Citation Nr: 20020113 Decision Date: 03/18/20 Archive Date: 03/18/20 DOCKET NO. 18-51 536 DATE: March 18, 2020 ORDER Eligibility for financial assistance for an automobile and adaptive equipment is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Veteran’s right and left lower extremity progressive axonal sensorimotor neuropathy results in loss of use of both feet for the purpose of eligibility for a grant for an automobile and adaptive equipment. CONCLUSION OF LAW The criteria for establishing eligibility for a grant for an automobile and adaptive equipment have been met. 38 U.S.C. §§ 3901, 3902; 38 C.F.R. § 3.808. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1964 to June 1993, including service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran has applied for financial assistance for an automobile and adaptive equipment. At an October 2019 Board hearing, the Veteran testified that he had no effective function left in his feet, that he had trouble getting up from his chair and standing, that he had experienced frequent falls, and that his legs and hips were very weak and had numbness. Financial assistance may be provided to an “eligible person” in acquiring an automobile or other vehicle 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. “Loss of use” is not specifically defined under 38 C.F.R. § 3.808. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. In claims for specially adapted housing based on loss of use of a lower extremity, consideration is to be given to whether the Veteran’s loss of use precludes locomotion without the aid of assistive devices. The term “preclude locomotion” means the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). The United States Court of Appeals for Veterans Claims found that a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be considered when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). In this case, the Board has reviewed all of the evidence and, affording the Veteran the benefit of the doubt, finds that he has loss of use of the right and left feet, and he is eligible for a grant for an automobile with adaptive equipment. The Veteran’s neurologist R.B-S. submitted a Disability Benefits Questionnaire and written evaluation in January 2020. She wrote that the Veteran had progressive axonal sensorimotor neuropathy which resulted in severe intermittent pain, severe paresthesia/dysesthesia, and severe numbness. The Veteran had reduced strength and absent sensation in the feet and toes. She wrote that the Veteran’s pain was debilitating and that weakness in his hips and legs made it unsafe for him to operate a motor vehicle. She wrote that the Veteran always used a walker, cane, or wheelchair to get around, and found that function in his lower extremities was so diminished that amputation with prosthesis would equally serve the Veteran. She explained that the functioning of his legs, ankles, and feet had deteriorated to the point that he could not stand or walk without mechanical assistance, and that modern prosthesis could solve his problem, giving him stability while standing and walking. The Veteran’s VA treatment records are relatively consistent with the findings of the private neurologist, as they show frequent reports of the Veteran having poor and limited ability to ambulate or that he was able to walk only short distances with a walker. While this may suggest that the Veteran had some ability to avail himself of his lower extremities, the Board accepts that the January 2020 evaluation is the most recent and thorough evaluation that has been conducted, and it is afforded great probative weight in deciding the claim. While the August 2017 VA examination did not find that function was so diminished that the Veteran would be equally served with amputation and prosthesis, the Board notes that this examination is over two years older than the January 2020 evaluation, and even affording it some probative weight, the evidence is still at least in equipoise regarding whether the Veteran has loss of use of his feet. In sum, after considering all relevant evidence, and resolving all doubt in favor of the Veteran, the Board finds that the evidence of record shows that he has loss of use of both feet due to service-connected disabilities. Thus, eligibility for financial assistance for an automobile and adaptive equipment is granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.