Case A26040671

Summary

The Veteran, an Army Veteran who served from September 1969 to June 1971, appeals the denial of Special Monthly Compensation (SMC) for loss of use of both feet and both hands. The Veteran claims entitlement to SMC based on his service-connected Parkinson's disease, asserting that the manifestations of his condition have resulted in the functional loss of use of his extremities. The Veteran reported significant symptoms including numbness, inability to raise legs, balance issues, dragging feet, difficulty with daily living activities like dressing and bathing, dropping objects, and tremors. A VA examiner documented bradykinesia, rigidity, tremors, postural instability, impaired manual dexterity, and difficulty with ambulation and balance. The Board reviewed the evidence, including the Veteran's statements, the VA examiner's findings, and the representative's arguments, which highlighted the severe limitations in propulsion, balance, grasping, and manipulation. The Board found that the Veteran's bilateral upper and lower extremity disabilities, characterized by severe weakness, bradykinesia, tremors, rigidity, and stiffness, effectively resulted in the loss of use of his hands and feet, meeting the criteria for SMC under 38 U.S.C. § 1114(l) and § 1114(m). Consequently, the Board granted SMC for loss of use of both feet and both hands.

Rationale

Service-connected lower extremity disabilities; Bradykinesia, rigidity, tremors, postural instability; Severe balance impairment, decreased mobility, weakness, lack of coordination; Functional loss of use of feet

Full Decision Text

Citation Nr: A26040671
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 260317-637714
DATE: April 30, 2026

ORDER

Entitlement to special monthly compensation (SMC) at the rate provided by 38 U.S.C. § 1114(l) based on loss of use of both feet is granted.

Entitlement to SMC at the rate provided by 38 U.S.C. § 1114(m) based on loss of use of both hands is granted.

FINDINGS OF FACT

1. The Veteran's service-connected right lower extremity bradykinesia, muscle rigidity, and stiffness and left lower extremity bradykinesia, muscle rigidity, and stiffness have resulted in disability equivalent to the functional loss of use of the feet.

2. The Veteran's service-connected right upper extremity bradykinesia, muscle rigidity, and stiffness with tremors and left upper extremity bradykinesia, muscle rigidity, and stiffness with tremors have resulted in disability equivalent to the functional loss of use of the hands.

CONCLUSIONS OF LAW

1. The criteria for entitlement to SMC at the rate provided by 38 U.S.C. § 1114(l) based on loss of use of both feet have been met.  38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.350(b).

2. The criteria for entitlement to SMC at the rate provided by 38 U.S.C. § 1114(m) based on loss of use of both hands have been met.  38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.350(c).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1969 to June 1971.  The Board thanks the Veteran for his service to our country. 

On May 8, 2025, VA received an Intent to File followed by a May 16, 2025, VA Form 21-526EZ initiating the claims herein.  In an October 28, 2025, Rating Decision, the Agency of Original Jurisdiction (AOJ) denied the claims herein.  On November 4, 2025, VA received a VA Form 20-0996 (Request for Higher-Level Review [HLR]).  In a February 23, 2026, HLR Rating Decision, the AOJ denied the claims herein.  On March 17, 2026, VA received a VA Form 10182 electing the Board's review of the claims herein under its Direct Review Docket pursuant to the modernized review system under the Appeals Modernization Act (AMA).  38?C.F.R. §?20.301.  The Board has construed the Veteran's request for expeditious processing as a constructive waiver of his remaining time to request a different Board review option under 38 C.F.R. § 20.202(c)(2).  Williams v. McDonough, 37 Vet. App. 305 (2024). 

Applicable Review Periods and Evidentiary Windows

The review period and the evidentiary window are distinct concepts in AMA that are not interchangeable (the review period is limited to the period considered by the AOJ [i.e., ends at the issuance of the AOJ decision on appeal]; the evidentiary window is the time which evidence may be submitted and considered for the issue on appeal).  The Direct Review Docket only permits the Board to review the evidence of record at the time of the AOJ decision(s) on appeal.  38 C.F.R. §§ 20.300(a), 301.  The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the VA Form 10182; in this case, the Veteran has not filed such a request. ?Id; 38 C.F.R. § 20.301; Cook v. McDonough, 36 Vet. App. 175 (2023).  When the decision on appeal is a HLR decision, then the review period and evidentiary window end on the date of the decision prior to the HLR decision; however, once a HLR decision finds a duty-to-assist error and the AOJ issues a VA Form 20-0999 (HLR Return), the HLR for that issue is complete and the next Rating Decision issued is not considered a HLR Rating Decision for purposes of determining review periods and evidentiary windows. 
82; in this case, the Veteran has not filed such a request. ?Id; 38 C.F.R. § 20.301; Cook v. McDonough, 36 Vet. App. 175 (2023).  When the decision on appeal is a HLR decision, then the review period and evidentiary window end on the date of the decision prior to the HLR decision; however, once a HLR decision finds a duty-to-assist error and the AOJ issues a VA Form 20-0999 (HLR Return), the HLR for that issue is complete and the next Rating Decision issued is not considered a HLR Rating Decision for purposes of determining review periods and evidentiary windows.  38 C.F.R. § 3.2601(f).

Regarding the appeal herein, the review periods span from the date of the claims (May 8, 2025) through the date the AOJ issued the decision on appeal (October 28, 2025); the evidentiary windows are limited to evidence associated with the claims file on or before the date the AOJ issued the decision on appeal (October 28, 2025).  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, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.  Cook, supra.

1. Entitlement to SMC at the rate provided by 38 U.S.C. § 1114(l) based on loss of use of both feet

2. Entitlement to SMC at the rate provided by 38 U.S.C. § 1114(m) based on loss of use of both hands

The Veteran contends that he is entitled to SMC for loss of use of his feet and hands due to his service-connected Parkinson's disease.  See May 2025 Statement; November 2025 Correspondence; February 2026 Codesheet; March 2026 VA Form 10182.

Basic levels of SMC are listed at 38 U.S.C. § 1114(k), with additional levels of SMC provided in 38 U.S.C. § 1114(l) through (t).  Only the additional levels pertinent to the Veteran's claims are discussed herein.  Under 38 U.S.C. § 1114(k), SMC is payable if, as the result of service-connected disability, the Veteran has loss of, or loss of use of, one foot, one hand, both buttocks, or one or more creative organs.  Entitlement to SMC based on loss of use of a creative organ can also be granted based on erectile dysfunction.  It also applies where there is blindness of one eye, deafness of both ears, complete organic aphonia, a loss of 25 percent or more of the tissue from a single breast or both breasts in combination, or when breast tissue has been subjected to radiation treatment.  38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a).

Under 38 U.S.C. § 1114(l), SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).  The SMC rate payable under 38 U.S.C. § 1114(m) is warranted if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes rendering such Veteran so significantly disabled as to be in need of regular aid and attendance.  38 C.F.R. § 3.350(c).

"Loss of use of a hand or foot" for the purposes of SMC is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow
 disability, has suffered the anatomical loss or loss of use of both hands, or of both legs with factors preventing natural knee action with prostheses in place, or of one arm and one leg with factors preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes rendering such Veteran so significantly disabled as to be in need of regular aid and attendance.  38 C.F.R. § 3.350(c).

"Loss of use of a hand or foot" for the purposes of SMC is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance.  The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis.  38 C.F.R. §§ 3.350(a)(2)(i), 4.63.  The U.S. Court of Appeals for Veterans Claims (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.

In this case, the question before the Board is whether the Veteran, as a result of service-connected disability, suffered the loss of use of his hands and feet, thus entitling him to a higher level and rate of SMC under the provisions listed above.  Turning to pertinent evidence, in a May 2025 Statement, the Veteran reported pertinent manifestations including: numbness and tingling from the knees down; inability to raise his legs; inability to balance on one foot or two feet; inability to push off the ground with his foot such that he must use a cane or walker at all times; inability to use stairs without holding something and going very slowly (and, despite extra precautions such as hand rails throughout the house, he still stumbles multiple times per day and even falls resulting in injuries); inability to pick up his feet when walking (such that they drag and often get caught on things); difficulty performing activities of daily living (like showering, brushing teeth, combing hair, and getting dressed); inability to shave; dropping things often; difficulty opening things; inability to pick up small objects from surfaces; difficulty typing and writing; inability to look up or raise his arms above his head (such that it is difficult to wash his hair or reach things above his shoulders).  The June 2025 VA Parkinson's Disease examiner documented pertinent manifestations including: the need for a walker or cane to ambulate, depending on his location and how his symptoms are at the time; bradykinesia (slowness of movement), rigidity, tremor, and postural instability; impairment of manual dexterity, slow task completion, and increased risk of falls; difficulty performing physical work and tasks requiring fine motor skills; depression, anxiety, sleep disturbances, and autonomic dysfunction (e.g., orthostatic hypotension, urinary urgency); and reduced concentration, reliability, and stamina in the workplace.  In a November 2025 Correspondence and in an attachment to the March 2026 VA Form 10182, the representative highlighted the manifestations discussed by the Veteran in the May 2025 Statement and by the VA examiner during in the June 2025 VA examination.  The representative argued that those manifestations demonstrated ineffective propulsion and balance as well as inability to grasp and manipulate, such that his hands and feet retain no more than minimal, nonfunctional utility (the functional equivalent to amputation). 

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Based on the above, the Board finds that SMC based on loss of use of the feet and hands is warranted because the Veteran's upper and lower extremity disabilities amount to the functional loss of use of his hands and feet.  Specifically, the evidence discussed above shows that the Veteran's bilateral upper extremity disabilities greatly diminished his strength and caused severe weakness in the upper extremities and hands, causing him severe limitation of motion and ability to lift/hold items.  The Board finds it is likely that the Veteran's severe weakness in the hands and severe tremors in the upper extremities also significantly impaired his ability to grasp and manipulate objects.  Relatedly, his bilateral lower extremity disabilities caused severe balance impairment, decreased mobility, limitation of
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Based on the above, the Board finds that SMC based on loss of use of the feet and hands is warranted because the Veteran's upper and lower extremity disabilities amount to the functional loss of use of his hands and feet.  Specifically, the evidence discussed above shows that the Veteran's bilateral upper extremity disabilities greatly diminished his strength and caused severe weakness in the upper extremities and hands, causing him severe limitation of motion and ability to lift/hold items.  The Board finds it is likely that the Veteran's severe weakness in the hands and severe tremors in the upper extremities also significantly impaired his ability to grasp and manipulate objects.  Relatedly, his bilateral lower extremity disabilities caused severe balance impairment, decreased mobility, limitation of motion, loss of automatic movements, muscle weakness, lack of coordination, gait abnormalities, weight bearing deficits, balance deficits, and propulsion deficits in the lower extremities.  These symptoms significantly limited functionality and prohibited the Veteran's ability to effectively stand, ambulate, and transfer.  His upper and lower extremity disabilities also prevented him from performing essential activities of daily living without assistance, including dressing, bathing, grooming, preparing meals, and using the toilet.  While the Veteran retains minimal use of his hands and feet, the Board finds that the severe weakness, bradykinesia, tremors, muscle rigidity, and stiffness effectively result in the loss of use of the hands and feet.  The Board concludes that the effects of these service-connected disabilities eliminated the effective functions of the Veteran's hands and feet, as contemplated by 38 C.F.R. § 3.350 (a)(2); thus, the Board grants SMC at the rate provided by 38 U.S.C. § 1114(m) for loss of use of the hands and 38 U.S.C. § 1114(l) for loss of use of the feet.  38 C.F.R. § 3.350(b) and (c).

 

 

T. Raymond

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Daus, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.