Citation Nr: 1537976 Decision Date: 09/04/15 Archive Date: 09/10/15 DOCKET NO. 13-12 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi 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 Christopher Murray, Counsel INTRODUCTION The Veteran served on active duty for training from June to August 1988, and he performed active military service from July 1990 to July 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a personal hearing before a VA Decision Review Officer (DRO) in November 2013. Due to technical issues, a transcript of this hearing was unable to be prepared. The Veteran was notified of such and afforded the opportunity for a new hearing. However, in a March 2014 statement, the Veteran declined a new DRO hearing and requested that his appeal be decided on the evidence of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts his service-connected disabilities result in functional impairment so as to warrant entitlement to automobile and adaptive equipment or adaptive equipment only. Pertinent to the instant appeal, to warrant entitlement to automobile and adaptive equipment, the evidence must demonstrate a service-connected disability results in the loss, or permanent loss of use, of one or both feet or one or both hands. 38 C.F.R. § 3.808(a) (2015). The appellant is not service connected for any hand disorder, but he is service connected for a right ankle scar, and for left talar osteochondritis dissecans, each evaluated as 10 percent disabling. Loss of use of 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 the 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 balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2), 4.63 (2015). The Veteran asserts that his service-connected bilateral ankle disabilities, either alone or when taken into consideration with all of his service-connected disabilities, result in the loss of use of one foot or both feet. See, e.g., November 2013 DRO hearing notes. It is apparent from the record that the Veteran suffers from service-connected disabilities that affect his mobility. While the appellant's service connected ankle disorders appear to be far short of even approximating the degree of impairment necessary to find a loss of use of either foot, as shown below, the record before the Board appears to be incomplete. However implausible it may appear to be, without a complete record the Board cannot determine whether these service connected disabilities are severe enough that they cause the Veteran's feet to be useless based on the regulatory definition. In this regard, the Board first notes that while the appellant was provided a VA ankle examination in October 2011, the examiner did not address whether the Veteran's ankle conditions result in functional impairment of such severity that he would be equally well served by an amputation with prosthesis. As such, this examination is inadequate, and a new VA examination must be provided. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, comprehensive VA treatment records have not been obtained and associated with the claims file for the entire appeal period. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). The Veteran also indicated in an August 2012 statement that he had applied for Social Security disability benefits. To date, no effort has been undertaken to obtain records related to this claim. To ensure a complete evidentiary record, on remand such records should be obtained and associated with the claims file. Finally, the record shows that the appellant is currently incarcerated. Hence, health records dating from April 2015 to the present from the Georgia State Prison should be obtained. Further, the law requires that the development ordered below must be tailored to assist the appellant in light of his confinement. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and reports generated prior to July 2011, and since September 2013. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Contact the Social Security Administration and request all records related to the Veteran's August 2012 application for benefits from that agency. Additionally, contact the Georgia State Prison and request that they provide copies of all medical records pertaining to the appellant's ankle disorders since January 2015. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, and consistent with the terms of the appellant's current incarceration, arrange for the Veteran to be provided an examination to determine whether his service-connected disabilities result in the loss or permanent loss of use of one foot or both feet. The examiner must be provided access to pertinent records prior to the examination for review, and the examination report should reflect such a review was accomplished. Any clinically indicated testing and/or consultations must be performed. Following a review of the claims file, and examination of the Veteran, the examiner is requested to opine whether it is at least as likely as not (probability of at least 50 percent) that the appellant's right ankle scar, and left talar osteochondritis dissecans result in the loss or permanent loss of use of one foot or both feet. To make this determination, the examiner must consider whether the Veteran's actual remaining foot function, including balance and propulsion, could be accomplished equally well by an amputation stump with prosthesis. A complete rationale must be provided for all opinions, including a discussion of the evidence and medical principles which led to such conclusion. 4. The Veteran is to be notified that it is his responsibility to cooperate in the development of the claim. The consequences for failure to report for an examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the examination report is deficient in any manner, corrective procedures should be implemented at once. 6. Then after completing any additional development necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).