Citation Nr: 1334840 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-10 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a certificate of eligibility for financial assistance for the purchase of an automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1980 to June 1989 and from September 1990 to October 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The claims folder was subsequently transferred to the jurisdiction of the RO in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. Service connection has been established for posttraumatic stress disorder (PTSD), peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, and alcoholism, rated 70 percent combined; the Veteran has also been awarded a total disability rating based on individual unemployability. 2. The Veteran does not have loss, or permanent 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 one or both hips, due to service-connected disabilities. CONCLUSION OF LAW The criteria for a certificate of eligibility for financial assistance for the purchase of an automobile and adaptive equipment or for adaptive equipment only are not met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 2002); 38 C.F.R. §§ 3.350, 3.808 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. March and June 2009 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran has not been afforded an examination to secure an opinion regarding whether the Veteran has loss of use of a foot. The Board finds that based on the evidence of record, an examination is not necessary. The Board acknowledges a VA examination has not been conducted for many years. However, the mere passage of time is an insufficient basis on which to schedule an examination. As is discussed in greater detail below, the record does not show the Veteran has loss of use of either foot. 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual Background, Legal criteria and Analysis Eligibility for financial assistance to purchase one automobile or other conveyance and necessary adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning 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 visual field subtends an angular distance no greater than 20 degrees in the better eye; or, (4) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808. The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition when 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. 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 of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. § 3.350(a)(2), of what constitutes loss of use of a foot, include extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3.5 inches or more, or complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop. Service connection is established for PTSD, peripheral neuropathy of both lower extremities and for alcoholism, rated 70 percent combined; the Veteran has also been a awarded a TDIU rating.. VA outpatient treatment records show the Veteran was seen in January 2009. Examination revealed he was ambulatory without assistance; no gait changes were noted. Neurological evaluation showed no new focal deficits. In March 2009 the Veteran contacted the clinic by telephone and indicated he was having trouble walking on his left foot which was reportedly swollen. It was noted he had neuropathy in both feet and was on medication for gout. He was seen the next day for a flare-up of gout. He stated he wanted an evaluation for adaptive equipment due to severe bilateral lower extremity neuropathy which impeded his driving. It was indicated that X-rays of the left foot on the previous day revealed osteoarthritis. On examination, the Veteran was ambulatory without assistance, but had an antalgic gait. The impressions were gout with bilateral ankle/foot flare, starting to resolve and peripheral sensory neuropathy. On neurology consultation later that month the Veteran reported he had trouble walking, which he attributed to neuropathy. On examination, his gait was quick and intact. A sensory examination revealed vibration was good at the knees and absent at the ankles. The Veteran's claim is predicated on a finding he has loss of use of a lower extremity due to a service-connected disability. He does not allege, nor does the record show, that he has a service connected visual impairment or loss of use of a hand due to service-connected disability. He insists that he has loss of feeling in both feet due to peripheral neuropathy, and this establishes he has loss of use of the feet. As the Veteran has acknowledged, to establish entitlement to the benefits sought, the evidence must show that he has loss of use of one or both feet or, for purposes of adaptive equipment only, has ankylosis of a knee or hip. The record reflects the Veteran experienced a flare-up of gout in March 2009; however, gout is not service-connected, and its effects may not be considered in determining entitlement to the benefit sought. Regardless, even during this flare-up episode, he was able to walk without assistance. The fact that his gait, while antalgic, has remained intact, tends to rebut his allegation that he has loss of use of a lower extremity (i.e., that no effective function of the foot remains). There is nothing in the record to suggest that he has dropfoot or any symptoms consistent with loss of use of the foot. There is likewise no evidence in the treatment records showing that he has ankylosis of a knee or hip. As entitlement to the benefits sought requires specific findings of ankylosis of hip or knee, loss or loss of use of a lower extremity, or blindness due to service-connected disability, none of which is shown, the legal criteria for the benefits sought are not met. Therefore, the benefit of the doubt doctrine does not apply. ORDER The appeal seeking entitlement to a certificate of eligibility for the purchase of an automobile and adaptive equipment, or adaptive equipment only is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs