Citation Nr: 21067267 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-49 305 DATE: November 3, 2021 REMANDED The claim of entitlement to eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from February 1987 to July 1991. The instant matter is on appeal from a June 2018 decision. The Board previously remanded this issue in July 2020 in order to obtain updated VA treatment records. The issue has since returned for readjudication. 1. The claim of entitlement to eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is remanded. The Board sincerely regrets the additional delay, but remand is again necessary to ensure a complete evidentiary record prior to adjudication on the merits. The Veteran asserts entitlement to eligibility for financial assistance for automotive or other conveyance and adaptive equipment, or for adaptive equipment only. 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. "Loss of use" is not specifically defined under 38 C.F.R. § 3.808. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. The Court of Appeals for Veterans Claims found that a "loss of use" exists when there is "deprivation of the ability to avail oneself" of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). VA treatment records obtained pursuant to the previous Board remand reflect that the Veteran receives community care from a non-VA provider instead of primarily through the VA system. Thus, it is necessary to attempt to obtain his non-VA treatment records in order to determine the present severity of his upper extremity disabilities. Furthermore, the Veteran's representative has indicated that the most recent VA examination assessing his bilateral upper extremity radiculopathy is out of date and his symptoms may be worse than represented on the previous examination. In fact, the most recent examination occurred in October 2014 and such sought to assess the present severity of his service-connected neck disability with only secondary discussion of his radiculopathies. The Veteran has subsequently endorsed significant difficulty with using his upper extremities, as well as pain associated with operating a manual car. Thus, remand is additionally necessary in order to obtain a VA examination to assess the severity of the Veteran's service-connected upper extremity disabilities and determine whether such are so severe as to amount to loss of use of one or both hands. The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 3. Following completion of the foregoing, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected upper extremity radiculopathy. A complete copy of the claims file should be made available to the examiner, including a copy of this remand with the definitions for loss of use. The examiner should consider the Veteran's lay reports of observable symptomatology, particularly while attempting to operate his motor vehicle. The examiner should provide an assessment of the severity of the Veteran's disability throughout the period on appeal, as well as discuss whether the severity of the upper extremity radiculopathy is tantamount to loss of use of one or both hands, as discussed in detail above. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.