Citation Nr: 21007929 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 18-19 887 DATE: February 11, 2021 ORDER A compensable rating for hammertoes of the second, third, fourth, and fifth toes of the left foot is denied. A compensable rating for hammertoes of the second, third, fourth, and fifth toes of the right foot is denied. A rating in excess of 30 percent for Charcot arthropathy of the right foot is denied. A rating in excess of 30 percent for Charcot arthropathy of the left foot is denied. Prior to October 7, 2014, an increased 40 percent rating is warranted for peripheral neuropathy of the right lower extremity. Since October 7, 2014, a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity is denied. Prior to October 7, 2014, an increased 40 percent rating for peripheral neuropathy of the left lower extremity is granted. Since October 7, 2014, a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity is denied. An effective date of August 24, 2010, for the award of service connection for Charcot arthropathy of the right foot is granted. An effective date of August 24, 2010, for the award of service connection for Charcot arthropathy of the left foot is granted. An effective date earlier than March 27, 2014, for the award of special monthly compensation (SMC) based upon the need for aid and attendance (A&A) is denied. FINDINGS OF FACT 1. The Veteran has hammertoes of the second, third, fourth, and fifth toes of his right and left feet, but not of all toes since the first is unaffected. 2. His Charcot arthropathy of his right and left feet is manifested by severe symptoms, however, actual loss of use of either foot is not shown. 3. Throughout the appeal period, the peripheral neuropathy of his right and left lower extremities has been manifested by moderately severe impairment (incomplete paralysis) of the sciatic nerve, without evidence of marked atrophy or complete paralysis of this nerve. 4. He filed a claim for service connection for peripheral neuropathy of his right and left lower extremities on August 24, 2010, at which time he also described neurological symptoms referable to his feet. 5. He did not file a specific claim for service connection for Charcot arthropathy of his right and left lower extremities, however, these disabilities stem from his claim for service connection for a neuropathic disability of his right and left lower extremities. 6. On May 20, 2015, he filed a claim for SMC based on the need for regular A&A. 7. Prior to March 27, 2014, he did not have a single 100 percent disability rating and an additional disability independently rated at 60 percent. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hammertoes of the right and left feet have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5282. 2. The criteria for ratings in excess of 30 percent for Charcot arthropathy of the right and left feet have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.10, 4.71a, DC 5284. 3. But, prior to October 7, 2014, the criteria are met for 40 percent ratings for peripheral neuropathy of the right and left lower extremities. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.124a, DC 8520. 4. Since October 7, 2014, the criteria are not met for ratings in excess of 40 percent for the peripheral neuropathy of the right and left lower extremities. Id. 5. The criteria for an earlier effective date of August 24, 2010, for the grant of service connection for Charcot arthropathy of the right and left lower extremities have been met. 38 U.S.C. §§ 1114, 5110, 5107; 38 C.F.R. § 3.350. 6. The criteria for an effective date earlier than March 27, 2014, for SMC based on the need for regular A&A have not been met. Id.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1968 to March 1970. Increased Ratings Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A compensable rating for hammertoes of the second, third, fourth, and fifth toes of the left foot is denied. 2. A compensable rating for hammertoes of the second, third, fourth, and fifth toes of the right foot is denied. The Board finds that a compensable rating for hammertoes of the right and left feet is not warranted. Pursuant to DC 5282, a 10 percent rating is warranted when there are hammertoes of all toes, unilateral, without claw foot. On August 2016 VA examination, the Veteran was found to have hammertoes affecting the second through fifth digits of the toes on the right and left feet. The big toes were not affected. The treatment records also repeatedly demonstrate x-ray findings of hammertoes of the second through fifth digits only, as shown on August 2012, January 2014, August 2014, and January 2015 x-rays. The Board notes that on May 2012 x-ray, it was found that the Veteran had hammertoes of all the toes. However, while this finding is supportive of the Veteran’s claim, it is likely incorrect as the x-rays taken just prior to and following this finding showed hammertoes only affecting the second through fifth toes. Because the majority of the evidence, to include multiple x-rays, show that the first digit was not affected, the Board finds that the one 2012 x-rays finding is outweighed in the instance. Therefore, as the criteria for a compensable rating for hammertoes has not been met, the claims must be denied. 3. A rating in excess of 30 percent for Charcot arthropathy of the right foot is denied. 4. A rating in excess of 30 percent for Charcot arthropathy of the left foot is denied. The Veteran is currently in receipt of the highest ratings available, 30 percent, under DC 5284 for Charcot arthropathy of the right and left feet. Charcot arthropathy is not specifically contemplated by the diagnostic criteria related to the feet. Therefore, the disability is rated analogously under DC 5284, contemplating other foot injuries. The Board finds no other diagnostic code that would provide a higher rating based upon the Veteran’s symptoms. Although DC 5276, which contemplates flat foot also overlaps with the Veteran’s foot symptoms, he was shown on March 2015 VA examination not to suffer from pronounced marked pronation of either foot necessary for the higher 50 percent rating. The Veteran contends that he suffers from actual loss of use of the feet. However, while the evidence of record shows that the Veteran is very limited in his ability to stand or walk for more than a short period of time, the evidence does not show actual loss of use of the feet. On March 2015 VA examination, the examiner found that the Veteran’s foot disabilities did not result in functional impairment such that no effective function remained other than that which would be equally well served by an amputation or prosthesis. Other VA examinations conducted throughout the appeal period regarding the Veteran’s peripheral neuropathy of the lower extremities found the same. These records demonstrate that the Veteran can walk with assistance and does have muscle strength and sensation in the feet and lower extremities. He is also able to bear weight on his feet. Thus, the conclusion made by the 2015 VA examiner is consistent with the record. The Board finds that the current 30 percent ratings account for the Veteran’s severe symptoms caused by his Charcot arthropathy to include diffusely burning pain made worse with prolonged standing or walking. Accordingly, the claims for increased ratings must be denied. 5. Prior to October 7, 2014, an increased 40 percent rating is warranted for peripheral neuropathy of the right lower extremity. 6. Since October 7, 2014, a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity is denied. 7. Prior to October 7, 2014, an increased 40 percent rating for peripheral neuropathy of the left lower extremity is granted. 8. Since October 7, 2014, a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity is denied. The Board finds that prior to October 7, 2014, an increased 40 percent rating is warranted for the Veteran’s peripheral neuropathy of the right and left lower extremities. Prior to that date, and since the beginning of the appeal in August 24, 2010, the Veteran’s peripheral neuropathy has been considered to be moderately severe. The reason for the original difference of rating is related to the code upon which the claim was first rated. Specifically, the October 2014 rating decision assigned a 30 percent rating for severe peripheral neuropathy pursuant to DC 8524, which contemplates paralysis of the internal popliteal nerve. Under that criteria, a 30 percent rating is the highest available absent evidence of complete paralysis. Since October 7, 2014, the Veteran has been in receipt of a 40 percent rating for moderately severe peripheral neuropathy of the right and left lower extremity pursuant to a different code, DC 8520, which contemplates the paralysis of the sciatic nerve. The February 2015 VA examination demonstrates that the sciatic nerve was affected. Given such, the Board will rate the Veteran’s disability under DC 8520 for the entire appeal period, as that is more advantageous to the Veteran. Thus, a 40 percent rating is warranted throughout the appeal period. However, a rating in excess of 40 percent is not warranted at any time during the appeal period. For one, complete paralysis has not been shown. Rather, on repeat VA examination, the Veteran has been shown to suffer from moderately severe incomplete paralysis of the sciatic nerve. It has been specifically found that the Veteran’s peripheral neuropathy is moderately severe in degree. Importantly, marked atrophy has not been shown on VA examination or in the treatment records. Accordingly, an increased rating is not warranted pursuant to the rating schedule. Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. VA law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Prior to that date, a claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). 9. An earlier effective date of August 24, 2010, for the award of service connection for Charcot arthropathy of the right foot is granted. 10. An earlier effective date of August 24, 2010, for the award of service connection for Charcot arthropathy of the left foot is granted. The Veteran is currently in receipt of an effective date of March 27, 2014, for the grant for service connection for right and left Charcot arthropathy of the right and left lower extremities. The Board finds that an earlier effective date of August 24, 2010, is warranted for both lower extremities. While the RO has stated that the Veteran first filed a claim for Charcot arthropathy on March 27, 2014, a review of the record shows instead that on that date, the Veteran reported symptoms of pain, weakness, and tingling in the lower extremities and feet. He did not actually state the diagnosis of Charcot arthropathy. The Veteran has continuously reported symptoms of severe pain, burning, and weakness in his lower extremities, to include his feet, since filing the claim for service connection for peripheral neuropathy in August 24, 2010. Therefore, at the outset, the Board finds that there was no specific claim filed for Charcot arthropathy since August 24, 2010, rather the Veteran reported severe neurological symptoms of the lower extremities throughout this period. Further review of the record reflects that in March 2011, the Veteran was diagnosed with Charcot arthropathy bilaterally. It is thus clear that he has suffered from this disability for years prior to the currently assigned effective date, and likely dating back to the date of original claim, August 24, 2010. The Board finds that the August 24, 2010, claim reasonably encompassed all of the Veteran’s neurological and related symptoms of the lower extremities, to include of the feet. Accordingly, the appropriate effective date is the date of claim, August 24, 2010, for the grant of service connection for Charcot arthropathy of the right and left lower extremities. 11. An effective date earlier than March 27, 2014, for the grant of SMC based on the need for regular A&A is denied. As for this remaining claim, the Board finds that, despite the earlier effective date established earlier in this decision for the Charcot arthropathy of the lower extremities, a grant of an earlier effective date for the SMC based on the need for regular A&A conversely is not warranted. SMC is payable at a specified rate under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems (statutory housebound); or, (2) is permanently housebound (HB) by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or 4.30 (temporary total convalescence rating). Additionally, a total disability rating based on individual unemployability (TDIU) may meet the criterion. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). The Veteran filed a claim for SMC based upon the need for A&A on May 20, 2015. He was originally granted SMC from that date. The effective date was then changed to earlier, however, back to March 27, 2014, because the evidence showed that he had met the criteria for SMC within one year prior to the date of receipt of his claim for this benefit. In other words, his entitlement to this benefit was “factually ascertainable” even during that immediately preceding year. See Harper, 10 Vet. App. at 126, citing 38 C.F.R. § 3.400(o)(2). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). Since SMC is a “higher” (i.e., special) rate of monthly compensation, the effective date rules for increased-rating claims apply to SMC claims. Therefore, the effective date was changed to include this earlier period of time. However, there is no even earlier date of claim for SMC. On a schedular basis, there is also no earlier date to grant SMC based upon the need for regular A&A. Beginning on March 27, 2014, the Veteran was granted service connection for an acquired psychiatric disorder, rated as 70-percent disabling. Thus, since March 27, 2014, he has had a 100 percent rating, TDIU, and an additional 70 percent rating for PTSD. The assignment of a TDIU was based on his severe limitation of his upper and lower extremities. He claimed such in his December 2014 claim for a TDIU, and in December 2014 his private physician affirmed the service-connected disabilities prevented substantially gainful employment.   Thus, prior to March 27, 2014, the Veteran did not meet the criteria for SMC on a purely schedular basis, meaning did not have one 100 percent rating and an additional disability independently rated at 60 percent or more, so apart from that. Therefore, this claim for an even earlier effective date for the SMC must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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.