Citation Nr: 21008445 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-26 088 DATE: February 17, 2021 ORDER Service connection for left foot drag, to include as secondary to service-connected left quadriceps and anterior thigh, paresthesias with weakness, femoral nerve (“left thigh disability”), is denied. A rating greater than 30 percent for cervical spine traumatic arthritis (“neck disability”) is denied. A rating greater than 40 percent for lumbar spine traumatic arthritis (“back disability”) is denied. Special monthly compensation (“SMC”) under 38 U.S.C. § 1114(k) or (l) is denied. FINDINGS OF FACT 1. The Veteran was not diagnosed with left foot drag during the period on appeal; the probative evidence attributes his symptoms to service-connected left thigh and left lower extremity disabilities. 2. Throughout the period on appeal, the Veteran’s neck and back disabilities manifested by subjective reports of pain and limited motion; objective testing did not demonstrate unfavorable ankylosis of the cervical or thoracolumbar spines or additional neurologic abnormalities for which the Veteran is not already service-connected. 3. The Veteran does not demonstrate loss of use of one foot or the need for the aid and attendance of another. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot drag have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for a rating greater than 30 percent for cervical spine traumatic arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5242. 3. The criteria for a rating greater than 40 percent for lumbar spine traumatic arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5242. 4. The criteria for an award of SMC under 38 U.S.C. § 1114(k) or (l) have not been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1974 to August 1995, including foreign service. For his meritorious service, he was awarded (among other decorations) the Combat Action Ribbon, Navy Achievement Medal, and Southwest Asia Service Medal. Historically, these appeals were denied by the Board in August 2018. Upon receipt of a Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court) vacated the Board’s denials and remanded the matters for further consideration in June 2019. These appeals were then remanded by the Board in December 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters have since been returned to the Board for readjudication on the merits. In October 2020, the Veteran submitted a statement wherein he requested higher-level review of these appeals, ostensibly under the modernized review system (known by the Board as AMA). 38 C.F.R. § 19.2. The following month, he indicated that this request was made in error. As such, adjudication of these appeals now continues under the legacy system. Service Connection The Veteran is pursuing service connection for a left foot drag as secondary to his service-connected left thigh disability. The Board will limit its analysis accordingly. Service connection may be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As such, the threshold question here is whether the Veteran demonstrates a current disability for which service connection may be awarded. The record is in controversy on this point. In August 2012, a VA examiner described the Veteran’s gait as abnormal, with the appearance of a “left lower extremity drag.” The etiology of this condition was identified as “paresthesias with weakness, left quadriceps and anterior thigh,” for which the Veteran is already service-connected. However, the examiner declined to provide a more definitive nexus opinion at that time, upon finding no abnormality of the left shin/foot on examination. This examination was found to be inadequate by the Board in December 2019, at which time an additional evaluation was instructed. A new examination was obtained in February 2020. Following evaluation of the Veteran and review of the claims file in its entirety, the VA examiner found “no objective evidence of foot drop at time of exam, nor evidence in the medical records showing diagnosis of foot drop.” At that time, the Veteran demonstrated normal strength, range of motion, and sensation of the left foot and ankle. Rather, his complaints were consistent with his service-connected left thigh disability. In this respect, the February 2020 VA examiner classified the Veteran’s service-connected disability as both a left thigh condition and “neuropathy of the left lower extremity.” At the time of evaluation, the Veteran was only service-connected for the left thigh disability. However, a September 2020 rating decision awarded the Veteran service connection for left lower extremity radiculopathy of the sciatic nerve. Thus, the February 2020 examiner’s opinion remains intact, as the full scope of the Veteran’s symptoms have been directly attributed to his service-connected left thigh and left lower extremity disabilities. Notably, the Veteran has not appealed any aspect of the September 2020 award of service connection for a left lower extremity disability; instead, he continues to seek a separate award of service connection for left foot drag at this time. The claims file is otherwise silent for a distinct diagnosis of left foot drag during the period on appeal, to include in VA or private treatment records; although a November 2006 VA examination documents the Veteran’s reports of “frequent foot drop/toe drag,” this evaluation is not sufficiently contemporaneous to the period on appeal as to warrant the finding of a current disability on this basis alone. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim); see also August 2011 and December 2011 VA general examinations (not reporting left foot drag or the symptoms thereof). Upon contemplation of the above, a current disability is not found in this case. Rather, multiple medical experts have clearly and directly attributed the full scope of the Veteran’s symptoms to his already service-connected left thigh and left lower extremity disabilities. To offer a separate award based upon the same set of symptoms would constitute impermissible pyramiding, as strictly prohibited by VA laws and regulations. 38 C.F.R. § 4.14; see also Mittleider v. West, 11 Vet. App. 181 (1998). Nonetheless, the Veteran contends that he exhibits a separate disability for which service connection is now warranted. In offering a negative finding on this point, the Board does not deny the existence of current symptoms in the Veteran. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is already receiving compensation for these symptoms, and no other symptoms have been identified for the Board’s consideration. Moreover, the Veteran lacks the requisite medical training and expertise to offer a competent diagnosis or to identify the source of his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, greater probative value is afforded to the medical evidence of record, which supports the conclusions offered herein. In the June 2019 JMR, the parties argued that the Board’s prior denial of this claim did not adequately address that DC 8526—the DC under which the Veteran’s left thigh disability is currently evaluated—does not explicitly contemplate symptoms of the foot. Additionally, the parties argued that alternative DCs exist (including DCs 8520 and 8521) which address other “conditions manifested by foot drop.” The above arguments do not provide an avenue upon which to grant this appeal. Although DC 8526 does not directly contemplate symptoms of the foot, it does address paralysis of the quadriceps extensor muscles. In reviewing the record, such a designation fully speaks to the origin of the Veteran’s service-connected disability and directly contemplates the full scope of the Veteran’s related symptoms—left foot drop, contemplated in DC 8526 as paralysis. See, e.g., August 2012 VA examination (diagnosing the Veteran with paresthesias with weakness, left quadriceps and anterior thigh, with otherwise normal neurological examination of the left shin and foot); February 2020 VA examination (diagnosing the Veteran with paresthesias with weakness, left quadriceps and anterior thigh). Notably, neither the August 2012 nor February 2020 VA examiners diagnosed the Veteran with an external popliteal nerve condition warranting a separate evaluation under DC 8521. Although the latter diagnosed the Veteran with a disability of the sciatic nerve, the Veteran is now in receipt of service connection for such a condition under DC 8520, thereby rendering this argument moot. Thus, the above arguments fail to yield a positive disposition in this case. Also, in June 2019, the parties argued that the scope and nature of the Veteran’s symptoms warrant consideration as to whether a higher rating is appropriate for the Veteran’s left thigh disability. Though VA is to read a claimant’s filings broadly and sympathetically, there is a clear and understandable difference between a service connection claim and an increased rating claim. This appeal was initiated by the Veteran’s seeking special monthly compensation benefits. Following the March 2013 rating decision on appeal, the Veteran specifically limited his notice of disagreement to the issues listed above. If the Veteran wishes to file a claim for an increased rating for his left thigh disability, he may do so. The Board, at this time, does not find that the procedural history or the contentions of the Veteran could be read so broadly as to infer a claim for an increased rating for his left thigh disability. In sum, the Veteran does not demonstrate a current disability for which service connection is warranted; rather, the full scope of his symptoms has been attributed to two service-connected left thigh and left lower extremity disabilities. The preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable, and the appeal seeking secondary service connection for left foot drag is hereby denied. Increased Ratings The Veteran is additionally seeking higher ratings for his service-connected neck and back disabilities. As these appeals require similar analyses, they will be addressed simultaneously herein. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently in receipt of 30 and 40 percent ratings for his neck and back disabilities, respectively, in accordance with DC 5242. As such, he may be awarded a 40 percent rating for his neck disability, and 50 percent rating for his back disability, upon evidence of the following: • Unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DC 5242, Note (5). As the Veteran did not demonstrate intervertebral disc syndrome (IVDS) of the cervical or thoracolumbar spines during the period on appeal, the Formula for Rating IVDS Based on Incapacitating Episodes is not applicable to these appeals. See, e.g., VA examinations dated August 2012 and February 2020 (denying IVDS of the cervical or thoracolumbar spines). Additionally, higher ratings are not warranted as based upon ankylosis. Notably, the Veteran underwent four pertinent VA examinations during the period on appeal. See VA examinations dated August 2011, December 2011, August 2012, and February 2020. None of his examiners documented unfavorable ankylosis of the cervical or thoracolumbar spines; rather, his February 2020 examiner explicitly denied such disability pictures in the Veteran, as based upon review of his treatment records and contemporaneous evaluation. Accompanying VA and private treatment records are also silent for such a history in the Veteran spanning the period on appeal. Although the Veteran certainly demonstrated limited motion of the neck and back due to his disabilities, at no time were his cervical or thoracolumbar spines so ankylosed as to be fixed in flexion or extension in accordance with VA regulations. Thus, the Veteran does not demonstrate such unfavorable ankylosis as to warrant increased ratings on this basis, in conjunction with the criteria of DC 5242. In offering this conclusion, the Board does not disregard the Veteran’s contention that higher ratings are warranted for his disabilities. However, he is not competent to identify a specific level of disability according to the applicable DC. See Jandreau, 492 F.3d at 1376-77. Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities during the period on appeal. Direct contemplation of these objective medical findings against the relevant diagnostic criteria does not yield higher ratings in this case. The Board has also considered the Veteran’s testimony regarding the nature and severity of his disabilities during the period on appeal. Layno, 6 Vet. App. at 470. However, the full scope of the Veteran’s symptoms—primarily reported as chronic pain which worsens with movement and causes moderate limitation of motion—is fully contemplated in the ratings as currently assigned. Critically, those symptoms indicative of more severe disability pictures are absent from the record, including unfavorable ankylosis, weakness, fatigability, or incoordination; rather, pain and intermittent lack of endurance are routinely identified as the primary causes of any functional limitations. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Said limitations are moderate in nature, with the February 2020 examiner reporting no such restrictions due to the Veteran’s neck disability, and only difficulty with prolonged standing or heavy lifting due to his back disability. Nonetheless, the Veteran remained largely capable of functioning despite the presence of his symptoms throughout the period on appeal. Although he reported the use of pain medications to assist with managing this symptom, he also routinely denied the need for additional treatment methods, to include physical therapy, injections, or the use of assistive devices. See, e.g., VA examinations dated August 2012 and February 2020. Thus, the Veteran’s disability pictures are not of such severity as to warrant higher ratings in the instant case, as his subjective reports of chronic pain and related impairment are appropriately compensated by the current ratings. Of note, DC 5242 also instructs consideration of DC 5003 in appropriate instances. However, DC 5003 compensates for degenerative arthritis and provides for a maximum evaluation of 20 percent. As such, these appeals cannot succeed on this basis, as the Veteran is already in receipt of ratings greater than 20 percent. DC 5242 further mandates that a veteran’s disability be evaluated for any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. 38 C.F.R. § 4.71a, DC 5242, Note (1). As noted in the June 2019 JMR, such neurologic abnormalities are present in this case. However, this argument again fails to yield a grant of these appeals. Historically, the record contains repeated references to certain symptoms which may be indicative of neurologic disorders, including radiating pain, weakness, and numbness. See, e.g., VA examinations dated August 2011, December 2011, and August 2012. As such, the Board remanded these appeals in December 2019 to obtain clarification as to all neurologic abnormalities associated with the Veteran’s neck and back disabilities. Such clarification was obtained in February 2020, when a VA peripheral nerves examiner diagnosed the Veteran with conditions of the left sciatic and femoral nerves. Additional neurologic abnormalities, including bladder or bowel problems, were explicitly denied at that time, and are not otherwise noted in the record. Currently, the Veteran is in receipt of service connection for a left thigh disability (of the femoral nerve) and a left lower extremity disability (of the sciatic nerve). Accordingly, there remains no additional neurologic abnormalities, including bladder or bowel problems, for which the Veteran merits compensation. Thus, this argument provides no basis upon which to grant these appeals. In sum, the Veteran’s neck and back disabilities are not of such nature and severity as to warrant higher ratings than those currently assigned. Notably, he has not demonstrated unfavorable ankylosis of the spines at any time during the period on appeal; although related neurologic abnormalities are noted, the Veteran is separately service-connected for these disorders. The preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not applicable, and the appeals seeking higher ratings for neck and back disabilities are hereby denied. SMC Finally, the Veteran is currently in receipt of SMC due to loss of use of a creative organ under 38 U.S.C. § 1114(k). See June 2006 rating decision. He is now requesting a higher rate of SMC pursuant to either 38 U.S.C. § 1114(k) or (l), for the purported anatomical loss of use of his left lower extremity. See, e.g., May 2012 claim (seeking SMC under 38 U.S.C. § 1114(l)); July 2015 VA Form 9 (indicating confusion as to whether SMC under 38 U.S.C. § 114(k) applies to his appeal). SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. The rate of SMC varies according to the nature of the veteran’s service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114(l), (m), (n), and (o). SMC under 38 U.S.C. § 1114(k) is payable for one of a number of conditions, including each anatomical loss or loss of use of one foot. 38 C.F.R. § 3.350(a). “Loss of use of foot” exists 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 or knee with the use of a suitable prosthetic appliance.” This determination is made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prothesis; for example: (a) 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 1/2 inches or more, will constitute loss of use of the hand or foot involved, and; (b) complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, 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 C.F.R. § 3.350(a)(2). Further, 38 U.S.C. § 1114(l) addresses SMC for veterans with anatomical loss or loss of use of both feet, or of one hand and one foot, or blindness with visual acuity of 5/200 or less, or permanently bedridden, or with such significant disabilities as to be in need for regular aid and attendance. “Loss of use of foot” remains defined as set forth above. 