Citation Nr: 1325423 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 12-32 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to automobile and adaptive equipment or to adaptive equipment only. [The issue of entitlement to a total disability rating for compensation based on individual unemployability prior to February 24, 2003, is addressed in a separate Board decision.] REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1972 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. To the extent the Veteran has submitted evidence to the Board without a waiver of review in the first instance by the agency of original jurisdiction (AOJ), the Veteran is not prejudiced by the Board's review of the evidence in the first instance because the evidence is wholly duplicative of information already contained in the claims file. Accordingly, a remand to the AOJ for initial review of the newly-received documents is not required. Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided.) FINDING OF FACT The Veteran does not have service-connected disabilities that have resulted in the loss or permanent loss of use of one or both feet or one or both hands, permanent impairment of vision of both eyes of the required severity, or ankylosis of one or both knees or one or both hips. CONCLUSION OF LAW The criteria for automobile and adaptive equipment or adaptive equipment only have not been met. 38 U.S.C.A. §§ 3901, 3902 (West 2002); 38 C.F.R. §§ 3.350, 3.808 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (law requires only that Board address reasons for rejecting evidence favorable to Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, correspondence dated January 2008 provided the Veteran with all required notification. With respect to the duty to assist, VA has done everything reasonably required to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records, VA medical treatment records, private medical records, and records from the Social Security Administration (SSA) have been obtained, to the extent available. There is no indication that there is any additional relevant evidence that is available and not part of the claims file. The Veteran has received a number of examinations addressing the severity of his service-connected disabilities, and the record otherwise contains voluminous treatment records. The Veteran received a VA examination in March 2010 addressing the current severity of his service-connected lumbar spine and bilateral knee conditions. The examiners reviewed the Veteran's claim file and past medical history, recorded his current complaints, conducted appropriate evaluations, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Those opinions are adequate for the purpose of deciding this appeal. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any deficiency in the examination reports, or any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Automobile and Adaptive Equipment Eligibility for financial assistance in the purchase of an automobile or other conveyance and of basic entitlement to necessary adaptive equipment exists when a Veteran exhibits one of the following as the result of a service-connected disorder: (i) loss or permanent loss of use of one or both feet; (ii) loss or permanent loss of use of one or both hands; or (iii) permanent impairment of vision of both eyes. 38 U.S.C.A. §§ 3901, 3902 (West 2002); 38 C.F.R. § 3.808(a), (b) (2012). A Veteran who is not eligible for assistance under the foregoing criteria may nonetheless be entitled to adaptive equipment if he is entitled to VA compensation for ankylosis of one or both knees or one or both hips. 38 U.S.C.A. § 3901 (West 2002); 38 C.F.R. § 3.808(b) (2012). Loss of use of a hand or foot means 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. 38 C.F.R. § 3.350(a)(2) (2012). The determination will be made on the basis of whether the actual remaining function, such as in the case of a hand, the acts of grasping or manipulation, and in the case of a foot, the acts of balancing or propelling, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2) (2012). Examples that constitute 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, shortening of the lower extremity of 3.5 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. 38 C.F.R. §§ 3.350(a)(2)(a)(b), 4.63 (2012). The Veteran filed a claim for automobile and adaptive equipment in December 2007. In an additional October 2009 application, the Veteran indicated that his qualifying disabilities were the permanent loss of use of both feet and the permanent loss of use of both hands. The Veteran is in receipt of a combined 80 percent rating, with the following ratings for disabilities: 50 percent for major depression, 20 percent for arthritis of the lumbar spine, 10 percent for bilateral tinnitus, 10 percent for hypertension, 10 percent for arthritis of the left knee, 10 percent for arthritis of the right knee, and 0 percent for bilateral hearing loss. In June 2007, the Veteran reported that he had recently been involved in a motor vehicle accident. The assessment was a muscle spasm or strain secondary to indirect blunt injury. There was no clinical suggestion of bony injuries. In an October 2007 treatment record, D.F., a chiropractor, noted that the Veteran stated that he was able