Citation Nr: A26018564 Decision Date: 03/02/26 Archive Date: 03/02/26 DOCKET NO. 250827-574485 DATE: March 2, 2026 ORDER Entitlement to a 100 percent disability evaluation for service-connected chronic lymphocytic leukemia (CLL) is granted. Entitlement to a rating of 60 percent for impairment of sphincter control prior to May 19, 2024 is granted. Entitlement to a rating in excess of 40 percent for left lower diabetic peripheral neuropathy of the sciatic nerve is denied. Entitlement to a separate 20 percent rating for left lower extremity radiculopathy of the femoral nerve is granted. Entitlement to a rating of 40 percent for right lower diabetic peripheral neuropathy of the sciatic nerve is granted. Entitlement to a separate 10 percent rating for right lower extremity radiculopathy of the femoral nerve is granted. Entitlement to special monthly compensation based on loss of use of the lower extremities pursuant to 38 U.S.C. § 1114(l) is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance solely due to adjustment disorder with depressed mood, chronic with unspecified neurocognitive disorder status post ependymoma brain tumor, pursuant to 38 U.S.C. § 1114(l) is granted. Entitlement to special monthly compensation based on the need for regular aid and attendance solely due to lower extremity peripheral neuropathy pursuant to 38 U.S.C. § 1114(l) is granted. Entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(o) is granted. Entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(r)(1) is granted. FINDINGS OF FACT 1. The Veteran has active disease of chronic lymphocytic leukemia at Rai stage I. 2. The Veteran's impairment of sphincter control manifests with occasional moderate leakage and requires wearing absorbent material. 3. The Veteran's left lower extremity diabetic neuropathy of the sciatic nerve was manifested by no worse than moderate incomplete paralysis. 4. The Veteran's left lower extremity radiculopathy was shown to also involve the femoral nerve; these symptoms more nearly approximated moderate incomplete paralysis. 5. The Veteran's right lower extremity diabetic neuropathy of the sciatic nerve was manifested by no worse than moderate incomplete paralysis. 6. The Veteran's right lower extremity radiculopathy was shown to also involve the femoral nerve; these symptoms more nearly approximated mild incomplete paralysis. 7. The Veteran's lower extremity diabetic neuropathy does not result in loss of use of either foot but does render him in need for regular aid and attendance. 8. The Veteran's adjustment disorder with depressed mood, chronic with unspecified neurocognitive disorder status post ependymoma brain tumor renders him in need for regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent disability evaluation for chronic lymphocytic leukemia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.117, Diagnostic Code (DC) 7705-7703. 2. The criteria for entitlement to a rating of 60 percent, but no greater, for impairment of sphincter control prior to May 19, 2024 have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.114, Diagnostic Code 7332. 3. The criteria for entitlement to a rating in excess of 40 percent for left lower diabetic peripheral neuropathy, impairment of the sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a separate 20 percent rating for left lower diabetic peripheral neuropathy, impairment of the femoral nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 5. The criteria for entitlement to a rating of 40 percent, but no greater, for right lower diabetic peripheral neuropathy, impairment of the sciatic nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to a separate 10 percent rating for right lower diabetic peripheral neuropathy, impairment of the femoral nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 7. The criteria for entitlement to special monthly compensation based on the need for regular aid and attendance solely due to lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1114(l), 1502, 5107; 38 C.F.R. §§ 3.23, 3.102, 3.342, 3.350, 3.351, 3.352. 8. The criteria for entitlement to special monthly compensation based on the need for regular aid and attendance solely due to adjustment disorder with depressed mood, chronic with unspecified neurocognitive disorder status post ependymoma brain tumor have been met. 38 U.S.C. §§ 1114(l), 1502, 5107; 38 C.F.R. §§ 3.23, 3.102, 3.342, 3.350, 3.351, 3.352. 9. The criteria for entitlement to special monthly compensation pursuant to 38 U.S.C. § 1114(o) have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). 10. The criteria for special monthly compensation under 38 U.S.C. § 1114(r)(1) based on the award of SMC(o) and the need for regular aid and attendance have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1963 to December 1966. The rating decisions on appeal were issued in April and August 2025 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In relevant part, the April 2025 agency of original jurisdiction (AOJ) rating decision granted a 30 percent rating for impairment of sphincter control effective January 3, 2019, and a 100 percent rating effective May 19, 2024; granted a 100 percent rating for status post ependymoma brain tumor; and denied a rating in excess of 40 percent for left lower diabetic peripheral neuropathy and a rating in excess of 20 percent for right lower diabetic peripheral neuropathy. The August 2025 rating decision denied an increased rating for chronic lymphocytic leukemia. In the August 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Entitlement to a compensable rating for chronic lymphocytic leukemia The Veteran has a noncompensable rating for his chronic lymphocytic leukemia for the entire period since the January 3, 2019 effective date of service connection. He contends that his condition is active and symptomatic and he is entitled to a compensable rating. Under Diagnostic Code 7703, leukemia (except for chronic myelogenous leukemia) is assigned a 100 percent rating when there is active disease or during a treatment phase. A 100 percent evaluation continues beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. A VA examination is required six months after discontinuance of such treatment to determine the appropriate disability rating. Any change in evaluation based upon that or any subsequent examination is subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no recurrence, the residuals will be rated. The residuals are to be rated under the appropriate diagnostic codes. Chronic lymphocytic leukemia, asymptomatic, Rai Stage 0, however, is assigned a 0 percent rating. Symptomatic chronic lymphocytic leukemia that is at Rai Stage I, II, III, or IV is evaluated the same as any other leukemia evaluated. Residuals of leukemia or leukemia therapy is evaluated under the appropriate diagnostic codes, and myeloproliferative disorders are covered under DCs 7704, 7718, and 7719. A May 2019 private treatment record states that a CT scan showed "perhaps a very subtle generalize lymphadenopathy. At most Rai stage 1." Treatment records note CLL Rai stage 0, possible stage 1 until December 2021. A December 2021 private treatment record notes the Veteran is being treated for autoimmune hemolytic anemia due to his Rai stage 1 CLL. A June 2023 private treatment record notes the Veteran to have a history of RAI stage 1 CLL with indolent behaving lymphocyte kinetics. His lymphocyte count was noted to be up slightly as expected due to cessation of taking steroids. On VA examination in June 2023, the VA examiner indicated the Veteran's leukemia to be in remission and asymptomatic at Rai stage 0. The examiner also indicated that the condition causes general weakness, lethargy, multiple body and joint pains, poor appetite, loss of weight. A January 2024 report from the Veteran's treating doctor states that the Veteran's condition has evolved to RAI stage 1 and is active given his increasing lymphocyte count, lymphadenopathy and past episode of hemolytic anemia. On VA examination in October 2024, the VA examiner indicated that the Veteran's leukemia is active, asymptomatic, Rai stage 0. His symptoms were noted to include numbness and tingling from his knees to his feet, general weakness, lethargy, multiple body and joint pains, poor appetite, loss of weight, dizziness, and difficulty with walking. In May 2025, a VA examiner was asked to reconcile the different Rai stage findings. The examiner stated that the Veteran's condition is active with Rai stage 1 but that the VA examination form does not provide for selection of a choice for active CLL Rai stage 1 without active treatment. The Board acknowledges that the evidence does not reflect current treatment for CLL. However, the criteria for a 100 percent evaluation under Diagnostic Code 7703 are disjunctive, meaning that only one "or" requirement must be met in order for an increased rating to be assigned. See Johnson v. Brown, 7 Vet. App. 95 (1994). As the evidence is persuasive that the Veteran has active disease of CLL at Rai stage I, he meets the criteria for a 100 percent disability evaluation for his CLL. The appeal is granted. 2. Entitlement to a rating in excess of 30 percent for impairment of sphincter control prior to May 19, 2024. The Veteran contends he is entitled to an increased rating for impairment of sphincter control. The Veteran is service connected for impairment of sphincter control effective January 3, 2019 with an initial rating of 30 percent. He has a 100 percent rating effective May 19, 2024. The rating criteria for gastrointestinal disabilities under 38 C.F.R. § 4.114, including Diagnostic Code 7332, were amended effective May 19, 2024. Amendments to regulations do not have retroactive effect unless their language requires. Kuzma v. Principi, 341 F.3d 1327, 1328 (2003). The new amendments to section 4.114 do not contain any provision for retroactive application, therefore ratings based on the amended version of Diagnostic Code 7332 cannot be assigned before May 19, 2024. As such, the Board will consider whether a rating in excess of 30 percent is warranted under the former criteria in effect prior to May 19, 2024. Under the pre-May 19, 2024 version of Diagnostic Code 7332, a 30 percent rating was assigned for constant slight, or occasional moderate leakage; a 60 percent rating was assigned for occasional involuntary bowel movements, necessitating wearing of pad; and a 100 percent rating was assigned for complete loss of sphincter control. On VA examination in August 2024, the Veteran was noted to have partial loss of sphincter control with incontinence two or more times per month, which requires wearing a pad two or more times per month. On VA examination in October 2024, the Veteran was noted to have constant slight impairment of sphincter control or occasional moderate leakage. The Board finds that giving the Veteran the benefit of the doubt, the evidence supports that the criteria for a 60 percent rating, but no greater, are met, as the Veteran was noted to wear a pad and having incontinence two or more times per month. A higher, 100 percent rating, is not warranted as the evidence does not reflect complete loss of sphincter control. Therefore, a 60 percent rating, but no greater, prior to May 19, 2024 is granted. 3. Entitlement to a rating in excess of 20 percent for right lower diabetic peripheral neuropathy 4. Entitlement to a rating in excess of 40 percent for left lower diabetic peripheral neuropathy The Veteran is seeking a higher rating for his right and left lower extremity diabetic peripheral neuropathy. He currently has a 20 percent rating for his right lower extremity and a 40 percent rating for his left lower extremity. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R § 4.124a. A separate diagnostic code, Diagnostic Code 8526, provides for ratings for paralysis of the femoral nerve. Under these criteria, a 10 percent rating is warranted for mild incomplete paralysis of the anterior crural (femoral) nerve; a 20 percent rating is warranted for moderate incomplete paralysis of this nerve; a 30 percent rating is warranted for severe incomplete paralysis of the sciatic nerve, and a 40 percent rating is warranted for complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the Rating Schedule. As with any regulatory interpretation where the terms are not defined in the regulation, we presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (holding that when a regulation is unambiguous the plain meaning dictionary definition is appropriate). According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means not very severe. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veterans Benefits Administration (VBA) has also defined descriptive words such as "slight," "moderate" and "severe" in this context. See M21-1, Part V, Subpart iii, Chapter 12, Section A. According to M21-1, a mild level of evaluation is the lowest level of evaluation for each nerve as is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. In general, there should be disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. A moderate level of evaluation involves symptoms that will likely be described by the claimants and medically graded as significantly disabling. In such cases, a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. A moderately severe evaluation involves motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. Atrophy may be present. A severe evaluation generally is expected to show motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Right Lower Extremity The Board finds that a 40 percent under Diagnostic Code 8520 is warranted as is a separate rating under Diagnostic Code 8526 for the right lower extremity. On VA examination in December 2021, the Veteran reported reduced feeling in his legs and pain, which he reported affects his balance. Examination showed moderate severe pain, paresthesias and/or dysesthesias, and numbness and severe intermittent pain. Muscle strength was noted to be 4/5. Ankle deep tendon reflexes were normal but 1+ at the knee. Sensory testing to light touch was normal on the right lower extremity. Cold sensation was decreased but position and vibration sensation were normal. The examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the femoral nerve. He was noted to be using a walker. On VA examination in July 2023, he reported similar symptoms. Deep tendon reflexes were 1+ at both the ankle and knee. All other muscle strength and sensory testing was the same as in December 2021. The VA examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the femoral nerve. He