Citation Nr: 20022450 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 17-51 377 DATE: March 31, 2020 ORDER Eligibility for financial assistance for automobile or other conveyance and adaptive equipment is granted. Special monthly compensation (SMC) under 38 U.S.C. § 1114(k) for loss of use of the left foot prior to March 31, 2015, is denied. FINDING OF FACT 1. Due to service-connected disability, the Veteran currently has no effective function remaining in the left foot 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 suitable prosthetic appliance. 2. Prior to March 31, 2015, the Veteran did not have loss of use of the left foot. CONCLUSIONS OF LAW 1. The criteria for eligibility for financial assistance for automobile or other conveyance and adaptive equipment have been met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.808, 3.350(a)(2). 2. The criteria for SMC under 38 U.S.C. § 1114(k) for loss of use of the left foot prior to March 31, 2015, have not been met. 38 U.S.C. §§ 1114(k), 5107; 38 C.F.R. § 3.350(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to February 1993. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran originally, in an October 2014 claim, asserted entitlement to SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) for the loss of use of his left foot due to foot drop. However, subsequently, the Veteran was awarded SMC under 38 U.S.C. § 1114(k) for the loss of use of a creative organ, effective March 31, 2015. No other benefit based on loss of use of the left foot—besides the automobile benefit on appeal—has been identified by the Veteran or raised by the record. The claim for loss of use of the left foot has thus been characterized as SMC under 38 U.S.C. § 1114(k) for loss of use of left foot prior to March 31, 2015. Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. Special monthly compensation under 38 U.S.C. § 1114(k) is payable for one of a number of conditions, including each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs. 38 C.F.R. § 3.350(a). The term “loss of use of a hand or foot” is defined as existing when “no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance.” For example: (a) Extremely unfavorable complete 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, will constitute loss of use of the hand or foot involved, and; (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. § 3.350(a)(2). When, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran’s service-connected disabilities include left lower extremity sciatic nerve neuropathy, rated 60 percent, and left lower extremity femoral nerve neuropathy, rated 20 percent. 1. Eligibility for financial assistance for automobile or other conveyance and adaptive equipment is granted. The evidence in this case is mixed as to whether the Veteran’s service-connected lower extremity disability has met the eligibility criteria under 38 U.S.C. § 3901 and 38 C.F.R. § 3.808 based on loss of use of his left foot. VA treatment records from November 2015 to August 2018, as well as VA examination reports dated in November 2015, April 2016, July 2017, and September 2018, reflect findings of subtle left foot drop with subtle dangling; slightly abnormal gait; mild atrophy of the left calf muscle; decreased sensation below the knee on the left side; and some weakness of ankle and foot motion, with ankle strength noted to be either 4/5 or 3/5, and great toe extension 3/5. In March 2016, the Veteran was noted to have had minor difficulty dorsiflexing the left foot completely. Vascular testing consistently showed radial and dorsalis pedis pulses to be 1+ bilaterally. It was noted that the Veteran’s foot trembled when he pushed against resistance, and that he had fasciculations of the left leg and foot when muscles contracted or flexed, which causes him to trip at times and drag his foot slightly; when standing on his left foot, his muscles failed quickly and his leg quivered and foot fasciculated. While reflecting such functional impairment of the left foot due to the Veteran’s service-connected nerve disability, these records also reflect that light touch sensation was generally intact in the left lower extremity, and occasionally noted to be decreased in the feet. On VA examination, the Veteran was specifically noted not to have trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.) attributable to his peripheral neuropathy, and on July 2017 VA examination, the severity of any lower extremity peripheral neuropathy found was noted to be “Mild.” Furthermore, such records have consistently reflected that the Veteran has been able to ambulate without aid of device such as cane, even though beginning in 2016 he wore a chronic brace. He was described as having abnormal gait due to weak propulsion of the left foot and mild to moderate incomplete paralysis of the lower extremity nerves, with occasional cane use noted on July 2017 VA examination, but the VA examiners consistently gave the opinion that his left foot functioning was not so diminished that amputation with prosthesis would equally serve the Veteran; rather, his functional impairment resulting from his foot and lower extremity disability was noted to be limitation to prolonged standing and walking, and difficulty sitting, standing or walking for long periods of time. However, the Veteran submitted a September 2016 note from his VA primary care physician stating that the Veteran had “intermittent complete paralysis of the axonal popliteal nerve (common peroneal) and consequent foot drop accompanied by characteristic trophic and circulatory disturbances.” The same physician, in a July 2017 note stated the following: “I am writing to confirm that the following disability exists in your case (and that you have been examined by a neurosurgeon that has confirmed the following): Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, can be taken as loss of use of the foot.” The Veteran also submitted private treatment records, dated in June 2018, reflecting the assessment that his left-sided radiculopathy resulted in permanent foot drop and need for use of an ankle foot orthosis, which essentially meant that the Veteran had permanent loss of his left ankle dorsiflexion. October 2018 electromyography (EMG)/nerve conduction study (NCS) revealed decreased left peroneal motor nerve conduction velocity, left superficial peroneal sensory nerve showed no response, left sural sensory nerve showed no response (calf) to needle, and evaluation of left vastus medialis muscle showed diminished recruitment. Private treatment records following such EMG/NCS results reflect an assessment of the Veteran’s left-sided footdrop that there was essentially no function of the tibialis anterior (which functions to dorsiflex and invert the foot) remaining. The Veteran had very little to no strength of the extensor hallucis longus (which functions to extend the big toe and dorsiflexes the foot, and assists with foot eversion and inversion), and the treating physician stated that this would be graded 2/5 strength as the Veteran had various subtle motion and tone, but no ability to resist gravity or resistance. In this case, the Board finds the evidence as to whether the Veteran has loss of use of the left foot for purposes of 38 C.F.R. § 3.350(a)(2) to be in relative equipoise. The Board initially notes that VA regulations define complete paralysis of the external popliteal nerve (common peroneal) as foot drop and slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. The Board furthermore notes the statements of the Veteran’s primary care physician, in September 2016 that he had intermittent complete paralysis of the common peroneal nerve, and in July 2017 that the Veteran at that time had complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve that could be taken as loss of use of the foot, which had been confirmed by a neurosurgeon. The Veteran’s physician gave this assessment while, on evaluation the same day, noting essentially the same findings on other VA treatment and VA examination, including light touch intact, that the Veteran ambulated without aid of any device such as cane but did wear a chronic brace, and that radial and dorsalis pedis pulses were 1+. The physician’s finding of complete paralysis of the external popliteal nerve (common peroneal) somewhat conflicts with the assessments to the contrary contained in the VA treatment records and VA examinations, noted above. However, such assessment is somewhat supported by the subsequent EMG/NCS results and private treatment records. Such findings, again, indicate permanent foot drop and need for use of an ankle foot orthosis, which essentially meant that the Veteran had permanent loss of his left ankle dorsiflexion; essentially no function of the tibialis anterior (which functions to dorsiflex and invert the foot); and very little to no strength of the extensor hallucis longus (which functions to extend the big toe and dorsiflexes the foot, and assists with foot eversion and inversion), with 2/5 strength as the Veteran had various subtle motion and tone, but no ability to resist gravity or resistance. Such findings reasonably approximate the criteria for paralysis of the external popliteal nerve (common peroneal) of foot drop with inability to dorsiflex the foot or extend (dorsal flexion) the proximal phalanges or abduct the foot, and adduction weakened and anesthesia covering the entire dorsum of foot and toes. In this regard, the Board notes that the 2018 EMG and private treatment notes were dated after the most recent VA treatment notes; and may have indicated a worsening of the Veteran’s left lower extremity symptoms by late 2018, from his initial assessments in 2015 and 2016. Considering the above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that he has lost use of the left foot for purposes of 38 U.S.C. §§ 3901 and 3902, and 38 C.F.R. §§ 3.808 and 3.350. Accordingly, his claim for eligibility for financial assistance for automobile or other conveyance and adaptive equipment must be granted. 2. SMC under 38 U.S.C. § 1114(k) for loss of use of the left foot prior to March 31, 2015, is denied. The Veteran submitted a claim in October 2014 for SMC under 38 U.S.C. § 1114(k) for loss of use of the left foot due to foot drop. However, the record reflects that the Veteran’s left lower extremity disability did not meet the criteria for loss of use of a foot under 38 C.F.R. § 3.350(a)(2) prior to March 31, 2015. On VA treatment in November 2015—more than 7 months after the period in question, when SMC under 38 U.S.C. § 1114(k) had already been awarded—the Veteran reported not having very good sensation in the left foot, and that it would catch on uneven surfaces and cause him to stumble daily and fall down about once a month. There was minor muscle loss in the left calf, but left foot strength to dorsi and plantar flexion against resistance was 4/5. The foot trembled when pushed against resistance and subtle dangling was noted, but gait was nearly normal with subtle drop foot on the left, and no assistive devices used for ambulation. No earlier or contemporaneous records reflect any greater level of disability; as late as March 2016 the Veteran was noted to have had “minor difficulty” dorsiflexing the left foot “completely.” Furthermore, as noted above, while the Veteran’s primary care physician, in September 2016 (well-after the period in question), assessed “intermittent” complete paralysis of the common peroneal nerve, full complete paralysis of the nerve was not noted by that physician until July 2017, indicating a worsening of symptomology during that period to that later level of disability. Such level of disability noted in 2015 and early 2016 reflects significant functional impairment of the foot, but ability to walk with almost a normal gait, and ability to move the foot and ankle against resistance with “minor difficulty” dorsiflexing the left foot “completely.” Such disability, however, does not approximate no 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 the use of a suitable prosthetic appliance during this period. Therefore, a preponderance of the evidence is against a finding of loss of use of the left foot prior to March 31, 2015. Accordingly, SMC under 38 U.S.C. § 1114(k) for loss of use of the left foot during that period must be denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, Counsel 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.