Citation Nr: 21005069 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-31 962 DATE: January 28, 2021 ORDER Entitlement to an effective date prior to December 13, 2013 for the grant of special monthly compensation (SMC) based on loss of use of both feet is denied. FINDING OF FACT Prior to December 13, 2013, the Veteran’s chronic fatigue syndrome (CFS) and bilateral pes planus were not so severe that no effective foot function remained 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. CONCLUSION OF LAW The criteria for an effective date prior to December 13, 2013 for the grant of based on loss of use of both feet have not been met. 38 U.S.C. §§ 1114, 5107, 5110 (2012); 38 C.F.R. §§ 3.350, 3.400, 4.63 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1985 to August 1985, from June 1986 to August 1986, and from October 1986 to June 1992. This matter was previously denied by the Board in December 2018, after which the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court issued a Memorandum Decision, which vacated the Board’s December 2018 decision and remanded the matter to the Board. As such, the matter is properly before the Board for adjudication. In the interest of judicial economy, the Board will focus its current analysis on the areas of deficiencies identified within the May 2020 memorandum decision, and the Board hereby incorporates all other facts and analysis of the December 2018 vacated Board decision by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Additionally, the Board notes that the December 2018 Board decision also remanded the issues of entitlement to service connection for headaches and entitlement to a higher level of SMC based upon loss of use of both feet and the need for regular aid and attendance; however, these issues have not yet been recertified to the Board, and the Veteran may yet submit a timely response to the January 2021 supplemental statement of the case (SSOC) concerning these issues. As such, they will not be addressed herein by the Board. Similarly, the Board notes that the Veteran recently initiated an appeal under the Appeals Modernization Act (AMA) via his submission of an October 2020 VA Form 10182 concerning entitlement to service connection for peripheral neuropathy of the bilateral lower extremities; however, as that appeal will be docketed in the modernized appeal system, it will be the subject of a future AMA Board decision. Entitlement to an effective date prior to December 13, 2013 for the grant of SMC based on loss of use of both feet. The Veteran asserts that he is entitled to an effective date prior to December 13, 2013 for the grant of SMC based on loss of the use of both feet. He argues that his April 2007 claim was based on the loss of use of his lower extremities secondary to his service-connected CFS, and that the November 2009 rating decision which awarded entitlement to specially adapted housing and automobile and adaptive equipment essentially conceded that his service-connected disorders approximated loss of use of the feet. Following a review of the record, and as discussed further below, the Board finds that prior to December 13, 2013, the Veteran’s service-connected disabilities did not more closely approximate a loss of use of the feet, and entitlement to SMC on that basis prior to December 13, 2013 is not warranted. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. The general rule regarding effective dates is that the effective date of an award based upon on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The implementing regulation adds that except as otherwise provided, the effective date of an award of compensation based on an initial claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. SMC is a benefit paid in addition to basic rates of disability compensation and is available to veterans whose service-connected disability results in “additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). SMC may be warranted where there is loss of use of both lower extremities. 38 U.S.C. § 1114(m); see also Jensen v. Shulkin, 29 Vet. App. 66 (2017). Further, a veteran may be entitled to financial assistance in the purchase or adaptation of an automobile or housing where a disability results in the loss of use of both lower extremities. 38 U.S.C. §§ 2101, 3901. “Loss of use” of an extremity means that no effective function remains other than that which would be equally well-served by an amputation stump below the elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. §§ 3.350(a)(2); 4.63 (2019). “Effective function” includes the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot. See 38 C.F.R. § 3.350(a)(2). In its May 2020 Memorandum Decision, the Court noted that the Veteran has asserted that his claim for SMC for loss of use of the lower extremities was part of his 2007 claim for adapted housing, automobile, and other adaptive benefits, and that loss of use was a requirement to receive such benefits, which benefits swere later granted in a November 2009 rating decision. The Court then stated that although the November 2009 Regional Office (RO) decision did not grant SMC for the loss of use of his lower extremities, the Board should have at least discussed the November 2009 RO decision given the RO’s determination regarding loss of use and the Veteran’s repeated arguments that the issue of SMC was part of that claim. As such, the Board will endeavor to do so herein. Initially, the Board acknowledges that the Veteran is in receipt of specially adapted housing and automobile and adaptive equipment based on a November 2009 determination by the RO that he had loss of use of both lower extremities. Therefore, the fact that the Veteran has “loss of use of the lower extremities” as defined under 38 C.F.R. § 3.809(b) for the purposes of specially adapted housing and automobile and adaptive equipment is undisputed. However, the Board is careful not to conflate the meanings of “loss of use of the lower extremities” under 38 C.F.R. § 3.809(b) for purposes of entitlement to specially adapted housing and automobile and adaptive equipment and “loss of use of the feet” under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63. In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court clarified that the standard for “loss of use of the feet” under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is not the same as “loss of use of the lower extremities” for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b). That is, “loss of use of the feet” is a more stringent standard for a veteran to meet than “loss of use of the lower extremities” for purposes of entitlement to specially adapted housing. The ultimate responsibility for determining whether there is loss of use rests with the adjudicator and is a conclusion of law. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), 38 C.F.R. § 4.10. Turning to the relevant evidence of record prior to December 13, 2013, a March 2005 certification of disability form completed by a private physician, Dr. Ben Wilson, documents that the Veteran was permanently unable to walk one hundred feet without stopping to rest. In August 2005, the Veteran was provided bilateral forearm crutches due to gait difficulty, although he was noted to ambulate without any significant gait deviations at the time. At a July 2006 VA examination, the Veteran reported difficulty standing when he got out of bed in the morning and the ability to walk to about 100 feet without rest. He stated that he used Canadian crutches and back and knee supports, and noted that his total incapacity during the past year was about 12 weeks, sometimes to the extent that he had to use a bedpan and was unable to get out of bed. During an additional VA examination the following month, in August 2006, the Veteran reported that his wife had to help him out of bed some mornings, and occasionally had to help him into the shower because he tended to lose his balance. The VA examiner described the Veteran’s gait as “normal” using Canadian crutches, but noted the Veteran leaned forward slightly at the waist, held his back in a stiff position, and complained of discomfort while walking. The VA examiner stated that there was evidence of painful motion, but that “no sensory or motor deficits could be clearly demonstrated, although there [was] equivocal loss of pin prick perception on the lateral right leg.” In a September 2006 medical statement for consideration of aid and attendance, Dr. Ben Wilson stated that the Veteran was not able to walk unaided due to joint pain and chronic fatigue, that he needed assistance with bathing and hygiene, and was confined to his bed “at times” due to fatigue. In January 2007, the Veteran claimed loss of use of his lower extremities due to CFS, and reported that he could ambulate only for a short distance using crutches and knee braces, and that his balance was also affected due to his CFS. In February 2007, the Veteran reported difficulty with balance, lower body weakness, extreme joint pain, knee and leg pain, and extreme fatigue, which required the use of both crutches and knee braces. At a March 2007 VA examination, the Veteran again reported the use of Canadian crutches due to leg weakness and throbbing pain, and he stated that if he did not use his braces, his legs would give way. The VA examiner noted that the Veteran walked “slowly using the crutches for balance,” but noted that he was able to stand on his toes and heels without the crutches. An August 2007 VA treatment record noted that the Veteran requested a wheelchair due to problems walking. At a February 2009 VA foot examination, the Veteran arrived in a wheelchair and reported that he could stand and walk for short distances but noted that his weightbearing was limited due to CFS. The VA examiner documented that when the Veteran stood and moved during the examination, he utilized bilateral Canadian crutches. Following the examination, the VA examiner noted that there was no functional impairment to standing or walking due to the Veteran’s pes planus specifically, but that his reported limitations were due to CFS. At a March 2009 VA CFS examination, the Veteran reported that he was unable to walk without assistance since about 2002. He reported that “on a good day” he could walk 50 to 100 feet without stopping, but that on days when his balance was poor, he needed to confine himself to a wheelchair. He reported that he “usually takes care of activities of daily living and can shower unassisted most days.” He was noted to exhibit progressive weakness and instability in the lower extremities, such that he was “unable to move about without the aid of crutches and sometimes a wheelchair,” although he was able to rise from his wheelchair and get on his Canadian crutches without assistance. A motor evaluation revealed generalized weakness demonstrated by difficulty dorsiflexing and plantar flexing the feet against resistance, and lower extremity strength was estimated as “3/5” bilaterally. At an August 2011VA examination, the Veteran’s feet were noted to exhibit mild tenderness across the arches, with flexion of the great toes from 0 to 45 degrees, extension of the great toe of 0 to 70 degrees, and a normal range of motion of the other toes. The arches were reportedly “normal” with a “mild flatfoot abnormality noted.” The VA examiner reported that the Veteran did wear orthotics. The Veteran’s ankles were noted to exhibit tenderness in “a sleeve-like distribution.” Physical examination revealed dorsiflexion from 0 to 20 degrees bilaterally, plantar flexion was from 0 to 45 degrees, inversion was from 0 to 30 degrees, and eversion was from 0 to 10 degrees, with mild discomfort throughout. A subsequent February 2013 VA treatment record noted that the Veteran walked with a cane, and a November 2013 VA emergency treatment record reported the Veteran as “ambulatory” on arrival. The Board acknowledges that the evidence of record, including as discussed above, documents varying levels of impairment in the Veteran’s feet and lower extremities resulting from his service-connected CFS and pes planus as early as March 2005. Notably, however, these early reports of limitations on physical activity clearly document that the Veteran retained at least some function in his feet and lower extremities. For example, the March 2005 report by Dr. Ben Wilson that the Veteran was permanently unable to walk 100 feet without stopping to rest merely indicates some functional limitation; however, this finding does not equate to a finding that the Veteran was precluded from walking entirely due to loss of use of his feet. Similarly, evaluations throughout 2006 document that the Veteran required the use of crutches and ambulatory aides; however, the use of assistive devices as a means of locomotion does not equal a finding that the Veteran retained no effective function of his feet or lower extremities. The Veteran’s report that his legs would “give way” without the use of braces in March 2007, as well as his report of the use of a wheelchair that same year, are pointed out by the Court in the May 2020 Memorandum Decision as favorable evidence; however, the Board finds that these reports are unsupported by the additional evidence of record, including the Veteran’s own reports that he retained the ability to walk shorter distances and that he was able to stand and ambulate with the use of assistive devices, including his Canadian crutches. Moreover, even acknowledging the Veteran’s report that he was bedridden at times or that his legs would give way without the use of crutches and a wheelchair, the Board finds that the evidence of record prior to December 13, 2013 does not otherwise show that the Veteran’s feet and lower extremities experienced a lack of effective function consistent with an anatomical loss of the feet. As discussed above, the term “loss of use” for the purposes of SMC under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is a very specific and high standard, even more than that required for the Veteran’s prior award of specially adapted housing and automobile and adaptive equipment based on “loss of use of the lower extremities” under 38 C.F.R. § 3.809(b). In other words, to qualify for “loss of use” for the purposes of establishing an earlier effective date as claimed by the Veteran, the evidence must show that his feet and lower extremities were left with so little function that he would be equally well served by a below-the-ankle amputation and the use of a suitable prosthetic appliance. Significantly, however, the most probative evidence of record, including as discussed above, documents that prior to December 13, 2013, the Veteran maintained at least some use of his feet and lower extremities. The fact that the Veteran retained the ability to ambulate with the use of assistive devices, even for short distances, is clearly better than what would be experienced with suitable prosthetics, if his feet had been amputated. Moreover, upon regular VA examinations throughout the appeal period prior to December 13, 2013, no VA examiner found that no effective function remained in the Veteran’s feet other than that which would be equally well served by an amputation stump at the site of election with use of a suitable prosthetic appliance. The Board acknowledges the Veteran’s repeated lay reports that his service-connected CFS and pes planus were productive of “loss of use” prior to December 13, 2013, based upon symptoms including severe pain, weakness, and instability. However, the question of whether any effective function remained other than that which would be equally well served by an amputation stump with use of a prosthetic appliance is a medical determination beyond the competence of a layperson such as the Veteran. Thus, the Board attributes greater probative value to the objective medical evidence of record, discussed in detail above. To the extent that the Veteran asserts the November 2009 rating decision that awarded entitlement to specially adapted housing and automobile and adaptive equipment essentially conceded that the Veteran had loss of use of his feet, the Board has clarified above that the standard concerning loss of use for an award of SMC is more stringent than that for the Veteran’s existing award of adaptation awards. Additionally, the favorable findings of the November 2009 rating decision, which do not themselves confer entitlement to benefits, are not binding upon the Board. See Murphy v. Shinseki, 26 Vet. App. 510 (2014) (a rating decision increasing a rating is binding on the Board, as distinguished from other favorable findings that are not binding). In conclusion, the Board finds that the preponderance of the evidence of record weighs against a finding that the severity of the Veteran’s service-connected disorders approximated loss of use of the feet for any period prior to December 13, 2013. As such, entitlement to special monthly compensation based on loss of use prior to December 13, 2013 is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.