Citation Nr: 1614737 Decision Date: 04/12/16 Archive Date: 04/26/16 DOCKET NO. 13-18 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Veteran represented by: Wounded Warrior Project ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from April 2003 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied entitlement to automobile and adaptive equipment or for adaptive equipment only. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. REMAND The Veteran contends he should be entitled to automobile and adaptive equipment or adaptive equipment, essentially claiming he has permanent loss of use of his right foot. A certificate of eligibility for assistance in the purchase of automobile and adaptive equipment or adaptive equipment only is provided where service-connected disability includes one of the following: (1) loss or permanent loss of use of one or both feet; or (2) loss or permanent loss of use of one or both hands: or (3) permanent impairment of the vision of both eyes to a specified degree; (4) for adaptive equipment eligibility only, ankylosis of one or both knees or one or both hips. 38 U.S.C.A. §§ 3901, 3902 (West 2014); 38 C.F.R. § 3.808 (2015). The 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. 38 C.F.R. § 4.63 (2015). Remand is required to attempt to obtain private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c)(1) (2015). In a statement dated in September 2015, the Veteran contended that he still had atrophy of his right leg, which was not evaluated on the most recent VA examination in August 2015. He contended that his disability was most recently treated at Washington University Pain Management Center, in 2013, and that he had ordered the records and would provide them as soon as possible, but that this treatment was only a temporary resolution to a permanent injury. Here, the private records from Washington University are not associated with the claims file and it does not appear any attempts have been made to obtain them. Remand is thus required to attempt to obtain private medical records. While on remand, another examination and opinion shall be obtained. The record reflects that service connection has been established for neuropathy of the right lower extremity, associated with the service-connected intervertebral disc syndrome. This disability is rated as 10% disabling, which indicates mild incomplete paralysis due to sciatic nerve neuritis. 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2015). Additionally, review of the record shows that the Veteran has experienced ongoing difficulties with his right lower extremity. In that regard, on an MRI of the lumbar spine dated in July 2012, it was noted that no cause for acute right foot drop was seen on that study. In July 2012, it was also noted that the Veteran had chronic paraspinal back pain that intermittently radiates mainly down his right leg, and he also had apparent functional motor and sensory loss on examination with intact reflexes, a normal EMG without evidence of motor or sensory neuropathy, and downgoing toes bilaterally. It was noted that this was likely a functional or conversion disorder. In a neurosurgery note dated in February 2013, it was noted that the Veteran had right foot drop without good explanation on MRI and EMG. The physician did not see anything amenable for surgery and recommended that the Veteran be evaluated by a pain psychologist. It was noted that the Veteran did not have a formal diagnosis of somatoform disorder, however, in the setting of minimal EMG and MRI findings, and given his level of perceived weakness of right lower extremity, this may be part of the differential. VA treatment records dated in May 2013 revealed that the Veteran was observed to be was ambulatory with crutches. He wanted his crutches to be replaced and it was noted he had no sensations in his right leg. In June 2013, the assessment was right leg weakness without a clear neurological basis, and it was noted that his right leg weakness and back pain started after a car accident in 2005, and got better after radiofrequency ablation, but then got worse after exercise, to the point of complete weakness. The assessment was right lower extremity weakness with loss of sensations in entire lower extremity, but with plantar flexor bilaterally. In March 2014, it was noted that he ambulated well, used crutches, and wanted to start physical therapy. The assessment again included right lower extremity weakness with loss of sensations in entire lower extremity. In a March 2014 addendum, it was noted that the Veteran had been seen before and was thought to have a somatoform disorder with low back pain and loss of sensation and weakness in the lower extremities. It was also noted he had had a radiofrequency procedure and his symptoms had more or less recovered, but the physician was not sure if recovery of weakness and sensations would necessarily be related to that procedure. An August 2015 VA examination found 5/5 strength of right hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. There was no muscle atrophy. Additionally, there were normal right leg reflexes and normal right leg and foot sensation. The examiner found that there was no functional impairment of an extremity such that no effective function remains other than which would be equally well-served by an amputation with prosthesis. The Veteran argues that atrophy was not tested for and that the examination is adequate. As this appeal must be remanded to obtain private records, another examination should be provided. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to expressly include any records from Washington University Pain Management Center. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Following a review of the record and an examination of the Veteran, the examiner must opine as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's service-connected disabilities result in the loss or permanent loss of use of one 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. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN 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).