Citation Nr: 1333911	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO. 12-34 614	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only.


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran had active military service from November 1956 to November 1958.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The issue was remanded in February 2012 for further development.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's service connected disabilities have not resulted in the permanent loss or loss of use of one or both feet or one or both hands, permanent impairment of vision of both eyes, or ankylosis of one or both knees or hips.


CONCLUSION OF LAW

The criteria for financial assistance in the purchase of an automobile or other conveyance with adaptive equipment, or adaptive equipment only have not been met. 38 U.S.C.A. §§ 3901, 3902 (West 2002 & Supp 2013); 38 C.F.R. §§ 3.350, 3.808 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1).

An April 2010 pre-adjudication letter explained the evidence necessary to substantiate a claim for automobile adaptive equipment. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran was also notified of how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). Therefore, the duty to notify has been met.

The Veteran was afforded a VA examination in April 2013. VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the VA examination reports reflect review of the claims file and assessment of the Veteran's contentions and disability, the report is adequate. The duty to assist in the gathering of records and a VA examination has also been met and the RO/AMC has substantially completed the February 2013 remand directives by obtaining a VA examination. The claims file contains service treatment records (STRs); VA treatment records; VA examinations; and written statements from the Veteran.

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide his claim. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2013).

Automobile and/or Adaptive Equipment

In order to be eligible for financial assistance in purchasing an automobile and/or adaptive equipment, the Veteran must be entitled to compensation for any of the following disabilities: (1) The loss or permanent loss of use of one or both feet; (2) the loss or permanent loss of use of one or both hands; (3) the permanent impairment of vision of both eyes, resulting in central visual acuity of 20/200 or less in the better eye, with corrective glasses, or, 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 U.S.C.A. § 3902; 38 C.F.R. § 3.808(b) (2013).

The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.350(a)(2) 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 the elbow or knee with the 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 balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis.

Service connection is not in effect for any disability involving loss of vision. The Veteran does not contend, nor does the record reflect that he has visual impairment as defined in 38 C.F.R. § 3.808(b). Rather, the central issue in the present case hinges on loss of use of the lower extremities due to the Veteran's service connected back disability and radiculopathy. As reflected in his April 2010 and May 2010 written statements, the Veteran essentially argues that his service connected back disability precludes the use of both feet and legs for driving. He also contends that his back condition makes it impossible to drive without adaptive equipment. Specifically, he stated that his mobility has deteriorated in that he has less feeling in his feet and more severe hip pain. (See May 2010 Written Statement). He further stated that he was concerned he would not be able to drive in the near future due to the lack of sensation of his feet.

March 2010 EMG (electromyogram) and NCV (nerve conduction velocity) findings showed, in part, that the left peroneal motor nerve (ankle) showed no response. The right peroneal motor nerve showed reduced amplitude and decreased conduction velocity. The left tibial motor nerve showed reduced amplitude and decreased conduction velocity (knee-ankle). The right tibial motor nerve showed prolonged distal onset latency and reduced amplitude. The Veteran was assessed by a VA physician with osteoarthritis of the spine with compression neuropathy of nerve roots causing decreased bilateral sensation of the feet. It was noted that he would need aids/prosthetics for driving due to decreased sensation of brake and gas pedal. The treatment note further stated that if unable to accommodate from Myrtle Beach Prosthetics; he should be referred to VA Charleston Prosthetics to help accommodate for hand pedals and other aiding devices for driving.

An April 2010 VA neurology treatment record noted that the Veteran had decreased sensation of the feet that impaired his driving as he was unable to feel the brake pedal. The sensory examination showed decreased modalities with stocking and gloving distribution, particularly on the bottom of his feet. The Veteran's gait was normal, including his tandem walking, toe walking, and heel walking. The Veteran was diagnosed with loss of use of the lower extremities. The impression was osteoarthritis of the spine with compression neuropathy of nerve roots causing decreased sensation of the feet.

A May 2010 VA examination for his service-connected spine disability noted, in part, that the Veteran had pain that radiated down both legs and feet. He did not use a brace or crutch, but used a cane. He reported bilateral feet numbness with pain and no weakness. He was unable to stand more than 5 to 6 minutes and unable to sit more than 10 to 15 minutes. Upon physical examination, he walked with a limp and used a cane. His strength in the lower extremities was 5/5. Sensation was normal to the lower extremities, except on the anterior aspect of the lower extremities from the ankle to the top of the foot bilaterally, which had decreased sensation. There was decreased sensation of the knees with absent reflexes. Ankles were 2+. There was no atrophy and normal tone of the lower extremities. He could laterally flex to 15 degrees with pain at 10 to 15 degrees. He could extend to 20 degrees and forward flex to 90 degrees with pain at 50 to 90 degrees. He could right and left laterally rotate to 45 degrees. There was no pain on range of motion or flare ups on any of the above joints and there was no additional limitation by pain, fatigue, weakness, joint swelling or repetitive use. Upon physical examination, sensation of the lower extremities was decreased from the thigh to the toes, worsening distally. His strength was 4/5 in the bilateral lower extremities. His deep tendon reflexes consisted of knee 0 and ankle 1+ bilaterally. There was no atrophy in any of the musculature with good muscle tone. The VA examiner stated that the March 2010 EMG findings showed sensory motor polyneuropathy, axonal and demyelinating, with motor NCV abnormalities of the lower extremities, which was suggestive of ongoing denervation.

A July 2010 peripheral nerves VA examination reflects that the Veteran reported he was unable to walk for more than 2 to 3 minutes without worsening of hip pain and stand no more than 2 to 3 minutes with worsening of hip pain. He stated that he had paresthesias of the feet, and that he also had difficulty gauging the pressure on the brake pedal while he was driving. He also stated that he walked heavily and tripped easily. He reported pins and needles sensation on the bottom of both feet.

A March 2011 VA treatment record noted that the Veteran had significant sensory deficits mainly in his feet that were the source of ataxic gait and problems with driving. He also reported difficulty driving because of having no sensation in his feet. Examination revealed decreased sensitivity to light touch and pinprick, moderate to severe on feet up to mid shins and severe decrease to vibration of feet up to the knees. He was diagnosed with idiopathic demyelinating and axonal neuropathy, spinal stenosis of lumbosacral spine and osteoarthritis of the hips. The Veteran underwent a L3-S1 posterior decompression in July 2011.

Regarding the Veteran's service connected disabilities of the back, to include radiculopathy of the lower extremities, during the April 2013 VA DBQ, the examiner diagnosed the Veteran with moderate to severe discogenic degenerative changes of the lumbar spine L2 through S1 with multilevel canal stenosis and foraminal narrowing, which have modestly progressed compared to prior examinations. The examiner noted that the Veteran had a L2-5 posterior decompression for spinal stenosis with neurogenic claudication on July 15, 2011 with temporary improvement. The Veteran reported constant moderate pain, severe paresthesias, severe numbness, and weakness. With regard to muscle strength, right and left knee extension was 4/5; right and left ankle plantar flexion was 4/5 and right and left ankle dorsiflexion was 4/5. The Veteran did not have muscle atrophy. He had normal sensory testing for light touch of the upper anterior thigh and thigh/knee, but decreased sensation for the lower leg/ankle and foot/toes. He also had antalgic gait with poor balance. He had moderate incomplete paralysis of the sciatic nerve. The Veteran used a cane constantly. 

Significantly as it bears upon the issue in this matter, the VA examiner found that function was not so diminished that amputation with prosthesis would equally serve the Veteran. The VA examiner also stated that there was not complete loss of use of one or both feet as the Veteran was able to ambulate, albeit with the assistance of a cane. His lower extremity motor capacity was marginally impaired. Sensation of the lower extremities was impaired, but there was not total anesthesia.

Although the March 2010 VA treatment record noted that the Veteran would need aids/prosthetics for driving due to decreased sensation of brake and gas pedal, the medical evidence of record is not consistent with a disability picture in which 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 the use of a suitable prosthetic appliance. 

In fact, the April 2013 DBQ examiner stated that there was not complete loss of use of one or both feet as the Veteran was able to ambulate albeit with the assistance of a cane. His lower extremity motor capacity was marginally impaired. Sensation of the lower extremities was impaired, but there was not total anesthesia. The April 2013 DBQ examiner's findings are more probative than the March 2010 findings of the VA physician because the opinion was made post-surgery and reflects a more accurate assessment of the Veteran's disability picture. Therefore, the criteria for loss of use, as set forth under 38 C.F.R. § 3.350(a)(2), have not been met.

Absent a demonstration of visual impairment, or loss of use of at least one hand or at least one foot, the claim of eligibility for financial assistance in purchasing automobile and/or adaptive equipment must fail. 38 U.S.C.A. § 3902(a)(b); 38 C.F.R. § 3.808(b)(1).

Additionally, a Veteran who is not eligible for assistance under the foregoing criteria may nevertheless be entitled to adaptive equipment if he 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). However, in the present case this provision does not serve as a basis for a grant of benefits, because the Veteran is not service connected for, or otherwise entitled to VA compensation for, ankylosis of one or both knees, or of one or both hips. Although service connection is in effect  for a back disability and bilateral lower extremity radiculopathy, the medical evidence of record, including the VA examinations, clearly demonstrate that there is no ankylosis of either knee. In addition, the Veteran does not contend, nor does the medical evidence demonstrate, ankylosis of the hips.

In sum, the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim will be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

ORDER

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


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs