Citation Nr: 1332603 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-05 507 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the RO. In October 2011, the Veteran testified from the RO held by means of videoconference technology at a hearing held before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims folder. The Board notes that, in November 1996, the Veteran withdrew his appeal regarding his claims for higher rating for the service-connected posttraumatic stress disorder and service-connected residuals of shrapnel wounds in the right thigh and left thigh. He stated that he was satisfied with the decision regarding these claims. In a report of contact in September 2008, the Veteran withdrew his claims for specially adapted housing and special home adaptation grant. During the October 2011 hearing, the Veteran clarified that the only issue on appeal was the purchase of an automobile and adaptive equipment or adaptive equipment only. Consequently, the other matters are no longer in appellate status. 38 C.F.R. § 20.204. The records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran in October 2011 testified that he received VA treatment in the last six months and that there were outstanding VA treatment records that needed to be obtained and associated with the claims folder. Further, the Veteran was last afforded a VA examination in December 2010 for the purpose of determining whether he was entitled to financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment only. The VA examiner was unable to determine whether he had permanent loss of use of one or both feet. Subsequently, in a rating decision in February 2013, the RO granted service connection for diabetic neuropathy of the right upper extremity and left upper extremity. Therefore, the Veteran should be afforded a new VA examination to determine whether he is entitled to financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment only. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask him to identify the VA or non-VA medical facilities where he received treatment for his service-connected disabilities in the last two years. Based on his response, the RO should take all indicated action to obtain copies of the outstanding records from any identified treatment source and associate them with the record. This should include any outstanding VA treatment records since 2011 at VA in Manchester, New Hampshire; West Haven, Connecticut and Boston, Massachusetts. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. The RO then should schedule the Veteran for a VA examination to determine whether he is entitled to receive financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment. The examiner must determine whether the Veteran has loss or permanent loss of use of one or both hands or feet due to a service-connected disability. The examiner must also address whether a service-connected disability has resulted in ankylosis of one or both knees or one or both hips. The examiner is advised that the Veteran is service connected for the following disabilities: posttraumatic stress disorder, diabetic peripheral neuropathy of the right and left lower extremities, diabetic peripheral neuropathy of the right and left upper extremities, diabetes mellitus, bilateral hearing loss, residuals of shrapnel wound in the right thigh and left thigh, hypertension, coronary artery disease, impotency, scar on the right thigh and upper shin, and scar on the left mid upper anterior thigh. The VA examiner is asked to consider that the term "loss of use" of a hand or foot exists 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 elbow or the knee with use of a suitable prosthetic appliance. That determination is made 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. For example, 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 hand or foot involved. Also considered as loss of use of foot 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 the nerve. The entire claims folders (both the paper file and the electronic portion of the file) must be made available to the examiner prior to the examination. Any essential tests and studies, which are not already of record, should be accomplished. The examiner must provide a rationale for the conclusions reached. If the examiner is unable to provide a rationale he or she should explain why. 4. After completing all indicated development, the RO should readjudicate the Veteran's claim for financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment. If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. See January 2010 statement. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ STEPHEN L. WILKINS 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) (2013).