Citation Nr: 1321561	
Decision Date: 07/05/13    Archive Date: 07/12/13

DOCKET NO.  09-44 008	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to automobile and adaptive equipment or to adaptive equipment only.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel



INTRODUCTION

The Veteran had active service from February 2007 to September 2008

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

The June 2009 rating decisions also denied the Veteran's claim seeking entitlement to specially adapted housing.  Although this issue was included in the June 2009 notice of disagreement (NOD) and the October 2009 statement of the case (SOC), the Veteran did not include this on her November 2009 substantive appeal.  In fact, in the substantive appeal, the Veteran specifically stated that she was only appealing the denial of entitlement to automobile and adaptive equipment or for adaptive equipment only.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA).  As such, this issue is not before the Board and will be discussed no further.


FINDING OF FACT

The Veteran's service connected disabilities are not shown to have resulted in the loss, or permanent loss of use, of at least one foot or a hand; nor does she have ankylosis of a knee or hip.  


CONCLUSION OF LAW

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. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

At the outset, the Board will address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in 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 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).  

In this case, the Board finds that all notification and development action needed to render a decision has been accomplished.  In this respect, through the May 2009 letter, the RO notified the Veteran and her representative of the information and evidence needed to substantiate the Veteran's claim for entitlement to automobile and adaptive equipment or adaptive equipment only.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate her claim.  The Veteran was informed that the evidence must show, in part, that her service-connected disability or disabilities have caused the loss of use at least one of her feet.  The May 2009 letter also 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).  

The Board also finds that the above-referenced notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what 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.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  The RO also requested that the Veteran identify any medical providers from whom she wanted the RO to obtain and consider evidence.  Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding her service-connected disabilities and how these disabilities have affected her.  

There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal.  The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the Montcrief Army Community Hospital, the Medical University of Southern Carolina, and VA Medical Center (VAMC) in Kansas City, Missouri.  Also, medical records used in the adjudication of her claim for disability benefits from the Social Security Administration (SSA) were obtained and associated with her claims file.  Significantly, neither the Veteran, nor her representative, has otherwise alleged that there are any outstanding medical records probative of her claim on appeal that need to be obtained.  

Additionally, in October 2008 and April 2012, the Veteran underwent VA examinations in connection with her claim, the reports of which are of record.  Here, the Board finds that the April 2012 examination contains sufficient evidence by which to determine whether the Veteran has loss of use of a foot in accordance with VA regulations.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


II.  Analysis

The Veteran essentially contends that she has loss of use of her right foot as a result of her service-connected right knee and ankle disabilities, as well as her service-connected right leg shortening.  

In the present appeal, the Veteran has been awarded service connection for posttraumatic stress disorder (PTSD), currently evaluated as 70 percent disabling; residuals of right knee replacement, to include osteopenia and muscular atrophy, evaluated as 60 percent disabling; sleep apnea, which is currently evaluated as 50 percent disabling; common peroneal nerve paralysis of the right ankle, evaluated as 20 percent disabling; surgical scars of the right lower extremity associated with residuals of the right knee disability, evaluated as 10 percent disabling, and right leg shortening, evaluated as noncompensably disabling.  The evaluations combine for a 90 percent schedular rating.  In addition, the Veteran has been found entitled to special monthly compensation by reason of being housebound and has been awarded a total rating based on individual unemployability.  

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).  A veteran is considered to be an "eligible person" if he or she is entitled to compensation for any of the following disabilities: (i) the loss or permanent loss of use of one or both feet; (ii) the loss or permanent loss of use of one or both hands; or (iii) the permanent impairment of vision of both eyes.  38 C.F.R. § 3.808(b)(1).  

Loss of use of a hand or a foot 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 elbow or knee 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., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.  See 38 U.S.C.A. §§ 3.350(a)(2); 4.63 (2012).  

A veteran who does not qualify as an "eligible person" under the foregoing criteria may nevertheless be entitled to adaptive equipment if he or she is entitled to VA compensation for ankylosis of one or both knees, or of one or both hips.  38 U.S.C.A. § 3902(b)(2); 38 C.F.R. § 3.808(b)(4).  