was noted to be using a wheelchair. On VA examination in October 2024, he again reported similar symptoms and was noted to be in a wheelchair pushed by his wife. Examination showed moderate constant pain and paresthesias and/or dysesthesia and severe intermittent pain and numbness. Muscle strength was noted to be 4/5 and deep tendon reflexes 1+ at the ankle and knee. Sensory testing showed decreased sensation in the knee/thigh, ankle/lower leg, and foot/toes. Position sense, vibration sensation, and cold sensation were all decreased. The VA examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the femoral nerve. The Board finds that giving the Veteran the benefit of the doubt, his right lower extremity sciatic nerve impairment more closely approximates moderate incomplete paralysis. Thus, a 40 percent rating is warranted under Diagnostic Code 8520. A higher, 60 percent rating under Diagnostic Code 8520 requires marked muscular atrophy. VA examinations all reflect no muscle atrophy. An even higher rating requires complete paralysis, which again, is not reflected by the evidence. Thus, the Board finds that the evidence is persuasive that a rating of 40 percent, but no greater, under Diagnostic Code 8520 is warranted. The Board further finds that a separate, 10 percent rating, under Diagnostic Code 8526 is warranted. The assignment of a separate compensable award under Diagnostic Code 8526 is not pyramiding as the Veteran's Diagnostic Code 8520 rating compensates only for impairment of the sciatic nerve. VA examinations reflect mild incomplete paralysis of the femoral nerve, which warrants a 10 percent rating under Diagnostic Code 8526. The Board finds that a higher rating is not warranted as the evidence does not reflect that the Veteran had at least moderate incomplete paralysis of the femoral nerve. Left lower extremity The Board finds that a rating in excess of 40 percent under Diagnostic Code 8520 is not warranted but a separate rating is warranted under Diagnostic Code 8526 for the left lower extremity. On VA examination in December 2021, the Veteran reported reduced feeling in his legs and pain, which he reported affects his balance. Examination showed moderate severe pain, paresthesias and/or dysesthesias, and numbness and severe intermittent pain. Muscle strength was noted to be 4/5. Ankle deep tendon reflexes were normal but 1+ at the knee. Sensory showed decreased position sense, vibration sensation, and cold sensation on the left. The examiner opined that the Veteran had moderate incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the femoral nerve. He was noted to be using a walker. On VA examination in July 2023, he reported similar symptoms. Deep tendon reflexes were 1+ at the ankle and knee. Sensation to light touch was decreased at the knee/thigh, ankle/lower leg, and foot/toes. Sensory testing showed decreased position sense, vibration sensation, and cold sensation on the left. The VA examiner opined that the Veteran had moderate incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the femoral nerve. He was noted to be using a wheelchair. On VA examination in October 2024, he again reported similar symptoms and was noted to be in a wheelchair pushed by his wife. Examination showed moderate constant pain and paresthesias and/or dysesthias and severe intermittent pain and numbness. Muscle strength was noted to be 4/5 and deep tendon reflexes 1+ at the ankle and knee. Sensory testing showed decreased sensation in the knee/thigh and ankle/lower leg and absent sensation in the foot/toes. Position sense, vibration sensation, and cold sensation were all decreased. The VA examiner opined that the Veteran had moderate incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the femoral nerve. A higher, 60 percent rating under Diagnostic Code 8520 requires marked muscular atrophy. VA examinations all reflect no muscle atrophy. An even higher rating requires complete paralysis, which again, is not reflected by the evidence. Thus, the Board finds that the evidence is persuasive that a rating in excess of 40 percent under Diagnostic Code 8520 is not warranted. However, the Board does find that a separate, 20 percent rating, under Diagnostic Code 8526 is warranted. The assignment of a separate compensable award under Diagnostic Code 8526 is not pyramiding as the Veteran's Diagnostic Code 8520 rating compensates only for impairment of the sciatic nerve. VA examinations reflect moderate incomplete paralysis of the femoral nerve, which warrants a 20 percent rating under Diagnostic Code 8526. The Board finds that a higher rating is not warranted as the evidence does not reflect that the Veteran had severe incomplete paralysis or complete paralysis of the femoral nerve. Special Monthly Compensation As part of his increased rating claims, the Veteran contends he is entitled to special monthly compensation. By