Citation Nr: 21011428 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 19-22 494 DATE: March 1, 2021 ORDER Restoration of a 100 percent rating for peripheral vascular disease (PVD) of the right lower extremity (RLE) effective January 16, 2017, is denied. Restoration of a 100 percent rating for PVD of the left lower extremity (LLE) effective January 16, 2017, is denied. Restoration of a separate 20 percent rating for LLE peripheral neuropathy effective January 16, 2017, is denied. Effective October 21, 2011, a 60 percent rating for a below the knee amputation of the right leg is granted. Effective August 5, 2015, an 80 percent rating for an above the knee amputation of the right leg is granted. Effective October 18, 2013, a 40 percent rating for PVD of the LLE is granted. Effective May 7, 2014, a 100 percent rating for PVD of the LLE is granted. An initial rating in excess of 60 percent prior to January 19, 2006, and from March 1, 2006, a compensable rating from May 31, 2007, to October 18, 2013, and a rating in excess of 40 percent from such date to May 7, 2014, for PVD of the LLE is denied. An initial rating in excess of 40 percent prior to September 30, 2005, and in excess of 60 percent from such date to April 7, 2006, for PVD of the RLE, is denied. Entitlement to a 100 percent rating for loss of use of both feet (formerly bilateral leg above the knee amputation) is granted effective January 16, 2017, but no earlier. Entitlement to special monthly compensation (SMC) at the intermediate rate between 38 U.S.C. § 1114 (n) and (o) effective January 16, 2017, but no earlier, is granted. Entitlement to an effective date of January 16, 2017, but no earlier, for payment of the SMC (r)(1) allowance is granted. Entitlement to payment of the SMC (r)(2) allowance is denied. FINDINGS OF FACT 1. The Veteran filed a notice of disagreement as to the assigned initial ratings for his bilateral lower extremity PVD in July 2004 which was not answered. 2. Prior to January 19, 2006, the Veteran’s PVD of the LLE did not manifest in ischemic pain on rest, deep ischemic ulcers, or an ankle/brachial index (ABI) of 0.4 or less. 3. From May 31, 2007, to October 18, 2013, the Veteran’s PVD of the LLE did not manifest in claudication on walking more than 100 yards, ischemic limb pain at rest, or diminished peripheral pulses or and ABI of 0.9 or less. 4. From October 18, 2013, to May 7, 2014, the Veteran’s PVD of the LLE manifested by an ABI of .54, with claudication and pain on activity; without ischemic pain on rest, deep ischemic ulcers, or an ABI of 0.5 or less. 5. Since May 7, 2014, the Veteran’s PVD of the LLE manifested by ischemic pain on rest. 6. Prior to September 30, 2005, the Veteran’s PVD of the RLE did not manifest in claudication on walking less than 25 yards, ischemic limb pain at rest, or diminished peripheral pulses or and ABI of 0.5 or less 7. From September 30, 2005, to April 7, 2006, the Veteran’s PVD of the RLE did not manifest in ischemic pain on rest, deep ischemic ulcers, or an ABI of 0.4 or less. 8. As of October 21, 2011, the Veteran’s right leg amputation manifested by amputation below the knee not improvable by prosthesis. 9. As of August 5, 2015, the Veteran’s right leg disabilities manifested by amputation above the knee with anatomical loss of the leg so near the hip as to prevent use of a prosthetic appliance. 10. As of January 16, 2017, the Veteran’s left leg disabilities manifested by loss of use of the leg at a level, with complications, preventing natural knee action, and use of a prosthesis was not to be expected. 11. As of July 3, 2017, the Veteran’s left leg disabilities manifested by anatomical loss of the leg so near the hip as to prevent use of a prosthetic appliance. 12. Since January 16, 2017, the Veteran required care or assistance on a regular basis; but not personal health-care services provided on a daily basis in his home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. 13. Since January 16, 2017, and earlier, the Veteran’s coronary artery disease was separately rated as 100 percent disabling. CONCLUSIONS OF LAW 1. The criteria for an initial 60 percent rating prior to January 19, 2006, and from March 1, 2006 to May 31, 2007, a compensable rating from such time to October 18, 2013, and a 40 percent rating from such date to May 7, 2014, but no higher, for PVD of the LLE are met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7114 (2019). 2. The criteria for an initial rating in excess of 40 percent prior to September 30, 2005, and in excess of 60 percent from such date to April 7, 2006, for PVD of the RLE are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, DC 7114. 3. As of October 21, 2011, the criteria for a 60 percent rating for a below the knee amputation of the right leg are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5164. 4. As of August 5, 2015, the criteria for an 80 percent rating for an above the knee amputation of the right leg are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5161. 5. As of January 16, 2017, the criteria for a 100 percent rating based on the loss of use of both feet are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5110. 6. As of January 16, 2017, the criteria for entitlement to SMC payable at level (r)(1), but no higher, are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 7. As of January 16, 2017, the criteria for entitlement to SMC payment greater than (r)(1) are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to August 1968. The Veteran died in July 2020, and the appellant has been substituted in the appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Effective Dates In the May 5, 2017, claim, the Veteran stated he was seeking an increased rating for bilateral lower extremity PVD and an increased rating for his service-connected amputation of the right leg below the knee. In subsequent statements however, the Veteran made it clear he was seeking entitlement to payment at a rate greater than SMC (k), which was in place for the loss of his right foot. He also contended that because his right leg was amputated in August 2015, an effective date earlier than May 5, 2017 was warranted for his 80 percent rating for right leg above the knee amputation. Further, he contended that an effective date earlier than July 3, 2017, was warranted for the award a 100 percent rating for the loss of both feet after the above the knee amputation of the left leg, including the awards of SMC. First, turning to his claims for earlier effective dates, the law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Such also specifically provide 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 any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., “special”) compensation. SMC is available when, as the result of a service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by the rating schedule. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). A Veteran is presumed to be seeking the maximum benefit allowed by law or regulation; therefore, an appeal for a higher rating may include the inferred issue of entitlement to SMC even where the Veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118 (1991). Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. In this regard, the Veteran filed his initial service connection claim for PVD in October 2003, and service connection was eventually granted in a March 2004 rating decision. Thereafter, he filed a disagreement to the assigned effective date and disability level in August 2004. In September 2004, the RO granted an earlier effective date for PVD of the right lower extremity, peripheral neuropathy of the left lower extremity, and denied an earlier effective date for PVD of the left lower extremity. However, the RO did not address the Veteran’s claim regarding entitlement to higher initial ratings. Thereafter, the Veteran filed an additional claim for increased ratings for his PVD in January 2006, and in March 2006, the RO granted an increased evaluation for PVD of the right leg and a temporary total rating for PVD of the left leg. Then in a June 2006 rating decision, the RO increased the rating for PVD of the right leg to 100 percent, continued the rating of PVD for the right leg, and continued a rating of SMC for loss of a creative organ. Then, in a March 2007 rating decision, the RO reduced the award for PVD of the left leg to noncompensable. The Veteran filed a notice of disagreement to such decision in April 2007. In a September 2007 statement of the case, the RO continued the noncompensable rating. The Veteran did not file a substantive appeal in response to such decision. In April 2010, the Veteran filed another claim for an increased rating for PVD of the right leg, and entitlement to a higher level of SMC. In a November 2010 rating decision, the RO increased the rating for coronary artery disease to 100 percent, assigned a temporary total rating for PVD of the right leg, and a 40 percent rating thereafter, SMC based on the anatomical loss of the right foot, and denied SMC based on aid and attendance. The RO was notified of hospitalization for PVD of the right leg, and in April 2012, the RO denied higher rating for PVD of the right leg and diabetes. In May 2012, the Veteran filed a claim for an increased rating for right leg amputation below the knee. In August 2012, the RO denied a higher rating for right leg PVD with amputation. The Veteran filed a notice of disagreement to such decision in August 2012. In December 2013, the RO issued a statement of the case granting an rating increase to 60 percent for right leg amputation due to PVD. In February 2014, the Veteran submitted a substantive appeal to the issues in the statement of the case. Then, in a September 2014 rating decision, the RO increased the Veteran’s rating for PVD of the right lower extremity, and restored his previously severed disability rating. Initially, the Board recognizes that the Veteran disagreed with the assigned ratings, effective dates, and change in DC from PVD (characterized as a discontinuance) in the rating decision on appeal. Notably, effective date claims are part-in-parcel to claims for increased ratings, and the Veteran’s claims for increased ratings for the amputations of the lower extremities and discontinuance of the rating for PVD include an increased rating claim for PVD, as the claims addressed the assigned ratings for the lower extremities, under whichever DC assigned. Moreover, the amputations of the lower extremities were caused by the PVD, and are a progression of the PVD. Thus, the Veteran’s claims pertaining to the bilateral lower extremity PVD, amputations, and resulting SMC awards are all interconnected and are incorporated into his claims for increased ratings for PVD. In the instant matter, the Veteran filed a notice of disagreement to the initial rating assigned in the March 2004 rating decision which awarded service connection for PVD. The notice of disagreement was not answered in a subsequent rating decision, identifying the new and material evidence submitted with the claim. Further, new and material evidence was received following the rating decision, and subsequent rating decisions, prior to the expiry of the appeal period. Consequently, the prior rating decision did not become final and the proper date of claim will be the date the initial claim was filed. See Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011). Therefore, as the Veteran’s claim for an initial increased rating for PVD has remained pending, the period on appeal stems from his original claim, and the effective dates of the increased ratings will be the date of entitlement to such ratings. See Harper, supra. Accordingly, the Board will address his claims hitherto forth as initial increased ratings claims and determine the date of entitlement to higher ratings. Increased Ratings After a review of the record, the Board finds that for PVD of the LLE, the Veteran did not warrant ratings in excess of 60 percent rating prior to January 19, 2006 and from March 1, 2006 to May 31, 2007, a compensable rating from such time to October 18, 2013. However, as of such date, the Veteran did warrant a 40 percent rating to May 7, 2014, at which time he warranted a 100 percent rating. Further, in regard to PVD of the RLE, the Veteran did not warrant an initial rating in excess of 40 percent prior to September 30, 2005, and in excess of 60 percent from such date to April 7, 2006, at which time he was in receipt of a 100 percent rating. The Board also finds that the Veteran was unable to tolerate a prosthesis on his below the knee amputation of the right leg as of October 21, 2011, and thus a 60 percent rating is warranted as of such date. Thereafter, the Veteran underwent an above the knee amputation of the RLE to the upper third of the thigh on August 5, 2015, thus warranting an 80 percent rating as of such date. Finally, a 100 percent rating for loss of use of both feet is warranted as of January 16, 2017, and payment at the rate of SMC (r)(1) is warranted, as he was entitled to the intermediate rate between SMC (n) and (o) due to entitlement to SMC (m) and two SMC (p) adjustments, and he had an additional payment of SMC (k) for loss of use of a creative organ, and he required aid and attendance from his wife. See 38 C.F.R. § 3.350; see also 38 C.F.R. § 3.4.71a, DC 5110. In this regard, the previously assigned ratings under DC 7114 for PVD of the bilateral extremities and DC 8620 for peripheral neuropathy of the left leg are therefore changed, not severed, as well as the DCs for amputations, which will be discussed herein. Importantly, the change in DC, and corresponding payment at a higher SMC level, allows for a greater total disability payment to the Veteran, despite the discontinuance of separate ratings. The Board also finds that as of January 16, 2017, the Veteran by grace of this decision, who was in receipt of the second highest possible payment rating at SMC (r)(1), did not warrant payment at a level of SMC (r)(2). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.  A brief history is necessary in order to understand the claim. In this regard, as partially described above, the Veteran was service connected for PVD of his bilateral lower extremities, with the LLE rated as 60 percent disabling from September 29, 2002 to May 31, 2007 (with a period of temporary total evaluation), as noncompensable from such date to May 29, 2014, and as 100 percent thereafter. The RLE was rated as 40 percent disabling from September 29, 2002 to September 30, 2005, at which time he was awarded a 60 percent rating until April 7, 2006, when he was in receipt of a 100 percent rating. In this regard, PVD is rated under DC 7114, which provides a 20 percent disability rating is assigned for claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. A rating of 40 percent is assigned for claudication on walking between 25 and 100 yards on a level grade at two miles per hour; and, trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index (ABI) of 0.7 or less. A rating of 60 percent is assigned for claudication on walking less than 25 yards on a level grade at two miles per hour; and, either persistent coldness of the extremity or ABI of 0.5 or less. A rating of 100 percent is assigned for ischemic limb pain at rest; and, either deep ischemic ulcers or ABI of 0.4 or less. 38 C.F.R. § 4.114, DC 7114. Note (1) to DC 7114 states the ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Pertinent to the appeal, the Veteran initially underwent a VA examination for his diabetes, and any related conditions including PVD, in January 2004. At that time, it was noted that he had claudication in his left calf, getting left calf pain on walking outdoors 400 yards of if he goes over 2 miles an hour on a treadmill. He was also noted to have absent pedal pulse in the left foot and diminished in the right, and he had ABI of .69 in the right foot and .5 in the left, noting such was consistent with moderate to moderately severe claudication. Following VA treatment records from January 2006 show that ABI testing from September 30, 2005, showed the RLE with an ABI of .42, and the LLE with an ABI of .46. Thereafter, the Veteran underwent a left leg artery bypass in January 2006. He was scheduled for a followup examination in February 2006; however, no information could be gleaned from such examination as it was too close in time to the surgery. Rather, the first pertinent evidence of record thereafter is from April 2006, wherein the Veteran reported his left leg was “good now”, but he had some cramping in the RLE which limited him some. His ABI’s at that point were .83 in the left and .37 in the right. Importantly, from such time on the Veteran’s RLE PVD was rated as 100 percent. The Veteran underwent another VA examination for his PVD in March 2007, at which time he reported no cramps in his LLE any longer, he had no atrophic changes, and his ABI was 1 in the left and .5 in the right. The examiner also noted he was able to walk up to 70 minutes on a stair-stepper, although the Veteran later disputed the actual device was not a stair-stepper. In March 2010, he had a femoral tibial bypass on the right leg. However, his course was complicated by infection and in April 2010, he had a below the knee amputation of the right leg, with two subsequent revision of the stump required in 2010. The Veteran underwent a VA examination for aid and attendance in August 2010. The examiner noted the Veteran’s conditions, including the amputation of the RLE, but found that he was able to get about the house in a wheelchair and a walker, and he was able to conduct all his activities of daily living (ADLs). The examiner noted the Veteran was unable to drive, but he was not permanently bedridden or hospitalized. He was able to manage financial affairs, there is bowel and bladder continence, he had no falls at that time, he had a good memory, except for during some of the critical aspects of his hospitalizations. His wife helped him into the shower and bathed his back, but he dressed, fed, and shaved himself. His wife prepared the meals, and he stated he was basically confined to the home, unless she drove him somewhere. Importantly, he was found to have good functional use ot the upper extremities and LLE. In November 2011, the Veteran’s physician noted that he could not tolerate a prosthesis since an episode on October 21, 2011, because of complications with the stump. The Veteran underwent a VA amputations examination in May 2012, which found the Veteran used a wheelchair outside the home and a walker inside, but he stopped wearing prosthesis due to pain and fear of returning ulcer. The examination noted he had an amputation between the forefoot and knee, allowing for a prosthesis. In 2015, a magnetic resonance angiography showed total occlusion of the right iliac artery, and the Veteran underwent an above the knee amputation of the right leg on August 5, 2015. The Veteran underwent several hyperbaric treatments thereafter, but was not amenable to a prosthesis. See June 2017 VA Hip and Thigh Examination. Concurrently, the Veteran was noted to have no LLE symptoms in May 2010 and January 2012 VA treatment notes. On October 8, 2013, the Veteran first reported residual left limb pain in private treatment, and cramping in the left calf, both with activity, and he continued to report LLE pain on activity thereafter in VA treatment, albeit noted as minimal. On May 7, 2014, the Veteran reported in VA treatment records chronic pain in the LLE, and it was noted to be possibly related to ischemia at that time. Then, the Veteran underwent another VA examination for his PVD in May 2014, at which time the examiner noted the Veteran had chronic bilateral thigh pain. The Veteran complained of cramping pain in the left foot and calf whenever he had to get up on it and was standing for a couple of minutes, or trying to hop around on it. The examiner indicated the Veteran had ischemic limb pain at rest, an ABI of .54 from October 18, 2013, as well as diminished pedal pulses and persistent coldness in the left. It was also noted however, that he could still get up on his left leg, but that he would have pain and cannot use it for much time at all. The Veteran still used a wheelchair outside of the home and a walker inside the home occasionally, and the examiner noted he would not be better served by amputation. Of note, the Veteran was thereafter awarded a 100 percent rating for PVD of the LLE based on such examination. Thereafter, the Veteran had much of the same symptomatology and impairment, with VA treatment records from July 2016 noting he used a wheel chair for ambulation and a walker for short distances, indicating use of the left leg. However, on January 16, 2017, the Veteran was seen in treatment for left leg weakness that began a few days prior, with the Veteran unable to use the leg or transfer himself into his chair. Following treatment thereafter, shows continuing worsening in the LLE, with a May 2017 treatment record noting that he had poor circulation of left leg, with probable amputation of that leg in the fairly near future noting the Veteran had black toes. The record continued that the Veteran was losing muscle strength in the left leg due to the pain in foot and diminished blood flow. At a June 2017 VA artery and veins examination, the Veteran’s PVD of the left leg showed similar lack of use, and it caused severe pain at rest, severe claudication at rest of the left foot, occurring most of the time, persistent coldness in the extremity, diminished peripheral pulses, muscle atrophy in the thigh, and trophic changes. Additionally, the June 2017 VA examiner opined that the Veteran would be better served in the left leg with an amputation and use of a prosthesis. Further, the examiner opined that the Veteran could not walk due to severe ischemic pain at rest in the left leg, in addition to the amputation of the right leg above the knee. The examiner noted he was wheelchair bound, he required his wife to attend to all of his daily cares, and he could not stand without assistance. Shortly after the Veteran’s claim from which the current appeal arose, on July 3, 2017, he underwent an above the knee amputation of the left leg. Then, in the November 2017 rating decision on appeal, the RO discontinued the 100 percent rating for RLE PVD effective May 5, 2017, and the 100 percent rating for LLE PVD and the 20 percent rating for left leg peripheral neuropathy, effective July 3, 2017. Then, the RO granted an increased rating of 80 percent for the right leg above the knee amputation, effective May 5, 2017, the date of the Veteran’s claim. It also granted service connection for an above the knee left leg amputation, and assigned a 100 percent rating based on anatomical loss of both feet, effective July 3, 2017. This action, in effect, changed the rating for right leg above the knee amputation. The Veteran and appellant have expressed confusion as to the notation of “loss of use of both feet”, where in this case the Veteran lost use of his entire leg; however, the loss of use of a foot is subsumed within, and not separate and distinct from, the loss of use of a leg. See Guillory v. Shinseki, 669 F.3d 1314, 1319 (Fed. Cir. 2012). VA is aware of the extent of the loss but has been using language taken from statute and regulation to assign the appropriate rating. Continuing on, the November 2017 rating decision also granted SMC for the anatomical loss of both feet as of May 5, 2017, and awarded payment of SMC (l) for the need of regular aid and attendance, and SMC (p) for a separate disability rated as 100 percent disabling, effective May 5, 2017. Then, it awarded SMC (m) on account of anatomical loss of both legs at a level, or with complication, preventing natural knee action with a prosthesis in place, as well as SMC (o) and (p), as well as (r)(1) for entitlement under subsection (o), and being in need of regular aid and attendance, effective July 3, 2017. 1. Entitlement to higher initial ratings for bilateral lower extremity PVD. Based on the foregoing, the Board finds that for PVD of the LLE, the Veteran did not warrant ratings in excess of 60 percent rating prior to January 19, 2006 and from March 1, 2006 to May 31, 2007, a compensable rating from such time to October 18, 2013. However, resolving all doubt in his favor, as of such date, the Veteran did warrant a 40 percent rating to May 7, 2014, at which time he warranted a 100 percent rating. In this regard, the record reflects that prior to his January 2006 procedure, the Veteran would get claudication in his calf with pain on activity, and he had an ABI of .5 or less, but the VA examination findings of record and the medical evidence of record do not show that he had ischemic limb pain at rest, or deep ischemic ulcers, or an ABI of .4 or less. Following the January 2006 surgery, starting from the first adequate clinical findings from March 2007, the Veteran did not have any LLE symptomatology or impairment. Rather, he reported that his left leg “was good” and it appeared the January 2006 procedure was successful. Thus, a noncompensable rating for such period was warranted. However, the LLE was symptomatic prior to the award of a 100 percent rating on May 29, 2014. In this regard, the Veteran was noted to have an ABI of .54 on October 18, 2013, and he began reporting cramping and pain in his left calf on activity. Thus, although the claudication was not specifically identified at a range, including between 25 and 100 yards, resolving doubt in his favor the Board finds he likely had claudication in such range, and he would warrant a 40 percent rating from such date. Further, the Board notes that the May 29, 2014 date assigned for the 100 percent rating was based on the VA examination on that date, which noted ischemic pain on rest in the LLE. However, the first report in the record of chronic pain possibly related to ischemia, without note of concurrent activity, is from May 7, 2014. The findings from the VA examination referred to such treatment records as well for the finding of ischemic pain on rest. While the earlier May treatment records do not include findings of deep ischemic ulcers or an ABI of .4 or less, the Board resolves doubt in the Veteran’s favor and finds that he would nonetheless warrant a 100 percent rating as of such date. In regard to PVD of the RLE, the Veteran did not warrant an initial rating in excess of 40 percent prior to September 30, 2005, and in excess of 60 percent from such date to April 7, 2006, at which time he was in receipt of a 100 percent rating. Specifically, based on the medical evidence of record, he did not have claudication on less than 25 yards or an ABI of less than .5 prior to September 30, 2005. Further, after such date until April 7, 2006, he did not show an ABI of less than .4, or ischemic limb pain at rest. In reaching its decision, the Board finds the above VA examinations, which considered the Veteran’s lay statements and completed clinical testing, highly probative. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the treatment records support such findings, and are also probative to the Board as they contain relevant clinical testing and reports of symptoms by the Veteran. 2. Entitlement to a rating in excess of 80 percent for right leg above the knee amputation. Amputations of the lower extremities are rated by DCs referable to the location of the amputations, and the resulting impairments and ability to use a prosthesis. See 38 C.F.R. § 4.71a. Pertinent here are DCs 5160-5165, which pertain to amputations of the thigh and leg. Id. For the thigh, DC 5160 provides a 90 percent rating for disarticulation, with loss of extrinsic pelvic girdle muscles. DC 5161 provides an 80 percent rating for amputation in the upper third, one-third of the distance from perineum to knee joint measured from perineum. DC 5162 provides a 60 percent rating for amputation in the middle or lower thirds. For other leg amputations, DC 5163 provides a 60 percent rating for an amputation with a defective stump, and thigh amputation is recommended. DC 5164 provides a 60 percent rating for amputation not improvable by prosthesis controlled by natural knee action. DC 5165 provides a 40 percent rating for amputation at a lower level, permitting prosthesis. Again, based on the evidence reviewed in the foregoing section, the Board finds that a rating in excess of 40 percent under DC 5165 prior to October 21, 2011, for an RLE below the knee amputation is not warranted. In this regard, the Veteran had an amputation at a lower, and he was found to be able to tolerate a prosthesis which would improve his functional capability. However, as of such date, because of complications with the stump, the Veteran was noted to not be able to tolerate a prosthesis. Thus, a 60 percent rating under DC 5164 is warranted from such date. Importantly, there is no higher rating for a below the knee amputation. Thereafter, the Veteran underwent an above the knee amputation on August 5, 2015, which occurred in the upper third of the thigh. Consequently, an 80 percent rating under DC 5161 is warranted for such period. However, a higher 90 percent rating under DC 5160 is not warranted as there was no disarticulation or loss of the extrinsic pelvic girdle muscles. In reaching its decision, the Board finds the VA examinations of record, which considered the Veteran’s lay statements, highly probative. Dalton, supra. Further, the ratings criteria for amputations are clear, and a higher rating is only applicable when the medical criteria are met. 3. Propriety of the discontinuance of a 100 percent rating for bilateral lower extremity PVD and LLE peripheral neuropathy. 4. Prior to July 3, 2017, entitlement to payment in excess of SMC (l), payable through entitlement to SMC(p) at (m) rate. 5. Since July 3, 2017, entitlement to payment in excess of SMC (r)(1). Initially, turning to the discontinuance of the PVD and peripheral neuropathy ratings, as previously stated, such actions do not constitute a severance, and are more appropriately considered a change in DC. Specifically, the assignment of a particular DC depends on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). A disability may be reclassified to assign the same evaluation under a different DC, if the effect is not to reduce a protected rating. See Murray v. Shinseki, 24 Vet. App. 420 (2011) (discussing ratings protected from reduction under 38 C.F.R. § 3.951(b) due to being in effect for 20 years or more). Furthermore, even a protected service-connected disability may have the DC changed to more accurately determine the benefit to which the veteran may be entitled, as it is the disability itself that is protected, not the rating under a particular DC. See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011) (discussing service connection protected from severance under 38 U.S.C. § 1159 due to being in effect for 10 years or more). Here, the change of DC to describe the Veteran’s amputations, PVD, and peripheral neuropathy, as loss of use and anatomical loss, merely more accurately define the Veteran’s disability. Further, the change in DC did not result in a change in compensation benefits, and rather allowed for higher SMC disability payments pursuant to the provisions of 38 U.S.C. § 1114. Importantly, by changing the DC, VA is not saying that the Veteran’s PVD and peripheral neuropathy no longer existed, but is changing how they are classified to better reflect the manifestations and actual impairment cause by such disabilities. Moreover, based on the evidence of record, the Board finds the Veteran’s bilateral lower extremity disabilities manifest by loss of use of both feet effective January 16, 2017, and are more appropriately rated pursuant to DC 5110. In this regard, based on the medical evidence noted above, the Veteran had anatomical loss of the leg so near the hip as to prevent use of a prosthetic appliance since his amputation in August 2015 prior to the period on appeal. Turning to the LLE, the record reflects that the Veteran, while limited due to claudication and pain on activity, still had use of his left leg for most of the appeal period. Notably, he was able to use his walker to get around on his left leg as recently as July 2016, and prior to such time until October 2013 he was asymptomatic in the left leg. In so finding, the Board recognizes that the Veteran had diminished function in his LLE, as he stated he would not be able to stand for long or move far due to his cramping and pain. However, such does not amount to “loss of use”. In this regard, “loss of use of the foot” means that no effective function remains other than that which would be equally well-served by an amputation stump below the knee with use of a suitable prosthetic appliance. 