Citation Nr: 1751052 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-60 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to automobile and adaptive equipment or for adaptive equipment only REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1960 to April 1967, and from May 1971 to May 1973. This matter is on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2017, the Veteran testified at a hearing before the undersigned Veteran's Law Judge. A transcript of the hearing is associated with the record. This appeal is comprised entirely of documents contained in the Legacy Content Manager paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service connected lower extremity disabilities are functionally equivalent to the loss of use of both feet. CONCLUSION OF LAW The criteria for entitlement to automobile and adaptive equipment or for adaptive equipment only have been met. 38 U.S.C.A. § § 3901, 3902 (West 2014); 38 C.F.R. § 3.808 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to Automobile and Adaptive Equipment or Adaptive Equipment Only The Veteran contends that he is entitled to eligibility for the purchase of automobile and/or adaptive equipment due to his service-connected disabilities. Financial assistance may be provided to an eligible person in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C.A. § 3902 (a), (b) (West 2014). Under VA regulations, an "eligible person" is a veteran who is in receipt of compensation for disability 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 the permanent impairment of vision of both eyes. 38 C.F.R. § 3.808 (b)(1)-(3) (2016). The term "permanent loss of use" is not defined in 38 C.F.R. § 3.808. However, 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) (2016). Examples given in this regulation 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. If a veteran does not qualify as an "eligible person," the criteria for adaptive equipment may still be met if he or she is entitled to VA compensation for ankylosis of one or both knees or of one or both hips. 38 U.S.C.A. § 3902 (b)(2) (West 2014), 38 C.F.R. § 3.808 (b)(5) (2016). Ankylosis is complete immobility of a joint in a fixed position, either favorable or unfavorable. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). In this case, the Veteran is service-connected for peripheral neuropathy of the left and right lower extremities, per a May 2016 rating decision. The Board finds that the Veteran's disability is equivalent to the loss of use of both feet. See 38 C.F.R. § 3.350 (a)(2) (2016). In the Veteran's April 2016 Disability Benefits Questionnaire, the examiner noted that the Veteran has severe neuropathy and cannot safely use foot pedals while driving, needing to use hand controls instead. Further, a note from his physician dated October 2016 certifies that the Veteran needs hand controls to safely operate his car due to peripheral neuropathy. During his July 2017 hearing, the Veteran testified that he had no feeling in his right or left leg or foot. The numbness is so severe that he has to look at his feet to see if he is wearing shoes. Moreover, the Veteran's testimony indicates the possibility that his lack of sensation could cause him to accelerate his vehicle faster than he intends. Finally, the Veteran expressed concern that because he cannot feel whether he's wearing shoes, a shoe may slip off and become caught under the brake pedal, resulting in the inability to safely stop his vehicle. As such, the Veteran cannot use his feet to operate his vehicle. The Veteran testified that he does not put much mileage on his vehicle, and that he is capable of using the brake pedals to operate his vehicle. However, the Board finds that the medical and lay evidence indicating that the Veteran cannot use his lower extremities to safely drive warrants a grant of the benefit sought. The Board finds that the evidence satisfactorily shows that each of the Veteran's foot disabilities is severe enough to equate to loss of use. Entitlement to financial assistance in the purchase of automobile and adaptive equipment, or adaptive equipment only, is granted. VCAA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). The full award of benefits sought on appeal for this issue is being granted at this time. Consequently, any further discussion respecting the VCAA is not necessary. ORDER Entitlement to automobile and adaptive equipment or adaptive equipment only is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs