Citation Nr: 1338434	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  10-18 302	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Rippel, Counsel






INTRODUCTION

The Veteran had active military service from July 1972 to July 1973.

This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) St. Louis, Missouri Regional Office (RO), which denied the Veteran entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only.


FINDING OF FACT

The Veteran has not been shown to have service-connected disabilities manifested by either the loss or permanent loss of use of one or both feet; loss or permanent loss of use of one or both hands; 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 with 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 ankylosis of the hips or the knees, so as to meet the requirements for entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment.


CONCLUSION OF LAW

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




REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a).

The Veterans Claims Assistance Act (VCAA) has been considered; however, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).  In the present case there is no legal basis upon which the sought benefits may be awarded, and the Veteran's claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Regardless, the Board notes that the Veteran was provided a VCAA-compliant letter in September 2009 by the RO.  

Law, Regulations, and Analysis

The Veteran is service-connected and in receipt of a 50 percent rating for memory loss due to head injury associated with homonymous hemianopsia with postural vertigo; a 30 percent disability rating for homonymous hemianopsia with postural vertigo; a 20 percent disability rating for seizure disorder due to head trauma; noncompensable disability ratings for left ear hearing loss and headaches; and a total disability rating based on individual unemployability.

With respect to the issue of entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile and adaptive equipment, a certification of eligibility for financial assistance in the purchase of one automobile and of basic entitlement to necessary adaptive equipment will be made where the claimant meets the requirements of paragraphs (a), (b) and (c) of 38 C.F.R. § 3.808.  The claimant must have had active military, naval or air service.  38 C.F.R. § 3.808(a) (2013).  Certainly the record establishes that the Veteran had active military, naval or air service to satisfy 38 C.F.R. § 3.808(a).  Next, one of the following must exist and be the result of a disease or injury incurred in or aggravated during active military, naval or air service: (i) loss or permanent loss of use of one or both feet; (ii) loss or permanent loss of use of one or both hands; (iii) permanent impairment of vision of both eyes: 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 in the better eye; and (iv) for adaptive equipment eligibility only, ankylosis of one or both knees or one or both hips.  38 C.F.R. § 3.808(b) (2013).  A specific application for financial assistance in purchasing a conveyance is required, and must contain a certification by the claimant that the conveyance will be operated only by persons properly licensed.  38 C.F.R. § 3.808(c) (2013).

Loss of use of a hand or a foot will be held to exist 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, i.e., whether the acts of grasping, manipulation, and the like in the case of the hand or of balance, propulsion, and the like in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.  38 C.F.R. 
§ 4.63 (2013).

The medical evidence of record does not establish, nor does the Veteran assert, that he has service-connected disabilities resulting 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; or ankylosis of the hips or knees.  

Rather, the Veteran contends that he has permanent impairment of vision of both eyes such that he requires assistance in the purchase of an automobile and adaptive equipment.  The focus of the Veteran's claim is that due to his visual acuity deficits caused by his homonymous hemianopsia he requires equipment to assist in operating his vehicle.  However, it is uncontroverted in the record that he does not meet the specific criteria for the benefit requested based upon his visual acuity deficits for this disability.  

VA outpatient treatment reports in July 2009 and a report of an eye test from doctor D.W. dated in September 2009 show visual acuity in both eyes of 20/25 and that the Veteran has been diagnosed with homonymous hemianopsia.  

A November 2011 VA examination revealed visual acuity for corrected left and right eyes of 20/40 for both near and distance testing.  Visual fields were tested and the examiner confirmed that the Veteran has homonymous hemianopsia.  The examiner explained that visual field diameter was not decreased to 20 degrees or less.  

The Veteran's service-connected eye disability does not meet the specific criteria set forth at 38 C.F.R. § 3.308 (b), and as such financial assistance for purchase of an automobile or other conveyance and adaptive equipment is not warranted.

The Veteran argues that the medical evidence clearly shows he has a permanent loss of full peripheral field of vision and poor binocular vision.  In the appellate brief filed with the Board, the Veteran's representative urges that it is clear that the appellant cannot safely operate a motor conveyance, and adaptive equipment should be provided for safety and to assist the Veteran in meeting the applicable standards of licensure of the proper licensing authority.  While the Board has considered these assertions, it finds the record uncontroverted inasmuch as it shows that the Veteran does not meet the criteria set forth at 38 C.F.R. § 3.308 (b).

In conclusion, the Board finds that the Veteran does not meet the criteria for entitlement to financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment only.  See 38 U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808.  Given the foregoing, there is no legal basis for the grant of financial assistance in the purchase of an automobile and adapted equipment or adapted 
equipment only.  Accordingly, the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


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ORDER

Entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or for adaptive equipment only is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs