Citation Nr: 1318904 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-34 094 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to a special home adaptation grant. 3. Entitlement to an automobile and adaptive equipment or adaptive automotive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to January 1982 and from November 1987 to July 1994. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2008 rating decision, by the Waco, Texas, Regional Office (RO), which denied the Veteran's claim of entitlement to an automobile or automotive adaptive equipment, specially adapted housing, a special home adaptation grant. In his substantive appeal (VA Form 9), received in September 2009, the Veteran requested a Travel Board hearing at the RO. However, in October 2009, the Veteran withdrew his request for a travel board hearing. 38 U.S.C.A. § 20.704(e) (2012). 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 contends that he is entitled to financial assistance in the purchase of automobile and adaptive equipment, or for adaptive equipment only, and a certificate of eligibility for specially adapted housing or a certificate of eligibility for a home adaptation grant. Eligibility for financial assistance to purchase one automobile or other conveyance and necessary adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning 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 20 degrees in the better eye; or, (4) for adaptive equipment eligibility only, ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808. Eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) may be granted if a veteran is entitled to compensation for permanent and total disability due to: (1) the loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 38 C.F.R. § 3.809. The term "preclude locomotion" means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d). Alternatively, a certificate of eligibility for financial assistance in acquiring necessary special home adaptations may be issued to a veteran with requisite service who is entitled to VA compensation for a permanent and total service-connected disability, if: (a) the Veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809 and had not previously received assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a); and (b) the Veteran is entitled to compensation for permanent and total disability which is (1) due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands. This assistance will not be available to any veteran more than once. 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a. 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 elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether such acts as grasping and manipulation in the case of the hand, or balance and propulsion 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) and 4.63 which would constitute loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3.5 inches or more. Also considered as loss of use of a foot under 38 C.F.R. § 3.350(a) (2) is 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. Under 38 C.F.R. § 4.124a, Diagnostic Code 8521, complete paralysis encompasses foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. As listed in the November 2008 rating decision, the Veteran's service-connected disorders include: coronary artery disease, status post coronary artery bypass graft with hypertension, rated as 100 percent disabling; femoral neuropathy, right lower extremity associated with coronary artery disease, status post coronary artery bypass graft with hypertension, rated as 60 percent disabling; degenerative joint disease, right wrist, status post fracture, rated as 10 percent disabling; degenerative joint disease, right ankle, status post arthroscopy, rated as 0 percent disabling; and residuals, right femoral pseudoaneurysm, rated as 0 percent disabling. The Veteran is also in receipt of a total disability evaluation based upon individual unemployability (TDIU) and special monthly compensation under 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.350(i) (2012) on account of coronary artery disease status post coronary artery bypass graft with hypertension, rated as 100 percent disabling and additional service connected disability of femoral neuropathy, right lower extremity, independently rated as 60 percent. The Veteran was afforded a VA joints examination in November 2009. It was noted that he injured his right ankle while playing volleyball on active duty; he suffered a severe sprain after an inversion injury. It was noted that the Veteran still had pain in the lateral aspect to the joint and there does appear to be a deformity of the lateral malleolus. He utilized no assistive device or brace specifically for his ankle sprain. It was also noted that the Veteran is disabled; therefore, there is no effect on his occupation. The examiner noted that the Veteran was disabled due to multiple medical problems and to reflex sympathetic dystrophy (RSD) of his right lower extremity. He further noted that the Veteran's activities of daily living are unaffected by his ankle; however, his RSD does prevent him from being able to perform transfers to and from the motorized scooter. On examination, it was noted that the Veteran used a motorized chair gait. Following the examination, he was diagnosed with severe chronic right ankle sprain. The examiner stated that the right ankle sprain does not prevent the right lower extremity from functioning properly, but his RSD does. The Veteran was also afforded a peripheral nerves examination. At that time, it was noted that he developed right lower extremity RSD due to injuries to his sciatic nerve and femoral nerve. It was reported that he underwent a heart catheterization and developed complications in those areas. He takes Gabapentin with minimal if any response and no side effects. The Veteran described paresthesias and dysesthesias in the right lower extremity in the femoral and sciatic nerve distributions. It was also noted that his activities of daily living are affected in that he must use a cane to transfer from his motorized scooter to the tub and must use the motorized scooter for daily ambulation, as he cannot walk long distances at all due to the pain in his leg. The nerves involved are the right sciatic and femoral nerves. The physical examination revealed sensory impairment to light touch and sharp/pull testing in the entire right lower extremity. He has motor impairment with 4/5 strength in the quadriceps, hamstrings, anterior tibialis, and gastrocnemius. It was noted that he does have muscle atrophy in the gastrocnemius, anterior tibialis, hamstrings, and quadriceps when compared to the left. The pertinent diagnosis was RSD of the right lower extremity. The examiner stated that the Veteran's RSD affects his ability to bear weight on his right lower extremity and it does severely affect the function of his right lower extremity as he has impairment of the sensory and motor aspect of his right lower extremity and he has marked atrophy of the right lower extremity compared to the left. Of record is a statement from Dr. A.H. O-Yurvati, dated in May 2012, indicating that the Veteran was under his care around 2001; at that time, he had multi-vessel coronary artery disease. Dr. O-Yurvati noted that the Veteran had evidence of significant right pseudoaneurysm after cardiac catheterization. He further noted that this was a complex, extensive pseudoaneurysm and postoperatively he had excellent distal perfusion; however, on neuromuscular examination, he showed significant wasting of the right gastrocnemius, right thigh muscles, medial thigh muscles, and digital muscles. He became weakened down to 1/5. Dr. O-Yurvati reported that the Veteran was seen by a doctor in the Division of neurosurgery, and he underwent nerve conduction studies for further workup. He was found then to have what appeared to be RSD and with continued muscle wasting. Dr. O-Yurvati noted that this condition has continued to progress to the point that the Veteran is now mobility impaired and has to use mechanical devices for mobility. He has significant loss of function of the right lower extremity, and certainly his gait and management are as if he had undergone an above-the-knee amputation with placement of an artificial prosthesis. Dr. O-Yurvati stated that the Veteran is certainly not ambulatory and requires this type of mobility. Therefore, he requested that the Veteran be reconsidered for the equipment necessary to assist with mobility around his house as well as the certificate required to modify his domicile and his vehicles. Dr. O-Yurvati stated that it is quite evident that his injury and subsequent neuromuscular degeneration is permanent and there are no known surgical or medical procedures to reverse the condition. The Veteran was afforded another VA examination in July 2012. The examiner was asked to indicate whether the Veteran's right lower extremity problem is more likely as not related to his residuals of right femoral pseudoaneurysm. The examiner was also asked to comment on whether he/she concurred with Dr. O-Yurvati's assessment that the Veteran has essentially lost the use of the right lower extremity. Following an examination, the examiner reported a diagnosis of post operative scar, status post resection of pseudoaneurysm, right lower extremity. The examiner stated that she reviewed the conflicting medical evidence and took extensive notes; however, she stated that an objective finding and etiology of the Veteran's "RLE paralysis" cannot be determined without an EMG/Doppler/ABI. She stated that she would forward results of those studies and complete addendum when completed. A review of the electronic Virual VA claims file indicates that those studies were performed in September and October 2012, however, it does not appear that the examiner was ever afforded an opportunity to review the claims file and provide an addendum to her examination report. This needs to be done prior to the Board's adjudication of the claim. Therefore, the Board finds that a remand for a clarifying opinion is required. See 38 U.S.C.A. § 5103(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268(1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Further, the Board observes that the July 2012 VA examination was conducted by a physician's assistant, and there is no indication that the examination report was signed by a physician as required by VA Adjudication Procedure Manual M-21 Part VI, § 1.07(d) ("Manual M-21-1"). The positive opinion in the record is by a professor and chairman of surgery at a private medical facility. While a physician's assistant is qualified to prepare an examination report upon which the Board may rely to render a fair and just decision, given the medical complexity of the Veteran's claim and conflicting opinion by a private physician, the Board believes that the claim must be reviewed and an opinion provided by a physician prior to appellate consideration of the claim. In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The RO should obtain an addendum to the July 2012 VA examination by the same examiner or another qualified physician if that examiner is not available. The claims file and all records on Virtual VA should be made available to the examiner in connection with the addendum, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. It should be indicated whether service-connected disability results in (a) loss of use of one or both of his feet; (b) loss of use of one or both of his hands; (c) loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (d) loss of use of one lower extremity together with residuals of organic disease or injury that so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (e) loss of use of one lower extremity together with the loss of use of one upper extremity that so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. Note 1: In providing answers to the above questions, the examiner is advised that the term "loss of use" is defined 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 knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the "act of balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis." 2. Thereafter, the AOJ should furnish the claims file to a physician with appropriate expertise to review and provide a supplemental opinion. Request the examiner review the claims folder again, and to note that such review has been accomplished. The physician should consider the July 2012 VA examination, all diagnostic studies, as well as the private medical statement from Dr. O-Yurvati, and determine whether the Veteran's service-connected disability has resulted in (a) loss of use of one or both of his feet; (b) loss of use of one or both of his hands; (c) loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (d) loss of use of one lower extremity together with residuals of organic disease or injury that so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (e) loss of use of one lower extremity together with the loss of use of one upper extremity that so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The examiner must provide a complete rationale for all opinions expressed. If the examiner determines that he/she cannot provide an opinion without examining the Veteran, an examination should be scheduled. 3. Thereafter, the AOJ should readjudicate the Veteran's claim in light of the additional evidence obtained. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. An appropriate period of time should be allowed for response. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the Veteran until he receives further notice. 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. 2012). _________________________________________________ THOMAS J. DANNAHER 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) (2012).