to perform activities of daily living without restriction prior to his involvement in a bus accident in June 2007. In November 2007, a VA clinician noted that the Veteran was status-post motor vehicle accident with evidence of cervical stenosis and disc bulging. In December 2007, a VA neurologist noted that an MRI examination revealed mild disc bulges with mild cord compression at C2-C3-C4-C5, and effacement of the thecal sac. The Veteran complained of numbness in all extremities. The clinician noted no severe or acute changes in the Veteran's condition, but the Veteran complained of worsening gait difficulty. The clinician's assessment was diffuse complaints of pain and stiffness associated with chronic fibromyalgia, cervical disc disease, and rule out cervical myelopathy. In an February 2008 Medical Statement for Consideration of Aid & Attendance (A&A), Dr. H.S. indicated that the Veteran's complete diagnosis was cervical spinal stenosis. Dr. H.S. reported that the Veteran had a partial or complete loss of use of the upper and lower extremities, with weakness, spasticity, and a decreased range of motion. In a separate February 2008 Medical Statement for Consideration of Aid & Attendance, D.F., a chiropractor, indicated that the Veteran's complete diagnosis was: passenger in a motor vehicle accident, cervical disc herniation with myelopathy, spinal stenosis/cervical, thoracic disc herniation, lumbar disc herniation with myelopathy, lumbar spinal stenosis, abnormal gait, and muscle spasms. D.F. indicated that the Veteran did not have partial or complete loss of either upper extremity, but the Veteran had a partial loss of use of the lower extremities due to weakness of the right hip flexors. In March 2008, the Veteran underwent a bilateral laminectomy of C3 and C4, and a partial laminectomy of C5. Later in March 2008, a VA clinician noted that the Veteran had cervical myelopathy, and he had undergone a C3-C4 laminectomy to treat progressively worsening cervical stenosis stemming from a June 2006 motor vehicle accident. The Veteran had lower extremity weakness and incoordination. In April 2008, a VA occupational therapist noted that the Veteran had decreased grip strength due to rheumatoid arthritis, and a decreased range of motion in the cervical spine. In an April 2008 Medical Statement for Consideration of A&A, Dr. A.M.-A. indicated that the Veteran's complete diagnosis was a cervical spine injury with incomplete paralysis of the extremities. The Veteran had a partial loss of use of the upper and lower extremities. In April 2008, D.F., a chiropractor, stated that the Veteran was involved in a motor vehicle accident in June 2007. D.F. indicated that the Veteran required the use of a walker to ambulate. In a May 2008 Medical Statement for Consideration of A&A, Dr. M.F. indicated that the Veteran's complete diagnosis was cervical stenosis status-post laminectomy for myelopathic symptoms. Dr. M.F. indicated that the Veteran did not have partial or complete loss of use of the upper or lower extremities, but acknowledged that the Veteran's remaining use was "limited." In March 2009, a VA clinician noted that the Veteran was able to drive short distances only occasionally; the Veteran used a wheelchair to travel long distances. The clinician indicated that the Veteran had no equipment needs. The clinician diagnosed the Veteran with quadriplegia C5-C7. In another March 2009 record, a VA clinician noted that the Veteran underwent a C3/C4 laminectomy in March 2008 to treat cervical stenosis that was causing myelopathic symptoms. The clinician observed the Veteran's symptoms and noted that the neurologic level of injury was at C5. In May 2009, Dr. I.B. indicated that the Veteran received treatment for incomplete tetraplegia with spasticity and neuralgia secondary to cervical stenosis. As a result, the Veteran required a wheelchair for mobility. The Veteran experienced increased limb weakness, numbness, and falls following a June 2007 motor vehicle accident. In June 2009, a VA clinician noted that the Veteran wanted a power-assisted wheelchair because he was unable to self-propel a wheelchair as a result of pain in his hands. The Veteran could ambulate in his home. In September 2009, a VA neurologist noted that the Veteran received treatment for cervical myelopathy related to cervical spine disease and cord compression, status-post cervical laminectomy in March 2008. The Veteran walked with a walker. The Veteran had normal strength in the upper extremities, with the exception of a decreased grip. The Veteran had proximal weakness in the lower extremities and spastic tone. The neurologist diagnosed the Veteran with severe cervical myelopathy originating at C3-C4 due to cervical stenosis. In the Veteran's October 2009 Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant, Dr. G.S. indicated that the Veteran had a history of cervical stenosis and rapidly progressive cervical myelopathy with associated diffuse muscle weakness. Dr. G.S. noted that the Veteran underwent decompression of the cervical spine in March 2008, but the Veteran still had residual weakness of both upper extremities and both lower extremities, with associated loss of hand dexterity and gait impairment. In November 2009, Dr. G.S. indicated that the Veteran had progressive cervical myelopathy since 2007 with progressively worsening hand and leg dysfunction, characterized by weakness, marked proprioceptive deficits, and gait instability with loss of balance. In March 2010, Dr. G.S. indicated that the Veteran's degenerative cervical spine disease with associated cervical myelopathy resulted in incomplete tetraplegia with impaired function of both upper extremities and both lower extremities. In a March 2010 VA examination, the examiner observed no ankylosis in the Veteran's knees. The examiner noted the Veteran's complaints of numbness and paresthesias, but the examiner found that such complaints were unrelated to the Veteran's lumbar spine condition. The examiner found the Veteran's range of motion in the lumbar spine to be normal when assessed from a seated position. The examiner found that the Veteran's motor and sensory defect was secondary to his cervical injury, not to his lumbar pathology. In a February 2011 Medical Statement for Consideration of A&A, Dr. G.S. indicated that the Veteran's complete diagnosis was cervical stenosis with myelopathy and incomplete tetraplegia. In January 2012, the Veteran indicated that he was unable to walk, but he denied any recent changes in upper or lower extremity weakness, sensation, or tone. An April 2012 VA treatment record indicated that the Veteran had incomplete quadriplegia that was worsening, likely as a result of the Veteran's non-service connected cervical stenosis. The Veteran used a power-assisted wheelchair and a walker for mobility. In February 2012, the Veteran complained to a VA clinician of difficulty walking and chronic pain. The Veteran complained of a progressive decline in function, but, the clinician noted, the Veteran was unable to elaborate regarding the nature of that decline. The Veteran could transfer independently, he used a rolling walker for short distances, and he used a wheelchair for long distances. The Veteran denied any acute changes in upper or lower extremity weakness, sensation, or tone. The clinician noted that a recent MRI of the cervical spine revealed moderate to severe canal stenosis at C5-C6 with mild to moderate cord compression. In a February 2012 Medical Statement for Consideration of A&A, Dr. G.S. indicated that the Veteran's complete diagnosis was cervical stenosis with myelopathy and a history of posterior cervical spine compression. The Veteran had associated gait difficulties and chronic pain. The Veteran used a walker for short distances and was wheelchair-dependent for long distances. The Veteran had a partial loss of both upper and lower extremities with decreased strength, sensation, and dexterity. In June 2012, the Veteran submitted an Application Form for Special Transportation Services from a county in Florida. The Veteran stated that he was non-ambulatory and quadriplegic as a result of a cervical spine injury. The Veteran also indicated that he had chronic muscle spasm and pain. Upon review of this medical evidence of record, the Board finds that the evidence does not demonstrate that the Veteran has suffered from a loss or loss of use of either the hands or the feet as a result of service-connected disabilities. At most, the Veteran has suffered from a "partial quadriplegia" that has resulted in only a partial loss of use of his upper and lower extremities. Furthermore, that functional loss has been consistently attributed to the Veteran's non-service connected cervical spine disability, and not to the Veteran's service-connected disabilities of arthritis of the lumbar spine and arthritis of the knees. A June 2013 rating decision denied service connection for fibromyalgia (claimed as bilateral hip pain and shoulder pain), an eye condition, quadriplegia of C5-C7, a foot condition, arthritis of the hands, arthritis of the wrists, arthritis of the elbows, arthritis of the ankles, cervical arthritis, rheumatoid arthritis, and peripheral neuropathy. The record further fails to demonstrate that the Veteran suffers from ankylosis of the knees or hips. In March 2010, the Veteran had active motion in the knees. Ankylosis of the hips has never been noted, nor is the Veteran service-connected for a disability of the hips. To the extent that the Veteran himself believes that he is entitled to the benefits sought on appeal, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences physical symptoms, such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, whether the Veteran's service-connected disabilities result in a loss of use of the hands or feet, ankylosis of the hips, or ankylosis of the knees, the issue of the relationship between the symptoms and the Veteran's service-connected disorders is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the numerous lay contentions of record, the Board ultimately affords the objective medical evidence of record greater probative weight than the lay opinions of record. The Board concludes that the preponderance of the evidence is against a finding that the Veteran has fulfilled the requirements for entitlement to automobile and adaptive equipment or adaptive equipment only. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to automobile and adaptive equipment or to adaptive equipment only is denied. _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs