Citation Nr: 1324949 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 00-18 628A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to automobile and adaptive equipment or for adaptive equipment only. (The issue of entitlement to a separate, compensable evaluation for scars above the left knee or below the left knee and for injury to muscles other than Muscle Group (MG) XIV is addressed in a separate decision.) REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1964 to April 1965 and November 1968 to November 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran submitted additional evidence in October 2006, and the claim was denied again in a November 2006 rating decision. The Veteran submitted a notice of disagreement in February 2007, a statement of the case was issued in December 2008, and a VA Form 9 was submitted in December 2008. The Veteran requested a hearing before the Board. The requested hearing was conducted in October 2012 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to automobile and adaptive equipment or for adaptive equipment only. Upon review, the Board finds that remand is necessary for further evidentiary development. 38 C.F.R. § 3.808 provides that a certification of eligibility for financial assistance in the purchase of one automobile or other conveyance and of basic entitlement to necessary adaptive equipment will be made where a Veteran who, due to a service-connected disability, has: (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) permanent impairment of vision in both eyes, resulting in (1) central visual acuity of 20/200 or less in the better eye, with corrective glasses, or, (2) 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 the visual field subtends an angular distance no greater than twenty degrees in the better eye. 38 C.F.R. § 3.808 (2012). 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 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 balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 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 foot involved. Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve will be taken as loss of use of the foot. 38 C.F.R. §§ 3.350(a)(2), 4.63. For adaptive equipment eligibility only, service-connected ankylosis of one or both knees or one or both hips is sufficient to show entitlement. 38 C.F.R. § 3.808(b)(4). The duty to assist includes providing a VA medical examination or a medical opinion when necessary for an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). The Board notes that the Veteran is service connected for anxiety with depression, chronic lumbar strain, shell fragment wound to the left leg with retained foreign body and causalgia, chronic cervical syndrome, tinea cruris, osteoarthritis of the bilateral knees, carpal tunnel syndrome of the bilateral upper extremities, shell fragment wound scars of the thoracic back area, residuals of shell fragment wound to the right leg muscle group XII, shell fragment wound to the right leg, fracture right zygoma, and hemorrhoidectomy. The Veteran testified during the October 2012 Board Hearing that he experiences weakness in his legs to the point where he can only stand several minutes before having to sit; as a result, he uses a motorized wheelchair. See October 2012 BVA Hearing Transcript, page 4. Additionally, the Veteran asserts his bilateral carpal tunnel syndrome affects his ability to turn a steering wheel of a vehicle. Id. at page 11. The Veteran was most recently afforded a VA examination in December 2010 for his service-connected leg injuries. The examiner noted that the Veteran was confined to a motorized scooter and had marked immobility related to his multiplicity of arthritic, muscular, appendicular, skeletal and spine issues, along with his morbid obesity. The Board notes that when it is not possible to separate the effects of service-connected and nonservice-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). As the evidence of record reflects the possibility that the Veteran meets the criteria set out in the regulations for entitlement to automobile and adaptive equipment or for adaptive equipment only, he should be provided with a current VA examination to determine whether he has loss of use of his hands, feet, upper or lower extremities. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein it was determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Additionally, all updated VA and private treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated VA and private treatment records. 2. Afford the Veteran an in-person orthopedic examination for his service-connected disabilities, in particular, those disabilities affecting his knees, feet, hands, and vision (chronic lumbar strain, shell fragment wound to the left leg with retained foreign body and causalgia, chronic cervical syndrome, osteoarthritis of the bilateral knees, carpal tunnel syndrome of the bilateral upper extremities, shell fragment wound scars of the thoracic back area, residuals of shell fragment wound to the right leg muscle group XII, and shell fragment wound to the right leg). All indicated tests and studies should be conducted. The examiner is requested to: (a) provide a medical opinion concerning whether the Veteran's symptomatology referable to his feet or hands causes what amounts to loss of use of these extremities, such that 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 knee with use of a suitable prosthetic appliance. In this regard, the examiner must determine such on the basis of the actual remaining function, whether the acts of grasping, manipulation, in the case of the hand, or balance, propulsion, in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. (b) to the extent possible, the examiner should identify and distinguish symptoms and impairment attributable to the Veteran's service-connected disabilities from those attributable to his nonservice-connected disabilities. If the examiner cannot differentiate the effects of the disabilities, then all should be attributed to the Veteran's service-connected disabilities. (c) Comments are needed, as well, concerning whether the Veteran has extremely unfavorable complete ankylosis of his knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more; or 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 the nerve. (d) Lastly, the examiner must indicate whether the Veteran has ankylosis of either knee. (e) The examiner must discuss the rationale of all opinions expressed, whether favorable or unfavorable, citing to specific evidence in the file. 3. After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate his claim. If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). _________________________________________________ DEBORAH W. SINGLETON 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).