Citation Nr: 1035009 Decision Date: 09/16/10 Archive Date: 09/21/10 DOCKET NO. 05-04 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to special monthly compensation on account of the loss of use of both hands. 2. Entitlement to automobile financial assistance and adaptive equipment, or for adaptive equipment only. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from August 1958 to June 1962 and from September 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2008, the Board remanded the Veteran's claims to the agency of original jurisdiction (AOJ) for additional development. In March 2010, the Veteran submitted additional evidence to the Board in the form of statements from him and his spouse. In February 2010, prior to the submission of the statements, the Veteran stated that he would waive review by the AOJ of any additional evidence that he might submit at a later date. See 38 C.F.R. § 20.1304(c) (2009). Thus, the Board will consider such evidence in the adjudication of this appeal. FINDING OF FACT The Veteran does not have loss of use of either hand as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to special monthly compensation on account of loss of use of one or both hands have not been met. 38 U.S.C.A. §§ 1114, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.350, 4.63 (2009). 2. The basic eligibility requirements for a certificate for assistance in the purchase of one automobile or other conveyance, or necessary adaptive equipment have not been met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.808 (2009). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification action needed to make a decision as to the claims on appeal has been accomplished. Through November 2003 and April 2006 notice letters, the RO notified the Veteran and his representative of the information and evidence needed to substantiate the Veteran's claims for special monthly compensation, and automobile financial assistance and adaptive equipment. The Veteran was told that the evidence must show, in part, that his service-connected disabilities have caused the loss of use of his hands. The April 2006 letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claims, the claims were properly re-adjudicated in January 2010, which followed the April 2006 notice letter. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the November 2003 and April 2006 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letters asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disabilities. Consequently, a remand of the issues on appeal for further notification of how to substantiate the claims is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issues on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Centers (VAMCs) in Iron Mountain, Michigan, and Milwaukee, Wisconsin. Records from the Social Security Administration (SSA) were already associated with the claims file. Additionally, in December 2003 and January 2009, the Veteran was provided VA examinations in connection with his claims, the reports of which are of record. The January 2009 examination was conducted pursuant to the Board's October 2009 remand. The report contains sufficient evidence by which to determine whether the Veteran has loss of use of his hands in accordance with VA regulations. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis The Veteran has been awarded service connection for radial nerve paresis and palsy of the right wrist, evaluated as 50 percent disabling; bilateral sensorineural hearing loss, evaluated as 30 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; reflex sympathetic dystrophy syndrome of the left wrist, evaluated as 20 percent disabling; arthritis from a right wrist fracture, evaluated as 10 percent disabling; and tinnitus, evaluated as 10 percent disabling. The evaluations combine for a 90 percent schedular rating. The Veteran has also been awarded a total rating based on individual unemployability. The Veteran is seeking special monthly compensation (SMC) for loss of use of both hands. SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability. See 38 U.S.C.A. § 1114 (West 2002 & West Supp. 2010); 38 C.F.R. § 3.350 (2009). SMC is payable at the (m) rate for, among other things, anatomical loss or loss of use of both hands as the result of service-connected disability. 38 U.S.C.A. § 1114(m); 38 C.F.R. § 3.350(c)(1)(i). The Veteran was previously denied SMC in April 2001. Loss of use of a hand 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 elbow with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2); 4.63 (2009). The Veteran is also seeking a certificate of eligibility for financial assistance in the purchase of an automobile and adaptive equipment for an automobile. A veteran is entitled to such benefits if, among other things, he has loss or permanent loss of use of one or both hands as the result of service- connected disability. See 38 U.S.C.A. §§ 3901, 3902 (West 2002 & Supp. 2010); 38 C.F.R. § 3.808 (2009). The Veteran asserts that he has loss of use of both hands as a result of his service-connected right and left wrist and hand disabilities. The Veteran's hands are not amputated. He states that he has associated symptoms of pain, spasms, weakness, and numbness. The Veteran states that, particularly while driving his car, his hands go limp for periods of up to ten seconds. The Veteran's wife and friend have submitted statements in which they attest to observing the Veteran's symptoms and driving problems. His wife states that household chores have to be done by other people. A review of the evidence of record reveals that the Veteran underwent VA examination of his wrists and hands in December 2003. He had limitation of motion of the forearms and wrists, but retained some motion. His grip was 3/5 power, bilaterally. The examiner diagnosed the Veteran with peripheral neuropathy of the left and right hand and wrist. The examiner gave the opinion that the Veteran has lost confident use of both left and right upper extremities with intermittent spasm and total loss of use lasting anywhere up to ten seconds. The examiner related the effects to the Veteran's service-connected disabilities. Medical records obtained from the Iron Mountain and Milwaukee VAMCs during the pendency of the claim show regular treatment for problems involving the wrists. In June 2003, the Veteran complained of increased wrist pain after driving over 50 miles. In July 2003, the Veteran underwent physical therapy for increased bilateral upper extremity dysfunction, stabbing pain in the hands, and involuntary spasms. He was wearing bilateral wrist splints. The Veteran reported that he was his own primary driver, but he was reducing his driving because of the described symptoms. The physical therapist recommended automobile adaptive equipment for the Veteran to try even if he was not eligible for the equipment. In September 2003, the Veteran reported improvement in neuropathic pain of the upper extremities after taking pain medication. In May 2004, the Veteran reported that numbness was occurring in his hands after approximately 15 to 20 minutes when driving. He would pull over to the side of the road when this occurred and sensation would return in approximately five minutes. An entry from April 2005 reflects that the Veteran's neuropathy of the upper extremities was stable. In October 2005, he was seen for increased numbness in the right hand. In May 2006, the Veteran reported that he spent the winter in Arizona and that there was significant benefit. His pain levels improved and he was able to ride a bike. The Veteran reported that the symptoms increased when he returned to Michigan, including bilateral upper extremity neuropathy. The Veteran reported an increase in his hand neuropathy in November 2006. It was noted that he rides a bike frequently. In May 2007, the Veteran reported that he experienced numbness in his hands when driving 25 miles. He had wintered in Arizona for relief. A November 2007 entry reflects that the Veteran's parasthesia was unchanged, but there was some locking in his left hand with activity. He was having more difficulty with daily activities such as opening jars and putting on socks. In May 2008, the Veteran reported having significant pain improvement while he was in Arizona for the winter. He indicated that the symptoms increased when he returned to Michigan. The Veteran stated that he could only comfortably drive about ten miles. A June 2008 entry shows that the Veteran biked 10 to 20 miles daily. Entries from July 2008 and August 2008 show that the Veteran increased his biking to 40 miles per day and participated in an 11-day, 300-mile bike ride. In November 2008, the Veteran reported an increase in pain, numbness, and tingling of the hands over the past six months. He stated that he had little to no feeling in the morning and that he was unable to pick things up or hold them. He also reported experiencing jarring jolts of pain. The Veteran felt that the combination of symptoms made it very difficult and unsafe to drive. A nurse practitioner noted that the Veteran's daily activities were limited by loss of sensation and dysfunction in the hands. Pursuant to the Board's October 2008 remand, the Veteran underwent further VA examination in connection with his claim in January 2009. The examiner, a VA physician, reviewed the claims file and noted an accurate medical history. It was noted that the Veteran developed pain in his right wrist in the 1970s and pain in the left wrist in the 1980s. He presently wears braces on both wrists. The Veteran reported that he does not drive anymore. He also reported that his hands "go dead" at times and he experiences bilateral hand tremors and spasms that have become progressively worse. Other symptoms involving the hands included decrease in strength, decrease in dexterity, pain, weakness, and stiffness. Examination of the Veteran revealed limitation of motion in the left ring finger and little finger. The other fingers and thumbs had normal range of motion. There was objective evidence of painful motion in all ten digits with no additional limitation of motion on account of pain. The examiner noted that there was no amputation, ankylosis, or deformity of any digit. It was noted that the Veteran was unable to flex and extend his fingers against slight pressure and that he had weak twisting motion. In regards to dexterity, the Veteran can pick up a pen, but will lose control after a short while. He is unable to take a cap off a water bottle until aided by holding the bottle between his legs. The Veteran is able to point at things and open and close his hands. The examiner observed spasms in the Veteran's bilateral arms that made the Veteran jump. The examiner diagnosed the Veteran with bilateral neuropathy of the hands. The examiner indicated that the Veteran's disability affects his usual daily activities. According to the examiner, the disability has a moderate effect on chores, shopping, exercise, recreation, traveling, feeding, bathing, dressing, toileting, and grooming. It prevents participation in sports. The examiner also noted the Veteran's report that he: drops things all the time; can pick up a milk carton, but cannot get the cap off; cannot open a bottle of water; needs his wife to cut meat; can rake leaves, but has increased hand pain the next day; likes to cook, but cannot always use the utensils; has special equipment to help put socks on; has his wife button his shirt sometimes; sometimes needs help going to the bathroom; does not drive anymore because his hands go dead and he cannot steer the wheel; is unable to use a screwdriver because of pain up his arm; hunts with a crossbow, but cannot gut a deer; does not wash dishes because he has dropped some in the past; and is able to put on his wrist braces by himself. The October 2008 remand instructed the examiner to answer the following question: "Does the Veteran have no effective function remaining in the hand other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance?" The examiner answered the question in the negative and stated that the Veteran has limited effective function remaining in his right and left hands. The examiner's reasoning was based on the Veteran's history, a physical examination, tests, records, and medical literature. The examiner noted that the Veteran was able to take off and put his wrist braces back on by himself. Additionally, the Veteran was able to extend and flex his fingers, but not against resistance. He was also able to pick up a pen and print a sentence that the examiner could clearly read. Moreover, although the Veteran could not initially open a water bottle, he was able to do so with the extra support of holding the bottle between his legs. The examiner was also asked to answer the question: "Is the loss of use of the hand(s) permanent?" However, this question was only to be answered if the examiner answered the first question in the affirmative. Given the examiner's opinion, the examiner properly did not answer the second question. In consideration of the evidence of record, the Board finds that the Veteran does not have loss of use of either hand as a result of service-connected disability. The evidence shows that the Veteran's radial nerve paresis and palsy of the right wrist, arthritis from a right wrist fracture, and reflex sympathetic dystrophy syndrome of the left wrist impair the function of the Veteran's hands. This is also apparent given the schedular ratings that have been assigned for the three disabilities. VA examination reports, VA treatment records, and lay statements from the Veteran and his wife reflect that the disabilities cause pain, numbness, and weakness in the hands equating to bilateral neuropathy. The Veteran's disabilities affect his ability to manipulate his hands and fingers when undertaking tasks. Nevertheless, the evidence does not show that the Veteran's service-connected disabilities result in loss of use of either hand for VA purposes. As noted previously, the regulations provide that loss of use of a hand 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 elbow with use of a suitable prosthetic appliance. The VA treatment records and December 2003 VA examination report addressed the impairment caused the Veteran's disabilities. However, that evidence does not contain an opinion that specifically considers the effects of the Veteran's disabilities in the context of the regulatory definition of "loss of use." The Board finds the January 2009 VA examiner's opinion to be probative as to the salient question. The physician squarely and unequivocally answered the "loss of use" question after reviewing the evidence in the claims file and examining the Veteran. In determining that the Veteran does not have loss of use of either hand, the examiner determined that the Veteran retains some limited effective function in the hands. The examiner's determination was, in part, based on the Veteran's actual remaining function in regards to the acts of grasping and manipulation, and on the fact that the disabilities result in only moderate impairment in most areas of daily activities. The opinion is persuasive as it finds support in the record. At the examination, the Veteran was able to perform some tasks with his hands. Additionally, the VA treatment records document instances of driving, biking, and hunting, which are not activities indicative of an inability to use hands. Thus, the evidence shows that the Veteran retains some function in the hands, even if the function is limited. Put another way, the evidence shows that the Veteran has greater function in his hands than if his upper extremities were amputated below the elbow and affixed with a prosthetic appliance. See 38 C.F.R. §§ 3.350(a)(2); 4.63. Without sufficient evidence showing that the Veteran's service- connected disabilities cause this type of functional loss, SMC on account of the loss of use of both hands (or one hand) is not warranted. See 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350. The Board has considered the lay statements submitted on behalf of the Veteran in connection with the claim. The statements appear to accurately depict many of the effects of the Veteran's disabilities affecting his hands. However, the statements do not speak to the specific regulatory definition for determining "loss of use" of the hands for VA purposes and the Board does find the statements to be probative to the salient question for this claim. Additionally, it is not shown that the Veteran or the other lay people have the requisite medical expertise to provide a competent opinion on a complex medical matter, such as a comparison between the function of someone's hands and the function of amputation stumps with a prosthetic device. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Because loss of use of the hands as the result of service- connected disability, permanent or otherwise, has not been shown by the evidence, the Veteran is not entitled to a certificate of eligibility for financial assistance in the purchase of an automobile, or to adaptive equipment only. Additionally, the Veteran does not contend, and the evidence does not show, that he meets any other criterion for automobile allowances as a result of service-connected disability, including: loss or permanent loss of use of one or both feet; permanent impairment of vision of both eyes as set forth in the regulations; or ankylosis of one or both knees or one or both hips. See 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808. Therefore, this claimed benefit is not warranted. For all the foregoing reasons, the Board finds that the claim for SMC on account of the loss of use of both hands (or one hand), and the claim for automobile financial assistance and adaptive equipment, or for adaptive equipment only, must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to special monthly compensation on account of the loss of use of both hands is denied. Entitlement to automobile financial assistance and adaptive equipment, or for adaptive equipment only, is denied ____________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs