Citation Nr: 1335346 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-09 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The Veteran is currently service-connected for schizophrenia, rated as 100 percent disabling and sinusitis, rated as non-compensable. 2. The evidence does not show that the Veteran's service-connected disabilities have manifested in the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, the permanent impairment of vision of both eyes, or ankylosis of one or both knees, or of one or both hips. CONCLUSION OF LAW The criteria for entitlement to automobile and adaptive equipment or for adaptive equipment only have not been met. 38 U.S.C.A. §§ 3901, 3902, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.808 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A November 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). While the letter did not provide notice regarding disability ratings or effective dates, because the claim is being denied, no disability rating or effective date is being assigned. Consequently, any question of non-compliance or prejudice with regard to the Dingess notice requirements regard is moot. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided a VA examination in September 2007 that was for the purposes of determining entitlement to special monthly compensation based on the need for aid and attendance of another person. That examination addressed whether or not the Veteran had any orthopedic disability, difficulty walking, standing, using his hands, etc, as well as addressed his visual acuity. Therefore, the examination was adequate to also address whether the Veteran currently meets the criteria for an automobile or automotive adaptation. The Veteran has not asserted permanent loss or loss of use of his hands or feet, nor has he asserted that he is blind, nor has he asserted that he has ankylosis of one or both knees or one or both hips. There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Analysis Eligibility for financial assistance in the purchase of an automobile or other conveyance and of basic entitlement to necessary adaptive equipment exists where a Veteran, who had active military, naval or air service, exhibits one of the following as the result of 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 with 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 of a certain type. 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808(a), (b). For adaptive equipment eligibility only, service-connected ankylosis of one or both knees or one or both hips is sufficient to show entitlement. 38 U.S.C.A. § 3901; 38 C.F.R. § 3.808(b). The term "permanent loss of use" is not defined in 38 C.F.R. § 3.808. The term "loss of use of a hand or foot" is defined in another VA regulation as existing 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 knee with the use of a suitable prosthetic appliance." 38 C.F.R. § 3.350(a)(2). That regulation also provides that the determination as to whether such loss of use exists 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. Id. Examples given are extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 inches or more, complete paralysis of the external popliteal nerve, and consequent foot drop accompanied by characteristic organic changes. The Veteran is service-connected for schizophrenia, rated as 100 percent disabling, and sinusitis, rated as non-compensable. Through his representative, the Veteran argues that the Veteran's service-connected schizophrenia renders him unable to control his body at times, therefore entitling him to automobile and adaptive equipment or adaptive equipment only. After review of the evidence of record, the Board finds that the Veteran's claim must be denied because his service connected disabilities do not cause permanent loss of use of one or both hands or feet, ankylosis, or permanent visual impairment. The VA treatment records show that the Veteran underwent a VA examination for aid and attendance in September 2007. The report of that examination notes that corrected visual acuity is 20/30 bilaterally. The Veteran denied any history of poor balance or falls and stated that he fully performs all aspects of self care without assistance. He stated that he walks outside the premises of his home without any assistance. It was noted that he related some back pain without radicular symptoms. He does not wear any type of back brace and does not walk with any form of cane or crutch assistance. He also related a history of chronic left knee pain, but denied previous surgeries or trauma. He denied any other bone or joint symptoms. Physical examination revealed normal posture, minimally antalgic gait without assistance, and full and painless range of motion of the shoulders, elbows, wrists, hips, and right knee. There was some decreased motion of the left knee and spine. The diagnoses were hypertension, gastroesophageal reflux disease, hyperlipidemia, sleep apnea, chronic rhinitis and sinusitis, morbid obesity, paranoid schizophrenia, osteoarthritis of the spine, and bronchial asthma. The above evidence reflects that the Veteran's service connected disabilities do not cause loss or permanent loss of use of one or both feet or one or both hands (whether under the definition in 38 C.F.R. § 3.350 or any other plausible definition of those terms), the permanent impairment of vision of both eyes, or ankylosis. The Veteran is able to move and use his arms and legs and walk without any assistance. He is also capable of performing all activities of daily living and does not otherwise meet the criteria for entitlement to automobile and adaptive equipment or for adaptive equipment only. The Veteran's claim is that his schizophrenia renders him unable to control his body "at times". This claim was most recently made through the Veteran's representative in his informal hearing presentation to the Board. The Veteran is competent to state that, but even if the Board also were to find him credible, he has not asserted any permanent loss of use of his hands or feet. The most he has claimed is intermittent loss of use of his hands or feet which is insufficient under the regulations to allow for a grant of the benefit sought. The remaining evidence of record also does not show that the Veteran meets the criteria listed above. As such, the criteria for a certificate of eligibility for the purchase of an automobile and adaptive equipment, or adaptive equipment only, are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Entitlement to automobile and adaptive equipment or for adaptive equipment only is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs