Citation Nr: 21001593 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 08-10 215 DATE: January 11, 2021 ORDER Eligibility for financial assistance in the purchase of one automobile or other conveyance and adaptive equipment, or automobile adaptive equipment only is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, left knee is remanded. Entitlement to a disability rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, right knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 19, 2019 is remanded. 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 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 automobile adaptive equipment only are not 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 appellant is a veteran who served on active duty from August 1970 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015 and January 2017, the Veteran presented testimony at video conference hearings before the undersigned Veterans Law Judge. Transcripts of those hearings are of record. The Board most recently remanded these matters for additional development in June 2018. A number of other claims were previously on appeal before the Board under the legacy system, but have since been opted into the modernized review system, also known as the Appeals Modernization Act (AMA). In July 2020, the Agency of Original Jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) addressing the issues listed above as well as the issues of entitlement to service connection for left and right carpal tunnel syndrome, left and right wrist disabilities other than carpal tunnel syndrome, peripheral neuropathy of the left and right upper extremity, obstructive sleep apnea, asthma/COPD, bilateral elbow disability, and peripheral vascular disease of the bilateral lower extremities, and entitlement to a TDIU prior to June 19, 2019. [A total combined schedular rating has been assigned since prior to June 19, 2019.] The Veteran opted the claims for service connection and a TDIU into the modernized review system by submitting a July 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the July 2020 SSOC. He specified disagreement, in relevant part, with all denials of service connection on appeal as well as the denial of an earlier effective date for a total combined schedular disability rating. The Board recognizes that the Veteran subsequently submitted correspondence in September 2020 expressing a desire to continue these appeals under the legacy system. However, there is presently no mechanism for opting back into legacy once a Veteran has opted into AMA. The Veteran clearly identified the July 2020 SSOC decision and the issues as explained above as the subject of the NOD. The July 2020 VA Form 10182 represents a valid opt-in to the AMA. While the Veteran expressed concern that moving these appeals under the AMA would erase past medical documentation and preclude the possibility of years of retroactive pay, the Board notes that his election of the Direct Review option would not change consideration of previously-submitted evidence and examinations or the assignment of any applicable effective dates if entitlement to service-connection is established, but would only limit consideration of any additional evidence submitted after July 2020. As the July 2020 VA Form 10182 did not include reference to the Veteran’s claims concerning entitlement to increased ratings for his service-connected knee disabilities and eligibility for financial automobile and automobile adaptive equipment benefits, they will continue to be adjudicated under the legacy system. To the extent that the Veteran has asserted that his orthopedic disabilities, to include his service-connected knee disabilities have rendered him unable to maintain gainful employment, the issue of entitlement to a TDIU raised as part and parcel with the Veteran’s claim for increased ratings for his bilateral knee disabilities will continue to be considered under the legacy system. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Eligibility for financial assistance in the purchase of one automobile or other conveyance and adaptive equipment or automobile adaptive equipment only is denied. Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or automobile adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for financial assistance in the purchase of a vehicle or other conveyance 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 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 appellant 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 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). 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 actual loss of functional 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. In relevant part, the Veteran is presently in receipt of VA service connection benefits for the following disabilities: chronic renal insufficiency with mild edema; bilateral pes planus; arthritis lumbar spine with left radiculopathy; mild right lower extremity peripheral neuropathy, sciatic nerve; mild left lower peripheral neuropathy, sciatic nerve; mild right lower peripheral neuropathy, femoral nerve; mild left lower peripheral neuropathy, femoral nerve; arthritis residuals right foot/ankle injury; arthritis residuals left foot/ankle injury; arthritis lumbar spine, both feet, and ankles; severe chondromalacia patella and residuals of patellar tendon rupture, left and right knee; hallux valgus, left and right foot; and allergic conjunctivitis. The Veteran has not been granted service connection benefits for disabilities involving burn injuries or amyotrophic lateral sclerosis, and there are not presently any pending claims or appeals relating to such disorders. He has also not asserted, and the evidence of record does not otherwise demonstrate, that his service-connected lower extremity disabilities result in fixation of the joint/ankylosis of his knees or hips. Eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment is therefore unavailable on these bases. The Veteran was granted service connection for allergic conjunctivitis, which is an eye disability, in a July 2015 Board decision. However, the evidence of record does not demonstrate that this disability meets the eligibility criteria for automobile benefits. A January 2020 VA ophthalmology treatment record notes that the Veteran had no vision or eye complaints at the time of his annual examination, and that the Veteran demonstrated corrected visual acuity of 20/20 in the right eye and 20/25 in the left eye. The Veteran thus does