Citation Nr: 18160590
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 06-03 829A
DATE:	December 27, 2018
ORDER
Entitlement to an effective date earlier than January 23, 2002, for the award of special monthly compensation based on the loss of use of the right lower extremity is denied.
Entitlement to an effective date earlier than January 23, 2002, for the award of Dependents’ Education Assistance (DEA) under 38 U.S.C. Chapter 35 is denied.
FINDINGS OF FACT
1.  Prior to January 23, 2002, the preponderance of the evidence does not show that the Veteran’s right lower extremity would be equally well served by amputation with prosthesis.
2.  Prior to January 23, 2002, the preponderance of the evidence does not show that the Veteran had permanent total service-connected disability; nor that he was found to be unemployable due to service-connected disability.
CONCLUSIONS OF LAW
1.  The criteria for an effective date earlier than January 23, 2002, for the award of special monthly compensation based on the loss of use of the right lower extremity have not been met.  38 U.S.C. §§ 1114(k), 5103, 5103A, 5107; 38 C.F.R. §§ 3.350, 3.352, 3.400.
2.  The criteria for an effective date earlier than January 23, 2002, for the award of DEA under 38 U.S.C. Chapter 35 have not been met.  38 U.S.C. §§ 1155, 3500, 3501, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.340, 3.341, 3.400, 3.401.
3. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from June 1942 to November 1945.  He died in May 2015.  The appellant is a surviving child that has been substituted in the appeal.
This mater comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Albuquerque, New Mexico.  In that decision, the RO granted service connection for residuals of injury, status post total hip replacement, with an assigned 90 percent disability rating, effective May 6, 2002; granted service connection for pelvic asymmetry with a mechanical short left leg, with an assigned 10 percent disability rating, effective November 16, 2004; granted eligibility for DEA benefits, effective November 16, 2004; and granted special monthly compensation based on the loss of use of the right lower extremity, effective May 6, 2002.  In July 2005, the RO granted an effective date of January 23, 2002, for all of these service-connected disabilities.  In March 2018, the Board granted an effective date of February 26, 1974, for the grant of service connection for residuals of a right leg/hip injury and for associated pelvic asymmetry, and remanded the remaining issues for additional development.  They are now returned to the Board.  
In March 2010, the Veteran testified at a Board video conference hearing. 

Effective Date
Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.  That is, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  38 U.S.C. § 5110(a). 
However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe.  38 U.S.C. § 5100(b)(3); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010); Hazan v. Gober, 10 Vet. App. 511, 519 (1997); VAOPGCPREC 12-98 (Sept. 23, 1998).

1.  Entitlement to an effective date earlier than January 23, 2002, for the award of special monthly compensation based on the loss of use of the right lower extremity.
As indicated above, the date of claim of service connection for the residuals of the Veteran’s right leg injury has been established to be February 26, 1974.  As such, the question before the Board is the date on which it is factually ascertainable that the criteria for special monthly compensation for the loss of use of the right lower extremity were met.
Special monthly compensation based on the loss of use of the right lower extremity is governed by 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(2).  The loss of use of the foot is held to exist when no effective function (including balance, propulsion, etc.) remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis.  38 C.F.R. §§ 3.350(a)(2), 4.6.  Examples constituting loss of use of a foot include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3½ inches or more.  For purposes of special monthly compensation, the loss of use must be caused by service-connected disabilities.
Also considered as loss of use of a foot under section 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve.
A review of the medical evidence of record shows that VA outpatient treatment record dated in November 1995 revealed a history of right hip replacement surgery in May 1995 with resulting right leg being one half inch longer than the left leg.  Shoe lifts were indicated for ambulation.
A VA hospital treatment record dated in September 1997 shows that the Veteran was said to developed pain while changing a tractor tire and using a hoe to cut weeds.  He was treated for a contusion of the right biceps.
A VA hospital treatment record dated in June 1998 shows that the Veteran reported left hip pain after falling down and landing on it.  A history of arthritis was noted.  The assessment was acute low back pain.  He was noted to be ambulating slowly.
A VA hospital treatment records dated in July 1998 shows that the Veteran was said to have fallen down while walking in May 1998.  It was indicated that approximately two weeks after the fall he experienced increased weakness and paresthesias in the upper and lower extremities.  A chronic gait decline since the fall was indicated.
A VA outpatient treatment record dated in July 1998 shows that the Veteran was said to not have been walking for the preceding three to four weeks (since the fall) because he was afraid that he was so weak and numb he would fall.  Family members were said to have been helping him with his bathroom needs.  
A VA outpatient treatment record dated in September 1998 shows that the Veteran was evaluated for cervical stenosis.  The treatment record notes that he could not use a walker or cane secondary to weakness in the left arm.  He was to try using a knee immobilizer, as he was able to walk independently with a knee immobilizer.
A VA Examination For Housebound Status or Permanent Need For Regular Aid And Attendance (VA Form 21-2680) dated in September 1998 shows that the Veteran reported weakness in the arms and legs.  He presented in a wheelchair.  He described reduced grip strength in the upper extremities and weakness in both legs (left greater than right).  He indicated that he could not use a cane, walker, or crutch secondary to weakness in the left arm/hand.  He could transfer from the wheelchair to a chair or bed and could walk five to 10 feet.  The examiner indicated that the Veteran could not walk without the assistance of another person.  A wheelchair was said to be required for ambulation.   
A VA outpatient treatment record dated in November 1999 shows that the Veteran was said to be in a wheelchair, needing assistance with getting out of bed, dressing, cooking, and bathing.  He was said to be able to transfer from the bed to a chair.  Rehabilitation evaluation to instruct on the use of a walker was indicated.
A VA outpatient treatment record dated in February 2000 shows that the Veteran stated that he was having trouble ambulating without holding on to something.  He was fitted for a walker and instructed on its use.  He was able to ambulate 150 feet, and the walker was issued to him.  He was said to have met the goal of being able to ambulate with a walker.
A VA outpatient treatment record dated in May 2000 shows that the Veteran was said to have difficulty with walking and/or maintaining balance.
In a Statement In Support Of Claim (VA Form 21-4138) dated in May 2002, the Veteran indicated that he had reduced ability to walk directly related to his service-connected right hip injury, and that he was in a wheelchair a lot of the time due to this injury.
A VA joints examination report dated in May 2006 shows that the Veteran was said unable to stand alone or for very long, even with assistance.  He was unable to walk for more than a few steps and required constant support for assistance.  Physical examination revealed gait was antalgic, weak, unsteady, and with poor propulsion.  Both knees and hips had motion, albeit reduced range of motion.
A VA bones disease examination report dated in May 2006 shows that the Veteran was had an antalgic gait with poor propulsion.  He was unable to stand for more than a few minutes and was unable to walk more than a few yards.  Both knees and hips had motion, albeit reduced range of motion.
A VA outpatient treatment record dated in April 2007 shows that the Veteran was said to have degenerative joint disease with no acute changes.  His knees would ache, and his feet would swell at times.  He indicated that he would try to walk five to 15 feet with a cane.  He added that he felt as if he were going to fall when walking.  
Having carefully considered the evidence of record, the Board finds that the competent and credible evidence does not establish that the Veteran had lost the use of the right lower extremity prior to January 23, 2002.  The Board acknowledges the assertions of the Veteran and the appellant regarding the functional limitations posed by his right lower extremity, including the loss of balance and difficulty with ambulation; however, there is no determination of record that no effective function remained other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis.  See 38 C.F.R. §§ 3.350(a)(2), 4.63.  There is also no evidence of record of any ankylosis below the right knee.  The evidence as set forth above shows that the Veteran had some range of motion in the lower extremities and that he was able to walk various distances (10 feet in September 1998, 150 with a walker in February 2000, and 15 feet with a cane in April 2007) with the use of various assistive devices.  Additionally, while there was a one-half inch shortening in a lower extremity, it did not reach the level of a shortening of 3½ inches or more to be suggestive of a loss of use.  Although ambulation, balance, and propulsion may have been poor, there is no indication that there was no effective function remaining.  As such, the Board finds that the criteria for special monthly compensation based on loss of use of the right lower extremity have not been met prior to January 23, 2002.  See 38 U.S.C. §§ 501, 1114(k); 38 C.F.R. §§ 3.350, 3.400, 3.655.
In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim for an earlier effective date for special monthly compensation based on the loss of use of the right lower extremity, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102.

2.  Entitlement to an effective date earlier than January 23, 2002, for the award of DEA under 38 U.S.C. Chapter 35.
As to the award of basic eligibility for DEA benefits, the record shows that the claim arose as part of the Veteran’s February 1974 claim for service connection for residuals of a right leg injury.  The question before the Board, then, is the date on which it is factually ascertainable that an increase in disability had occurred such that the criteria for the desired benefit have been met.  See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2).
In this regard, basic eligibility for DEA exists if a Veteran has a permanent, total service-connected disability.  38 U.S.C. §§ 3500, 3501.  Total disability is established where the Veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341.  Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 3.340(b). 
Service connection has been established for residuals of the Veteran’s right hip injury rated at 10 percent from February 26, 1974; 100 percent for the temporary period from May 5, 1995, to June 30, 1996; 30 percent from July 1, 1996; and 90 percent from January 23, 2002.  Service connection was also in effect for associated pelvic assymetry producing a mechanical short left leg rated as noncompensable from February 26, 1974; and 10 percent from January 23, 2002.  The combined disability rating for the Veteran’s service-connected disabilities was 10 percent from February 26, 1974; 100 percent for the temporary period from May 5, 1995, to June 30, 1996; 30 percent from July 1, 1996; and 100 percent from January 23, 2002.
With the above criteria in mind, the evidence of record prior to January 23, 2002, does not establish that the Veteran’s service-connected disabilities were rated 100 percent disabling under the rating schedule, or that the Veteran had been found to be unemployable due to service-connected disabilities.  See 38 C.F.R. §§ 3.340, 3.341.  Therefore, the Board finds that the Veteran did not meet the requirement for DEA benefits prior to January 23, 2002.  38 C.F.R. §§ 3.340, 3.341. 
Accordingly, because the effective date of an award of an increase in disability compensation is the date on which it is factually ascertainable that an increase in disability had occurred, the Board finds that the claim for an earlier effective date for basic eligibility for DEA benefits must be denied because entitlement did not arise until May 13, 2002.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2).
 
JAMES L. MARCH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Orfanoudis, Counsel 

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