, the Board remanded the appeal for an effective date earlier than January 23, 2002, for the award of SMC based on the loss of use of the right lower extremity to the AOJ to obtain a medical opinion. An effective date earlier than January 23, 2002, for the award of SMC based on the loss of use of the right lower extremity is remanded. The appellant believes an effective date earlier than January 23, 2002, is warranted for the award of SMC based on loss of use of the right lower extremity. As detailed, service connection was established effective from February 26, 1974, for residuals from injury status post total right hip replacement (claimed as a right hip/leg disorder) (hereinafter “right hip disability”) and for pelvic asymmetry producing a mechanical short left leg associated with the right hip disability. The right hip disability was rated 10 percent disabling from February 26, 1974, 100 percent from May 5, 1995 (including for a period of convalescence), 30 percent disabling from July 1, 1996, and 90 percent disabling from January 23, 2002. The pelvic asymmetry disability was rated as noncompensable (0 percent disabling) effective February 26, 1974, and as 10 percent disabling from January 23, 2002. In turn, the AOJ granted SMC based on loss of use of one foot from January 23, 2002, pursuant to 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(2)(i). The loss of use of a foot 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 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. could be accomplished equally well by an amputation stump with prostheses. 38 C.F.R. § 3.350(a)(2)(i). To determine whether no effective function remains other than that which would be equally well served by an amputation stump with prosthesis, an additional medical opinion is necessary to define how the Veteran’s right lower extremity likely would have functioned if he had had an amputation stump with prosthesis below the knee during his lifetime. The AOJ should obtain a medical opinion from an appropriate VA physician. The matters are REMANDED for the following action: Provide the Veteran’s entire electronic claims file, including a complete copy of this Remand, to an appropriate VA physician, such as a surgeon or other physician with experience with amputations and/or prostheses. The purpose of the opinion to determine the date at which the deceased Veteran’s right lower extremity (due to right hip and pelvic asymmetry disabilities) would have “no effective function remaining other than that which would be equally well served by an amputation stump with prosthesis.” The reviewing examiner is advised that service connection was granted effective February 26, 1974, for residuals from injury status post total right hip replacement and for pelvic asymmetry producing a mechanical short left leg associated with the right hip disability. Special monthly compensation (SMC) based on loss of use of the right lower extremity was granted, effective January 23, 2002. Following a review of the claims file, the reviewing physician should address the following: a) Considering the service-connected right hip and pelvic asymmetry disabilities, describe how the Veteran’s right lower extremity likely would have functioned if he had had an amputation stump at the site of election below the knee with prosthesis involving his right lower extremity during his lifetime, including the effects on balance, propulsion, or other functions. b) Next, please identify the approximate date on which the Veteran’s service-connected right hip and pelvic asymmetry disabilities were first were manifested by loss of use of the lower extremity such that no effective function remained other than that which would be equally well served by an amputation stump with prosthesis. A medical explanation must be provided for all opinions expressed. In providing the requested opinion, the physician should identify and describe medical evidence demonstrating remaining right lower extremity function greater than that which he would have had with an amputation stump with prosthesis. In other words, identify evidence that describes how the function of the Veteran’s right lower extremity exceeded the function he had on the date at which the physician determines he had no effective function remaining other than that which would be equally well served by an amputation stump with prosthesis. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.