Citation Nr: 21066324 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-14 256A DATE: October 29, 2021 ORDER Entitlement to a certificate of eligibility for automobile or other conveyance and adaptive equipment, or adaptive equipment only, is denied. REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance/ housebound is remanded. FINDING OF FACT The Veteran's service-connected disabilities do not involve the physical loss or permanent loss of use of his hands or feet, permanent impairment of vision in both eyes to the specified degree necessary for the award of adaptive equipment, scar formation resulting from severe burn injury, or ankylosis of his knees or hips. CONCLUSION OF LAW The criteria for entitlement to a certificate of eligibility for automobile or other conveyance and adaptive equipment, or adaptive equipment only, have not been met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.808. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to February 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2015 and October 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. Automobile Adaptive Equipment Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. See 38 U.S.C. § 3902(a)(b). Eligibility for assistance to purchase a vehicle and adaptive equipment can be met 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. See 38 U.S.C. § 3901; 38 C.F.R. § 3.808. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only The Veteran seeks financial assistance to acquire a vehicle due to his service-connected disabilities and contends that he is entitled to a grant for an automobile or other conveyance and adaptive equipment or for adaptive equipment only. Unfortunately, based on a review, entitlement is not warranted. The Veteran is presently in receipt of service connection benefits for the following disabilities: depressive disorder rated at 70 percent; status post left total knee arthroplasty with tendonitis and bursitis rated at 30 percent; tendonitis and impingement of the left shoulder rated at 20 percent; tendonitis in the bilateral ankles, both rated separately at 10 percent; and noncompensable ratings for a sternum injury, scar on the forehead, and scar on the left lower extremity. His overall rating is 90 percent since April 5, 2018. Initially, the Board finds that the Veteran does not contend, and the evidence does not suggest, that he has loss of a foot, permanent loss of use of one or both hands; permanent impairment of vision of both eyes, severe burn injury or ALS Accordingly, his claim turns on whether his service-connected disabilities result in loss of use of one or both feet. See 38 C.F.R. § 3.808. 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. See 38 C.F.R. §§ 3.350(a)(2); see also Tucker v. West, 11 Vet. App. 369, 373 (1999). While the term "loss of use of a hand or foot" for entitlement to automobile financing is not defined under 38 C.F.R. § 3.808, the definition under 38 C.F.R. § 3.350(a)(2)(i), pertaining to special monthly compensation (SMC), is generally applied. See, e.g., Hoggard v. Shinseki, No. 08-2188, 2009 U.S. App. Vet. Claims LEXIS 2126 (Dec. 4, 2009) Here, the Veteran's asserted loss of use is akin to that described in Hoggard. In this regard, the evidence shows that while the Veteran uses a wheelchair scooter, he is able to ambulate short distances with a cane, despite unstable and poor balance. Notably, per the 2014 VA knee examination, his left knee had normal muscle strength and flexion and extension; normal stability; and no evidence of subluxation. The examiner noted that following his 2005 left knee replacement surgery, the Veteran had intermediate degrees of residual weakness, pain or limitation of motion, and it was noted that in the left knee he had less movement than normal, pain on movement, swelling, and deformity but ONLY the right knee had interference with sitting, standing, and weight bearing, and it is only the right knee that is fused. In this regard, in a July 2016 NOD statement, the Veteran's representative asserted that financial assistance is warranted to purchase an automobile or other conveyance because the Veteran's right knee being fused hinders him from bending or maneuvering his right leg as it remains straight at all times; therefore, he is unable to properly operate a vehicle without modifications and adaptive equipment. However, as the Veteran is not service-connected for a right knee disability, these effects cannot be considered. In any event, the examiner also ultimately opined that neither the left knee nor the right knee had a functional impairment of either extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. In the 2014 examination for the left shoulder, it was noted that the Veteran reported that he cannot get his shoulder real high without it being painful. The examiner noted that he has less movement than normal and pain on movement, though there was no additional limitation following repetitive-use testing and he did not have any guarding. His muscle strength was noted to be normal; he does not have ankylosis; and his rotator cuff tests were all normal. The examiner ultimately opined that there was NO functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis and that the shoulder condition does not impact the Veteran's ability to work. In the 2014 examination on the ankles, the examiner noted that the Veteran reported that he has braces for both ankles and is "concerned I won't be able to stand up on it." However, the examiner pointed out that the Veteran currently has no weight bearing after unrelated right knee surgery. The examination revealed there was no reduction in muscle strength, and he does not have muscle atrophy, ankylosis, or joint instability. The examiner opined that there is NO functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. It was noted he wears ankle braces. Overall, despite the Veteran's limitation, the Board does not find that they amount to loss of use of the lower extremities or the loss or permanent loss of use of one or both feet due to a service-connected disability, and the VA examiners all explicitly stated that the Veteran's disabilities do not result in no effective function remaining other than that which would be equally well served by an amputation with the use of a suitable prosthetic appliance. The Board also considered the 2021 sworn testimony from the Veteran and his wife. However, their main arguments are also based on the Veteran's right knee disability, which is not service connected, and his depressive disorder, which has no correlation with the regulations for financial assistance for an automobile. The Board therefore finds that the preponderance of the evidence demonstrates that the Veteran does not have functional impairment of the feet or left knee such that no effective function remains other than that which would be equally well served by amputation with prosthesis, and he is not shown to have extremely unfavorable ankylosis of the left knee, or complete ankylosis of two major joints of an extremity, shortening of the lower extremity of three and one-half inches or more, complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes. The Board also considered the possibility of awarding automobile equipment only. In this regard, even in cases where a veteran may have the ability to move specific joints, functional loss equivalent to ankylosis may still be established on a functional basis. Chavis v. McDonough, 34 Vet. App. 1 (2021). In this case, although the Board acknowledges the Veteran's lay reports of symptoms of inability to stand/walk for more than a few minutes, and difficulty with bending and sittingall indicative of some functional loss the Board concludes that such alleged functional loss is not consistent with that contemplated by ankylosis as to his left knee. Notably, there is no suggestion of any limited motion of the left knee comparable to any type of immobility; he was still able to perform range of motion testing. Also, to the extent that the Veteran has experienced functional loss due to disturbance of locomotion, less movement than normal, pain on movement, and interference with sitting and standing, he has not alleged functional impairment comparable to that experienced by an individual with immobility as part of the left knee symptomatology. Therefore, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. While the Board is sympathetic to the Veteran's symptoms and considered his statements, the Board, as a fact finder, is able to attain from the evidence that he unfortunately does not meet the regulations required. The Board thus finds that a grant for automobile or other conveyance and adaptive equipment or adaptive equipment only is not warranted, and the claim is denied. 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. REASONS FOR REMAND Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound. As for the claim for entitlement to SMC based on aid and attendance/housebound, although the Board sincerely regrets the delay, a remand is necessary. First, as noted above, the Veteran's appeal for SMC requires a remand as VA medical evidence was obtained and associated with the claims file after the SOC and no SSOC was filed before the claim was certified to the Board in October 2019. Accordingly, the appropriate Board action is to remand the Veteran's claims to the RO for issuance of an SSOC. See 38 C.F.R. § 19.37(b)(1). Specifically, the Veteran was afforded a VA examination for his depressive disorder in March 2018, subsequent to the January 2018 SOC and prior to the case being transferred to the Board. The Board notes that based on the 2018 VA examination, the Veteran was granted service connection for depressive disorder due to chronic pain with an evaluation of 70 percent disabling. As this evidence is relevant to the Veteran's claim as to SMC for aid and attendance, a remand is required. Further, the Board notes that during the 2021 Board hearing, the Veteran testified that he is seeking SMC based on his need for aid and attendance for both his psychiatric and physical conditions (emphasis added). The matter is REMANDED for the following action: 1. Obtain VA medical records from November 2015 to the present and associate the records with the claims file. 2. Thereafter, in view of the Veteran's updated disability picture, readjudicate the issue of entitlement to special monthly compensation based on the need for the aid and attendance of another or, in the alternative on the basis of being housebound The RO should undertake any additional development deemed necessary, including any VA examinations. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Hoy, Associate Counsel