Citation Nr: 1318057
Decision Date: 06/04/13	Archive Date: 06/28/13

DOCKET NO. 09-37 958	)        DATE JUN 04 2013

On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana

THE ISSUE

Entitlement to a certificate of eligibility for purchase of an automobile and specially adapted equipment or specially adapted equipment only.

REPRESENTATION 

Appellant represented by:   Disabled American Veterans

ATTORNEY FOR THE BOARD 

C. D. Simpson
                           
INTRODUCTION

The Veteran had active duty service from October 1971 to November 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in New Orleans, Louisiana.

FINDING OF FACT

The Veteran's service-connected disability does not involve the physical loss or loss of use of any extremity, or blindness or permanent impairment of vision in both eyes to the specified degree.

CONCLUSION OF LAW

The criteria for entitlement to a certificate of eligibility for purchase of an automobile or adaptive equipment only have not been met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.808 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), has been in effect since November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). 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) (2012). 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

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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 finds that all notification action needed to make a decision has been accomplished. Through a January 2008 notice letter, the RO notified the Veteran about the information and evidence needed to substantiate his claim for purchase of an automobile and/or specially adapted equipment.

The Board also finds that the January 2008 notice letter substantially satisfied 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 January 2008, the RO notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was invited to submit any evidence in his possession. A remand for further notification of how to substantiate the claim is not necessary.

There is no indication that any additional action is needed to comply with the duty to assist. The record includes service treatment records (STRs), prior VA treatment records, and written statements by the Veteran himself. He has not identified any pertinent clinical records. He was not afforded a specific examination in conjunction with his claim. Nevertheless, he has not asserted that he has physical loss or loss of use of any extremity, or blindness or permanent impairment of vision. Rather, his contention is that he needs reliable transportation to medical appointments. A remand for a VA examination would not raise any reasonable possibility of substantiating the claim. 38 C.F.R. §§ 3.159(d), 3.808.

The Board finds that VA has satisfied its duty to notify and assist. The Veteran has not identified any other pertinent evidence, not already of record. The Board is also

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unaware of any such evidence.

Analysis

Under 38 U.S.C.A. § 3902, VA may provide, or assist in providing, an "eligible person" with an automobile or other conveyance, and necessary adaptive equipment. A Veteran is considered an "eligible person" if he is entitled to compensation for any of the disabilities described below, and if such disability is the result of an injury incurred or disease contracted in or aggravated by active military, naval, or air service: (i) The loss or permanent loss of use of one or both feet; or (ii) The loss or permanent loss of use of one or both hands; or (iii) The permanent impairment of vision of both eyes: central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than twenty degrees in the better eye. See 38 U.S.C.A. § 3901(1)(A) (West 2002 & Supp. 2012); see also 38 C.F.R. § 3.808(b) (2012).

For adaptive equipment eligibility only, service-connected ankylosis of one or both knees or one or both hips is sufficient to show entitlement. See 38 U.S.C.A. § 3902(b)(2); 38 C.F.R. § 3.808(b)(4).

The term adaptive equipment means generally, that equipment which must be part of or added to a conveyance manufactured for sale to the general public to make it safe for use by the claimant and to assist him or her in meeting the applicable standards of licensure of the proper licensing authority. See 38 C.F.R. § 3.808(e). The regulation further provides that, with regard to automobiles and similar vehicles the term includes a basic automatic transmission as to a claimant who has lost or lost the use of a limb. See 38 C.F.R. § 3.808(e)(1).

The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that 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 elbow or the knee with use of a suitable prosthetic appliance. The determination will be

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made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis.

Examples under 38 C.F.R. § 3.350(a)(2) of what constitutes loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 and 1/2 inches or more. Complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve is also considered loss of use of a foot under 38 C.F.R. § 3.350(a)(2).

Here, the Veteran is service connected for schizophrenia, rated as totally disabling, and hemorrhoids, rated as noncompensably disabling. In various written statements, he reported that he needed financial assistance to purchase an automobile. Without reliable transportation, he had difficulty attending medical appointments. (See Veteran statements, dated December 2007 and May 2008). He does not report having loss or loss of use of any extremity or low vision within the meaning of 38 C.F.R. § 3.808(b). The record otherwise does suggest that the Veteran has the service-connected requisite loss or loss of use of extremity or low vision within the meaning of 38 C.F.R. § 3.808(b).

The Board finds that the preponderance of the evidence is against the Veteran's claim for a certificate of eligibility for financial assistance in the purchase of an automobile and/or adaptive equipment. As noted above, he is not service connected for any qualifying problem. Consequently, the Veteran's position regarding entitlement is wholly without merit. There is no doubt to be resolved, and the claim must be denied. 38 C.F.R. §§ 3.102, 3.808.

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ORDER

Entitlement to a certificate of eligibility for purchase of an automobile allowance and adaptive equipment or adaptive equipment only is denied.

MARK F.HALSEY
Veterans Law Judge, Board of Veterans' Appeals

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