Pursuant to 38 C.F.R. § 3.350(a)(2)(i)(a), extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved.  

The Veteran claims to have ankylosis and limited range of motion in her right knee. She further contends that she is unable to ambulate short distances or perform daily tasks due to the severity of her right knee condition.  The Veteran also attributes her inability to drive to the disabilities associated with her right lower extremity, noting that she cannot operate the gas or brake pedal and thus needs adaptive equipment to help regain her mobility.  See June 2009 notice of disagreement (NOD) and November 2009 substantive appeal.

A review of the record reflects that the Veteran fell off a rope bridge and dislocated her right knee during her period of active service with the National Guard.  The Veteran's medical history was reviewed and discussed in her August 2007 discharge summary report from the Medical University of Southern Carolina, and it was noted that she was initially treated with an external fixator but ended up developing compartment syndrome as a result.  It was further noted that the Veteran underwent several procedures to help treat her right knee residuals, one of which was a decompression fasciotomy, which resulted in a postoperative foot drop.  The remainder of the discharge summary reflects that physicians attempted to perform a total right knee arthroplasty in August 2007, but had to terminate the operation before it commenced after the Veteran sustained a proximal tibial fracture while under anesthesia.  After monitoring the Veteran's condition for twenty-four hours, and placing her leg in cast, she was discharged and returned to her military base where she underwent routine rehabilitative therapy at Montcrief Army Community Hospital.  

In October 2007, the Veteran underwent a revision total knee arthroplasty and follow-up treatment records from the Medical University of South Carolina, reflect that the Veteran's right knee showed signs of improvement post surgery.  Indeed, during a December 2007 treatment visit, the Veteran was shown to have flexion to 30 degrees and extension to 0 degrees, and her x-rays were described as looking "great."  It was further noted that the Veteran felt comfortable enough to increase her motion.  The Veteran underwent a right knee synovectomy in April 2008 and follow-up treatment records dated several weeks later reflect that the Veteran was doing well post surgery.  Examination of the right knee showed a moderate amount of edema with full extension and flexion to 40 degrees.  

The Veteran was afforded a VA examination in connection to a myriad of health-related disorders, to include disorders pertaining to the right lower extremity, in October 2008, at which time, she provided her medical history and described her symptoms.  During the right knee VA examination, the Veteran, on a scale of one to ten (with one being the least level of pain and ten being the highest), rated her pain level at a 2 with self-described symptoms of weakness, stiffness, swelling, heat, and redness without giving way.  She also rated her pain level at a four during flare-ups and reported to experience additional limitation of motion and functional impairment during her flare-ups.  On physical examination, the Veteran was shown to have extension to -5 degrees and flexion to 30 degrees, with pain during both range of motion exercises.  According to the examiner, repetition caused increasing pain without any change in range of motion.  The examiner further observed "apparent shortening in the right leg 34 inches in length as opposed to 35 inches in length on the left side." 

During the examination in connection to her right ankle condition, the Veteran explained that medical treatment she underwent to remedy the compartment syndrome caused a common peroneal nerve injury which resulted in a foot drop of the right foot.  She reported that she did not have full range of motion in her right ankle, and wore a brace to keep her foot "from drooping plantar."  On a scale of one to ten, she rated her pain level at a 3, with self-described symptoms of weakness, fatigue and functional loss.  On physical examination of the right ankle, the examiner observed weakness during dorsiflexion and noted that the Veteran had dorsiflexion to 0 degrees, plantar flexion to 60 degrees, inversion to 5 degrees and eversion to 15 degrees.  The examiner diagnosed the Veteran with paralysis of the right common peroneal nerve.  

VA treatment records dated from October 2008 to June 2009 demonstrate that the Veteran received ongoing treatment and physical therapy for her right knee condition.  These records also reflected an improvement in the Veteran's right knee condition.  The Board notes that the Veteran's right leg was evaluated at a December 2008 treatment visit, and based on the Veteran's strength and sensation examination results, the VA physician found that the Veteran did not have peroneal nerve palsy, but rather an Achilles tendon in contraction, which was limiting her complete dorsiflexion.  

The Veteran was afforded another VA examination in April 2012, at which time the examiner reviewed the claims file and noted an accurate medical history.  The Veteran reported a progressive worsening in her right knee condition and noted to experience decreased range of motion and a shortened leg as a result of her service-connected disability.  On physical examination, the Veteran was shown to have flexion to 25 degrees and extension to 0 degrees, with no objective evidence of painful motion.  The VA examiner indicated that the Veteran was able to perform repetitive use testing with three repetitions in the right knee, and her range of motion measurements post repetitive testing were shown to be 0 to 25 degrees.  While the examiner did not observe additional limitation of motion upon repetitive movement, she did note that the Veteran had functional loss in her right knee due to weakened movement, excess fatigability, incoordination, and disturbance of locomotion.  The Veteran's muscle strength during flexion and extension of the right knee was described as normal.  In addition, the examiner observed signs of leg length discrepancy, noting that the Veteran's right leg was 35.5 inches in length while the left was 38 inches in length.  The examiner further noted that the Veteran occasionally used a wheelchair as a mode of locomotion.  

With respect to the right ankle disability, the examiner referenced the December 2008 VA treatment report, wherein the VA physician determined that the Veteran did not have peroneal nerve palsy, but rather an Achilles tendon in contraction.  According to the Veteran, flare-ups of pain did not impact the function of her ankle.  On physical examination, the Veteran was shown to have right ankle plantar flexion to 45 degrees, and right ankle dorsiflexion to 5 degrees, with no objective evidence of painful motion.  The VA examiner indicated that the Veteran was able to perform repetitive use testing with three repetitions in the right ankle, and her range of motion measurements post repetitive testing were shown to be 0 to 45 degrees.  While the examiner did not observe additional limitation of motion upon repetitive movement, she did note that the Veteran had functional loss in her right ankle due to weakened movement and disturbance of locomotion.  The Veteran denied experiencing tenderness or pain on palpation of the joints or soft tissue in the right ankle, and muscle strength in the right ankle during both plantar flexion and dorsiflexion was 4/5.  The examiner further noted no signs of ankylosis of the ankle, subtalar and/or tarsal joint.  

The examiner then addressed the central question regarding the Veteran's claim - namely, whether as a result of the disabilities associated with the right leg, there was functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prostheses.  The examiner addressed these issues separately and answered them both in the negative.  According to the examiner, the Veteran's right ankle condition did not impact her ability to work and while her knee disability made walking or physical work difficult, she was still capable of sedentary work.  Upon evaluating the Veteran's bones, the examiner observed abnormalities in the Veteran's knee and tibia joint and further noted that the Veteran walked with an antalgic gait.  However, she also noted that the Veteran could stand for 15 to 30 minutes at a time and walk at least a few yards before she was forced to stop.  As for the Veteran's peroneal nerve injury, the examiner once again referenced the December 2008 treatment report.  When asked whether the Veteran had any symptoms attributable to any peripheral nerve condition, the examiner answered in the negative.  On physical examination, the Veteran's muscle strength during right knee extension, and plantar flexion and dorsiflexion of the right ankle was 4/5.  There was no evidence of muscle atrophy and results from the sensory examination of the right upper anterior thigh, thigh, knee, lower leg, ankle, foot and toes were shown to be normal.  When evaluating which nerves had been affected, the examiner characterized every nerve, including (but not limited to) the radial nerve, median nerve, ulnar nerve, musculocutaneous nerve, and circumflex nerve as normal.  When asked whether, as a result of the peripheral nerve conditions, there was functional impairment of the right lower extremity such that no effective function remained other than that which would be equally well served by an amputation with prostheses, the examiner responded negatively and noted that the Veteran's peripheral nerve condition did not impact her ability to work.  The examiner also determined that the Veteran's service-connected scars in the right lower extremity associated with her right knee disability did not result in any functional limitations or impact the Veteran's ability to work.  

In consideration of the evidence of record, the Board finds that the Veteran does not have loss of use of either foot as a result of a service-connected disability.  The evidence shows that the Veteran's residuals of right knee replacement, common peroneal nerve paralysis and right leg shortening impair the function of the Veteran's right leg.  This is also apparent given the schedular ratings that have been assigned for the three disabilities.  The VA examination reports, VA treatment records, and lay statements from the Veteran and her family reflect that the disabilities cause pain, discomfort, stiffness, and weakness in the right lower extremity.  The Veteran's disabilities affect her ability to walk, stand and move around and, as noted above, she occasionally has to use a wheelchair to help her move around.  Nevertheless, the evidence does not show that the Veteran's service-connected disabilities result in loss of use of the right foot for VA purposes.  

As noted previously, the regulations provide that loss of use of a foot 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 knee with use of a suitable prosthetic appliance.  The VA treatment records and October 2008 VA examination report addressed the impairment caused by the Veteran's disabilities.  However, the evidence did not contain an opinion that specifically considered the effects of the Veteran's disabilities in the context of the regulatory definition of "loss of use."  

The Board finds the April 2012 VA examination report to be probative as to the salient question.  The VA examiner 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 did not have loss of use of the right foot, the examiner took note of the Veteran's medical history, and physical examination findings, which demonstrate that the Veteran was capable of ambulating on her right foot, and capable of using her right foot for limited movement despite the manifest disability.  The Veteran was able to participate in the range of motion exercises and VA outpatient records document steady improvement in the Veteran right lower extremity since her most recent surgery.  Indeed, during a December 2008 physical, the Veteran provided her medical history and reported that although her knee was still relatively unstable, she was becoming much more confident and was able to put "significantly more weight on her right leg than prior to her starting physical therapy."  An April 2009 administrate note reflects the Veteran's statement indicating that she walked without the assistance of a cane during her physical therapy sessions.  At a June 2009 treatment visit, the treatment provider observed that the Veteran had been seen a total of 49 times for treatment of her right lower extremity, and that she had progressed all the way from "nonweightbearing gait with bilateral axillary crutches...to weightbearing-as-tolerated gait with single point cane for household mobility. . . ."  Thus, the evidence shows that the Veteran retains some function in the right foot, even if the function is limited.  Put another way, the evidence shows that the Veteran has greater function in her right foot than if the right lower extremity was amputated below the knee and affixed with a prosthetic appliance.  See 38 C.F.R. §§ 3.350(a)(2); 4.63.  

The Board acknowledges the October 2008 VA bones examination, wherein the examiner noted that ankylosing was present during the right knee range of motion exercises.  However, the objective medical evidence reflects that the Veteran's range of motion was -5 to 30 degrees at the October 2008 VA examination and 0 to 25 degrees at the April 2012 VA examination.  Even when taking into account limited movement and the Veteran's complaints of pain on motion, such complaints do not approximate ankylosis.  Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)).  The Board does not doubt that the Veteran has pain; however, in light of the ranges of motion documented at the examinations, the Board cannot find that her service-connected right knee and ankle disabilities equate to ankylosis of the knee or ankle joint.  Indeed, the April 2012 VA examiner noted no sign of ankylosis in the ankle, subtalar and/or tarsal joint. 

Also, while the evidence reflects that the Veteran's right lower extremity is several inches shorter than the left lower extremity, such a variance does not approximate 3 1/2 inches.  Indeed, the April 2012 VA examiner noted that the Veteran's right lower extremity was 35 1/2 inches in length, which is 2 1/2 inches shorter than the left lower extremity (38 inches).  As such, loss of use of the foot has not been shown as required under 38 C.F.R. § 3.350 (a)(2)(i)(a).  

Because loss of use of the right foot 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 for adaptive equipment only.  Additionally, the Veteran does not contend, and the evidence does not show, that she meets any other criterion for automobile allowances as a result of a service-connected disability, including: loss or permanent loss of use of the left foot; loss or permanent loss of use of one or both hands; or permanent impairment of vision of both eyes as set forth in the regulations.  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 automobile and adaptive equipment, or for adaptive equipment only, must be denied.  In reaching this conclusion, 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 claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  


ORDER

Entitlement to automobile and adaptive equipment or for adaptive equipment only is denied.  




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs