Citation Nr: 21071506 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-52 237 DATE: November 30, 2021 ORDER Entitlement to special monthly compensation (SMC) for loss of use of the left (minor) arm and shoulder, based upon substitution of the Appellant as the claimant, is denied. FINDING OF FACT The preponderance of the evidence of record demonstrates that, while the Veteran's left shoulder and arm were impaired, he did not experience a loss of use. CONCLUSION OF LAW The criteria for SMC for loss of use of the left (minor) arm and shoulder, based upon substitution of the Appellant as the claimant, have not been met. 38 U.S.C. §§ 1114(k), 1155; 38 C.F.R. §§ 3.350, 4.63. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in August 2017. The Veteran died in April 2018, and the Appellant is his surviving spouse. In March 2019, the Appellant was substituted as the claimant. The Appellant and her daughter, B.P., testified before the undersigned Veterans Law Judge (VLJ) in a May 2019 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. In a September 2019 decision, the Board denied special monthly compensation (SMC) for loss of use of the Veteran's left arm and shoulder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a joint motion for partial remand (JMPR) submitted by the Veteran and VA, vacating the Board's denial of SMC for loss of use of the left arm and shoulder and remanding the issue back to the Board. This matter was before the Board again in August 2021, at which time it was remanded for further development. Entitlement to special monthly compensation (SMC) for loss of use of the left (minor) arm and shoulder, based upon substitution of the Appellant as the claimant Under 38 U.S.C. § 1114(k), SMC is payable for the anatomical loss or loss of use of one hand. This special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. 38 C.F.R. § 3.350(a). Loss of use of a hand 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 the elbow with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function. 38 C.F.R. § 3.350(a)(2); see also 38 C.F.R. § 4.69. At the time of the Veteran's death, he was service-connected for the residuals of a gunshot wound (GSW) to the left shoulder. The Veteran was right handed. Hence, the left shoulder was his non-dominant, or minor, side. See 38 C.F.R. § 4.69. The left shoulder GSW residuals were rated as a muscle injury to Muscle Group III with the maximum allowable rating of 30 percent. See 38 C.F.R. § 4.73, Diagnostic Code 5303. He filed a claim for SMC for loss of use of his left arm. The Veteran underwent a VA examination in July 2017. The examiner noted that his GSW residuals resulted in consistent loss of power, weakness, and lowered threshold of fatigue for the left Muscle Group III. He was noted as having less than normal strength with left shoulder abduction and muscle atrophy. The examiner stated that the Veteran was unable to raise his arm above his head and had difficulty with lifting, pushing, and pulling objects. However, he stated that the Veteran's left arm functioning was not so diminished that amputation with prosthesis would equally serve him. In October 2017, the Veteran submitted an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. The examining physician, Dr. E.B., stated that he had bilateral hand grip weakness and a significantly decreased range of motion in the bilateral shoulders, with flexion and abduction limited to 70 degrees and adduction limited to 90 degrees. A February 2018 Aid and Attendance Examination indicated that he could not remove food from cabinets, lift pots or pans, wipe himself, or shower alone. Weak hand grip was noted and he was unable to take his shirt off, dress his lower extremities or tie his shoes. During the May 2019 hearing, the Appellant and Ms. P. testified that the Veteran was unable to use his left arm prior to his death. They stated that, around 1992, the Veteran had difficulty carrying his items at work and that his students would carry things for him. Pursuant to the April 2021 JMPR, VA obtained an addendum medical opinion as to whether the evidence of decreased left hand grip strength and left arm maneuverability constituted a loss of use of the less arm or shoulder in September 2021. The examiner opined that the Veteran's decreased grip strength and arm maneuverability did not result in a loss of use of the left arm. The examiner stated that, while those impairments can result in a decreased function of the left arm, they did not cause a complete loss of function. The examiner indicated that the notations of decreased range of motion; inability to lift the arm above his head; and difficulty lifting, pushing, and pulling objects do not support a finding of a complete loss of function. She stated that the Veteran was still able to manipulate non-heavy objects below shoulder level, which does not support a finding of loss of use. After considering the relevant evidence, the Board finds that SMC is not warranted for loss of use of the Veteran's left arm, shoulder, or hand. In this regard, although the evidence shows that he had an impairment in left arm functioning, a complete loss of use has not been demonstrated. As the September 2021 examiner stated, decreased grip strength, limited range of motion, and decreased arm maneuverability may cause an impairment in functioning, but the Veteran was still capable of some use of the left hand and arm. As noted in the July 2017 examination report, he was unable to lift his arm above his head and had difficulty lifting, pushing, and pulling objects; however, he still had some remaining use of the left arm. Dr. B. also stated in October 2017 that the Veteran had a decreased range of motion and weakened hand grip but did not indicate that he was unable to use his arm, hand, or shoulder. Further, both the July 2017 and September 2021 examiners opined that his left arm functioning was not diminished to such an extent that he would be equally well served by amputation and prosthesis. The Board acknowledges the testimony of the Appellant and Ms. P., as well as the Veteran's statements prior to his death, regarding the functional impairment of his left arm. However, the objective evidence fails to show that he completely lost use of the left arm, hand, or shoulder during his lifetime. Therefore, the preponderance of the evidence weighs against the claim of SMC for loss of use of the left arm and SMC is not warranted. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). (Continued on the next page) In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.