Citation Nr: 21001843 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 06-03 829A DATE: January 12, 2021 REMANDED The issue of an effective date prior to 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 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2004 rating decision, the 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 issue on appeal and the Veteran (and appellant after the Veteran died) appealed each decision to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Board granted an effective date of February 26, 1974, for the award of service connection for residuals of a right leg/hip injury and for associated pelvic asymmetry and remanded the remaining issues for additional development. 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 granted a June 2019 Joint Motion for Partial Remand (Joint Motion), vacating that part of the Board’s December 2018 decision. The appellant contends that she is entitled to an effective date prior to January 23, 2002, for the award of SMC for loss of use of the right lower extremity. Specifically, the appellant stated that in the 1970s, the Veteran used a cane but kept falling, had tremors and numbness in the legs. He then was given a walker but was directed to operate it under supervision because he continued to fall. The appellant indicated that in the 1980s the Veteran started using a wheelchair because he could not stand for any length of time, his legs and arms would go numb and he could not hold himself up; he also stopped driving because he had several close calls. See Appellate briefs dated January 2020, June 2020, December 2020; October 2018, Correspondence. As detailed above, 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). In August 2011, the Veteran testified that he had not been able to drive since the late 1980s due to pain and immobility of his right leg and hip. He also stated he had been in a wheelchair since before his total hip replacement surgery (May 1995). August 2011, Hearing transcript. An August 2020, VA opinion indicated that no effective function in the right lower extremity remained other than that which would be equally well served by an amputation stump with prosthesis as of 1998 because the Veteran suffered a fall that resulted in paralysis and bilateral muscle weakness, loss of reflexes and sensation in the right lower extremity; however, it is unclear that the VA examiner considered the lay statements and medical evidence of record prior to 1998. Specifically, the VA examiner did not address the appellant’s contentions that as early as the 1970s the Veteran walked with a cane but fell frequently and suffered numbness and tremors in both legs; in the 1980s the Veteran stopped driving due to several close calls, started using a wheelchair because he could not stand for any length of time, his legs and arms would go numb, and he could not hold himself up. Additionally, medical records since 1977 indicate the Veteran had poor activity in his legs, tremors, and weakness. Between March 1990 and May 1995, private treatment records indicate the Veteran complained of falls more and more frequently because his right leg would give way, there was increased instability with standing and his right leg was longer than his left by one inch, right hip pain became unbearable, pain persisted with use of a cane and non-steroidal anti-inflammatories, and the Veteran could only walk one-half block but had to stop and rest due to severe pain. The Board, accordingly, finds an addendum opinion is necessary to address above-mentioned evidence of record. See November 2020, VA examination; October 2018, Correspondence; Private treatment records dated September 1977, March 1990, and May 1995; see Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history). The matter is REMANDED for the following action: Obtain an addendum opinion for the August 2020 VA examination from the original examiner. If the original examiner is unavailable, an appropriate VA physician, to specifically include, a surgeon or other physician with experience with amputations and/or prostheses, new examiner may be assigned. 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. The clinician should review the virtual file, a copy of this Remand, and 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. In responding to (a) and (b) above, the examiner should specifically address the following: (i) the Veteran’s August 2011 Board testimony; (ii) appellant’s lay statements in the October 2018 correspondence; (iii) the October 1972 VA examination; and (iv) private treatment records dated September 1977, March 1990, December 1994, May 1995, and November 1995. The examiner is advised that the appellant is competent to report the Veteran’s symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the appellant’s reports of symptomatology, he or she must provide a reason for doing so. 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 S. Straughn, Associate 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.