38 C.F.R. § 3.350(a)(2). The following factors will be considered in determining whether the veteran is entitled to SMC based on need for aid and attendance: inability to dress or undress without assistance; to keep ordinarily clean and presentable without assistance; inability of claimant to feed himself or herself without assistance; inability to attend to the wants of nature; and incapacity that requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. Id. Thus, the Board’s inquiry here is twofold: (1) Does the Veteran demonstrate loss of use of foot within the meaning of VA regulations; or (2) does he present with such significant disabilities as to be in need for regular aid and attendance? Such disability pictures are not present in the instant case. As an initial matter, the Veteran is not currently service-connected for loss of use of his left foot, nor is such a disability picture otherwise present in the record. Rather, multiple examiners have concluded that the Veteran’s left lower extremity is not productive of such functional impairment that no effective function remains other than that which would be equally well served by an amputation with prosthesis; further, there is no competent medical evidence which contradicts these findings. See VA examinations dated August 2012 and February 2020; September 2020 ankle Disability Benefits Questionnaire (DBQ). Moreover, a history of ankylosis, shortening of the lower extremity, or complete paralysis of the external popliteal nerve are wholly undocumented in the record, including by the Veteran’s examiners. Such a finding directly corresponds with the Veteran’s own testimony as to the actual functioning of his left lower extremity. Throughout the period on appeal, the Veteran has testified as to ongoing symptoms of pain, weakness, and left foot dragging which limits his movement, ability to raise his left hip, and capacity to ambulate, particularly on uneven ground. See, e.g., May 2012 claim; lay statements dated November 2012 and March 2013; July 2015 VA Form 9; November 2019 representative’s memorandum. However, these collective symptoms do not equate loss of use of the left lower extremity. At no time did the Veteran testify as to absolute loss of functioning of his left lower extremity, nor did he require the use of an assistive device to assist with ambulation. Moreover, objective testing has not established such paralysis of the left lower extremity as to result in sufficiently diminished functioning as to qualify as total loss of use of the left foot. Instead, the Veteran attempts to remain “as active as possible,” is able to leave the home unrestricted, can ambulate without the assistance of another person, and can largely conduct the activities of daily living without assistance. See May 2012 claim; August 2012 VA examination; September 2020 DBQ. Thus, although the Veteran’s left lower extremity is productive of certain functional limitations, his disability picture does not result in the loss of use of foot within the meaning of VA regulations. The appeal fails on this basis. Additionally, the record does not establish that the Veteran requires aid and attendance. At no time has he reported such diminished functioning that he is unable to dress/undress, keep clean, feed himself, or attend to the wants of nature without assistance. Instead, his August 2012 VA examiner concluded that the Veteran’s imbalance did not affect his ability to ambulate, nor did he experience such impairment that he was unable to protect himself from his daily environment. Rather, the Veteran remained capable of “perform[ing] all functions” at that time. Such self-sufficiency is reflected in even the most current examinations, which document some limitation of motion and difficulty with ambulating, but are silent for reports that the Veteran requires aid and assistance as a result thereof. Thus, the appeal also fails on this basis. In sum, the evidence does not establish that the Veteran demonstrates the loss of use of his left lower extremity, or requires aid and attendance therefor. The preponderance of the evidence is against the claim and the benefit-of-the-doubt rule is not applicable. Accordingly, the appeal seeking a higher rate of SMC pursuant to either 38 U.S.C. § 1114(k) or (l) is denied. In offering the above conclusions, the Board has considered the Veteran’s assertion that he experiences loss of use of his left foot due to an ongoing foot drag. See November 2019 representative’s memorandum. As determined herein, the Veteran presents with pain and weakness of the left lower extremity, but not a left foot drag. Thus, this argument does not provide a basis upon which to grant this appeal. Further, the Board notes the Veteran’s contention that SMC is warranted due to his inability to lift his left leg from his hip. Id. However, the Veteran has offered conflicting testimony on this point, at times reporting total paralysis of his left hip and others, only difficulty doing so. Compare February 2013 lay statement (reporting total paralysis of the left hip) with March 2013 lay statement (reporting treatment to regain left hip functioning, but with remaining chronic pain); see Miller v. Wilkie, 32 Vet. App. 249 (2020). Notably, there is no competent medical evidence which indicates that the Veteran’s left hip has been permanently or even chronically paralyzed due to his disabilities. Accordingly, this argument also fails. Upon the above, the appeal seeking entitlement to SMC benefits is denied, as set forth herein. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.