Citation Nr: 21065733 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-53 322 DATE: October 27, 2021 ORDER Entitlement to financial assistance in purchasing an automobile or other conveyance is granted. FINDING OF FACT The Veteran's service-connected mitochondrial myopathy and peripheral neuropathy of the lower extremities result in actual loss of use of the lower extremities. CONCLUSION OF LAW The criteria for establishing eligibility for financial assistance for an automobile or other conveyance are 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 Veteran served on active duty in the United States Marine Corps from June 1967 to October 1967. Most recently, the Board remanded the case for further development in December 2020. Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or automotive 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, (5) 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. The Veteran is service-connected for several disabilities, to include mitochondrial myopathy (rated at 100 percent disabling), pelvic girdle muscle atrophy of the bilateral lower extremities, peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the sciatic nerve of the bilateral lower extremities, peripheral neuropathy of the femoral nerve of the bilateral lower extremities, peripheral neuropathy of the obturator nerve of the bilateral lower extremities, peripheral neuropathy of the cutaneous nerve of thigh of the bilateral lower extremities, peripheral neuropathy of the ilia-inguinal nerve of the bilateral lower extremities, and diabetes. The Veteran contends that his disabilities equate to the loss of use of his feet. See Notice of Disagreement (July 2015); VA Form 9 (September 2017). A February 2014 VA Muscle Injuries Disability Benefits Questionnaire (DBQ) shows that service-connected mitochondrial myopathy resulted in symptoms such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. The frequency/severity of each symptom was described as severe. The examiner noted that the Veteran was unable to do any activity, unassisted. The July 2020 VA Muscle Injuries DBQ also that the Veteran's mitochondrial myopathy resulted in the same severe symptoms. However, the report shows that the Veteran no longer had muscle atrophy and that he no longer uses any assistive devices to ambulate. VA treatment records show difficulty walking, weakness and painful walking, problems with balance, and that at times he used a wheelchair and or was encouraged to use a wheelchair. See VA treatment records (August 2015, November 2015, February 2017, June 2017, February 2020,and March 2020). These records also show that while he has a motorized scooter and wheelchair, was noted to have occasionally walked unassisted or with use his arms for balance. See VA Treatment records (August 2014 and December 2015). In December 2020, the Board acknowledged that the Veteran has several service-connected disabilities impact his lower extremities, but found that VA examination was needed to clarify the current severity of such disabilities, namely, his mitochondrial myopathy. On VA examination in February 2021, an examiner found that the Veteran's service-connected mitochondrial myopathy resulted in "pain, fatigue, and weakness cause [the Veteran] to be unable to ambulate more than small distances or move extremities for an extended period of time." The Veteran reported that he must nearly always walk with the assistance of his son or a wheelchair for support, and the examiner observed that the Veteran was unable to stand or walk without the support of his son, he fell forward and backward multiple times to be caught by his son standing by him. The examiner concluded that lower extremity function was not so diminished that amputation with prosthesis would equally serve the Veteran. This case turns on whether the Veteran's service-connected disabilities, result in loss of use of a foot. The law provides that loss of use of 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 the knee with use of a suitable prosthetic appliance. Determinations regarding loss of use will be made on the basis of the actual remaining function, such as whether acts of balance and propulsion could be accomplished equally well by an amputation stump with prothesis. 38 C.F.R. §§ 3.350 (a)(2). Loss of use of 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 the knee with use of a suitable prosthetic appliance. Determinations regarding loss of use will be made on the basis of the actual remaining function, such as whether acts of balance and propulsion could be accomplished equally well by an amputation stump with prothesis. 38 C.F.R. §§ 3.350 (a)(2). Here, the Board finds that the Veteran's service-connected mitochondrial myopathy and peripheral neuropathy of the lower extremities result in actual loss of use of the lower extremities for purposes of establishing entitlement to financial assistance in purchasing an automobile or other conveyance. Initially, the Board acknowledges the February 2021 VA examiner's opinion that the Veteran's disabilities to not diminish functioning to a level consistent with amputation and prosthesis. However, as noted above, the critical question in determining loss of use is the actual remaining function as it pertains to acts such as balance and propulsion. As to balance and propulsion, the February 2021 VA examination report highlights that the Veteran's service-connected disabilities manifest with lower extremity pain, fatigue, and weakness, which essentially dimmish the power, endurance, and balance needed for propulsion and unassisted ambulation. Indeed, the examiner observed that the Veteran was unable to stand or walk without the support of his son: falling forward and backward multiple times to be caught by his son standing by him. Despite the fact that records indicate that the Veteran has occasionally ambulated in a walker and even without assistance, the inability to ambulate without assistance, as shown in the February 2021 examination report, is consistent with prior VA examination reports, which show severe mitochondrial myopathy and issuance of a motorized scooter. In sum, while the records shows that the Veteran has occasionally demonstrated the ability to ambulate, the majority of evidence, to specifically include the most recent VA examination report, shows that he is unable to perform acts of balance and propulsion without assistance. After resolving any doubt in the Veteran's favor, the Board finds that the Veteran's service-connected mitochondrial myopathy and peripheral neuropathy of the lower extremities result in actual loss of use of the lower extremities for purposes of establishing entitlement to financial assistance in purchasing an automobile or other conveyance. Accordingly, entitlement to financial assistance in purchasing an automobile or other conveyance is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.