Citation Nr: 0811485 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 04-38 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to automobile and adaptive equipment or adaptive equipment only. 2. Entitlement to special home adaptation. 3. Entitlement to specially adapted housing. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from July 1961 to September 1974. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that in pertinent part denied entitlement to automobile and adaptive equipment or adaptive equipment only, special home adaptation, and specially adapted housing. Although the veteran had requested a hearing before a Veterans Law Judge, in January 2007, he withdrew that request. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran asserts that he is wheelchair-bound due to service-connected disability and that he is entitled to automobile and adaptive equipment, adaptive equipment only, special home adaptation, and/or specially adapted housing on the basis of loss of use of the feet. He has not alleged loss or loss of use of hand or hands, ankylosis of knee or hip, or vision loss (acuity and/or contraction of field of view). Service connection is in effect for post-traumatic stress disorder, coronary artery disease, diabetes mellitus, bilateral hearing loss, tinnitus, peripheral vascular disease of both lower extremities, and peripheral neuropathy of both lower extremities. The veteran has not been examined since November 2004. Thus, the medical evidence is out of date and a remand is necessary. The RO issued a statement of the case in September 2004. It did not and could not have considered a relevant November 2004 VA examination report. No supplemental statement of the case (SSOC) has been issued since the SOC and the veteran has not waived his right to initial RO consideration of all the evidence. Thus, a remand will be necessary for this procedural safeguard. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Finally, the veteran must be afforded additional notice, as required by 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The most recent relevant notice was mailed to the veteran in December 2002. Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the entire file and ensure that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007) is fully satisfied. In particular, VA must send the veteran a corrective notice that includes: (1) an explanation as to the information or evidence needed to establish an effective date, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006); and, (2) requests or tells the veteran to provide any evidence in his possession that pertains to his claims. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as specifically affecting the issues on appeal. 2. After the development requested above has been completed to the extent possible, the AOJ should make arrangements for VA examinations, by an appropriate specialist(s), to determine the nature and severity of the veteran's service-connected disabilities. The claims files should be made available to the physician for review. All indicated tests and studies should be undertaken. The physician is asked to review the claims files, note that review in the report, examine the veteran and address whether service-connected disabilities have resulted in: (1) Loss or permanent loss of use of either foot; the determination of loss of use will be made on the basis of the actual remaining function, whether the acts of balance, propulsion could be accomplished equally well by an amputation stump with prosthesis; (2) loss of use of any extremity; and/or, (3) whether residuals of organic disease or injury so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The physician should offer a complete rationale for any conclusion in a legible report. If any question cannot be answered, the physician should state the reason. 3. After the development requested above has been completed to the extent possible, the AOJ should readjudicate the claims. If the benefits sought remain denied, the veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. The supplemental statement of the case should include consideration of all relevant evidence received since issuance of the September 2004 statement of the case. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for examination without good cause could result in denial of the claim or claims. 38 C.F.R. § 3.655 (2007). 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). _________________________________________________ A. BRYANT 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).