Citation Nr: 21002479 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-10 585 DATE: January 13, 2021 ORDER Entitlement to service connection for loss of use of the lower extremities, to include as secondary to service-connected disabilities is denied. Entitlement to automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is denied. FINDINGS OF FACT 1. The Veteran does not currently have a disability so severe as to render him without use of his lower extremities. 2. 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. CONCLUSIONS OF LAW 1. The criteria for service connection for loss of use of bilateral lower extremities, to include as secondary to service his service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.350, 4.124a, 4.63. 2. 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; 38 C.F.R. §§ 3.102, 3.159, 3.808. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the May 1968 to May 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his son testified at a videoconference hearing before a Veterans Law Judge (VLJ), other than the undersigned, in April 2019. A transcript of the hearing is associated with the claims file. The presiding VLJ is no longer employed by the Board. In October 2020, the Veteran was provided a letter notifying him of the presiding VLJ’s status and affording him 30 days to respond and request a new hearing, or the Board would proceed in deciding the claim based upon the evidence of record. No response was received within the requisite 30 days, so the Board will render its decision based upon the evidence already of record. This case was previously before the Board in January 2020. In January 2020, the case was remanded to obtain outstanding VA treatment records, obtain a VA examination concerning the etiology of any loss of use of the lower extremities, and issue a supplemental statement of the case (SSOC) if the readjudication from the RO remained unfavorable. Updated and outstanding VA treatment records were obtained, a VA examination was conducted in January 2020, and an SSOC was issued to the Veteran at his address of record in August 2020. Based upon the foregoing, the Board finds that the directives of the prior remand have been substantially complied with. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 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). 1. Entitlement to compensation for loss of use of the lower extremities. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran can also receive compensation via secondary service connection. Service connection may be secondarily established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be awarded secondary service connection, evidence must be sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Loss of use of a lower extremity is generally held to exist when no effective function remains other than that which would be equally well served by an amputation below the knee with use of a suitable prosthetic appliance. The determination will be made based on the actual remaining function of the lower extremity, and whether the acts of balance and propulsion, etc., and could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Examples constituting loss of use of a foot include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of three and one-half inches or more. Also considered as loss of use of a lower extremity is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Id. Another presentation considered as loss of use of a foot under section 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Under 38 C.F.R. § 4.124a, Diagnostic Code 8521, complete paralysis of the external popliteal (common peroneal) nerve also encompasses foot drop and slight drop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. The Board has considered the evidence of record and finds that a preponderance of the evidence is against finding that the Veteran demonstrates loss of use of his lower extremities. Specifically, the January 2020 VA examiner found that the Veteran did not have a foot disability so significant as to render him equally well served by an amputation with a prosthesis. This finding is consistent with the Veteran’s reports to the examiner that he utilized a walker and wheelchair with minimal help. While the Veteran did state that he required the use of walker to ambulate, the fact that he is able to ambulate with both lower extremities, even if the right is stronger than the left, demonstrates that he is able to use both of his lower extremities and is not equally well served with an amputation and prosthetic device. The Board notes that the functional report and assessment in the January 2020 examination are consistent with the evidence of record, which shows that the Veteran is able to utilize his lower extremities for transfers, with minimal assistance, and ambulate within the household with use of a walker. See VA Treatment Record, dated April 2019, March 2017, November 2016, June 2016. Moreover, there is no evidence that the Veteran has either ankylosis of any lower extremity joint, nor complete paralysis of any nerve in the lower extremity. To the contrary, the Veteran demonstrates ambulation and transfers, and addressed above, and the Veteran has demonstrated measurable strength in bilateral lower extremities. See VA Treatment Record, dated May 2015. The Board has considered the Veteran’s testimony that his left lower extremity is weakened and has significantly decreased function since his stroke in 2012. The Board does not doubt the credibility of the Veteran in his assessment that his left lower extremity is less functional, nor his statement that he is less independent than prior to his stroke. To the contrary, these statements are supported by the evidence of record. These statements, however, do not support the contention that he has lost the use of his lower extremities, which is the claim before the Board. As there is not evidence that the Veteran would be equally well served by equally well by an amputation stump with prosthesis, the preponderance of the evidence is against a finding that the Veteran has loss of use of his lower extremities. 38 C.F.R. § 4.63. Given the record before it, the Board finds that the preponderance of the evidence is against a finding that the Veteran has loss of use of his lower extremities as a result of his service connected disabilities. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to automobile or other conveyance and adaptive equipment, or for adaptive equipment only, 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 loss of use of lower extremities as due to his service-connected cerebrovascular accident. See Application, dated August 2012. 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, or amyotrophic lateral sclerosis. The only potentially applicable criteria for entitlements are his alleged permanent loss of use of one or both feet, as the Veteran is service-connected for peripheral vascular disease of bilateral lower extremities and an embolic stroke, and visual defect, as the Veteran is service-connected for bilateral proliferative diabetic retinopathy. See 38 C.F.R. § 3.808; see also Rating Decision Codesheet, dated May 2015. With regard to the visual defect, the Veteran has central acuity of 20/30 in the right eye and 20/70 in the left eye. See VA Treatment Records, dated March 2020. The Veteran does not demonstrate any contraction of the peripheral field in either eye. Id. As such, the Veteran’s service-connected diabetic retinopathy does not render the Veteran’s visual limitations so severe as to meet the criteria for 38 C.F.R. § 3.808 for automobile and adaptive equipment. 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, as outlined above, 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 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 significantly diminished function in his left lower extremity, insofar as he has decreased gait tolerance, requires a walker for household distances, and uses a wheelchair for community ambulation. See VA Examination, dated January 2020; VA Treatment Records, dated January 2020, November 2019, June 2019, October 2015; Hearing Testimony, dated April 2019. The Veteran testified that he had been independent prior to his stroke and stated that this decreased mobility coincided with his stroke in 2012. See Hearing Testimony, dated April 2019; VA Form 9 Statement, dated March 2016. He maintains the ability to ambulate with a walker, however, the ability to stand with independence to modified independence, and strength of five out of five in his lower extremities. See VA Treatment Records, dated January 2020, May 2015; Hearing Transcript, dated April 2019. While the Veteran requires a wheelchair for community mobility distances, the Veteran is able to ambulate for short distances with an assistive device. See Hearing Transcript, dated April 2019. 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 that he primarily utilizes his right leg for weight bearing during ambulation. Id. 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. 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. CHRISTOPHER A. WENDELL Acting 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.