not have permanent impairment of vision of both eyes with 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. The Board also finds that the Veteran’s service-connected disabilities do not result in such a severe degree of functional impairment as to approximate “loss of use” of a foot or hand. At a July 2019 VA examination concerning diabetic sensory-motor peripheral neuropathy, the Veteran reported burning and tingling in his lower extremities that comes and goes. The contemporaneous physical examination showed that he had normal (5/5) strength for bilateral elbow flexion and extension, wrist flexion and extension, grip, and pinch, and less than normal (4/5) strength for bilateral knee flexion and ankle plantar flexion and dorsiflexion. Left knee and ankle reflexes were decreased as were position sense and vibration and cold sensation. The examiner concluded that the lower extremity sensory neuropathy was moderate, and noted that it results in the Veteran having difficulty standing and walking for extended periods of time. Similarly, at April 2019 VA examinations pertaining to the knees, arteries and veins, elbows, and wrists, the examiner opined that such disabilities did not result in such functional impairment of an extremity that no effective function remains other than that which would be equally well served by amputation with prosthesis. VA treatment records also show that the Veteran retains significant use of his feet. For example, an August 2020 VA home telehealth note specifies that the Veteran reported increasing daily activities and walking 3-4 days a week, and a July 2020 pharmacy telephone record indicates that the Veteran reported exercise consisting of walking for 20 minutes about 4 days per week. While VA and private treatment records during the appeal period indicate that the Veteran at times uses assistive devices including knee braces and a cane, the Veteran has not described such impairment as would indicate that he has essentially lost functional use of his feet. The Veteran likely suffers from gait abnormality as a result of his service-connected lower extremity disabilities. However, a preponderance of the evidence is found to demonstrate that he retains the ability to walk and make use of his foot. The Board recognizes that appeals concerning denials of service connection for disabilities of the upper and lower extremities remain pending under the AMA system. However, even assuming that all such claims were granted, which is by no means conceded or acknowledged in this decision, the evidence of record does not demonstrate that the Veteran has been rendered unable to use one or more of his hands or feet. The outcome of the claims for service connection for disabilities of the upper and lower extremities would not impact the present claim. Therefore, the weight of the evidence is against a finding that the Veteran has permanent loss of use of a foot or hand due to service-connected disability. Eligibility for the benefit sought in this case requires the Veteran to meet at least one of the six criteria enumerated under 38 C.F.R. § 3.808. 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, does not have ankylosis of his knees or hips, 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/or adaptive equipment under 38 C.F.R. § 3.808. As such, the claim must be denied. (REMAND NEXT PAGE)   REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, left knee is remanded. 2. Entitlement to a disability rating in excess of 10 percent for severe chondromalacia patella and residuals of patellar tendon rupture, right knee is remanded. Pursuant to the Board’s June 2018 remand directive, the Veteran was provided with a VA examination to assess the current severity and manifestations of his left and right knee disabilities in April 2019. The Veteran reported flare-ups of knee symptoms, described as severe debilitating pain at the medial aspect of the knee, rendering him unable to walk. Later in the examination report, the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups, but then also checked the box indicating that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with flare-ups. The Board finds the examination report to be internally inconsistent, and therefore inadequate for adjudicatory purposes. On remand, the Veteran should be provided with an additional VA examination of his knees which complies with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017); if the Veteran is not experiencing a flare-up at the time of the examination, the examiner should interview the Veteran in detail to gather information concerning his flare-ups, such as the frequency, duration, characteristics, severity, and description of functional loss, and use this information to provide an estimate of approximate limitation of motion of the knees during a flare-up of symptoms. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to June 19, 2019, is remanded. Because a decision on the remanded issues of entitlement to increased disability ratings for service-connected left and right knee disabilities could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the latter claim is therefore also needed. While these matters are in remand status, the AOJ should take action to ensure all updated VA treatment records are associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 2. After associating all responsive records with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected “severe chondromalacia patella and residuals of patellar tendon rupture,” left and right knee. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and when the joint is used repeatedly over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the impairment expected during flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide an estimate in terms of degrees of motion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A clear rationale must be provided for any opinion stated. 3. After completing the above, and conducting any further development deemed necessary in light of the expanded record, readjudicate the Veteran’s claims for disability ratings in excess of 10 percent each for service-connected severe chondromalacia patella and residuals of patellar tendon rupture, left and right knee, and a TDIU prior to June 19, 2019. If the benefits sought are not granted to the Veteran’s satisfaction, issue the Veteran and his representative a SSOC and allow them an opportunity to respond before returning the appeal to the Board. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.