Citation Nr: 21008125 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-32 494 DATE: February 11, 2021 ORDER Entitlement to special monthly compensation for loss of use of lower extremities is denied. FINDING OF FACT No service-connected disability has caused loss or loss of use of both lower extremities. CONCLUSION OF LAW The criteria for SMC based on the loss or loss of use of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1114, 5107(b); 38 C.F.R. §§ 3.350(a)(2), 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to March 1968. This appeal to the Board of Veteran’s Appeals (Board) arose from a June 2017 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In April 2020, the Board remanded the claim for further evidentiary development. The case has returned to the Board for appellate consideration. Service Connection SMC under 38 U.S.C. § 1114 is payable, in pertinent part, if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet. The term “loss of use” of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where 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 use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 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 and 1/2 inches or more, will constitute loss of use of the foot involved; 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, will be taken as loss of use of the foot. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 4.63(a), (b). The Veteran contends he is entitled to SMC for loss of use of both of his feet based on paraplegia. He asserts his paraplegia is caused by a 2014 fall that he suffered as a result of being intoxicated and that he is service connected for posttraumatic stress disorder (PTSD) with alcohol use disorder. See April 2018 NOD. Multiple VA treatment records document that prior to his fall injury that fractured his spine, the Veteran was diagnosed with severe right knee arthritis and moderate left knee arthritis. See August 2012 and November 2012 VA treatment records. The VA treatment records also document that the Veteran was recommended for surgery for his knees but the surgery was contingent on the Veteran losing weight and that ultimately, the surgery was not performed. See December 2012 and October 2014 VA treatment records. Further, a May 2013 VA treatment record documented that the Veteran had a kyphotic spine with antalgic gait. A February 2013 VA treatment documented the Veteran’s report that he drank 6 to 8 beers a night and that he did not plan to give it up. February 2014 VA records reflect that the Veteran fell and fractured his thoracic spine at T11-12. In an October 2014 VA treatment record, the Veteran stated that he slipped and fell in a parking lot after his right knee gave out and he sustained a lower thoracic fracture which resulted in paraplegia. The Veteran in the same VA treatment record reported that the VA refused his knee surgery and that if the VA had done his surgery, he would not fallen. In the same October 2014 VA treatment record where the Veteran stated that he fell because his knee gave out, the physician reviewed the hospital chart from his injury and noted that the Veteran was intoxicated at the time of the fall. In a June 2017 VA examination for peripheral neuropathy, the examiner documented the Veteran’s medical history and noted that the Veteran reported symptoms of numbness, burning, and tingling on his left foot and that MRI findings in 2013 indicated radiculopathy but that he was not given any medication for his radiculopathy/ neuropathy. The examiner noted that the Veteran incurred a fall in 2014, which resulted in a T11 fracture and left him paraplegic. The examiner noted that the Veteran was non-ambulatory and used his power wheelchair for almost all of his activities. The examiner further noted that the Veteran did not have significant function in his lower extremities and that peripheral neuropathy examination was significantly limited because the Veteran was a paraplegic. The examiner answered no to the question asking whether due to peripheral nerve condition, is there functional impairment of an extremity such that no effective function remains other than which would be equally well served by an amputation with prosthesis. In a July 2020 VA opinion, the examiner noted that the injury leading to his paraplegia was caused by his knee collapsing and not from alcohol intoxication. The examiner noted that the hospital records documented that the Veteran was noted as alert and oriented times 4, which was indicative of not being intoxicated at the time of the accident. The examiner also noted that the Veteran was able to get into his truck after the fall, which indicated that the Veteran did not have a spinal cord injury at the time. The examiner further noted that the Veteran had a subsequent surgery which included ankylosing spondylitis and the examiner indicated that ankylosing spondylitis increases the risk of spinal fractures event after minor trauma. Based on that reasoning, the examiner opined that it was less likely than not that the Veteran’s paraplegia is the result of his service-connected alcohol use disorder. The Board finds the most probative evidence of record is the July 2020 VA medical opinion and it supports that the Veteran’s paraplegia and loss of use of his lower extremities is less likely than not related to his service-connected alcohol use disorder. The examiner responded directly to the relevant question posed and provided a complete rationale which thoroughly addressed the Veteran’s assertion that he was intoxicated, fell, and suffered a spinal cord injury. He offered clear and concise conclusions with supporting data. In particular, the examiner referenced the February 2014 medical records created contemporaneous with the fall, and noted that they reflected that the Veteran was oriented times four and therefore not intoxicated, and that he was able to get in to his truck, reflecting that he did not have a spinal cord injury at the time. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board notes there are no contrary medical opinions which support that the Veteran’s paraplegia is causally related to his service-connected alcohol use disorder. In addition to the July 2020 VA medical opinion, the Board recognizes the Veteran’s lay statements in which he asserts that his paraplegia resulted from a fall sustained while he was intoxicated, and, therefore, that his paraplegia is secondary to his service-connected PTSD. However, the Veteran is not currently service connected for paraplegia. As such, that condition may not be considered with regard to his SMC claim on appeal. The Veteran is currently service connected for PTSD with alcohol use disorder, hypertension, tinnitus, bilateral hearing loss, scar of scalp, and bilateral lower extremity peripheral neuropathy. The Veteran is not service connected for any knee disability, and as discussed above, the Veteran is not service connected for paraplegia. Further, with regard to the only other disability impacting the Veteran’s lower extremities, the June 2017 VA examiner opined that peripheral nerve condition did not cause functional impairment of an extremity such that no effective function remains other than which would be equally well served by an amputation with prosthesis. The July 2020 VA examiner noted the Veteran was found to have a mild bilateral lower extremity peripheral neuropathy, which does not support the loss of use of the lower extremities. In sum, the preponderance of the evidence is against the claim and SMC for loss of use of both feet is not warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.