Citation Nr: 0639936	
Decision Date: 12/27/06    Archive Date: 01/05/07

DOCKET NO.  06-26 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to special monthly compensation (SMC), based 
on the loss of use of both lower extremities, secondary to 
service-connected chronic obstructive pulmonary disease 
(COPD).

2.  Entitlement to an automobile and adaptive equipment or 
adaptive equipment only.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jason R. Davitian, Counsel


INTRODUCTION

The veteran served on active duty from April 1951 to 
September 1952.

This case is before the Board of Veterans' Appeals (BVA or 
Board) on appeal from December 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Atlanta, Georgia, which denied entitlement to an automobile 
and adaptive equipment or adaptive equipment only.  It is 
also on appeal from a June 2006 rating decision of the RO in 
Huntington, West Virginia, which denied entitlement to SMC, 
based on the loss of use of both lower extremities.  The 
claims file is associated with the Atlanta RO. 


FINDING OF FACT

Overall, the competent medical evidence shows that the 
veteran's service-connected COPD results in the loss of use 
of both lower extremities.  


CONCLUSIONS OF LAW

1.  The criteria for SMC, based on the loss of use of both 
lower extremities, secondary to service-connected COPD, have 
been met.  38 U.S.C.A. §§ 1114, 1155, 5103, 5103A, 5107, 5121 
(West 2002); 38 C.F.R. § 3.350 (2006).  

2.  The criteria for an automobile and adaptive equipment, or 
adaptive equipment only, have been met.  38 U.S.C.A. §§  
3901, 3902, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.808 
(2006).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The record before the Board contains service medical records 
and post-service medical records, which will be addressed as 
pertinent.  Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 
(2001) (a discussion of all evidence by the Board is not 
required when the Board has supported its decision with 
thorough reasons and bases regarding the relevant evidence).

Under 38 U.S.C.A. § 1114 and 38 C.F.R. § 3.350, disability 
compensation may be paid at special rates when certain 
medical criteria are met.  The level of SMC provided under 38 
U.S.C.A. § 1114(l) is payable, in pertinent part, for 
anatomical loss or loss of use of both feet due to service-
connected disability.  

"Loss of use of a hand or a foot" will be held to exist 
when no effective function remains, other than that which 
would be equally well served by an amputation stump at the 
site of election below elbow or knee, with use of a suitable 
prosthetic appliance.  The determination will be made on the 
basis of the actual remaining function, with attention to 
whether the acts of balance or propulsion could be 
accomplished equally well by an amputation stump with 
prosthesis.  38 C.F.R.  § 3.350(a)(2)(i).  

The history section of an August 2005 VA examination report 
notes that the veteran's COPD resulted in the functional 
impairment of inability to walk short distances.  After 
providing the results of physical examination and diagnostic 
tests, the examiner remarked that the veteran required aid 
for ambulation.  He needed to use a wheelchair and oxygen.  
He was able to leave home or immediate premises in a 
wheelchair with oxygen, supervision and assistance.  

A February 2006 statement from the veteran's private 
pulmonologist notes that the veteran has loss of use of both 
of his legs due to severe dyspnea due to COPD.  In a March 
2006 statement, another of the veteran's private physicians 
notes that she reiterated and agreed with the pulmonologist 
that the veteran had loss of use of both legs, due to severe 
dyspnea and chronic COPD.  He was unable to ambulate at all 
at this time without triggering severe dyspnea.  

In a May 2006 statement the veteran's private pulmonologist 
states that the veteran had severe end-stage COPD and the 
loss of use of both lower extremities.  

Together, the above medical evidence supports a grant of SMC 
based on the loss of use of both lower extremities, secondary 
to service-connected COPD.  While this is a unique situation, 
the evidence shows that the veteran has effective loss of use 
of the lower extremities, thus meeting the requirements of 
the law.

Turning to the veteran's next claim, a certification of 
eligibility for financial assistance in the purchase of an 
automobile or other conveyance or of basic entitlement to 
necessary adaptive equipment is provided in cases where the 
veteran has established entitlement to compensation for a 
service-connected disability, which results in one of several 
conditions, including loss or permanent loss of use of one or 
both feet.  38 U.S.C.A. §§ 3901, 3902 (West 2002); 38 C.F.R. 
§ 3.808 (2006).

Loss of use of a foot will be held to exist when no effective 
function remains other than that which would be equally well 
served by an amputation stump at the site of election below 
the knee with use of a suitable prosthetic appliance.  The 
determination will be made on the basis of the actual 
remaining function, i.e., whether the acts of balance, 
propulsion, and the like could be accomplished equally well 
by an amputation stump with prosthesis.  38 C.F.R. § 4.63 
(2006).

In this case, the evidence discussed in the veteran's claim 
for SMC establishes that he has no effective lower extremity 
function other than that which would be equally well served 
by an amputation stump below the knee with use of a suitable 
prosthetic appliance.  He could perform the acts of balance 
or propulsion equally well by an amputation stump with 
prosthesis.  Accordingly, the evidence supports entitlement 
to an automobile and/or adaptive equipment.  38 U.S.C.A. 
§§ 3901, 3902 (West 2002); 38 C.F.R. § 3.808 (2006).  It is 
unclear if the veteran can drive at this time.  However, the 
issue of whether the veteran can drive is not before the 
Board at this time.       

The Duty to Notify and the Duty to Assist

Review of the claims folder reveals compliance with the duty 
to notify and the duty to assist.  38 U.S.C.A. §§ 5103(a), 
5103A (West 2002); 38 C.F.R. § 3.159 (2006).  In the event 
any noncompliance is found, the Board observes that, given 
the completely favorable disposition of this appeal, it does 
not result in any prejudice to the veteran.  Bernard v. 
Brown, 4 Vet. App. 384, 392-94 (1993).  


ORDER

SMC, based on the loss of use of both lower extremities, 
secondary to service-connected COPD, is granted.

An automobile and adaptive equipment, or adaptive equipment 
only, is granted.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs