Citation Nr: 0811018 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-40 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a certificate of eligibility for financial assistance in the purchase of automobile and adaptive equipment, or for adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran's DD Form 214 shows a period of active duty service from July 1977 to July 1981 with approximately one year and nine months of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in September 2005, a statement of the case was issued in December 2005, and a substantive appeal was received in December 2005. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran is seeking entitlement to a certificate of eligibility for financial assistance in the purchase of automobile and adaptive equipment, or for adaptive equipment only. In order to establish entitlement to assistance in purchasing an automobile or other conveyance, the veteran must have a service-connected disability which includes one of the following: loss or permanent loss of use of one or both feet; or loss or permanent loss of use of one or both hands; or permanent impairment of vision of both eyes to the required specified degree. 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808. Loss of use of the foot is defined as a condition where 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 the use of a suitable prosthetic appliance. Such determination will be made on the basis of the actual remaining function, whether acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). In the event that the veteran does not meet the criteria for assistance in purchasing an automobile or other conveyance, if he has ankylosis of one or both knees or one or both hips due to service-connected disability, entitlement to adaptive equipment eligibility only is established. 38 U.S.C.A. § 3902(b)(2); 38 C.F.R. § 3.808(b)(iv). Significantly, the veteran is currently service-connected for low back disability, bilateral ankle disabilities and right foot disability. While the veteran has not claimed that he has suffered the loss of use of one or both hands or impairment in vision due to a service-connected disability, he does appear to be asserting the loss of use of one or both feet due to his service-connected disabilities. As the veteran has not been afforded a VA examination, the Board finds that this case must be remanded for a VA examination to determine whether the veteran meets the criteria for a grant of automobile or adaptive equipment. Further, the veteran has not received sufficient notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002), informing him of the information and evidence necessary to establish entitlement to a certificate of eligibility for financial assistance in the purchase of automobile and adaptive equipment, or for adaptive equipment only. Thus, in view of the need to return the case for another matter, it seems appropriate to direct the RO to send VCAA notice to the veteran to ensure full compliance with VCAA notice requirements with respect to the issue on appeal. See also, Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002); Pelegrini v. Principi 18 Vet.App. 112 (2004). Accordingly, the case is REMANDED for the following actions: 1. The RO should furnish the appellant with an appropriate VCAA letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should specifically include notice to the appellant of the evidence necessary to substantiate his claim on appeal. The appellant should also be advised to submit any pertinent evidence in his possession. 2. The veteran should be afforded an appropriate VA examination to ascertain the extent of impairment attributable to his service-connected low back disability, bilateral ankle disabilities and right foot disability. The examiner should report whether the veteran retains effective function in either foot or whether the veteran 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 must be made on the basis of the actual remaining function of the foot, that is, whether the acts such as balance and propulsion can be accomplished equally well by an amputation stump with prosthesis. The examiner should also indicate whether the veteran has any ankylosis of the knees or hips due to his service-connected disabilities. The claims file must be made available to the examiner for review in connection with the examination. A rationale for all opinions rendered should be provided. 3. After completion of the above and any other development deemed necessary, the RO should review the expanded record and determine if the benefit sought can be granted. Unless the benefit sought is granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).