Citation Nr: 1319172 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 04-22 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to automobile and adaptive equipment or adaptive equipment only. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to June 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in pertinent part, denied entitlement to automobile and adaptive equipment or adaptive equipment only. The Veteran submitted a June 2004 substantive appeal, via a VA Form 9, and requested a personal hearing before the Board at the RO. A hearing was scheduled for May 2007, but the Veteran did not appear and did not provide any explanation for her absence. Accordingly, her request for a hearing is considered withdrawn, and the Board may proceed with review of the claim. 38 C.F.R. § 20.704(d) (2012). In August 2007, September 2009, August 2010, and December 2011 decisions, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran has not sustained the loss, or permanent loss of use, of one or both feet, or one or both hands, permanent impairment of vision of both eyes, or ankylosis of one or both knees, or one or both hips, due to her service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to automobile and adaptive equipment or adaptive equipment only have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a December 2002 letter. In this notice, VA informed the Veteran of the criteria needed to establish entitlement to automobile and adaptive equipment or adaptive equipment only. Although the notice was not issued before the October 2002 rating decision on appeal, the Veteran has not been prejudiced, as the claim has been readjudicated in supplemental statements of the case (SSOC) dated March 2006, May 2006, August 2009, May 2010, August 2011, and February 2013. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). As to informing the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf, VA informed the Veteran it had to obtain any records held by any federal agency. VA also informed the Veteran that on her behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the Veteran has been informed that she could obtain private records herself and submit them to VA. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, since the claim on appeal is denied on the merits, any deficiency as to the notice of an effective date is moot and the Veteran has not been prejudiced. Thus, no further efforts are required with respect to the duty to notify. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, records from the Social Security Administration, personal statements, August 2002, June 2005, and April 2009 VA examination reports, and VA addendum medical opinions dated March 2010, September 2010, and November 2012. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Pursuant to the Board's August 2007 remand instructions, the RO obtained and associated with the claims file the Veteran's Social Security Administration records, the Veteran underwent April 2009 VA examinations for the feet and joints, and the case was readjudicated in an August 2009 SSOC. Pursuant to the Board's September 2009 remand instructions, the RO obtained and associated with the claims file outstanding private treatment records identified by the Veteran. The RO also arranged for the examiner who performed the April 2009 VA examination to provide a March 2010 addendum. The claim was readjudicated by the RO in a May 2010 SSOC. Pursuant to the Board's August 2010 remand instructions, the RO obtained and associated with the claims file VA outpatient treatment records from September 2000 to September 2010 and May 2011 to August 2011. The RO also arranged for the examiner who performed the April 2009 VA examination to provide a September 2010 addendum. The claim was readjudicated by the RO in an August 2011 SSOC. Pursuant to the Board's December 2011 remand instructions, the issue on appeal was readjudicated in a February 2013 SSOC after completed development for intertwined issues. VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Analysis As an initial matter, the Board observes that the regulations pertaining to eligibility for automobile and adaptive equipment were amended, effective August 8, 2006, and that such amendment is applicable to benefits awarded on or after December 10, 2004. See 71 Fed. Reg. 44,915-44,920 (2006) (presently codified at 38 C.F.R. § 3.808 (2012)). Notably, the amendment makes no substantive change to the content of the regulation. Id. at 44,917. Rather, it incorporates language which expressly expands the applicability of 38 C.F.R. § 3.808 to disabilities awarded under 38 U.S.C.A. § 1151. Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C.A. § 3902(a) & (b). 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. 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. In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U. S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran is service connected for dysthymia, rated at 70 percent; left chondromalacia patella with degenerative joint disease and retropatellar pain syndrome (left knee disability), rated at 30 percent; right chondromalacia patella with degenerative joint disease and retropatellar pain syndrome (right knee disability), rated at 30 percent; left heel spur syndrome, rated at 10 percent; and right heel spur syndrome, rated at 10 percent. With consideration of the bilateral factor, a 90 percent combined rating has been in effect since August 1, 2002. She has also been in receipt of a total disability based on individual unemployability (TDIU) due to the severity of service-connected disabilities from August 1, 2002. Notably, the Veteran is not service-connected for permanent impairment of vision of both eyes, and in a January 2013 rating decision, the RO denied service connection for peripheral neuropathy of the left and right lower extremities and for carotid artery aneurysm with headaches, deep venous thrombosis (DVT), and seizures associated with the service-connected left knee disability. The Veteran contends that this claim on appeal should be granted because she is wheelchair bound and unable to use her legs for the operation of a motor vehicle. On VA examination for the joints in August 2002, the Veteran complained of bilateral knee pain, occasional swelling, frequent muscle spasms, and no specific locking episodes. She uses a cane and scooter for ambulation. Upon physical examination, she exhibited active range of motion of both knees with pain, weakened movement against moderate resistance, excess fatigability with use, and incoordination. The examiner noted, in pertinent part, that ankylosis, measurement of leg length, and inflammatory arthritis are not applicable to this case. In June 2005, the Veteran underwent a VA examination in connection with a claim for aid and attendance. Upon physical examination, the Veteran exhibited limited range of motion in the right knee, and pain while standing due to the bilateral calcaneal spurs. On VA examination for the feet in June 2005, the examiner reported, in pertinent part, the Veteran's complaints of pain when standing, use of a wheelchair, and marked tenderness to palpation of both heels. On VA examination for the joints in June 2005, the same VA examiner reported, in pertinent part for the knees, that the Veteran complains of pain more on the right than the left side, limited range of motion, intermittent swelling, instability, marked fatigability, no ankylosis, and leg length was marked as not applicable. In April 2009, the Veteran underwent VA examinations for the feet and joints. With regard to the service-connected right and left heel spur syndromes, the Veteran reported no current treatment and the last injections she received were two years prior. Review of medical history noted symptoms of pain and swelling while standing, walking, and at rest. Upon physical examination, there were findings of tenderness and pain, no muscle atrophy, a slow shuffling gait, and ability to ambulate very short distances without assistance or assistive devices within the confines of the examination room. With regard to the service-connected right and left knee disabilities, the Veteran reported current symptoms of pain on a daily basis but can still bend the knee and treatment includes hydrocodone, as occasion requires, and heat and cold packs. She also reported symptoms of stiffness and swelling in the left knee and the following for the right knee: giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, swelling, tenderness, and severe flare-ups of joint disease every two to three weeks for one to two days. Medical history did not include symptoms or incapacitating episodes of arthritis nor knee or hip ankylosis. Upon physical examination, there were no findings of loss of a bone or part of a bone nor inflammatory arthritis. The Veteran's shuffling gait was secondary to the DVT issue and not due to the knee. Findings of the right knee included crepitus, tenderness, guarding of movement, and patellar abnormality, and guarding of the left knee. The Veteran exhibited full range of motion of the knees and there were no findings of joint ankylosis. Following the April 2009 VA examinations for the feet and joints and review of the claims file, the examiner was asked to provide an opinion as to whether the Veteran can retain 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 and whether the acts of balance or propulsion be accomplished equally well by an amputation stump with prosthesis. The examiner concluded "I cannot resolve this issue without resort to mere speculation . . . [because] [t]his is an ethical, philosophical and physiological dilemma regarding the aforementioned request." Subsequently, the same VA examiner provided addendum medical opinions. In March 2010, he noted that according to a January 2005 VA orthopedics record, the Veteran suffers from severe diabetic neuropathies in the lower extremities where she does not feel her feet and she has seizures. It was opined that the Veteran would be excluded from an automobile based on the diabetic neuropathies and seizures and the Veteran is less likely as not due an automobile for her service-connected disabilities relating to the bilateral lower extremities based on the evidence discussed above. In September 2010, the examiner noted the Veteran has been using a scooter, wheelchair, and walker for ambulation, and made the following conclusions. Specially adaptive equipment would less likely as not be appropriate for the Veteran's bilateral lower extremities. The bilateral heel spurs would not be cause for the Veteran's inability to ambulate. The moderate degenerative joint disease of the right knee with chronic internal derangement would not cause loss of usage to the right lower extremity. The left knee with chondromalacia would not cause loss of usage to the left lower extremity. Lastly, the Veteran has been falling due to diabetic neuropathy and unable to feel her feet which is related to a nonservice-connected condition of diabetes, type II. Most recently, in November 2012, the examiner reported the sickle cell trait is only a trait and has nothing to do with the Veteran's genetic hypercoagulability. Moreover, the claims file was reviewed and the examiner agreed with prior medical opinions. Review of the VA outpatient treatment records document the Veteran's ongoing complaints and treatment for bilateral knee pain. Private treatment records reveal the Veteran's home health care plans from November 2008 to May 2009 for nonservice-connected disorders. In addition, private treatment records associated with the SSA records further show complaints and ongoing treatment for arthritis of the knees and the Veteran's nonservice-connected disorders, to include DVT, the back, headaches, and depression. The Board acknowledges the Veteran is competent to state what she has personally experienced or observed. The Board also finds these statements credible. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The medical evidence establishes that the Veteran has bilateral knee and heel impairment and uses ambulatory assistance devices; however, the issuance of such devices is not relevant to the Board's determination in response to the Veteran's application for automobile or other conveyance and adaptive equipment. Moreover, the medical evidence does not reflect the degree of impairment required for eligibility of the claimed benefits on appeal. The evidentiary record reflects that the Veteran's service-connected disabilities do not cause loss or permanent loss of use of one or both feet or one or both hands (whether under the definition in 38 C.F.R. § 3.350 or any other plausible definition of those terms), the permanent impairment of vision of both eyes, or ankylosis of one or both knees or one or both hips. The Veteran is able to move and use her hands and feet and walk short distances. In this regard, the Board finds the medical findings more probative. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for entitlement to automobile and adaptive equipment or adaptive equipment only, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to automobile and adaptive equipment or adaptive equipment only is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs