Citation Nr: A19001579 Decision Date: 09/26/19 Archive Date: 09/26/19 DOCKET NO. 190819-23496 DATE: September 26, 2019 ORDER Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile and adaptive equipment or adaptive equipment only is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes with corrected central visual acuity of 20/200 or less in the better eye or central visual acuity of more than 20/200 with a visual field defect of a degree specified by regulation, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of one or both knees or one of both hips. CONCLUSION OF LAW The criteria for establishing eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or adaptive equipment only have not been met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1953 to April 1955. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. This issue is before the Board of Veterans’ Appeals (Board) from an August 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran properly appealed the rating decision on August 19, 2019 with a Notice of Disagreement and selected the Direct Review lane. As such, the Board can only look at evidence that was part of the record at the time of the August 2019 rating decision. 1. Entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only The Veteran contends that he is entitled to financial assistance for an automobile and adaptive equipment or for adaptive equipment only due to his service-connected disabilities. He has not indicated what sort of automobile or adaptive equipment is required 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. § 3902(a)(b). Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning 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 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. In Chapter 39 of Title 38 of the U.S. Code, Congress established the program authorizing funding for automobiles and adaptive equipment for veterans with certain service-connected disabilities. 38 U.S.C. §§ 3901-04. Pursuant to the authority established in 38 U.S.C. § 3902, the Secretary promulgated 38 C.F.R. § 3.808, which reiterates the § 3901(a) requirement that entitlement to automobile and adaptive equipment is warranted for “the loss or permanent loss of use” of one or both feet or one or both hands. 38 C.F.R. § 3.808(b)(i), (ii). The regulation does not further define the phrase “loss or permanent loss of use.” Under the applicable eligibility criteria for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, found in statutory § 3901 and regulatory § 3.808, the veteran must show that they lost their foot or hand or permanently lost the use of a foot or hand as a result of service-connected disability. It is noted that “loss of use” is used in several places in the rating schedule. In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), 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. A less restrictive definition is written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing; that regulation specifies that “loss of use” was to be defined by the adjacent modifier, “such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.” See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). However, this modifier is noticeably absent from 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, and had Congress or the Secretary of VA wished for such a definition to apply to these sections, it presumably would have been included. As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean full actual loss of use of the body part(s), with any need of assistive devices being relevant to, but not dispositive of the question of whether the Veteran has permanent loss of use. The Veteran’s service-connected disabilities neither include nor involve visual impairment, burn injuries, amyotrophic lateral sclerosis, or ankylosis of one or both knees or one or both hips. Eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or adaptive equipment only is therefore unavailable on these bases. The Veteran does have service connected disabilities affecting his upper and lower extremities. The Board recognizes that the Veteran is presently in receipt of service connection for bilateral hearing loss, cold weather injury of the left hand, cold weather injury of the right hand, cold weather injury of the left foot, cold weather injury of the right foot, and tinnitus. However, the Board finds that the criteria necessary for eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment or adaptive equipment only under 38 C.F.R. § 3.808 have not been met. According to the VA treatment records and the May 2019 VA examination, the Veteran does not have loss of or loss of use of either hand or foot. VA treatment records report that the Veteran has foot pain and that he uses a cane and a rollator to walk. The Veteran also suffers from painful thickened toenails, a callus in the midfoot of his right foot, burning, numbness, and tingling of his foot, but denies any other pedal complaints. Even though the records have mentioned that the Veteran was in a wheelchair at times, in a mobility test, the Veteran was able to march in place and was able to advance step and return each foot. The treatment records also report that the Veteran suffers from carpel tunnel syndrome where he wears a splint on his right hand and is hypersensitive to even light touch. The treatment records also reported that the Veteran had decreased grip strength and suffers from peripheral neuropathy. Additionally, the records repeatedly report that the Veteran drives and there is no indication that he has trouble while driving. However, from the treatment records, there is no indication that the Veteran has lost any of his hands or his feet nor that he has loss of use of any of the upper or lower extremities. The May 2019 VA examination regarding the Veteran’s cold injury residuals also do not indicate that the Veteran has lost any of his hands or feet nor that he has loss of use of any of the upper or lower extremities. In the examination, the examiner found that the Veteran exhibited arthralgia or other pain, numbness, cold sensitivity, color changes, locally impaired sensation, and nail abnormalities in his left and right hand and his left and right foot. According to the imaging results, the Veteran has osteoarthritis in his right and left hand and right and left foot. The examiner reported that the Veteran does not use any assistive devices as a normal mode of locomotion. In the section where it asks if there is functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis, the examiner noted no. In considering the evidence of record under the relevant law and regulations, the Board finds that the claim must be denied. Eligibility for the benefit sought in this case requires a veteran to meet at least one of the specified criteria enumerated under 38 C.F.R. § 3.808. While the record indicates that the Veteran previously experienced more significant impairment of the hands with his carpel tunnel syndrome, at present, the most probative evidence of the Veteran’s current level of impairment demonstrates that he retains significant use of his hands since even though it is mentioned that he has had decreased grip, there was no indication that the Veteran could not use his hands at all and he reports that he drives. Moreover, while the Veteran did complain of foot pain and does have to use an assistive device at times, the records show that the Veteran is able to ambulate. Furthermore, the May 2019 VA examination reiterated that while the Veteran has impaired function with his hands and feet, it is not to the point where they have no effective function remaining. The Board finds the VA examination highly persuasive and thus the weight of the evidence is therefore found to demonstrate that the Veteran retains use of his feet and hands. (Continued on the next page)   Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet and does not have any of the other physical disabilities listed among the relevant criteria, he does not qualify for eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment under 38 C.F.R. § 3.808. As such, the claim must be denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.