Citation Nr: 21062014 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-27 725 DATE: October 6, 2021 ORDER Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only, is denied. FINDINGS OF FACT 1. 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 of a severity specified by regulation, severe burn injury, or amyotrophic lateral sclerosis. 2. The Veteran does not have ankylosis of one or both knees or hips. CONCLUSION OF LAW The criteria are not met for establishing eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment. 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 FINDINGS AND CONCLUSION The Veteran served on active duty for training in the United States Army National Guard from May 2004 to May 2005, with additional Army active service from June 2005 to October 2005 and from November 2005 to October 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision. The Veteran requested a personal hearing before the Board in the substantive appeal he submitted in June 2016. After numerous requested postponements, the Veteran was most recently scheduled for a hearing before a Veterans Law Judge in July 2021. However, he then failed to appear for the scheduled hearing and no request for postponement was received. Therefore, the case is treated as though the request for a hearing has been withdrawn and the Board will now proceed with adjudication of this appeal. See 38 C.F.R. § 20.704(d). Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only, is denied. The Veteran has stated that he previously drove a truck but had to give it up because he could no longer afford it and now drives a different vehicle, which he believes is more difficult to enter and exit than a truck would be, and he seeks a grant for automobile and adaptive equipment benefits on this basis. See Veteran's statement, July 2015. In the same statement, the Veteran indicated that he believed he qualified for the requested benefit based on ankylosis of at least one knee. Id. Financial assistance in acquiring an automobile or other conveyance and adaptive equipment is available only 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; or (5) amyotrophic lateral sclerosis. The applicable regulation does not further define the phrase "loss or permanent loss of use." Under the eligibility criteria found in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, the appellant must show that he or she had anatomical loss of a foot or hand, or permanently lost the use of a foot or hand due to service-connected disability. The Board notes that the term "loss of use" is used in several places in various statutes and regulations describing disability ratings by VA. 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). 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 the legal requirements for automobile and adaptive equipment benefits, 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 experiences a permanent loss of use. To establish eligibility for financial assistance for the purchase of automobile adaptive equipment only, ankylosis of one or both knees or one or both hips is required. 38 C.F.R. § 3.808. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007). In this case, service connection is in effect for the following disabilities: major depressive disorder with anxious distress, right and left knee total arthroplasty, intervertebral disc syndrome, cervical strain, multiple surgical scars, a heart murmur, and hypertension. The Veteran has been in receipt of a total, 100 percent, disability rating since February 2014, prior to filing of the instant appeal. However, considering the relevant evidence in its entirety, the Board finds that the Veteran's service-connected disabilities do not result in such a severe degree of functional impairment as to approximate "permanent loss of use" of at least one foot, or ankylosis of either knee. Instead, a September 2015 VA examination of the Veteran's knees and lower legs explicitly found that there was no ankylosis (bony fixation of the joint) in either knee. In other words, some range of motion, although limited to varying degrees, continued to be exhibited in each knee. Although the Veteran is described as unable to walk without assistance, and having falls, difficulty sitting, or getting up and down from a chair, the Veteran described flare-ups of his condition saying, "If I try to help around the house or go up and down stairs a couple of times, my knees will swell up, I have to lie down on the couch. Pain medication won't touch it." VA examination, September 2015. While the Board acknowledges the severity described by the Veteran, it does not equate to a permanent loss of use of one or both feet because the Veteran, although limited by pain and other symptoms, retains some regular use of the feet in the activities he describes. Then, records from the Social Security Administration in June 2016 state that the Veteran could walk 30 yards before needing to stop and rest, although he listed crutches, cane, brace, wheelchair, and compression sleeves as assistive devices he might use. The medical examiner for Social Security found the Veteran to have a residual capacity to stand and/or walk for a total of about 6 hours in an 8-hour workday. In January 2018, the Veteran reported for another VA examination of his knees and lower legs. At that time, while severe bilateral knee pain continued, the examiner again confirmed no ankylosis was present in either knee. Although the Veteran was unable to walk more than 200 feet without pain and could not stand for longer than 20 minutes at a time, the Board does not find this to equate to loss of use of the feet because the Veteran was able to walk up to 200 feet and stand for up to 20 minutes. Furthermore, the Veteran was noted to provide sub-optimal effort during the range of motion examination, and although he reported severe right leg and foot weakness, he had bilateral lower extremity musculature that was well defined without weakness. The Veteran was also observed to walk to his vehicle, remove his knee brace, and enter the vehicle without difficulty. In all, a preponderance of the evidence is found to demonstrate that while the Veteran suffers from pain and functional impairment from his service-connected bilateral lower extremity disabilities, he retains the ability to walk and make use of his feet, even if assisted by various devices. Therefore, the weight of the evidence is against finding that the Veteran has permanent loss of use of a foot due to service-connected disability, and there is no ankylosis of either knee. (Continued on the next page) In so finding, the Board recognizes that the Veteran suffers impairment due to his service-connected bilateral lower extremity disabilities that could potentially benefit from automobile adaptive equipment in some form. However, eligibility for this benefit is determined by the existing law and regulations that require the Veteran to meet at least one of the six criteria enumerated under 38 C.F.R. § 3.808. The claim cannot be granted based upon need or usefulness alone, without meeting the underlying eligibility criteria. 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 as eligible for financial assistance in the purchase of an automobile or other conveyance with adaptive equipment, or for adaptive equipment only, under 38 C.F.R. § 3.808. As such, the appeal must be denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.