Citation Nr: A24006484
Decision Date: 02/13/24	Archive Date: 02/13/24

DOCKET NO. 230830-372419
DATE: February 13, 2024

ORDER

The termination of the 100 percent evaluation for Loss Of Use (LOU) of the left foot and right hand effective October 8, 2002, based on a finding of fraud was proper, and the appeal is denied. 

The termination of Special Monthly Compensation (SMC) for LOU of one foot and one hand effective October 8, 2002, based on a finding of fraud was proper, and the appeal is denied.

The termination of specially adapted housing based on a finding of fraud was proper, and the appeal is denied.

The termination of an automobile and adaptive equipment allowance based on a finding of fraud was proper, and the appeal is denied.

The reduction of the disability rating for the right hand injury from 50 percent to 10 percent effective September 18, 2000, based on a finding of fraud was proper, and the appeal is denied.

The reduction of the disability rating for traumatic arthritis of the left foot from 30 percent to 10 percent effective September 18, 2000, based on a finding of fraud was proper, and the appeal is denied.

The termination of a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective October 2, 2000, based on a finding of fraud was proper, and the appeal is denied.

The termination of eligibility for Dependents' Educational Assistance (DEA) based on a finding of fraud was proper, and the appeal is denied.

FINDINGS OF FACT

1. The Veteran intentionally misrepresented the fact that he had LOU of the left foot and right hand, for the purpose of obtaining and retaining VA benefits, with the knowledge that the misrepresentation would result in an erroneous award and retention of that award.

2. The award of a 100 percent evaluation for LOU of the left foot and right hand pursuant to a July 2003 rating decision was clearly and unmistakably erroneous.

3. The Veteran does not have LOU of one foot and one hand.

4. The Veteran does not have loss or permanent LOU of one or both feet or one or both hands. 

5. The Veteran does not have loss or LOU of one lower extremity together with the loss or LOU of one upper extremity, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.

6. As the Veteran misrepresented the severity of his right hand disability, he did not have favorable ankylosis of five digits of one hand.

7. As the Veteran misrepresented the severity of his left foot disability, he did not have a severe left foot injury.

8. As the Veteran misrepresented the severity of his service-connected disabilities, he is not prevented from securing and following substantially gainful employment due to his service-connected disabilities. 

9. The Veteran does not have a permanent and total service-connected disability.

CONCLUSIONS OF LAW

1. The July 2003 award of the 100 percent evaluation for LOU of the left foot and right hand, was based on fraud on the part of the Veteran. 38 U.S.C. §§ 110, 501, 5112, 1159; 38 C.F.R. §§ 3.1, 3.103, 3.951.

2. The 100 percent evaluation for LOU of the left foot and right hand was properly terminated, and the criteria for restoration of assignment of 100 percent evaluation for LOU of the left foot and right hand have not been met. 38 U.S.C. §§ 110, 501, 1159, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951.

3. SMC based on LOU of one foot and one hand was properly terminated, and the criteria for SMC based on LOU of one foot and one hand have not been met. 38 U.S.C. §§ 110, 501, 1159, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105.

4. Specially Adapted Housing benefits were properly terminated, and the criteria for restoration of specially adapted housing benefits have not been met. 38 U.S.C. §§ 110, 501, 1159, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.809.

5. Automobile and Adaptive Equipment benefits were properly terminated, and the criteria for restoration of Automobile and Adaptive Equipment benefits have not been met. 38 U.S.C. §§ 110, 501, 1159, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.808.

6. The criteria for restoration of a 50 percent rating for a right hand injury have not been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A Diagnostic Code (DC) 5220).

7. The criteria for restoration of the 30 percent rating for traumatic arthritis of the left foot have not been met. 38 U.S.C. §§ 110, 501, 1155, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.951, 4.71A Diagnostic Code (DC) 5284.

8. TDIU was properly terminated, and the criteria for restoration of TDIU have not been met. 38 U.S.C. §§ 110, 501, 1159, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 4.16

9. DEA was properly terminated, and the criteria for restoration of DEA have not been met. 38 U.S.C. §§ 110, 501, 1159, 5112; 38 C.F.R. §§ 3.1, 3.103, 3.105, 3.807.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1960 to September 1964.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2023 rating decision issued by the Agency of Original Jurisdiction (AOJ). 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing in October 2023. A transcript of the hearing is of record.

Historically, service connection for a right hand injury, left foot traumatic arthritis, and a right wrist injury was granted in a September 2001 rating decision. 50 percent (right hand injury), 30 percent (left foot traumatic arthritis), and 10 percent (right wrist injury) ratings pursuant to C.F.R. § 4.71A, Diagnostic Codes 5220, 5010-5284, and 5215, respectively, were assigned effective September 18, 2000. In a February 2003 rating decision, the right hand injury and right wrist injury disabilities were evaluated as a single disability as LOU of the right hand and a 70 percent rating was assigned effective October 8, 2002. In a July 2003 rating decision, the left foot disability was evaluated with the LOU of the right hand disability as a single disability LOU of the left foot and right hand and the 100 percent rating was assigned effective October 8, 2002.

In a September 2007 rating decision, the AOJ proposed to terminate the 100 percent rating for the LOU of the left foot and right hand. The Veteran was notified of the proposal in September 2007 and his request for a predetermination hearing was received in October 2007. However, the Veteran did not receive his requested predetermination hearing,,, and the proposal to terminate the 100 percent rating for LOU of the left foot and right hand was finalized in the December 2007 rating decision.

The Veteran appealed the December 2007 rating decision to the Board. In the December 2012 decision, the Board, in pertinent part restored the 100 percent rating for LOU of the left foot and right hand. The Board explained that by denying the Veteran due process in failing to schedule his requested predetermination hearing, the December 2007 rating decision was void ab initio. Thus, restoration of the 100 percent rating for LOU of the left foot and right and (restoration of the ancillary benefits, i.e., SMC for LOU of one hand and one foot, specially adapted housing, automobile and adaptive equipment, DEA eligibility) was warranted. The June 2013 rating decision effectuated the Board decision and restored the benefits. 

Thereafter, in a February 2020 rating decision, the AOJ proposed to terminate: the 100 percent rating for LOU of the left foot and right hand, SMC for LOU of one hand and one foot; the automobile and adaptive equipment allowance, entitlement to specially adapted housing, a TDIU rating, and DEA eligibility and reduce the ratings for the right hand injury (from 50 percent to 10 percent) and left foot traumatic arthritis (from 30 percent to 10 percent), all based on a finding of fraud. The Veteran was notified of the proposed action in February 2020 and his request for a predetermination hearing was received in February 2020. He testified at a predetermination hearing in September 2020.

Thereafter in October 2020, the AOJ terminated: the 100 percent rating for LOU of the left foot and right hand, SMC for LOU of one hand and one foot; the automobile and adaptive equipment allowance, entitlement to specially adapted housing, a TDIU rating, and DEA eligibility and reduced the ratings for the right hand injury (from 50 percent to 10 percent) and left foot traumatic arthritis (from 30 percent to 10 percent), all based on a finding of fraud.

The Veteran's request for a higher-level review was received in September 2021. The October 2021 higher level review rating decision reiterated the findings of the October 2020 rating decision, i.e., the AOJ terminated: the 100 percent rating for LOU of the left foot and right hand, SMC for LOU of one hand and one foot; the automobile and adaptive equipment allowance, entitlement to specially adapted housing, a TDIU rating, and DEA eligibility and reduced the ratings for the right hand injury (from 50 percent to 10 percent) and left foot traumatic arthritis (from 30 percent to 10 percent), all based on a finding of fraud. The Veteran's Board appeal of this rating decision was received in January 2022.

In February 2022, the Board remanded the issues, finding there was an administrative error on the AOJ's part in not ensuring a complete evidentiary record. Thus, the Board instructed the AOJ to obtain the Office of Inspector General (OIG) investigation file that formed the basis for the finding of fraud.

The OIG investigation file was obtained. Thereafter, a June 2022 rating decision found the termination and reduction of benefits previously outlined was proper. The Veteran's Board Appeal of this rating decision was received in July 2022. The Veteran provided testimony on these issues in an August 2022 Board hearing. 

In addition, he appealed the February 2022 Board remand to the United States Court of Appeals for Veterans Claims (Court). In a November 2022 decision, the Court determined that the February 2022 Board remand was not an appealable final decision and dismissed the appeal.

In April 2023, the Board remanded the issues finding that the Veteran's compensation benefits were reduced, severed, and discontinued due to "fraud," however, VA's notifications lacked a summary of fraud pursuant to 38 C.F.R. § 3.1(aa)(2). The Board instructed the AOJ to provide the Veteran and his representative a summary of 38 C.F.R. § 3.1(aa)(2) and any other laws and regulations applicable to his claims.

In the August 2023 rating decision, the Veteran was provided a summary of fraud pursuant to 38 C.F.R. § 3.1(aa)(2). The instant action arises from the Veteran's appeal of this August 2023 rating decision received in August 2023.

Finally, the Board notes that in October 2020, the AOJ, in pertinent part, terminated the 100 percent rating for LOU of the left foot and right hand. The October 2021 higher level review rating decision reiterated, in pertinent part, the termination of the 100 percent rating for LOU of the left foot and right hand was proper. The Board remanded the issue in February 2022. Although the issue was omitted in the July 2022 rating decision, April 2023 Board decision, and August 2023 rating decision, it can be inferred from the record that the Veteran thought the issue remained on appeal (despite any assertion that the issue had been abandoned by the AOJ). Because the Veteran had reason to believe the matter remains on appeal, the Board is obligated to consider the issue of the termination of the 100 percent rating for LOU of the left foot and right hand. See Percy v. Shinseki, 23 Vet. App. 37 (2009).  Moreover, the Board notes that the other issues on appeal emanate from that determination. Accordingly, the issue of the termination of the 100 percent rating for LOU of the left foot and right hand is currently before the Board on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2).

1. Whether the termination of the 100 percent evaluation for LOU of the left foot and right hand effective October 8, 2002, based on a finding of fraud was proper

2. Whether the termination of SMC for LOU of one foot and one hand effective October 8, 2002, based on a finding of fraud was proper

Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a).

Service connection will be severed only where evidence establishes that the award thereof is clear and unmistakable error (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). 

Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. If additional evidence to show compensation payments should be continued at their present level are not received within 60 days of the proposed rating action, the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of the notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e).  

A rating of total disability or permanent total disability which has been made for compensation, pension, or insurance purposes under laws administered by the Secretary, and which has been continuously in force for twenty or more years, shall not be reduced thereafter, except upon a showing that such rating was based on fraud. A disability which has been continuously rated at or above any evaluation for twenty or more years for compensation purposes under laws administered by the Secretary shall not thereafter be rated at less than such evaluation, except upon a showing that such rating was based on fraud. The 20-year period will be computed from the date determined by the Secretary as the date on which the status commenced for rating purposes. 38 U.S.C. § 110. 

In addition, when fraud is found to have formed the basis for an award of service-connected benefits, regardless of the length of time a claimant has been in receipt of those benefits, severance of the award can be made upon a showing of fraud alone. Roberts v. Shinseki, 23 Vet. App. 416, 428-29 (2010).

Fraud is defined in VA regulations as an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. 38 U.S.C. § 501; 38 C.F.R. § 3.1(aa)(2).

Typically, when a reduction in evaluation is considered warranted, a rating proposing reduction will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). However, given that the Veteran committed fraud when applying for VA disability benefits, the Board does not need to address the provisions of 38 C.F.R. § 3.105.

As an initial matter, the Board must address whether the Veteran's 100 percent evaluation for LOU of the left foot and right hand is protected. Again, service connection for a right hand injury, left foot traumatic arthritis, and a right wrist injury was granted in a September 2001 rating decision. 50 percent (right hand injury), 30 percent (left foot traumatic arthritis), and 10 percent (right wrist injury) ratings pursuant to C.F.R. § 4.71A, Diagnostic Codes 5220, 5010-5284, and 5215, respectively, were assigned effective September 18, 2000. In a February 2003 rating decision, the right hand injury and right wrist injury disabilities were evaluated as a single disability as LOU of the right hand and a 70 percent rating was assigned effective October 8, 2002. In a July 2003 rating decision, the left foot disability was evaluated with the LOU of the right hand disability as a single disability LOU of the left foot and right hand and the 100 percent rating was assigned effective October 8, 2002. 38 C.F.R. § 3.951 provides for protection of ratings that have been in effect for 20 or more years. In October 2020, the AOJ terminated the 100 percent evaluation for loss of use of the left foot and right hand as a single disability.  In the October 2021 Higher Level Review rating decision, the AOJ reiterated the termination of the 100 percent evaluation for loss of use of the left foot and right hand. Thus, the 100 percent evaluation for LOU of the left foot and right hand was not in effect for 20 or more years. 

Regardless, the Board must determine whether the award of the 100 percent evaluation for LOU of the left foot and right hand was based on fraud. While 38 C.F.R. § 3.951 does not specifically refer to any definition of fraud, 38 C.F.R. § 3.1 does refer to 38 U.S.C. § 110, the statute that provides the authority for 38 C.F.R. § 3.951.

To reiterate, the 100 percent evaluation for LOU of the left foot and right hand (as a single disability) was awarded in the July 2003 rating decision.

The AOJ issued a rating decision in February 2020 proposing to terminate the 100 percent evaluation for LOU of the left foot and right hand (as a single disability). The AOJ explained that after receipt of the original claim in September 2000, an initial 50 percent rating was assigned for ankylosis (i.e., complete immobilization) of the right hand, a 30 percent rating was assigned for the left foot disability, and a 10 percent rating was assigned for loss of motion of the right wrist. In February 2002, the Veteran reported that he had no use of his right hand, and the January 2003 rating decision conceded a loss of use of the Veteran's right hand and assigned an increased 70 percent rating for the right hand disability. In addition, SMC for LOU of the right hand was awarded. In the July 2003 rating decision, LOU of the left foot was conceded, and the Veteran was assigned a 100 percent evaluation for LOU of the left foot and right hand. In addition, the Veteran was awarded an additional level of SMC, basic eligibility for an automobile and adaptive equipment allowance, and specially adapted housing was established. 

However, an anonymous tip received in May 2007 indicated that the Veteran had misrepresented the actual level of disability given that observations by VA staff revealed that he was riding a motorcycle in traffic without any apparent assistive devices. Moreover, a subsequent VA examination (November 2007) confirmed that the Veteran did not have an actual LOU of the left foot and/or right hand. Based on these findings, the AOJ terminated the 100 percent rating for the LOU of the left foot and right hand and SMC based on LOU of one foot and one hand (in a December 2007 rating decision). The Veteran appealed this decision and based on a technicality (due process error), the 100 percent rating for LOU of the left foot and right hand and SMC for LOU of one hand and one foot was restored by a December 2012 Board decision (and implemented in a June 2013 rating decision).   

After the June 2013 rating decision, evidence was received from the VA's Office of Inspector General (OIG) consisting of photographs, surveillance videos, screenshots of Facebook posts, and other evidence documenting the Veteran performing physical activities inconsistent with the level of impairment reported by the Veteran that had established entitlement to the 100 percent evaluation for LOU of the left foot and right hand. In short, the Veteran was not suffering from the degree of functional impairment indicative of LOU of the left foot or right hand.

The AOJ concluded that termination of the 100 percent evaluation for LOU of the left foot and right hand was proper. The AOJ explained that the previous 10 percent rating for a right wrist injury (and reduced 10 percent ratings for the right hand and left foot disabilities) would be reinstated. See 38 C.F.R. § 4.71A   

The AOJ then issued the October 2020 rating decision terminating the 100 percent evaluation for LOU of the left foot and right hand effective October 8, 2002. The 10 percent rating for the right wrist injury was reinstated and reduced 10 percent ratings were assigned for the right hand injury and the left foot disability. 

As noted, service connection for the right hand injury and left foot traumatic arthritis was granted in a September 2001 rating decision. 50 percent (right hand) and 30 percent (left leg traumatic arthritis) ratings were assigned pursuant to C.F.R. § 4.71a, Diagnostic Codes 5220 and 5010-5284, respectively, were assigned effective September 18, 2000. In October 2002, the Veteran's claims, for increased ratings for his right hand and left foot disabilities were received.

A February 2001 statement from the Veteran's treating physician reflects that he has severe post-traumatic osteoarthritis of the right wrist and left ankle. The Veteran was offered surgical intervention (fusion) which would alleviate his pain but limit motion and function. He declined surgical intervention.

The July 2001 VA joints examination report reflects the Veteran's complaint of increasing extreme pain of the right wrist since 1999. He wore a splint to the examination. He complained of daily aching pain with intermittent sharp pain and swelling. He reported that his wrist hurt every time he turned his hand over (pronation and supination), every time he lifted the wrist or put the wrist down, and every time he tried to lift any weight in his right hand. He tried not to use his right hand at all. He experienced some relief when the right hand was splinted but he did not experience much relief with medication (Motrin).

The Veteran also complained of daily, aching left ankle pain. He wore a soft ankle brace and a firm shoe for splint of motion in the ankle. He had swelling in the dorsum of the foot and increased temperature. He reported that it felt like he was walking on a "club foot." He reported that it hurt to turn his foot to the right or left and that he experienced pain whenever he flexed or extended his toes.

