Entitlement to an effective date prior to June 30, 2015, for the payment of special monthly compensation (SMC) at the “R-1 rate” pursuant to 38 U.S.C. § 1114(r)(1).

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Citation Nr: 1824897	
Decision Date: 04/25/18    Archive Date: 05/03/18

DOCKET NO.  15-42 483	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an effective date prior to June 30, 2015, for the payment of special monthly compensation (SMC) at the "R-1 rate" pursuant to 38 U.S.C. § 1114(r)(1).

[The issue of entitlement to an effective date prior to June 30, 2015, for the payment of SMC at the "R-2 rate" (pursuant to 38 U.S.C. § 1114(r)(2)) will be the subject of a separate decision as the appellant has requested a Board hearing in that matter.]


WITNESSES AT HEARING ON APPEAL

Veteran, appellant, and Dr. Craig N. Bash


ATTORNEY FOR THE BOARD

William Skowronski, Associate Counsel
INTRODUCTION

The appellant is the daughter of a Veteran who served on active duty from August 1960 to May 1964.  The Veteran died in May 2017.  The appellant has been recognized as the substituted appellant.  This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC).  A September 2016 CAVC Order remanded the matter for compliance with instructions in a September 2016 Joint Motion for Remand (JMR) by the parties.  The matter was initially before the Board on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Appeals Management Office (formerly Appeals Management Center).  An interim (September 2015) rating decision granted SMC at the R-1 rate, effective June 30, 2015.  The claims file is in the jurisdiction of the Los Angeles, California VA Regional Office (RO).  In May 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record.  A June 2016 Board decision denied an effective date prior to June 30, 2015, for the payment of SMC at the "R-1 rate."  The Veteran appealed the matter to the CAVC, resulting in the JMR.  In May 2017, the Board remanded the claim for additional development. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

It is not factually ascertainable that prior to June 30, 2015 the Veteran had loss of use of both lower extremities (or had other service-connected disability of a nature and severity satisfying the legal requirements for payment of compensation at the R1 rate).


CONCLUSION OF LAW

The criteria for an effective date earlier than June 30, 2015, for the assignment of SMC under 38 U.S.C. § 1114 (r)(1) are not met.  38 U.S.C. §§ 1114 (n)(o)(p)(r)(1),  5110 (2012); 38 C.F.R. §§ 3.350(a)(2)(i), 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  As the June 2015 and September 2015 rating decisions awarded SMC and assigned effective dates for the awards, statutory notice had served its purpose, and such notice is no longer necessary.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  

Notably, determinations regarding effective dates of awards are based essentially on what is already in the record, and when it was received, and generally further development of the record is not necessary.  The appellant has not raised any other issues regarding VA's duties to notify and assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Legal Criteria, Factual Background, and Analysis

SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities.  See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350 and 3.352.  The rate of SMC varies according to the nature of the service-connected disabilities.  Basic levels of SMC are listed at 38 U.S.C. § 1114(k).  Additional levels and provisions of SMC are provided at 38 U.S.C. § 1114(l), (m), (n), (o), (p), (r), (s), and (t).

One additional allowance that may be payable to a veteran in need of regular aid and attendance is specified in 38 U.S.C. § 1114(r)(1), the "R-1 rate."  This additional allowance is payable if the veteran is entitled to compensation under 38 U.S.C. § 1114(o); or is entitled to the maximum rate authorized under 38 C.F.R. § 1114(p); or is entitled to compensation at the intermediate rate authorized between the rates authorized under subsections (n) and (o) of 38 U.S.C. § 1114, and at the rate authorized under subsection (k).  38 U.S.C. § 1114(r)(1).

The effective date for an award of compensation based on aid and attendance and housebound benefits, except as provided in 38 C.F.R. § 3.400(o)(2), is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.401.  However, when an award of compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established.  38 C.F.R. § 3.401.

In seeking the assignment of an effective date prior to June 30, 2015 for the award of SMC at the R-1 rate, the appellant seeks (and the Veteran previously sought) September 27, 2007 as the proper effective date for the award.  The Board notes that September 27, 2007 is the earliest effective date assigned for any service-connected disability and the earliest effective date assigned for any rate of SMC in this case.  The June 2015 rating decision on appeal included an award of SMC (at the S-1 rate) effective from September 27, 2007.  The September 2015 rating decision awarded service connection for loss of use of both feet and SMC at the R-1 rate during the pendency of the Veteran's appeal concerning effective date and SMC assignments (as addressed in a September 2015 statement of the case prior to the Veteran limiting the scope of the appeal in the November 2015 VA Form 9 substantive appeal).  Accordingly, the Board finds it appropriate to consider assignment of an effective date for the award of SMC at the R-1 rate from any date (during the period from September 27, 2007 (the earliest effective date of any established service connection or SMC entitlement in this case) to June 30, 2015 (the effective date currently assigned for the award of SMC at the R-1 rate)) when it became factually ascertainable that the basis of the award of SMC at the R-1 rate (loss of use of both feet) existed .  The appellant does not contend, and the record does not reflect, that a formal or informal claim for SMC was received prior to September 27, 2007.

The September 2015 RO rating decision that awarded SMC at the R-1 rate explained that the award was based on loss of use of both lower extremities from peripheral neuropathy which was a complication of type 2 diabetes mellitus.  Service connection for type-2 diabetes mellitus was established effective March 18, 2008; service connection for loss of use of both feet associated with diabetes and related peripheral neuropathy was awarded effective June 30, 2015.

The criteria for the various SMC provisions that may serve as predicate foundations for SMC at the R-1 rate generally involve combinations of deafness, blindness, and loss of use of upper and/or lower extremities.  See 38 U.S.C. § 1114(n), (o), (p).  Here, as discussed at the May 2016 Board hearing, the contentions have exclusively concerned the Veteran's loss of use of the lower extremities due to his service-connected disabilities.  It has not been argued that the Veteran's vision or hearing loss were more disabling than reflected by the ratings assigned, nor is it alleged that his vision and hearing loss otherwise met the criteria for the award of SMC at the R-1 rate prior to June 30, 2015.  It has also not been argued that service-connected peripheral neuropathy of upper extremities (rated 10 percent, each, from June 23, 2015) has resulted in loss of use of an upper extremity so as to (in combination with other applicable factors) warrant an award of SMC at the R-1 rate prior to June 30, 2015.  The appellant has not raised any other theories of entitlement to an effective date prior to June 30, 2015, for SMC at the R-1 rate in this case.  The critical question therefore is whether it is shown by the record that at any time from September 27, 2007 prior to June 30, 2015 the Veteran had loss of use of both of his feet or lower extremities.  

For VA SMC entitlement purposes, loss of use of a foot 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 knee with use of a suitable prosthetic appliance.  The determination is made on the basis of actual remaining function, whether the acts of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.  38 C.F.R. § 3.350(a)(2)(i).  The regulations further provide that extremely unfavorable complete ankylosis of a knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the foot involved; 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.  

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

An August 2007 VA treatment record notes the Veteran was ambulatory.  A November 2007 VA treatment record notes he reported he was working, laying floor.  A January 2008 treatment record notes he ambulated with a steady, upright gait.  

In a December 2008 letter, the Veteran's daughter reported he had been permanently disabled since 2000.  

A September 2010 VA treatment record notes the Veteran walked normally.  An October 2010 note notes he was ambulatory, but that a diabetic foot exam was abnormal.  A right dorsalis pedis pulse was absent.  It was rated as 1/4 on the left.  Sensation was absent at the first and fifth toes on the right foot and intact at all locations on the left foot.  He was noted to be ambulatory in February 2011.  A February 2013 VA emergency department note notes he sought treatment for shortness of breath, intermittent confusion and weakness, and that he was ambulatory.  A separate February 2013 treatment record notes that his daughter transported him by wheelchair and reported that he could barely walk.  He was unsteady on his feet because he felt lightheaded and weak, but was noted to be normally very active.  He reported he was renovating his daughter's bedroom.  Pneumonia and coronary artery disease were diagnosed.  A treatment record from later in February 2013 notes his extremities had good distal pulses.  He was transported to the hospital by wheelchair again in March 2013.  A nursing note notes he was ambulatory.  A May 2013 treatment record notes he reported he tripped over his shoelace and fell into a chair while walking.  A separate May 2013 note notes he ambulated by himself.  Later that month, he fell while walking to the bathroom at the hospital.  He reported he lost consciousness.  June 2013 VA treatment records show he was readmitted to the hospital in a coma.  He was noted to have experienced deconditioning due to the hospital stays.  He regained full weight-bearing capability but only of one minute duration.  He walked short distances. 

A June 2013 private hospital admission evaluation report notes the Veteran had bilateral lower extremity weakness.  He was using a wheelchair and walker.  However, he did not have weight-bearing limitations, a loss of voluntary movement, paralysis, or a limitation of motion.  A pain risk assessment noted he experienced pain, but the location was not noted.  He was noted to require the use of an assistive device for ambulation.  A physical therapy evaluation report noted he had decreased lower extremity strength, a reduced ability to safely ambulate, an abnormal gait with inadequate knee extension and knee wobble, decreased strength, reduced balance, and reduced functional activity tolerance.  But he was able to ambulate without assistance.  His lower extremity muscle tone was normal and he reported not having pain.  

Separate July 2013 treatment records note that the Veteran was walking on his own and presented as ambulatory.

In August 2013, the Veteran submitted a report of an examination for housebound status or permanent need for regular aid and attendance completed by a treating VA physician.  The examiner noted that the Veteran was not confined to bed, that his gait was steady, that his appearance was well-kept, and that he had good posture.  The physician also noted aids such as canes, braces, crutches, or the assistance of another person were not required for locomotion.    

A December 2013 VA treatment record notes the Veteran's daughter reported he had dark marks on his feet that were bothering him.  A treatment record notes he was able to ambulate independently.  A December 2013 podiatry consultation report notes he complained of great toe joint pain.  The pain had persisted for several months during ambulation.  Bilateral hallux limitus was assessed.  On evaluation, protective sensation was intact bilaterally.  Strength was 5/5 in all planes.  A January 2014 prosthetics request notes a provisional diagnosis of foot pain.  A February 2014 treatment record notes his daughter reported he had difficulty with balance or walking and had frequent falls.  He was able to walk one block without stopping and seldom used his walker outside the house.

In a statement received in February 2014, the Veteran reported he had to learn how to walk and get strength from mid-June 2013 to early-July 2013.  

A March 2014 VA treatment record notes the Veteran complained of bilateral calf pain that was worse at night.

In a March 2014 statement, the Veteran reported he needed help at his house to shop, get food, and pay bills due to the effects of a number of disabilities, including balance difficulties and problems with his legs.  He reported he had to depend on others to take care of him.

In a separate March 2014 statement, the Veteran's friend reported he had walking and balance difficulties.  He fell on multiple occasions.  

In April 2014, the Veteran submitted another report of examination for housebound status or permanent need for regular aid and attendance completed by a VA physician.  It was noted that his gait was fair.  His daughter reported he had poor balance and frequently fell.  He required a cane or walker to ambulate one block.  

In a statement received in April 2014, the Veteran reported he had difficulty ambulating due to vertigo. 

In a May 2014 statement, a friend of the Veteran reported the Veteran lived with his daughter and could not care for himself.  He reported he had to relearn how to walk after experiencing cardiac arrest.  

In a statement received in June 2014, the Veteran's niece reported he had difficulty walking due to balance issues and fell multiple times.  His son reported the same in a separate letter.  

In a June 2014 letter, the Veteran's daughter reported he could not be left unattended.  She noted he fell regularly.  In a separate statement, his son reported he had walking and balance difficulties.

In a June 2014 letter, the Veteran's niece reported he required the use of a wheelchair.  His friend reported the same in a separate letter.

A September 2014 VA treatment record notes the Veteran had been recently discharged from the hospital.  He was ambulatory, but still felt a bit wobbly.  A separate note notes he had full weight-bearing capability and was able to walk 100 to 200 feet independently.  An October 2014 treatment record notes his daughter reported he fell.  A separate note notes he walked in complaining of left knee pain.  A separate October 2014 note notes he was ambulatory.  A physician recommended he use a wheelchair to avoid falls.  An October 2014 physical therapy letter notes he demonstrated moderate independence and was issued a walker.  He fell again in November 2014.  A December 2014 treatment record noes he had an abnormal gait, stance, and ambulation.  A January 2015 treatment record notes he was ambulatory with a cane.  

In a January 2015 letter, a private physician, Dr. Bash, reported the Veteran was unstable on his feet and should only use a wheelchair.  He opined the Veteran had lost the use of his legs secondary to diabetes, pneumonia, and anoxia.  

VA medical reports from March 2015 describe the Veteran as "Fully Ambulatory," "[a]mbulating independently around the unit w/o assist," "ambulatory with cane," "ambulatory with cane and walker," and "[a]mbulatory with assist."  Significantly, one March 2015 VA medical report notes muscle strength was normal in all extremities, sensation was grossly intact, and that he ambulated without assistance to bathroom with a steady gait.  

A June 2015 VA treatment record notes he complained of bilateral foot pain.  In a June 30, 2015 letter, a treating VA nurse practitioner noted he had an unsteady gait and lower extremity weakness with multiple falls, requiring supervision and assistance at all times.  A June 30, 2015 treatment note notes he fell three times a week if not supervised due to peripheral neuropathy and general leg weakness.  He needed assistance with ambulation from one room to another with a walker.  

In a July 2015 letter, the Veteran's daughter reported he the Veteran fell regularly.  On one occasion, he told her he fell and could not get up due to the loss of use of his legs.  In a separate letter, the Veteran's son-in-law reported he had helped treat the Veteran for 10 years and that he could not stand or walk and was constantly falling.  

In a July 2015 letter, the Veteran's friend reported that he required a wheelchair and could not walk.  In a separate statement, his niece reported the same.

In a November 2015 statement, the appellant asserted the Veteran was unable to walk by July 2005 and began to fall frequently.  She noted he was still driving in 2006.

In a November 2015 statement, his niece reported he had been in a wheelchair since 2006.

In a letter received in November 2015, Dr. Bash noted the appellant bought the Veteran a wheelchair in 2006, and opined his level of disability warranted compensation at the "R-1" rate as of June 2013.

In a November 2015 letter, the appellant asserted the Veteran was entitled to SMC at the "R-1" rate as of September 27, 2007.  

In an April 2016 letter, the Veteran's treating VA physician noted he had treated the Veteran for 15 years and had required the use of a wheelchair for the last 8 years as a result of the progression of his service-connected disabilities.  

At the May 2016 Board hearing, the appellant testified that she had cared for the Veteran since 2006 and that he began using a wheelchair in April 2006.  She reported he used the wheelchair because he could not use his legs and was unable to walk.  Dr. Bash reported he reviewed the Veteran's VA treatment records and opined they supported he had loss of use of his lower extremities after having a stroke in June 2013.  He also asserted the April 2014 examination report showed that the Veteran had a loss of use of his lower extremities. 

In a May 2016 letter, the VA treating physician who wrote the April 2016 letter, reported the Veteran began to experience unsteadiness in 2007 due a combination of the effects of medications used to treat the service-connected cancers and diabetic neuropathy.  Such effects "resulted in the loss of normal use of his lower extremities and the need for a wheelchair for the past 9 years."  

In a May 2016 letter, Dr. Bash asserted that June 2013 VA treatment records that document an episode of aspiration suggest a loss of use of both feet due to peripheral neuropathy and anoxia, and that an April 2014 examination report also suggested a loss of use of both feet.

In the September 2016 JMR, the parties stated the Board failed to consider whether the Veteran's reported lower extremity pain (including as noted in January 2014, March 2014, and June 2015 VA treatment records) resulted in sufficient functional loss, so that remaining function could be accomplished equally well by an amputation stump with prosthesis.  [The United States Court of Appeals for the Federal Circuit recently held that pain alone can serve as a functional impairment.  Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018).]

In a November 2017 opinion, a VA orthopedic surgeon, summarized the evidence in detail and opined that the Veteran was not shown to have loss of use of both lower extremities prior to June 30, 2015, noting there was no concrete evidence of a loss of function that would have kept him from being able to walk with the use of a walker or wheelchair prior to then.  He explained that while the record documented that the Veteran had bilateral peripheral neuropathy, the impact of pain on his ability to function was not consistent with loss of use of the lower extremities.  He also noted Dr. Bash did not provide direct care of the Veteran and also based his opinions on a review of the medical records.  

As is indicated above, the critical question in this matter is whether or not the Veteran had lost the use of both of his feet or lower extremities due to his service-connected disabilities at any time from September 27, 2007 to June 30, 2015.  

The record includes both medical evidence that tends to support the claim and medical evidence that weighs against it.  The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  

VA treatment records show the Veteran had difficulty walking and fell on multiple occasions prior to June 30, 2015.  In the April 2016 and May 2016 letters, the Veteran's long-time treating VA physician reported he began experiencing unsteadiness in 2007 and began using a wheelchair shortly thereafter due to the effects of his service-connected disabilities.  Notably, in the May 2016 letter, he opined the such effects "resulted in the loss of normal use of his lower extremities" but did not find he had actually lost the use of his feet or lower extremities so that no effective function remained other than that which would have been equally well served by an amputation sump at the site of election below the knee with use of a suitable prosthetic appliance.  In written opinions and testimony presented to the Board, the Veteran's private medical consultant, Dr. Bash, asserted the medical evidence demonstrated loss of use of both lower extremities as least as early as June 2013.  However, Dr. Bash did not address contemporaneous evidence, including VA and private treatment records from throughout the period under consideration, that note the Veteran was, in fact, ambulatory, albeit at times with the assistance of a walker or cane.  His opinions are conclusory, inconsistent with contemporaneous clinically recorded data (which he does not acknowledge), and cannot be afforded any substantial probative value.  

The November 2017 VA consulting physician, an orthopedic surgeon, summarized the relevant medical evidence in detail and opined that the loss of function described clinically prior to June 30, 2015, including due to pain, did not amount to the loss of use of the lower extremities.  He noted Dr. Bash did not provide direct care of the Veteran and based his opinions on a review of the medical records, just as he himself did.  The opinion reflects familiarity with the entire record and cites to supporting factual data (clinical notation of actual function observed by healthcare providers).  Comparing the conflicting opinions by that physician and the Veteran's VA treating physician (in May 2016), the Board finds that  on the specific question of whether the regulatory criteria for use of feet or lower extremities were met prior to June 30 2015 the November 2017 provider's opinion is substantially more probative.  The May 2016 observation by the VA treating physician that in 2007 the Veteran began to experience unsteadiness due to a combination of the effects of medication for cancers and diabetic neuropathy resulting in loss of "normal use" of his lower extremities and the need for a wheelchair does not in fact indicate that prior to June 30, 2015 remaining function in the Veteran's feet/lower extremities met regulatory criteria for establishing loss of use of a lower extremity .   
The Board has considered the appellant's contentions (and the Veteran's prior assertions) that he had lost the use of both lower extremities prior to June 30, 2015, and in particular the citations by Dr. Bash to June 2013 treatment records and an April 2014 examination report as suggesting the Veteran had lost use of both feet.  The June 2013 treatment record cited notes the Veteran had fallen, and reported that he lost consciousness (was readmitted to the hospital in a coma).  However, it is further noted in the record that he had experienced deconditioning due to extended hospital stays, and required physical therapy to regain ambulatory function.  Thereafter, notations in the record describe him as ambulatory.  Accordingly, the loss of ambulatory function at the time is shown to have been an acute phenomenon due to deconditioning, that resolved and did not signify that the Veteran had lost the use of either, or both, extremities.  The April 2014 report of examination for housebound status/need for aid and attendance submitted by the Veteran (and completed by a VA physician) notes that while the Veteran's daughter reported he had poor balance, it was noted that his gait was fair (and that he could walk a block with a cane or walker).  The findings clearly do not show loss of lower extremity function signifying or consistent with loss of use of both lower extremities.

The Board notes that the Veteran's longstanding need for significant aid and attendance, provided in large part by the appellant, and that he had a long history of wheelchair use due to unsteadiness was clearly established and is not in dispute in this case.  However, the appellant is a layperson, and as such is not competent to opine that his unsteadiness was due to use of both lower extremities. That is a medical question that requires medical expertise.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007).  She does not point to clinical findings that support her assertions.  Her observations that he had many falls over the years are accepted as forthright and factual.  But they do not establish that the Veteran had no remaining function in his lower extremities other than what would be equally well-served by amputation and suitable prosthesis.  The opinions she cites supporting that there was a loss of use, as noted above, are not supported by contemporaneous clinical data, and are outweighed in probative value by the November 2017 VA consulting provider's opinion to the contrary.  

It is clear that the Veteran was severely disabled by his numerous service-connected disabilities, and the Board sympathizes with his family and appreciates the care and assistance they provided him.  However, while the Veteran's service-connected disabilities certainly affected his ability to ambulate normally and required him to use a wheelchair or caused him fall at times and be hospitalized, the preponderance of the evidence is against finding that prior to June 30, 2015 the remaining function of both feet or lower extremities would have been accomplished equally well by amputation stumps with prostheses .  There is no evidence of lower extremity impairment prior to June 30, 2015 comparable to extremely unfavorable complete ankylosis of both knees, complete ankylosis of two major joints of both lower extremities, shortening of both lower extremities by 3 1/2 inches or more, or complete paralysis of the external popliteal nerve (and consequent footdrop) in both lower extremities).  See 38 C.F.R. § 3.350(a)(2)(i).  In light of the foregoing, the Board concludes that the preponderance of the evidence is against a finding that prior to June 30, 2015, the Veteran had loss of use of both lower extremities, and that the appeal in this matter must be denied.


ORDER

An effective date prior to June 30, 2015 for the assignment of SMC under 38 U.S.C. § 1114 (r)(1) is denied.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs