Citation Nr: 1331876 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-24 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure. 2. Entitlement to a certificate of eligibility for an automobile and/or specially adapted equipment. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to September 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from August 2008 (automobile and/or specially adapted equipment claim) and March 2010 (hypertension claim) rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In June 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. In June 2013, prior to the promulgation of a decision in the appeal, the Veteran during his Board hearing withdrew his claim of entitlement to service connection for hypertension. 2. The Veteran has service-connected disabilities, namely diabetic peripheral neuropathy of the lower extremities, resulting in the loss of use of his feet. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of entitlement to service connection for hypertension been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for a certificate of eligibility for specially adapted equipment have been met. 38 U.S.C.A. §§ 3901, 3902(b)(2), 5107(b) (West 2002); 38 C.F.R. §§ 3.350(a)(2), 3.808, 3.655(b), 4.63 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). With respect to the claim for specially adapted equipment, because this decision constitutes a full grant of the benefits sought on appeal, no further notice or assistance is required to aid the Veteran in substantiating his claim. 1. Withdrawal of Service Connection Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran during his Board hearing in June 2013 withdrew his appeal for entitlement to service connection for hypertension and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Eligibility for an Automobile and/or Specially Adapted Equipment. The Veteran essentially contends that he has loss of use of his feet due to service-connected diabetic peripheral neuropathy that prevents him from driving an automobile without specially adapted equipment. During his hearing before the undersigned, the Veteran stated that he was unable to feel the gas or brake pedals in his car due to foot numbness. He also testified that he was unable to walk without a cane (sometimes two canes or a walker) because of balance problems resulting from his neuropathy. To warrant entitlement to automobile and adaptive equipment under 38 U.S.C.A. § 3901, the evidence must demonstrate service-connected disability (or disabilities) resulting in the loss, or permanent loss of use, of at least one foot or a hand; or, permanent impairment of vision in both eyes, resulting in (1) vision of 20/200 or less in the better eye with corrective glasses, or, (2) vision of 20/200 or better, 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(a). The law also provides that a veteran is entitled to adaptive equipment if he has ankylosis of at least one knee or one hip due to service-connected disability. 38 U.S.C.A. § 3902(b)(2); 38 C.F.R. § 3.808(b)(1)(iv). The term "loss of use" of a hand or foot 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 elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350(a)(2). Such a 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 balance, propulsion, etc., 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 that 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, and shortening of the lower extremity of 3 1/2 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. 38 C.F.R. §§ 3.350(a)(2), 4.63. Under 38 C.F.R. § 4.124a, DC 8521, complete paralysis also 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. 38 C.F.R. § 4.124a, DC 8521. The Veteran is service-connected for the following compensable disabilities: diabetic peripheral neuropathy of the lower extremities, each rated as 40 percent disabling; old myocardial infarction, rated as 30 percent disabling; diabetes mellitus, type II, rated as 20 percent disabling; diabetic peripheral neuropathy of the upper extremities, each rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 10 percent disabling. He is also service connected for numerous noncompensable disabilities. His combined overall rating is 100 percent. The Veteran submitted an Application for Automobile or Other Conveyance and Adaptive Equipment in November 2007. Along with his application, he submitted a July 2006 VA Driver Training Rehab note reflecting reaction time and proprioception deficits in the lower extremities. The Rehab note also showed that the Veteran had progressed to "safe driver status" using hand controls and steering knob as primary operational controls and achieved a Certificate of Training; vehicle modification/adaptive equipment was recommended. VA treatment records dated in September 2007 show diagnoses of "severe" peripheral neuropathy, with complaints of progressively worsening numbness from the thighs to the feet. The Veteran described his bilateral lower extremities as being "chronically numb." The treatment note indicated that the Veteran was experiencing difficulty driving as he was "unable to feel the pedals." He used Canadian crutches with poor balance. He also had a seated walker. Objectively, he ambulated slowly with a cane; sensory and reflex testing findings in the lower extremities were either decreased or entirely absent. Again, the diagnostic assessment was severe peripheral neuropathy; the Veteran was informed that medications, in general, would not help with the numbness. The Veteran underwent a VA peripheral nerves examination in August 2008; at that time, symptoms included numbness and dysesthesias from the bottom of the feet to the mid-thighs. The Veteran reported that he was no longer able to drive a vehicle because he could not sense the gas and brake pedals. Objectively, ankle reflexes were absent, bilaterally. Sensory functions, including vibration, pain, light touch, and position sense, were entirely absent in the bilateral lower extremity. There was abnormal muscle tone/bulk. He walked with a waddled gait and decreased balance due to impaired sensation of both lower limbs/feet. The diagnosis was diabetic related peripheral sensory neuropathy, lower limbs worse than upper limbs. Contemporaneous VA podiatry records likewise reflect ongoing complaints of foot numbness and objective findings of absent sensation in the bilateral feet. An October 2008 VA orthopedic note reflects complaints of numbness in both feet (not improved), with worsening symptoms when sitting or standing for more than 15 minutes. Because of this, "he has difficulty operating the foot pedals on a regular vehicle." Hand controls due to diminished foot sensation were recommended. A January 2011 VA treatment note (contained in the Veteran's Virtual VA claims file) reflects that the Veteran used a walker and canes to ambulate; he also had gait/balance problems from muscle weakness and "all over" neuropathy as a result of diabetes. A May 2012 VA podiatry note (contained in the Veteran's Virtual VA claims file) reflects that the Veteran presented for a diabetic foot examination, at which time protective sensation and vibratory sensation of the feet were absent; pedal edema was present. Lastly, an April 2013 VA podiatry follow-up note reflects that the Veteran had "permanent loss of sensation" in his feet due to neuropathy. Again, the Veteran contends that he has loss of use of his feet due to the service-connected peripheral neuropathy of lower extremities. Supporting this contention are the above-cited opinions and examination reports of various VA podiatrists, neurologists, and other physicians who reported that the Veteran has severe peripheral neuropathy of the lower extremities, which results in poor balance (necessitating up to two canes and/or a seated walker) and permanent loss of vibratory, pain, light touch, and position sensations in the feet. These objective findings are also consistent with the Veteran's competent assertions that he has no sensation in his feet, that they are chronically numb, and that he is unable to feel the brake/acceleration pedals in his vehicle due to such symptoms. In sum, the competent lay and medical evidence of record shows that the Veteran has a service connected disability that is manifested by a permanent loss of sensation in the feet which, in essence, renders him unable to use his feet and/or lower extremities in a functional manner. Resolving reasonable doubt in his favor, entitlement to a certificate of eligibility for specially adaptive equipment is granted. 38 U.S.C.A. § 5107(b). ORDER The appeal as to the issue of entitlement to service connection for hypertension is dismissed. Entitlement to a certificate of eligibility for specially adaptive equipment is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs