Citation Nr: 20045334 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 19-18 132 DATE: July 8, 2020 ORDER Entitlement to automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not result in a loss or loss of use of a hand or foot; permanent impairment of vision of both eyes; a severe burn injury; amyotrophic lateral sclerosis; or ankylosis of a knee or hip. CONCLUSION OF LAW The criteria for entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only have not been met. 38 U.S.C. §§ 3901, 3902, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.808 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Army from October 1968 to May 1970. The Veteran is a Vietnam Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board has considered the Veteran’s claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran is claiming entitlement to financial assistance in acquiring an automobile and adaptive equipment or for adaptive equipment only because he would like modifications due to his limitation of mobility. Specifically, the Veteran states that he needs a van that is capable of accommodating his wheelchair. See Notice of Disagreement, dated June 2015. 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. Several of the criteria for entitlement to assistance in acquiring an automobile or other conveyance and adaptive equipment, or to adaptive equipment only, are not applicable in this case. Specifically, the Veteran is not service connected for a disability affecting either upper extremity, either knee or hip, a burn injury, amyotrophic lateral sclerosis, or a visual deficit. The only potentially applicable criteria for entitlement are his alleged permanent loss of use of one or both feet, as the Veteran is service connected for peripheral neuropathy of bilateral lower extremities, with foot neuralgia. See 38 C.F.R. § 3.808; see also Rating Decision Codesheet, dated May 2015. With regard to loss or permanent loss of use of one or both feet, the term “permanent loss of use” is not defined under 38 C.F.R. § 3.808 for automobile and adaptive equipment. However, under other relevant VA regulations, “loss of use of a hand or foot” is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or 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 grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. A less restrictive definition is written into 38 C.F.R. § 3.809 regarding specially adapted housing; that regulation specifies that “loss of use” was 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 C.F.R. § 3.808, and had VA wished for such a definition to apply to 3.809, it presumably would have been stated. As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of use, loss of effective function. The evidence is against finding that the Veteran has lost use of one or both feet, as defined in the relevant regulation. The record shows that he has diminished function in bilateral lower extremities, insofar as he has decreased strength and slow gait over short distances requiring utilization of an assistive device. See VA Treatment Records, dated October 2017, December 2014, October 2014, June 2014. But he maintains the to transfer with stand by assist, utilizing his bilateral legs for much of the transfer, and strength of 3+ out of five to 4+ out of five in his lower extremities. See VA Treatment Records, dated October 2017, June 2014. While the Veteran requires a wheelchair for long distances, the Veteran is able to ambulate for short distances with an assistive device, and professionals have encouraged him to do so. See VA Form 9, dated June 2019; Report of General Information, dated April 2019; VA Treatment Records, dated December 2014, October 2014. The record is void for evidence that his lower extremity function is so severe that it would be equally well served by amputation of the lower extremities and use of prosthetic appliances in place of actual feet. As such, he would not be equally served by amputation of his uses and use of a suitable prosthetic appliance, and he is not considered have a loss of use of one or both feet due to service-connected disability. The Board has considered the Veteran’s statements that he has very limited walking and the medical evidence that he has submitted of a 2018 hospitalization, which he asserts resulted in further diminished mobility. See VA Form 9, dated June 2019; Private Medical Records, dated January 2018. While the Board is sympathetic to the Veteran’s physical limitations, both the Veteran’s statements and the hospitalization records support that the Veteran is ambulatory with a walker and, therefore, is against a finding that he has lost function of one or both feet. 38 C.F.R. § 3.808; see VA Form 9, dated June 2019; Private Medical Records, dated January 2018. The Board has also considered the Veteran’s assertions that his respiratory status and recent kidney failure limit his mobility. See VA Form 9, dated June 2019. While the Board does not have reason to doubt the credibility of the Veteran in his decreased mobility, the Veteran is not service connected for a respiratory disability or a kidney disability and, as such, they may not be considered in functional limitations. Moreover, decreased endurance is not a reason by which a Veteran may receive a vehicular modification. 38 C.F.R. § 3.808. The Board has considered that the Veteran stated that his kidney disability was caused by exposure to herbicide agents. See VA Form 9, dated June 2019. This issue, however, has not been decided by the Agency of Original Jurisdiction (AOJ), and, as such, the Board may not infer service connection, and has no jurisdiction to make such an award. The Board has also considered the Veteran’s pictures noting that his hands have numerous apparent deformities. See VA Form 9, dated June 2019. The Veteran, however, is not service connected for either upper extremity disabilities. As such, any loss of use of the upper extremity may not be utilized for an award of vehicular modification. 38 C.F.R. § 3.808. In summary, the weight of the competent and credible (therefore probative) evidence of record preponderates against finding that the Veteran’s service-connected disabilities meet any of the criteria under 38 C.F.R. § 3.808. Thus, his claim for an automobile and adaptive equipment or adaptive equipment only is denied. (Continued on the next page)   The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.