38 C.F.R. § 4.63; Tucker v. West, 11 Vet. App. 369, 373 (1998) (holding that the relevant inquiry is not whether amputation is warranted but whether the veteran has any effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance). “Effective function” may include, for example, the ability to balance or propulse (push off the foot). See 38 C.F.R. § 3.350(a)(2). Based on the foregoing, while the Veteran had diminished function capacity, he was not noted to have been better served by amputation and use of a prosthesis until the June 2017 examination, including a negative response from the May 2014 examiner who found he had ischemic limb pain at rest. Rather, as has been noted after the fact, the Veteran was not amenable to a prosthesis, and he had effective function of his LLE, allowing for the use of a walker to navigate small spaces and inside his home. While such ambulation was difficult, it was not so difficult to equate to loss of use, as he was able to propulse himself, stand for short periods of time, and balance with the aid of the walker. In contrast however, the treatment record from January 16, 2017, shows a clear and distinct worsening in the Veteran’s condition. The record notes that he was unable to lift himself back into his chair, and he had a sudden onset of leg weakness a few days prior. The following records do not show that he regained any of his leg strength, and rather show a continuing worsening of his left leg until he necessitated amputation. Additionally, thereafter as noted by the June 2017 examiner, his left leg disabilities manifested by pain and claudication so severe to be equivalent of loss of use of the leg at a level, with complications, preventing natural knee action, and it was noted that his leg was not amenable to the use of a prosthetic after amputation. In this regard, in determining whether there is natural knee action with prosthesis in place, consideration will be based on whether use of the proper prosthetic appliance requires natural use of the joint, or whether necessary motion is otherwise controlled, so that the muscles affecting joint motion, if not already atrophied, will become so, and if there is no movement in the joint, as in ankylosis or complete paralysis, use of prosthesis is not to be expected, and the determination will be as though there were one in place. See 38 C.F.R. § 3.350(c)(2). Here, the Veteran had muscle atrophy in the left thigh, he was not able to stand or walk on it, and he was not amenable to a prosthesis. Consequently, from January 16, 2017 until July 3, 2017, when the Veteran’s DC was changed to reflect anatomical loss of both feet, his disabilities manifested by loss of use of both feet, and a 100 percent rating is warranted for loss of use of both feet, effective January 16, 2017. Additionally, SMC is authorized in particular circumstances in addition to compensation for service-connected disabilities. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352. SMC is authorized under subsections (k) through (s), with the rate amounts increasing the later in the alphabet the letter appears (except for the (s) rate). SMC at the (k) and (r) are allowances paid in addition to any other special monthly compensation rates, with certain monetary limits. As relevant to the Veteran’s claim, SMC at the (l) rate is payable when the Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). SMC at the (m) rate is warranted if the Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels; or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception; or has suffered blindness in both eyes, rendering such Veteran so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(m); 38 C.F.R. § 3.350(c). SMC at the (n) rate is payable for: (1) anatomical loss or loss of use of both arms at a level, or with complications, preventing natural elbow action with prosthesis in place; (2) anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance; (3) anatomical loss of one arm and one leg so near the shoulder and hip as to prevent use of a prosthetic appliance; or (4) anatomical loss of both eyes or blindness without light perception in both eyes. 38 U.S.C. § 1114(n); 38 C.F.R. § 3.350(d). SMC at the (o) rate is warranted, if the Veteran as the result of service-connected disability, has suffered disability under conditions which would entitle such veteran to two or more of the rates provided in one or more subsections (l) through (n), no condition being considered twice in the determination. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350(e)(1)(ii). The provisions of 38 U.S.C. § 1114(p) provide for “intermediate” SMC rates between the different subsections based on anatomical loss or loss of use of the extremities or blindness in connection with deafness and/or loss or loss of use of a hand or foot. 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f). In addition to the statutory rates payable under 38 U.S.C. § 1114(l) through (n) and the intermediate or next-higher rate provisions set forth under 38 U.S.C. § 1114(p), an additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next-higher statutory rate under 38 U.S.C. § 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the (o) rate. The single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. § 1114 (l) through (n) or the intermediate rate provisions outlined above. 38 C.F.R. § 3.350(f)(4). To be awarded SMC (r)(1) rate under 38 U.S.C. § 1114, the Veteran must be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also be in need of regular aid and attendance. See 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h), 3.352. Additionally, given the above finding of loss of use of both legs with factors preventing natural knee action with prostheses in place, payment under SMC (m) is warranted as of January 16, 2017. However, as the Veteran had loss of use of one leg at a level, or with complications, preventing natural knee action and anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance, he is entitled to the rate between 38 U.S.C. § 1114(m) and (n). 38 U.S.C. § 1114(p); 38 C.F.R. § 3.350(f)(1)(v). Further, the Veteran was in receipt of a separate 100 percent disability rating for coronary artery disease since March 16, 2010, and thus he was entitled to the next higher intermediate rate, here the rate between SMC (n) and (o). See 38 C.F.R. § 3.350(f)(4). Thus, effective January 16, 2017, the Veteran was entitled to a payment at the intermediary level between (n) and (o). However, the Veteran did not warrant payment under a higher rate of SMC (o). In this regard, the Veteran did not suffer disability which would entitle such him to two or more of the rates provided in one or more subsections (l) through (n), with no condition being considered twice, for SMC (o). In this regard, the only conditions which entitled him to SMC ratings are the loss of use of his legs, and loss of use of a creative organ, for which he received an SMC (k) payment, and although his loss of use of his legs entitled him to multiple possible SMC ratings, such would require those conditions to be considered twice. Nonetheless, the Veteran meets the threshold requirement for entitlement to the SMC (r)(1) allowance. In this regard, the threshold is met, as in the instant case, when a veteran is entitled to the intermediate rate between the (n) and (o) rates, plus a (k) rate. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). Further, the Veteran was found to be in the need of aid and attendance by the RO in the November 2017 rating decision, hence the award of SMC (l). In this regard, the record reflects, through medical treatment and the Veteran’s and appellant’s statements, that the Veteran’s wife assisted him with all of his activities of daily living. Notably, the June 2017 VA examiner opined that the Veteran required his wife to attend to all of his daily cares. Consequently, the Board finds that the Veteran warrants payment at the SMC (r)(1) rate since January 16, 2017. However, the criteria for a higher SMC award have not been met. In this regard, 38 U.S.C. § 1114(r)(2) provides that if a veteran in need of aid and attendance is in need of a higher level of care such that in the absence of said care he would require hospitalization, nursing home care, or other residential institutional care, a higher level of compensation in the amount $2,983.00 should be awarded. The need for “a higher level of care” shall be considered to be need for personal health-care services provided on a daily basis in the veteran’s home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. The existence of the need for such care shall be determined by a physician employed by VA. Here, a VA physician did not determine that such higher level of care is necessary. The Board recognizes the Veteran’s belief that he would have been in “a home” without the care of his wife, however such statement does not satisfy the statutory requirements. Therefore, the Board finds that SMC (r)(1) is the maximum benefit available in this instance. Additionally, the SMC awards, in excess of the SMC (k) awarded for the loss of use of a creative organ and the RLE, are not warranted prior to January 16, 2017. In this regard, as explained above, the record reflects that while the Veteran had loss of use and anatomical loss of one foot (RLE) since February 2011, he did not suffer from loss of use of the LLE until January 16, 2017. As the SMC ratings require loss of use of both feet, and the Veteran did not otherwise have a qualifying loss of use or disability, the SMC ratings above (k) are not warranted. In this regard, the Board has also considered whether he was entitled to an award under SMC (l) for aid and attendance. However, prior to the worsening of the LLE described on January 16, 2017, he was not so helpless as to require regular aid and attendance. In this regard, the Board finds the August 2010 aid and attendance examination highly probative, as well as the following VA examinations. Specifically, the August 2010 examination occurred after the below the knee amputation. The Veteran was still able to attend to his ADLs, and only required assistance driving, preparing meals, and getting help into the shower and washing his back. His upper extremities, and mental capacity, was and remained in good functional use. Further, the Veteran was not using a prosthesis at that time, and the record shows that his ambulation, using a wheelchair most of the time and walker inside his home, did not change until January 16, 2017, including after the above the knee amputation. Consequently, the Veteran was not so helpless to require regular aid and attendance until his left leg worsened to the point of having loss of use on January 16, 2017. Therefore, an award of the rate payable under SMC (l) is not warranted prior to such point. Other Considerations The Board further recognizes the Veteran’s and the appellant’s sincerely held belief that his symptomatology was more severe than as reflected by the currently assigned ratings and SMC awards, and notes they are competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than their reports regarding the severity of such conditions. In this regard, the Board notes that the Veteran’s reported symptomatology and requirement for aid and attendance are not supported by the evidence of record. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected lumbar strain; however, the Board finds that such symptomatology has otherwise been stable throughout the period on appeal. Therefore, assigning additional staged ratings is not warranted. In reaching this decision, the Board has resolved all doubt in the Veteran’s favor, resulting in partial grants of increased ratings and awards of SMC. However, insofar as the Board has denied higher ratings or earlier effective dates for the awards of SMC, the preponderance of the evidence is against such aspects of the appellant’s claim. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J.B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.