A physical examination of the right wrist showed the wrist was so tender the Veteran could barely stand palpation to the palmar or dorsal surface of the wrist. Motion was restricted manifested by 10 degrees of dorsiflexion and 15 degrees of palmar flexion. Radial deviation and ulnar deviation were restricted to 5 degrees, respectively. His pinch grip was weak between his thumb and first finger. He could not approximate or flex his fingers to the mid crease of his palm, lacking one inch in the area with the maneuver. His thumb could not approximate or touch the tip of the right fifth finger. 

Physical examination of the left foot/ankle showed obvious swelling over the mid-foot dorsum, which was bony and slightly tender. There was no tenderness over the ankle or the Achilles. Flexion and extension of the toes and inversion and eversion of the foot increased the pain. He had dorsiflexion of the left ankle to 15 degrees and plantar flexion to 20 degrees without significant pain.

The diagnoses were severe arthritis of the right wrist with painful reduced motion and symptomatic, traumatic, midfoot arthritis with painful reduced motion.

An April 2002 VA treatment record reflects that the Veteran received treatment for his left foot disability. He complained of constant pain in his left mid foot with weight bearing. He reported the pain increased significantly if he twisted his left ankle/foot. He was self-employed as an appraiser/auctioneer but had been unable to work on his feet the past year. He was relatively inactive due to his right hand and left foot disorders. He had a right wrist splint and no other assistive equipment. He reported a recent history of falls due to twisting of the left ankle. He ambulated independently with a moderate limp on the left lower extremity. He wore a left post operative shoe with custom orthotic.

An April 2002 VA treatment record documents the Veteran's report of continuous, sharp, throbbing pain. Movement increased the pain and heat treatment reduced the pain for 15-20 minutes.

The August 2002 VA joints examination report reflects the Veteran's complaint of worsening chronic pain and limitation of motion (LOM) of his fingers of the right hand. He reported that he could not move his fingers at all unless he used hot paraffin soaks 4-6 times per day. He reported that surgeons had recommended right wrist fusion but advised him that the surgery would only partially relieve his pain. Paraffin soaks did offer temporary relief of the wrist pain. The Veteran reported that he was unable to work because of his right wrist and left ankle disability. He reported the right hand/wrist pain was severe, continuous, and aggravated by any attempt to move his fingers. The finger stiffness and contracture were only relieved by soaking. He used a sling and Velcro brace to stabilize the wrist.

Physical examination showed the Veteran wore a sling with Velcro brace over his right wrist and a bandage wrapped around the wrist and fingers. Photographs showed contracture of the fingers. Active and passive motion resulted in excruciating pain. He experienced contracture in all fingers. The distance from the tips of the thumb, index, middle, ring, and small fingers to the mid-palmar crease measured 2.4 to 2.1, 1.5, and 1 inch respectively. He had no dexterity at all. He was unable to write because of the severe stiffness in his fingers. The diagnosis was residual right wrist injury with contracture of thumb and fingers.

The December 2002 VA hand, thumb, and fingers examination reflects the Veteran wore a brace and sling. He could not let his hand rest when his elbow was extended because of right hand swelling. He also reported that he could not move his fingers. He would soak his fingers in melted wax to heat them so that he could move them slightly. However, he could never straighten his fingers.

A physical examination of the right hand showed all the fingers were flexed. His right hand was slightly swollen. An examination with a plastic probe showed that the Veteran had no feeling in the majority of the right hand fingers and he could not move his fingers at all. The diagnosis was LOU of the right hand due to wrist fractures in the military with severe loss of the use of the right upper extremity.

An April 2003 VA neurological disorders examination report documents the Veteran wore a sling constantly for his right hand disability because he experienced swelling with letting his arm hang. He was able to work as an auctioneer until approximately three years earlier.

He winced when he moved his right hand over his left foot and hobbled from the wheelchair to the stationary chair. In pertinent part, the strength of the deltoids, triceps, and biceps in the right arm was adequate but he refused to open his right fist and would not allow the physician to open it. He kept his fist clenched but there was no definite atrophy. In his lower extremities, he hobbled on his right leg and would not touch the floor with his left leg. He would flex his left knee momentarily but would not move his foot. Reflexes at the biceps and triceps and brachioradialis in the left were normal bt the brachioradialis on the right was not testable because of his wincing. Knee jerks were symmetric. The left ankle jerk was not testable, but the right ankle jerk was normal. Vibration was adequate in four extremities, but he would not allow trace figures in the right upper extremity and left lower extremity. Light touch was present in all four extremities. The left foot was too painful to allow reflex or Babinski testing.

The April 2003 foot examination reflects that the Veteran was unable to work and ambulate sufficiently because of his left foot disability. The Veteran had such a severely painful foot that he could not bear to put weight on his left foot. The Veteran wore a boot on his shoe and a brace that kept his foot stable. The Veteran reported his left foot hurt from the ankle down. He reported that his pain was so severe that it throbbed and ached over the entire left foot. He had a separate intermittent pain manifested by an electrical shock on the inside of the foot to above the ankle and on the outside of the left heel. The left foot pain increased with standing. He wore a brace and prosthetic boot on his left foot and used a cane for balance. He could only wear his brace for a few hours at a time. He had not worked in approximately 2 years.

A physical examination showed that the left foot was misshapen and swollen across the middle of the metatarsals. The foot was warm to touch, exquisitely tender to touch below the ankle, malleolus over the Achilles, and toward the forefoot with very light palpation. The pulse was preserved and color was good. The Veteran could almost imperceptibly, at will, flex the toes on the left foot. He could not flex them enough to simulate a propulsive gate. He had 10 degrees of painful dorsiflexion at the ankle and 5 degrees of plantar flexion before the pain increased and he discontinued the motion. Inversion and eversion were not performed because to attempt to move his left foot in that motion caused severe pain. He was able to put his foot back into his prosthetic boot to support his ankle and ambulate slowly with a cane. His reduced function of the left foot affected the function of balance and propulsion sufficiently as to preclude locomotion without the use of his brace. Moreover, it was too painful for him to even attempt to walk without the brace, even on the rug-covered floor. The diagnosis was severe, traumatic arthritis of the left foot.

A May 2007 field examination request documents that the Veteran received compensation for loss of use of one hand and one foot; was issued a wheelchair/scooter, foot brace, and arm brace; and was paid $10,000 to customize his vehicle to adapt to his handicaps. An anonymous complaint alleges that the Veteran may be feigning his disabilities to the extent that he does not use his VA issued aids, walks 4 miles daily, lifts weights, cuts down trees, and is an avid deer hunter. He performed all those activities with no visible strain or discomfort.

A June 2007 field investigation report documents that the Veteran exited the rear of his home riding a Harley Davidson motorcycle. The field examiner followed and observed the Veteran for approximately 30 minutes while he rode the motorcycle around town. The Veteran stopped at the post office and dropped off mail in the drop boxes outside the post office. He did not get off the motorcycle to drop the mail in the outside mail drop boxes. After stopping at the post office, the Veteran drove to the local baseball stadium and circled the parking lot several times. While observing the Veteran riding the motorcycle, the field examiner noted that the Veteran used both feet to support himself while stopped at stoplights and stop signs. He used both hands to properly operate the motorcycle controls. The Veteran did not appear to be under any stress or strain to operate the motorcycle. He wore regular black leather boots and nothing on his hands or wrists. He did not wear any type of brace or supports for his legs or hands. The motorcycle the Veteran rode was not adapted with any type of special equipment to accommodate a handicap of any type. Attached pictures show the Veteran riding around on the Harley Davidson motorcycle.

In a June 2007 letter, the Veteran reported that he did not walk four miles per day but did acknowledge that he went to the YMCA as often as possible and engaged in "purely therapeutic" activities such as light water exercises in the shallow end of the swimming pool, whirlpool, and sauna. He had not participated in weightlifting for many years. He did own a treadmill and weight machine but reported that he had not used them for many years. He occasionally went hunting with his friends, but he had to be driven to the hunting area by ATV (four-wheeler) and he sat on plastic patio furniture. He did not carry camping supplies or clear trails or brush by hand or with an ax. He reported that he purchased a motorcycle, below market value, for resale value and not for personal use. He reported that he wore an arm/wrist brace and foot brace/boot to doctor's appointments and everywhere else except the YMCA. He could only use his left hand and right foot to operate his VA issued wheelchair and electric scooter and only used them when he had assistance. 

The July 2007 VA joints examination report documents the Veteran's complaint of chronic right wrist pain without the ability to move the right wrist. He stated that any manipulation, movement, or touching of the right wrist caused him excruciating pain. He reported that he was unable to use his right hand/wrist for anything and was unable to bend the wrist at all. He stated his right hand/wrist disability was constant and did not change or lock. He did not have any flare-ups of pain but reiterated that manipulation or touching of the wrist caused severe pain. Etodolac and Vicodin offered some relief, and the Veteran wore a brace on his right wrist. The Veteran had not worked as an auctioneer since approximately 1988 because he was unable to move stock around because of his right hand/wrist and left foot disabilities.

On physical examination, the Veteran wore a splint on the right wrist. With the splint removed, the right hand and wrist were normal in appearance. He had two well healed surgical scars on the right wrist over the radial side. The scars were not particularly tender but the Veteran complained of tenderness involving the entire forearm from the elbow to the wrist on the right side. There was no evidence of muscle atrophy. The Veteran was unwilling to move his right wrist in any plane of motion, flexion, dorsiflexion, laterally, or medially. Any attempts by the physician to move the wrist was met with resistance by the Veteran, and he refused to allow any passive motion of the right wrist. The Veteran complained of excruciating pain with any touching of the palmar or the dorsal surfaces of the wrist but the physician was unable to determine level of impairment. The physician explained that the Veteran experienced pain when touched on his wrist. 

The physician was unable to determine if the Veteran would be better served by amputation below the elbow without resorting to unfounded speculation because the Veteran was unwilling/unable to use the right wrist/hand. The physician stated that if the examination was reliable, the Veteran could not operate a motorcycle. The Veteran reported that he bought the motorcycle for resale value and that he had never used or operated the motorcycle. Rather the picture of him sitting on the motorcycle was taken as a joke.

The July 2007 VA hand, thumb, and fingers examination report reflects the Veteran's complaint of constant pain in the wrist. He stated the pain was excruciating with any kind of movement or manipulation of the wrist. He reported that he wore a brace at all times to prevent any wrist movement and wore a sling to support the right arm. He was unable to bend or straighten the fingers on the right hand. He had a history of neoplasia. He received some relief from medications (Vicodin and Etodolac). He reported that he was essentially unable to use his right hand and right arm and he did not use it during the examination. Moreover, he had not worked (as an auctioneer) since approximately 1988 because he was unable to move stock around. He was able to perform his activities of daily living, very slowly, but he could not perform any chores around the house.

A physical examination showed that the Veteran wore a short-arm brace and his arm was in a sling. With the brace and sling removed, the hand was held in a position of function. There was no evidence of any atrophy of the hand. The Veteran refused to move the hand at all. He refused to flex or extend the hand and complained bitterly of excruciating pain with any manipulation of the hand and joints by the physician. The Veteran was missing the distal half of the distal phalanx of the long finger of the right hand; otherwise, the other fingers on the hand were normal. The physician was able to bend the fingers through a range of motion and touch the fingertips to the mid palmar crease, which caused the Veteran to cry out in pain. The physician was able to extend the fingers from the position of function almost straight, but again, the veteran complained, bitterly, of pain and tried to move his hand away from the physician while he attempted the movement. 

The Veteran was unwilling to exert any strength on the physician's hand as a test for motor function. On sensory examination, the Veteran perceived light touch in a patchy distribution; however, that changed from examination to examination. The Veteran reported that he had no real feeling over his right hand. The Veteran did not allow any repetitive motion. The Veteran reported that he could not ride or drive the motorcycle. The physician opined, based on the examination, that the Veteran was not able to operate the motorcycle with the right wrist. The Veteran reported that he bought the motorcycle to resell and that he had never ridden or operated the motorcycle.

The July 2007 VA feet examination report reflects the Veteran's complaint of constant pain and inability to use his left foot. He reported that he had pain with any kind of motion of the foot. He reported that any kind of pressure or touching the foot caused excruciating pain. He experienced pain in the feet starting at the ankle down distally. The pain increased with standing. He could only walk approximately 50 feet before having to stop because of the pain. He wore a hard-soled boot type brace on his foot at all times and used a cane in his left hand. He had difficulty with balance which was the reason for use of the cane. He got minimal relief of left foot pain from Vicodin and Etodolac. Weight bearing or touching of the foot caused excruciating pain in the left foot. During the examination, he used a cane and wore a hard-soled boot short-leg brace. The Veteran reported that he had been unable to work since the late 1980s because he had difficulty moving stock for the auctions. He essentially performed no chores around the house; however, he was able to dress very slowly and deliberately and to perform his activities of daily living.

A physical examination of the left foot showed there was a very prominent exostosis on the dorsal surface arch of the left foot. The Veteran complained of excruciating tenderness with any touching or manipulation of the entire left foot and he did not allow it. He moved his toes just a few degrees in flexion and dorsiflexion but complained of excruciating pain as he did so and stopped the motion when the pain onset. He had some edema over the dorsal surface of the foot which occurred from wearing the leg brace.

He walked deliberately with his left foot in the boot and using a cane in the left hand (he was unable to use the right hand). He had no abnormal shoe wear pattern but did limp favoring his left leg because of the boot. He had no left foot deformity other than the exostosis with prominence of the dorsal surface of the left foot. There was no evidence of pes planus or hallux valgus, but the Veteran refused to walk across the examination room for the physician to test.

The physician commented that the Veteran was clearly able to walk on the left foot; however, he did a limited amount of walking. The physician could not determine if the Veteran would be better served with amputation without resorting to speculation. However, the physician concluded that the Veteran could not possibly use a motorcycle with his present disability. The Veteran reiterated that he was unable to ride or drive the motorcycle, but he was able to drive an automatic transmission car or truck around his local area. He did not drive extensive distances.

In a September 2007 VA examination addendum, the physician reported that the Veteran refused to allow him to move his wrist because of excruciating pain in the wrist with any kind of motion. The Veteran wore a brace during the examination and with the brace removed, the Veteran would not allow any kind of activity. The Veteran told the physician that the pictures of him on the motorcycle were taken when the motorcycle was not running and he stated that he was unable to use his right wrist. He reported that he had never ridden the motorcycle and was incapable of riding the motorcycle.

The physician reviewed the June 2008 field investigation report, including photographs of the Veteran riding the motorcycle, and concluded the photographs clearly show the Veteran was able to operate the motorcycle. The field investigation report indicated that the motorcycle did not appear to be modified. Accordingly, the Veteran was able to operate the handlebars and gearshift with his right hand. The physician concluded, in light of this evidence, that it appears the Veteran is able to use his right hand/wrist sufficiently well enough to operate a motorcycle. Moreover, the Veteran was able to support the weight of the motorcycle and himself at traffic signals, indicating that he was able to use his left foot/ankle. Thus, the physician opined that the Veteran did not have complete loss of use of the left foot and right hand.

In an October 2007 statement, the Veteran acknowledged that he did attempt to ride the motorcycle, but he kept falling. He also stated that he did turn the throttle with his whole right arm and not just the right hand/wrist. He also reported that his left ankle/foot was in a boot for stabilization. The assistive appliances provided minimal relief, and the Veteran stopped trying to ride the motorcycle.    

An October 2007 evaluation report reflects that on physical examination, the Veteran's right hand was in a contracted position. He had extreme tenderness to palpation throughout his wrist and with any attempt at passive range of motion of the right wrist. He had limited motion of the right wrist manifested by dorsiflexion and plantar flexion limited to 5 degrees, respectively. Ulnar deviation of the right wrist was also limited to 5 degrees, and he had no radial deviation. He had exquisite pain with the attempted motion, and he held his fingers in flexed posture. He stated that he was unable to straighten his fingers without severe pain. He did extend his fingers once during the examination but was guarded and exhibited pain. He demonstrated intact "FDP and FDS function throughout the hand and had intact "FPL." He did not have two-point discrimination in the hand at greater than 12 mm. He had positive median nerve compression tear but had no atrophy.

On examination of the left foot, the Veteran had palpable pulse and intact sensation on light touch. He had point tenderness to palpation about his tarsometatarsal joint with bony osteophyte present. Range of motion at the left ankle was from 5 degrees of dorsiflexion to approximately 15-20 degrees of plantar flexion. He exhibited pain with any passive range of motion at the midfoot. He had intact "EHL and FHL function." He ambulated to the examination with a CAM walker.

X-ray findings of the right wrist showed severe slack wrist with degenerative arthritis. X-ray findings of the left foot showed severe midfoot arthritis, primarily affecting the tarsometatarsal joints.

The physician indicated that the treatment options for the right wrist/hand disability were wrist splints and anti-inflammatory medications (conservative) or wrist fusion. The treatment options for the left foot disability were rocker bottom type shoe (i.e., CAM boot) (conservative) or foot fusion.

An October 2007 statement from the Veteran's treating pedorthist reflects that the Veteran needed specialized footwear to ambulate comfortably. The pedorthist fit the Veteran in a pair of extra depth shoes modified with custom orthotics to offset the pressure which allowed the Veteran to walk more comfortably.

The November 2007 VA feet examination report documents the Veteran's complaint of progressively worsening, daily left foot pain, worse with standing. Etodolac and Hydrocodone provided fair relief. The Veteran had been employed as a real estate appraiser and auctioneer but had not worked for approximately 10 years due to his left foot and right hand disabilities. He was able to perform his activities of daily living but had to shower instead of bathe because of the difficulty getting into and out of the tub. Symptoms of his left foot disability included swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance. He could only stand a few minutes and could walk approximately 50 feet with a cane. In addition, he used a left foot brace.

A physical examination showed that any attempted motion of the left foot was painful. There was no left foot swelling, but the left foot was markedly tender in the midfoot area. There was objective evidence of left foot weakness. There was left ankle tenderness but no deformity, crepitation, or instability. Range of motion findings showed left ankle dorsiflexion 0-5 degrees with pain and left ankle plantar flexion 0-15 degrees with pain. With repetition, there was no loss of motion due to pain, weakness, or lack of endurance.

The November 2007 VA joints examination report reflects the Veteran's complaint of progressively worsening, constant right wrist pain, worse with movement. Hydrocodone and Etodolac offered fair relief. Symptoms of his right wrist disability included pain, stiffness, weakness, swelling, heat, and redness. He avoided all movement of his right wrist because movement caused pain. He had not worked in 10 years due to his right wrist and left foot arthritis. He stated that he could not use his right arm (upper extremity) for anything. He used his left arm/hand to dress and complete activities of daily living. He drove short distances but tried to get others to drive him. He did not do any chores. The Veteran was right hand dominant and used a splint on his right wrist.         

On physical examination, range of motion findings showed right wrist dorsiflexion 0-5 degrees with pain, palmar flexion 0-10 degrees with pain, ulnar deviation 0-5 degrees with pain, and radial deviation 0-5 degrees with pain. With repetition, there was no loss of motion secondary to pain, weakness, or lack of endurance.  

The November 2007 VA hand, thumb, and fingers examination report showed that there was a distal amputation of the right third fingertip of the right hand. There was no ankylosis or deformity of the right hand. There was a 1-2-inch gap between the thumb pad and the tips of each finger, respectively, on attempted opposition of the thumb to fingers. There was no gap between the fingertips and proximal transverse crease of the hand on maximal flexion of the fingers. Right hand strength was slightly diminished (4/5) in grip, finger abduction, and thumb opposition, and strength testing seemed to aggravate his right wrist pain. Range of motion of all fingers was decreased. He held his hand in a position of flexion and was unable to straighten his fingers. He had good mobility at the metacarpophalangeal (MCP) joints. Passive attempts at straightening were unsuccessful due to pain. The limitation was mainly at the proximal interphalangeal (PIP) joints of fingers 2-5, and the Veteran was unable to extend beyond 80 degrees due to pain. There was no loss of motion secondary to pain, weakness, or lack of endurance. 

The physician reviewed the claims file and medical records from remote data, including photographs. The physician presumed the individual depicted in the photographs and described in the field investigation report was the Veteran and opined that the examination findings were not reliable because the Veteran's effort on range of motion testing was not maximal. The physician stated that the individual shown in the photographs would be able to bear significant weight on both feet and have good use of both arms and hands. That individual would clearly not have loss of use of the right hand/arm or the left ankle/foot. Moreover, the physician noted that the individual depicted in the photographs appeared to be able to use his arms and legs without braces or adaptive equipment. The physician noted that the Veteran complained of excruciating pain on range of motion testing of the right wrist and the left foot but noted that it was unlikely that any diagnostic tests would be able to clarify the matter further. The physician concluded that the Veteran's arthritis did not prove anything about his functional status because many individuals with arthritis have good function and good joint range of motion.

A January 2008 private treatment record reflects that the Veteran had multiple problems with his left foot and lower extremity. The Veteran reported that his VA disability benefits were being terminated because he could ride a motorcycle. The examiner found that riding a motorcycle did not affect the left foot disability because you could ride a motorcycle with a fused foot and ankle depending on how you mounted and dismounted the motorcycle. The examiner noted that the Veteran's left foot/ankle gave way a couple of weeks earlier, and he sustained injury to his left shoulder.

A February 2008 private treatment record reflects that the Veteran has a SLACK right wrist with severe carpal instability and degenerative joint disease (DJD) and wore a brace for his right wrist disability. His right wrist arthritis caused tenosynovitis in his tendons which explained the limited mobility. From rest, the Veteran moved his fingers very slowly and had better motion after a while, but he did not have the ability to immediately open his hand from resting position. The Veteran also had severe midfoot degeneration and ankle degeneration. The examiner concluded that the Veteran's right hand/wrist and foot/ankle (left) disabilities did not prevent the Veteran from riding a motorcycle and explained that he could ride with some difficulty but found it was not a wise decision.

A March 2008 private treatment record reflects the Veteran had been using a splint on his right wrist/hand for 5 years and had also been using a sling periodically. He complained that he was unable to move his fingers well, and this inability had been worsening over the past two to three years. He left his fingers in a flexed position. In addition, he had been using a low-profile walker for 5 years for the left lower extremity disability.

A physical examination showed that the Veteran had obvious right wrist swelling. He had bony prominence, dorsally on the radial aspect of the wrist, and tended to keep his fingers flexed. The Veteran was unable to extend the PIP joints beyond 45 degrees from full extension. He guarded against manipulation of the hand at all. In addition, he had very limited right wrist range of motion. He had 5 degrees of dorsiflexion and 10 degrees of volar flexion of the right wrist. He had no ulnar deviation or radial deviation and complained that it was uncomfortable for him to move the wrist in that direction.

The Veteran had obvious clinical deformity of the left foot. He did not tolerate manipulation of the midfoot. He ambulated with a cane.

The physician concluded that the Veteran had obvious, significant problems with the right hand/wrist and left foot. Clinically, he had very poor motion of the right hand and did not appear to have adequate function in the hand to accomplish activities of daily living. The physician recommended that the Veteran undergo reconstructive procedures at both areas and agreed fusion surgery would be helpful. The physician noted that the arthritic changes in the Veteran's right wrist were quite impressive and found that he was not able to function using the right upper extremity given his current pain level. Because he used a cane, his ambulatory ability was limited also due to the arthritic changes in the left midfoot. 

An additional March 2008 statement from the Veteran's treating physician explains that a SLAC wrist is a term describing a joint that has lost all stability, basically loosening of the scapholunate ligament stability and lunate triquetrum leading to distal row collapse upon the first row and first row collapse upon the distal radioulnar joint, making the wrist a completely unstable wrist. The physician explained that the Veteran's treatment option for the pain, other than bracing, was wrist fusion.

A March 2008 private treatment record documents diagnosis of severe SLAC degenerative wrist arthritis. A physical examination showed that the Veteran had severe pain with any motion of the wrist and was restricted, actively, to 10 degrees of extension and flexion. He wore a volar thermoplastic type of wrist splint and took Hydrocodone and Etodolac for the pain. He also wore a CAM walker on the left foot.

The physician recommended wrist fusion but noted the Veteran could continue with the conservative treatment of antiinflammatory medication and wrist splint immobilization. The physician explained that the fusion would alleviate the Veteran's pain and significantly improve his disability. In addition, the physician explained that the wrist and foot disabilities would cause limitation in the ability to operate heavy machinery and advised that the Veteran would not be allowed to operate heavy machinery if he took narcotic medication. In an accompanying statement, the physician stated that the right wrist disability significantly limited the Veteran's range of motion and was a well-accepted source of pain.

In a subsequent March 2008 statement, the treating physician reported that the Veteran had right wrist/arm and left foot/leg arthritic and orthopedic disabilities that were worsening over time. The physician stated that despite the Veteran's questionable outside activities, his arm and leg disorders would not improve and reiterated that they would worsen over time.

The April 2008 VA hand, thumb, and fingers examination report showed that there was a 1-2-inch gap between the thumb pad and tips of the finger on attempted opposition of the thumb to the fingers on the right hand. In addition, there was decreased right hand grip strength for pushing, pulling, and twisting. Moreover, the Veteran described decreased dexterity in the right hand. The Veteran was unable to perform any range of motion testing on examination due to his right hand pain with any movement, active or passive. With some resistance, the fingers were extended gradually. There was no atrophy of the right hand muscles or flexion contractures. The Veteran was observed utilizing his right hand to assist in applying the straps to his left foot brace/boot.

The physician commented that the degree of pain on examination (essentially rendering an examination impossible), the report of maintaining the hand in a wrist splint with the fingers flexion, and the limitation in range of motion of the fingers were highly inconsistent with the physical findings. The physician explained that specifically, there were no flexion contractures or atrophy of the hand muscles, both of which would be expected if the hand were maintained in the splint in the manner the Veteran reported without physiotherapy. The physician concluded that the Veteran's complaints and findings, if accurate, would make it highly problematic for him to operate any motor vehicle.

The April 2008 VA feet examination report reflects that symptoms of the Veteran's left foot disability included pain, swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance. The Veteran used a cane and wore a corrective, custom boot/brace frequently. On physical examination, the Veteran complained that any movement or touching of the foot was unbearably painful. There was no objective evidence of swelling or instability. However, there was objective evidence of tenderness and weakness as the entire foot elicited a painful response from the Veteran, and he stated his left foot was weak. Range of motion findings showed left ankle dorsiflexion 0-10 degrees (pain at 10 degrees) and plantar flexion 0-20 degrees (pain at 20 degrees). There was no loss of motion with repetition due to pain, weakness, or lack of endurance. There was no muscle atrophy of the left foot. The left boot/support/orthotic device appeared to be brand new, and there was no wear pattern apparent in the sole of the appliance. The soles of the feet were carefully examined and showed identical amounts and locations of skin thickening, over the heels and near the first metatarsal joints, bilaterally. The Veteran wobbled from side to side when walking with the large appliance/boot on the left foot.

The physician opined that the foot pain elicited on examination was significantly out of proportion to the physical findings. The physician explained that the assistive device worn on the left foot appeared to be brand new or seldom worn because it showed no wear on the tread pattern/bottom surface. In addition, the skin thickening on the plantar surface of both feet (under the heels and the first metatarsals) was symmetric and identical on both feet, consistent with symmetric weightbearing and gait. The physician found that the Veteran's reported pain and description of limitations in use of the left foot were highly inconsistent with the objective findings. The physician concluded that the Veteran described discomfort on examination that should make operation of a motor vehicle of any sort highly problematic. 

An August 2009 private treatment record reflects that on physical examination, the Veteran held his right wrist in neutral position. He did not demonstrate any active flexion or extension. Attempt at passive extension of the wrist was met with a severe histrionic type painful response. The Veteran held his right hand fingers in a slightly clawed position and any attempt at passive extension was met with a severe pain response. He reported intact sensation to light touch. He had crepitus in the wrist and palpable osteophytes. His left midfoot showed changes consistent with advanced DJD.

A September 2009 private treatment record reflects the Veteran's complaint of right wrist and left ankle pain. He had progressively decreased range of motion/virtually no range of motion in his right wrist. Physical examination showed painful range of motion of the left ankle with medial and lateral tenderness and effusion. There was obvious swelling in his right wrist. X-ray findings showed progression of right scapholunate instability and degenerative arthritis of the Veteran's right wrist and progressive left ankle post-traumatic arthritis. The physician reiterated that the Veteran was disabled.

The October 2010 VA hand, thumb, and fingers examination report showed that on physical examination, there was no ankylosis or deformity of one or more digits of the right hand. The Veteran did have a 2-inch gap between the thumb pad and tips of the fingers on attempted opposition of the thumb to fingers. There was perceived decrease of strength for pushing, pulling, and twisting. However, the physician noted that the Veteran did not permit grip strength assessment of the right hand. The Veteran reported that he had decreased dexterity in his right hand and could not use it. The Veteran was unable to perform any range of motion testing due to pain in his right hand with any kind of movement, active or passive. After repeated attempts, the Veteran permitted passive extension of his fingers. There were no flexion contractures or atrophy of the hand. The Veteran did use his right hand to put on and remove his left foot brace.

The physician commented that the Veteran apprehensively obstructed examination of the right hand and wrist. He maintained his right hand in a wrist splint and maintained his right hand fingers in flexion. However, the physician noted there were no contractures. The physician explained that the Veteran's pain response and apprehension were out of proportion with the claimed disability, particularly given the absence of any amount of atrophy or gross evidence of disability.

The October 2010 VA left foot/ankle examination report showed that on examination the Veteran had an antalgic gait stepping on the left foot. Walking was painful, and the left foot was tender, especially in the midfoot area. There was flattening of the arch of the foot withstanding but there was no muscle atrophy of the left foot. The Veteran used a cane to walk. Dorsiflexion of the left ankle was 0-5 degrees with pain. Plantar flexion was 0-15 degrees with pain. There was no objective evidence of pain or additional limitation with repetitive motion. 

A February 2020 private treatment record documents the Veteran's complaint of right wrist pain with limited motion. He reported limited use of the right hand, without numbness or tingling, and daily pain with right hand use. Regarding the left foot, the Veteran reported that the VA-issued custom orthotics provided some pain relief. He complained of numbness and tingling through the left foot. He denied recent trauma, swelling or redness.

On physical examination, range of motion of the right upper extremity was supination to 55 degrees, full pronation, dorsiflexion to 25 degrees and palmar flexion to 10 degrees. The Veteran gave poor effort with active range of motion of the fingers. However, passively, the examiner could extend the MCP joints fully and the PIP/distal interphalangeal (DIP) joints to 10 degrees, each. Grip strength was diminished (3/5), and the Veteran had tenderness to palpation throughout the radiocarpal and mid carpal region. He had limited active flexion and extension through the thumb but the thumb could oppose the base of the small finger within 5 cm. Distal or radial ulnar joint (DRUJ) was stable. There was no tenderness over the ulnar aspect of the right wrist.

A physical examination of the left lower extremity showed pes planovalgus through the ankle with abduction through the midfoot of approximately 35 degrees. He had mild swelling without open wounds, redness, or ecchymosis. He had decreased sensation over the dorsal aspect of the midfoot and forefoot. He had limited active motion with dorsiflexion of the ankle to 5 degrees and plantar flexion to 15 degrees. He had painful supination and pronation through the foot and painful eversion and inversion limited to approximately 10 degrees arc of motion. He had no tenderness over the Achilles or peroneal tendons but had moderate tenderness over the posterior tibial tendon. He had obvious dorsal osteophytes over the tarsometatarsal (TMT) joints that were painful to palpation. X-ray findings of the right wrist showed significant degenerative changes within the radiocarpal joint. The lunate fossa and radioscaphoid articulation had significant narrowing, subchondral sclerosis cystic changes, and periarticular osteophyte formation. In addition, he had significant scaphoid trapezium trapezoid (STT) joint arthritis. X-ray findings of the left foot showed flatfoot deformity and significant navicular cuneiforms osteoarthritis an intercuneiform osteoarthritis. He had bone-on-bone osteoarthritis through the 1st and 2nd TMT joint and cystic changes withing the cuboid -cuneiform joint with degenerative narrowing. The Veteran chose to remain in his custom orthotics and continue over-the-counter medication for his arthritis. 

A March 2020 private treatment record reflects that the Veteran had widening of the scapholunate ligament with collapse of the capitate and collapse of the scaphoid with degenerative change in his right wrist. He experienced erosion into the radius at the scaphoid. He also had progressively worsening severe midfoot changes and forefoot changes of the left foot with pain around the tendons of his left ankle. He wore special shoes and ankle fixation orthotics (AFOs) for both feet that provided some relief. He complained that his pain was worsening, and his ability to ambulate was deteriorating.

A physical examination showed swelling, slight radial deviation, and significant decreased range of motion of the right wrist. Otherwise, his right wrist was neurovascular intact. Left foot examination showed loss of arch and significant swelling over the tarsal, metatarsal, and midfoot region with osteophyte formation. Otherwise, his left foot was neurovascular intact. X-ray findings of the right wrist showed widening of the scapholunate ligament with severe degenerative changes at the radial scaphoid joint and other carpal joints in the right hand. X-ray findings of the left foot showed severe tarsometatarsal joint arthritis with midfoot arthritic changes, loss of arch, and relatively flat alignment of the tarsal joints. The physician commented that the disabilities will worsen over time, and the Veteran will lose more function. The physician indicated that the Veteran might possibly require wrist fusion and foot fusion.

A June 2020 private treatment record reflects the Veteran has significant post-traumatic arthritis of the right wrist. The physician stated that the Veteran had significant limitations with very little arc of motion given that he had approximately 10 degrees in wrist extension and flexion. The physician explained that because the Veteran had decreased range of motion and significant pain, he was unable to perform normal activities of daily living.

A December 2020 Office of Inspector General (OIG) Comprehensive Report of Investigation (OIG Investigation Report) determined that the Veteran exaggerated his disabilities to VA, including claims of loss of use of the right hand and left foot. However, surveillance video showed the Veteran operating a motorcycle on several occasions; operating a zero-turn lawn mower, hand-held weed eater, and handheld blower on several occasions; walking without assistance or any kind; and using his right hand without limitations. The Veteran initially denied misleading VA about the extent of his disabilities until presented with facts that showed his statement to be untrue. Thereafter, he stated that he believed that he was no longer entitled to receive SMC for LOU of the right hand and left foot. He agreed that his right hand and left foot were disabled but not to the extent that he could not use them at all.

The OIG Investigation Report documents that in October 2015, the Special Agent (SA) observed a photograph on the Veteran's Facebook page from September 2010 that showed the Veteran leaning against a Harley Davidson motorcycle while holding his helmet in his right arm. The Veteran did not appear to have a sling on his arm or boot/brace on his leg. In April 2016, the SA observed a photograph on the Veteran's Facebook page from December 2015 that showed the Veteran and his spouse standing a Harley Davidson motorcycle. In May 2016, the SA conducted surveillance and observed the Veteran ambulating without any noticeable limitations or aides. In March 2017, the SA conducted surveillance and observed the Veteran ambulating without any noticeable limitations or aides. The Veteran was observed in a fast-food restaurant eating and talking on a cell phone with one hand while retrieving his keys with the other. He had no noticeable limitations using either hand while being observed.

In March 2018, the SA received a copy of an accident report from September 2008 regarding a motorcycle accident involving the Veteran. The SA noted that the accident occurred a year after the Veteran was observed riding a motorcycle in May 2007. In numerous examinations and filings thereafter, the Veteran denied being able to ride or operate a motorcycle.

In addition, the OIG Investigation report documents that in May 2018, the SA conducted surveillance and observe the Veteran operating a zero-turn lawnmower using both hands without noticeable limitations. The Veteran was also observed walking without any noticeable limitations or aides and using a hand-held blower with his right hand. In August 2018, the SA conducted surveillance and observed the Veteran using a weed-eater, carrying it in both hands and ambulating freely without use of any aides. He was also observed carrying a small couch over his head and placing it at the road, operating a zero-turn lawn mower, and operating a hand-held blower without any noticeable limitations or aides.

In February 2019, the SA documented review of video footage of a Christmas parade from 2008 through 2018. In November 2011, November 2012, and November 2015, the Veteran operated a Harley Davidson motorcycle, balancing the motorcycle while stopped and starting with both feet without any visual difficulties. He also used his right hand without limitation. Also in February 2019, the SA conducted surveillance and observed the Veteran returning to his house from a mid-morning walk. He ambulated freely without the use of any aides. Later he was observed shopping in a mall for over an hour. The Veteran was observed pushing a shopping cart, ambulating freely, and using both hands to pick up items. At the checkout counter, the Veteran used both hands to place items on the counter. After paying, he used his right hand to retrieve the bags and rotated his wrist to lift the bags from the counter. During the entire time of observation, the Veteran had no problems ambulating or using his right hand/wrist.

In March 2019, the SA conducted surveillance and observed the Veteran ambulating freely without the use of any aides. In May 2019, the Resident Agent in Charge (RAC) conducted surveillance and observed the Veteran operating a zero-turn lawn mower using both hands without any noticeable limitation for approximately 20 minutes.

In February 2020, the SA interviewed the Veteran at his residence and observed the Veteran holding his right wrist close to his chest and dragging his left foot as he ambulated. The Veteran explained that he had very little movement in his right hand and was unable to bend it. Additionally, he was not wearing shoes but explained that his boots had a built-in brace for walking. When advised of the evidence, the Veteran reported that he could ride his lawn mower, use his weed eater and blower, and walk intermittently without a brace on his left foot. He acknowledged that he could use his right hand and left foot but not like a normal man his age could do. He stated that he needed to wear braces on his foot because they were helpful, and he was able to ambulate without a limp when he wore his braces. The Veteran acknowledged that he was no longer entitled to receive SMC for loss of use of the right hand and left foot and no longer entitled to receive VA compensation for loss of use of the hand and foot. He stated that his right hand and left foot were disabled, but not to the extent that he could not use them at all. 

In addition, the Veteran has submitted numerous lay statements and testified in hearings, most recently October 2023, attesting to his character and the veracity of severity of his right hand and left foot disabilities.

However, on these facts as documented above, despite the clear evidence that the Veteran has right hand and left foot disabilities, the Board finds that the Veteran made intentional misrepresentations of fact about the severity of his right hand and left foot disabilities for the purpose of obtaining or retaining VA benefits, with knowledge that the misrepresentations may result in the erroneous award or retention of such benefits. 

There is no dispute that the Veteran has arthritis of the right hand/wrist and left foot/ankle and pain and limitation of motion in the extremities as a result thereof. However, he did not have LOU of the right hand and left foot due to right hand/wrist arthritis and left foot/ankle arthritis. Rather, the evidence documented above does not show that the Veteran had no feeling in his right hand and could not move his hand (fingers) at all or that he could not bear weight or ambulate without the use of assistive aides for his left foot. Thus, the Veteran's actions warrant the characterization of fraud as defined for VA purposes. See 38 C.F.R. § 3.1(aa)(2).

Having determined that fraud was committed in the instant case, the Board does not need to address the provisions of 38 C.F.R. § 3.105. The provisions of 38 C.F.R. § 3.105 do not apply in cases of fraud. Roberts v. Shinseki, 23 Vet. App. 416, 424-5 (2010).

While the provisions of 38 C.F.R. § 3.105 do not apply in cases of fraud, the due process procedures applicable in cases of fraud are set forth in 38 C.F.R. § 3.103. Specifically, the regulation provides that the claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation, and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision. 38 C.F.R. § 3.103(b)(1).

The AOJ notified the Veteran of the proposed termination of the 100 percent evaluation for LOU of the left foot and right hand in February 2020. The notification was sent to the Veteran at his latest address of record and advised him of the contemplated action and furnished detailed reasons therefor. He was given 60 days for the presentation of additional evidence to show that the 100 percent evaluation for LOU of the left foot and right hand should be maintained. The April 2020 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). The Veteran testified at a predetermination hearing in September 2020. 

The AOJ issued the October 2020 rating decision, which terminated the 100 percent evaluation for LOU of the left foot and right hand effective October 8, 2002. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in an October 2020 letter. Thus, in meeting all the due process requirements in the termination of the 100 percent evaluation for LOU of the left foot and right hand pursuant to 38 C.F.R. § 3.105(e), the AOJ complied with the procedural requirements applicable in cases of fraud as set forth in 38 C.F.R. § 3.103.

In September 2021, the Veteran requested Higher-Level Review of the October 2020 decision and this appeal emanates from that request for Higher-Level Review. To the extent that the Veteran asserts a due process violation in not receiving a second predetermination hearing as requested, the Board notes that a hearing is not available in connection with a request for higher-level review. See 38 C.F.R. § 3.103(d)(1). 

In summary, the Board finds that the award of the 100 percent evaluation for LOU the left foot and right hand was founded on fraud on the part of the Veteran. Therefore, the termination of the 100 percent evaluation for LOU of the left foot and right hand, effective from October 8, 2002, was proper.

SMC based on LOU of one foot and one hand was granted as a result of the 100 percent evaluation for LOU of the left foot and right hand. SMC is warranted on this basis where a veteran has suffered the LOU of one foot and one hand feet. See 38 C.F.R. § 4.71a, Diagnostic Code 5111. Here, the Veteran's 100 percent evaluation for LOU of the left foot and right hand has been terminated. As such, he is no longer entitled to SMC for LOU of one foot and one hand feet. Therefore, the discontinuance of this benefit was proper. See 38 C.F.R. § 3.105(e). Consequently, the appeal is denied as to these issues.

3. Whether the termination of specially adapted housing based on a finding of fraud was proper

Basic eligibility to specially adapted housing benefits was awarded as a result of the service-connected LOU of one foot and one hand. Basic eligibility to specially adapted housing benefits exists if the veteran has loss or LOU of one foot and one hand, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. See 38 C.F.R. § 3.809. Here. basic eligibility to specially adapted housing benefits existed because the Veteran was found to have LOU of one foot and one hand, which is no longer the case. As such, basic eligibility to specially adapted housing benefits no longer exists. Therefore, the discontinuance of this benefit was proper. See 38 C.F.R. § 3.105(e). Consequently, the appeal is denied as to this issue. 

4. Whether the termination of an automobile and adaptive equipment allowance based on a finding of fraud was proper

Basic eligibility to automobile and adaptive equipment benefits was awarded as a result of the service-connected LOU of one foot and one hand. Basic eligibility to automobile and adaptive equipment benefits exists if the veteran has a loss or permanent LOU of one or both feet or one or both hands. See 38 C.F.R. § 3.808. Here basic eligibility to automobile and adaptive equipment existed because the Veteran was found to have LOU of one foot and one hand, which is no longer the case. As such, basic eligibility to automobile and adaptive equipment no longer exists. Therefore, the discontinuance of this benefit was proper. See 38 C.F.R. § 3.105(e). Consequently, the appeal is denied as to this issue. 

5. Whether the reduction of the disability rating for the right hand injury from 50 percent to 10 percent effective September 18, 2000, based on a finding of fraud, was proper

The Board finds that the reduction in rating for the Veteran's right hand injury from 50 percent to 10 percent effective September 18, 2000, was proper because of the finding that he knowingly committed fraud to obtain and retain VA benefits.

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disabilities and their ratings are listed in Diagnostic Codes (DCs). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination.

The Veteran's right hand injury was rated by analogy to the criteria for evaluating favorable ankylosis of multiple digits. 38 C.F.R. § 4.71a, Diagnostic Code 5220. A 10 percent rating is assigned for favorable ankylosis of the: long and ring; long and little; or ring and little fingers of the major or minor extremity.

A 20 percent rating is assigned for favorable ankylosis of the: index and long; index and ring; or index and little fingers of the major or minor extremity; or the thumb and any finger of the minor extremity; or long, ring, and little fingers of the major or minor extremity; or index, long and ring; index, long and little; or 7index ring and little fingers of the minor extremity.

A 30 percent rating is assigned for favorable ankylosis of the: thumb and any finger of the major extremity; or index, long, and ring; index long, and little; or index ring and little fingers of the major extremity; or thumb and any two fingers of the minor extremity; or index, long, ring, and little fingers of the minor extremity.

A 40 percent rating is assigned for favorable ankylosis of the: thumb and any two fingers of the major extremity; or index, long, ring, and little fingers of the major extremity; thumb and any three fingers of the minor extremity; or five digits of one hand of the minor extremity.

A 50 percent rating is assigned for favorable ankylosis of the: thumb and any three fingers of the major extremity; or five digits of one hand of the major extremity.

There was no change in the criteria for evaluating favorable ankylosis of multiple digits of the hands under the revised criteria, effective February 7, 2021 (date of revision of the criteria for evaluating musculoskeletal disorders).

The Board has reviewed the record. The Veteran was rated as 50 percent disabled for his right hand injury; however, it is clear that the medical examiners relied on inaccurate statements of the Veteran, who misrepresented his level of disability and functioning as documented in the December 2020 OIG Investigation Report. Moreover, as documented, the Veteran routinely gave suboptimal effort, and/or his complaints were inconsistent with the physical findings. To that end, a February 2020 private treatment record documents that the Veteran gave poor effort with active range of motion of the fingers. However, passively, the examiner could extend the MCP joints fully and the PIP/DIP joints to 10 degrees, each.

In this case, the misrepresentations concerning overall functioning were repeated and deliberate. While the Veteran complained to examiners that he could not use his right hand for anything, the OIG Investigation Report documents that he was observed using his right hand to perform yard work, ride his motorcycle, and shop, all without evidence of any limitation.

The OIG Investigation Report findings are highly probative given the depth and detail in the report. Given the totality of the record, the Veteran's assertion that he did not engage in fraud or misrepresentation to VA or medical providers is not credible. Rather, he intentionally misrepresented facts or intentionally failed to disclose pertinent facts in order to obtain VA compensation benefits at the highest rate possible.

Because of these misleading presentations to VA and private examiners, the reduction to 10 percent for the right hand injury was proper. The evidence documented above shows fraudulent misrepresentations of the severity of his right hand injury since his claim for the disability and continued feigned symptomatology through the appeal period.

The misrepresentations in this case were made with the express purpose of obtaining and retaining VA benefits that the Veteran was not entitled to receive. The record shows the 50 percent rating for the right hand injury had been obtained through the commission of fraud, and on that basis, the reduction was proper. See 38 C.F.R. §§ 3.1(aa), 3.901, 3.957.

6. Whether the reduction of the disability rating for traumatic arthritis of the left foot from 30 percent to 10 percent effective September 18, 2000, based on a finding of fraud, was proper

The Board finds that the reduction in rating for the Veteran's traumatic arthritis of the left foot from 30 percent to 10 percent effective September 18, 2000, was proper because he knowingly committed fraud to obtain and retain VA benefits.

The rating for the Veteran's left foot arthritis was assigned pursuant to diagnostic code (DC) 5010-5284. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.

Prior to February 7, 2021, under Diagnostic Code 5010, arthritis due to trauma is rated on limitation of motion of the affected part as degenerative arthritis. When limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 

In the absence of limitation of motion, a 20 percent rating is assigned for arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitation exacerbations. A 10 percent rating is assigned for arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 

Under the revised criteria, effective February 7, 2021, under Diagnostic Code 5010, post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint.

Under DC 5284, a 10 percent rating is assigned for a moderate foot injury. A 20 percent rating contemplates a moderately severe foot injury. A 30 percent rating is assigned for a severe foot injury. 38 C.F.R. § 4.71a, DC 5284. 

Under the revised criteria, effective February 7, 2021, there is no change in the criteria for evaluating limitation of flexion and/or limitation of extension under DC 5284.

Again, the Board has reviewed the record. The Veteran was rated as 30 percent disabled for his left foot traumatic arthritis; however, it is clear that the medical examiners relied on inaccurate statements and misrepresentations of his level of disability and functioning, as documented in the December 2020 OIG Investigation Report. Moreover, as documented, the Veteran routinely gave suboptimal effort and/or his complaints were inconsistent with the physical findings.

The misrepresentations in this case made to VA regarding the Veteran's overall functioning were repeated and deliberate. While the Veteran complained to examiners that he could not walk on his left foot without the use of assistive devices, the OIG Investigation Report documents that he was observed riding his motorcycle, balancing on his motor while stopped, and ambulating freely, all without the use of any aides.

The OIG Investigation Report findings are highly probative given the depth and detail in the report. The assertion that the Veteran did not engage in fraud or misrepresentation to VA or medical providers is not credible. Rather, he intentionally misrepresented facts or intentionally failed to disclose pertinent facts in order to obtain VA compensation benefits at the highest rate possible.

Because the Veteran presented himself in misleading ways to VA and private examiners, the reduction to 10 percent for the left foot traumatic arthritis was proper. The evidence documented above show fraudulent misrepresentations concerning the severity of his left foot arthritis since his claim for the disability and continued to feign symptomatology through the appeal period.

The misrepresentations in this case were made with the express purpose of obtaining and retaining VA benefits that the Veteran was not entitled to receive. The record shows the 30 percent rating for the left foot traumatic arthritis had been obtained through the commission of fraud, and on that basis, the reduction was proper. See 38 C.F.R. §§ 3.1(aa), 3.901, 3.957.

7. Whether the termination of a TDIU effective October 2, 2000, based on a finding of fraud was proper

Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA may consider the Veteran's education, special training, and previous work experience, but not his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran can perform the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363.

Given the action noted herein, the Veteran had a combined 30 percent rating for his service-connected disabilities from September 18, 2000, and a combined 50 percent from September 21, 2009. The 30 percent and 50 percent ratings did not render the Veteran eligible for TDIU under the schedular criteria. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 

As noted above, the TDIU rating was terminated because of fraud. While the Veteran may have had some occupational impairment, the many misrepresentations of record make it impossible to assess a higher level of impairment. The record demonstrates that he had been fraudulently misrepresenting the severity of his right hand and left foot disabilities and continued to feign symptomatology during the appeal period.

The Veteran's disabilities do not meet the schedular criteria for TDIU consideration, and, in light of the many misrepresentations, the Board cannot determine that his right hand and left foot disabilities precluded him from realistically obtaining and maintaining any form of gainful employment, consistent with his work and education background. Thus, the termination of TDIU from October 2, 2000, was proper. 

8. Whether the termination of eligibility for DEA based on a finding of fraud was proper

Basic eligibility to DEA was awarded as a result of the service-connected LOU of one foot and one hand. Basic eligibility to DEA exists if the veteran has a permanent total service-connected disability. See 38 C.F.R. § 3.807(a)(2). Here basic eligibility to DEA existed because the Veteran had been rated totally disabled (100 percent) for the LOU of one foot and one hand, which is no longer the case. Further, the Veteran is not in receipt of a permanent total rating. As such, basic eligibility to DEA no longer exists. Therefore, the discontinuance of this benefit was proper. See 38 C.F.R. § 3.105(e). Consequently, the appeal is denied.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Jackson

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.