way of history, the Veteran was service connected for ependymoma brain tumor effective January 3, 2019. The condition was originally rated under Diagnostic Code 9310-8003. In the April 2025 rating decision, the AOJ recharacterized the condition to adjustment disorder with depressed mood, chronic with unspecified neurocognitive disorders status post ependymoma brain tumor and rated it at 100 percent under Diagnostic Code 8003-9440 for the entire period. As the Veteran is already at the maximum schedular rating for his service-connected ependymoma brain tumor, no higher schedular rating is warranted. However, the Board will consider whether special monthly compensation is warranted based on his brain tumor disability as well as based on the other disabilities for which he has appealed for an increased rating. Special monthly compensation grants an additional level of compensation to eligible veterans who have certain disabilities, combinations of certain disabilities, severities of disabilities, or when a certain threshold in the assigned disability percentages is met. 38 U.S.C. 1114; 38 C.F.R. §§ 3.350. Entitlement to special monthly compensation is an inferred issue in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility at issue. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that special monthly compensation benefits are to be accorded when a veteran becomes eligible without need for a separate claim). 1. Entitlement to special monthly compensation at the aid and attendance rate based on lower extremity peripheral neuropathy The Veteran contends he is entitled to special monthly compensation for loss of use of his feet due to his lower extremity diabetic neuropathy. Special monthly compensation is payable under 38 U.S.C. 1114(l) where, as the result of service-connected disability, the veteran has anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. Under 38 C.F.R. § 4.63, loss of use of a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function. In the case of the foot, this includes whether of balance and propulsion, etc. could be accomplished equally well by an amputation stump with prosthesis. Id. Extremely unfavorable complete ankylosis of the knee, complete ankylosis of 2 major joints of an extremity, or shortening of the lower extremity of 3.5 inches (8.9 cm.) or more, will be taken as loss of use of the foot involved. Also, 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. See also 38 C.F.R. 3.350(a)(2). The United States Court of Appeals for Veterans Claims (the "Court") has stated that "[t]he relevant inquiry concerning an SMC award is not whether amputation is warranted but whether the appellant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance." Tucker v. West, 11 Vet. App. 369, 373 (1998). The responsibility for determining loss of use lies with the adjudicator and not an examining physician. Id. Additionally, the Board notes that in Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing. The term "loss of use" for the purposes of SMC under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is a very specific and high standard. The Board acknowledges that the evidence reflects that the Veteran has used a walker and wheelchair for ambulation, but finds that evidence does not reflect loss of use of his feet such that special monthly compensation is warranted for loss of use. On VA examination in December 2021, the Veteran reported reduced feeling in his legs and pain, which he reported affects his balance. He was noted to be using a walker at the examination. On VA examination in July 2023 and October 2024, the Veteran reported similar symptoms. At those examinations, he was noted to be in a wheelchair. At a May 2023 VA examination to assess residuals of his brain tumor, he was noted to walk with a very slow, shuffling gait with a cane or walker. VA treatment records reflect that in June 2023 the Veteran requested new shoe inserts, reporting that his current inserts had worn down quickly but the previous ones had felt more supportive. He reported sometimes falling when the pain is bad in his feet. Later in the month, he reported using a wheelchair or walker the majority of the time due to increased difficulty with balance. The report of a September 2023 occupational therapy assessment states that the Veteran is independent with basic indoor transfers and short-distance ambulation with a walker, though the tasks are highly labored. He reported he manages less than eight stairs with assistance and needs assistance stepping over a high curb to enter a shower. He was noted to need a seated rest break after walking 10 meters and had a history of falls connected with longer walks. An October 2024 VA examination conducted to assess residuals of his brain tumor indicates that the Veteran reported he cannot walk from one room to the next without his walker and ambulates in a wheelchair. Although the evidence reflects difficulty with ambulation, it also reflects that the Veteran retains some balance and propulsion in his lower extremities. The Board finds that his loss of functionality in his lower extremities is not such that it could be accomplished equally well by an amputation stump with prosthesis. Therefore, the Board finds the evidence does not support that the Veteran has loss of use of either foot. However, the Board does find that the Veteran's lower extremity peripheral neuropathy render him in need of regular aid and attendance. Under 38 C.F.R. § 3.351(c), a Veteran will be considered in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself 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 claimant to feed himself through loss of coordination of 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 the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996). The evidence reflects that the Veteran's mobility is significantly limited by his lower extremity peripheral neuropathy and he is prone to falls. The Board finds that regular assistance is needed to protect him from hazards or dangers incident to his daily environment in moving about safely, to include assistance with showering and transfers. The Board thus finds that the impairment caused by the Veteran's lower extremity neuropathy alone renders him in need of regular aid and attendance and he is thus entitled to special monthly compensation under 38 U.S.C. § 1114(l) on that basis. 2. Entitlement to special monthly compensation at the aid and attendance rate based on adjustment disorder with depressed mood, chronic with unspecified neurocognitive disorder status post ependymoma brain tumor The Veteran contends he is entitled to special monthly compensation based on a need for regular aid and attendance based impairment caused by his service-connected residuals of ependymoma brain tumor and impairment of sphincter control. The Board finds that the impairment caused by the Veteran's adjustment disorder with depressed mood, chronic with unspecified neurocognitive disorder status post ependymoma brain tumor, alone renders him in need of regular aid and attendance. On VA examination in October 2024, his condition was noted to cause gross impairment in thought process or communication. He was also noted to experience memory fog and severe lethargy. His wife is consistently noted to help him with activities of daily living. The Board thus finds that the impairment caused by the Veteran's brain tumor residuals renders him in need of regular aid and attendance and he is thus entitled to special monthly compensation under 38 U.S.C. § 1114(l) on that basis. 3. Entitlement to a higher rate of special monthly compensation The Board has found above that the Veteran is entitled to two awards of SMC under 38 U.S.C. § 1114(l) as he requires aid and attendance based on two separate service-connected disabilities. Special monthly compensation at the 38 U.S.C. § 1114(o) rate is warranted where the Veteran, as a result of service-connected disability, has any of the following conditions: (i) anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) conditions which would entitle him to two or more rates provided in one or more subsections (l) through (n) of 38 U.S.C. § 1114, with no condition being considered twice in the determinations; (iii) bilateral deafness rated at 60 percent or more disabling with the hearing impairment it at least one ear service-connected in combination with service-connected blindness with bilateral visual acuity 20/200 or less; (iv) service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling with hearing impairment in at least one ear service-connected in combination with service-connected blindness of both eyes having only light perception or less. See 38 C.F.R. § 3.350(e)(1). Thus, the Board finds that the Veteran is entitled to SMC under 38 U.S.C. § 1114(o) as he qualifies for two separate awards of SMC under 38 U.S.C. § 1114(l) based on his need for aid and attendance for his service-connected brain tumor condition and separately his service-connected lower extremity peripheral neuropathy. To receive compensation under 38 U.S.C. § 1114(r)(1), a veteran must be in need of regular aid and attendance and also be entitled to compensation authorized under U.S.C. § 1114(o), at the maximum rate authorized by 38 U.S.C. § 1114(p), or at the intermediate special monthly compensation rate between 38 U.S.C. §§ 1114(n) and (o) and also be entitled to compensation at the 38 U.S.C. § 1114(k) rate. 38 U.S.C. § 1114 (r)(1); 38 C.F.R. §§ 3.350 (h), 3.352(b). As the Board has found that the Veteran is entitled to SMC under 38 U.S.C. § 1114(o) and is in need of regular aid and attendance, he is thus entitled to SMC under 38 U.S.C. § 1114(r)(1). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.