Citation Nr: 21076322 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-33 444 DATE: December 23, 2021 REMANDED Entitlement to service connection for loss of use of the bilateral lower extremities, to include as due to service-connected anorexia nervosa, and to include as due to service-connected plantar fasciitis with bunions of the bilateral feet, is remanded. Eligibility for assistance in acquiring specially adapted housing is remanded. Eligibility for a special home adaptation grant is remanded. Eligibility for assistance in the purchase of an automobile or other conveyance and adaptive equipment or adaptive equipment is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1987 to January 1997. The Board remanded this matter in April 2020 to allow the Agency of Original Jurisdiction (AOJ) to issue a supplemental statement of the case (SSOC). As an SSOC was issued October 2020, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268. However, a review of the record shows that an additional remand is required. First, it is unclear as to whether there is a loss of use of the Veteran's bilateral lower extremities. The record illustrates that the Veteran has consistently reported pain and sought treatment for her feet. The record also shows that she uses ambulatory devices such as a cane, walker, wheelchair, and knee brace, at least in part due to her bilateral lower extremities. VA treatment records dated August 2014 reflect decreased strength in all four extremities, some loss of use of the left foot after in service surgery, a history of falls likely due to severe deconditioning secondary to anorexia, and chronic ankle pain and recurrent falls. Despite, the aforementioned there is no probative medical opinion of record regarding whether the Veteran has loss of use of her bilateral lower extremities. Second, if it is shown that the Veteran has loss of use of her bilateral lower extremities, it is not clear as to whether this loss is due to her service-connected anorexia, service-connected plantar fasciitis with bunions of the bilateral feet, or whether it is due to a distinct, separate disability not yet service connected. Additionally, the Board acknowledges receipt of the Brief dated October 2021 and agrees with the Veteran's representative to the extent that the September 2020 VA Foot Conditions Disability Benefits Questionnaire (DBQ) is not adequate. Specifically, the VA examiner concluded that there was no diagnosis related to the feet. The medical records in evidence and the fact that the Veteran is service connected for plantar fasciitis with bunions of the bilateral feet, directly contradicts the VA examiner's conclusions. Also, the issue before the Board includes the bilateral lower extremities and is not limited to the feet. The Veteran contends that she has loss of use of her bilateral lower extremities as a result of her service-connected anorexia or as a result of the in-service surgery to her left foot. An opinion regarding whether the Veteran's service-connected disabilities have resulted in the loss of use of her lower extremities would assist in her claim. Regarding the remaining issues on appeal the Board finds that they are inextricably intertwined with service connection claim on appeal. As the matter is being remanded the Board finds that additional development would be helpful in regard to the specially adapted housing (SAH) claim, the special home adaptation grant (SHA) claim, and the automobile/adaptive equipment or adaptive equipment claim. As the matters are being remanded the Board will request medical opinions as to whether there is loss or loss of use of both upper extremities or loss of use of both of her lower extremities as contemplated by 38 C.F.R. § 3.809 for SAH and SHA claims. Additionally, of note, during the pendency of the appeal, the criteria for evaluating specially adapted housing (SAH) and special home adaptation grant (SHA) claims were revised, effective November 8, 2021. See Federal Register Volume 86, Number 193. As such, on remand the Board will request that the Veteran be provided with updated VCAA notice. The determinative issue in the eligibility for financial assistance in the purchase of an automobile or other conveyance is whether the Veteran's service-connected disabilities cause "loss or permanent loss of use of one or both feet" for purposes of entitlement to automobile and /or adapted equipment. Unfortunately, the 38 C.F.R. §§ 3.808 regulation does not further define the phrase "loss or permanent loss of use," and the Court has not yet provided caselaw to define what" loss or permanent loss of use" means in the context of automobile and adaptive equipment, or for adaptive equipment only claims. Therefore, on remand the Board will request opinions from the examiner that can assist in determining whether the Veteran's service-connected disabilities of the bilateral lower extremities equates to" loss or permanent loss of use of one or both feet." The matters are REMANDED for the following action: 1. Send the Veteran proper VCAA notice which includes an explanation as to what information or evidence is needed to substantiate her SAH and SHA claims, to include clear notification of the amendments effective November 8, 2021. 2. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for an appropriate examination, preferably with an examiner other than the one who performed the September 2020 VA examination, to determine the nature and etiology of any loss of use of the bilateral lower extremities' disorder, to include any disabilities of the ankles and feet. The claims file and a copy of this remand must be made available to the examiner for review. The examiner should review the claims file (including this remand) and note such review was conducted. Any essential tests and studies should be accomplished. The examiner must identify each disorder of the bilateral lower extremities, to include plantar fasciitis with bunions of the bilateral feet, found at any time during the appeal period (from October 2012). If any previously diagnosed disorders of the bilateral lower extremities, to include plantar fasciitis with bunions of the bilateral feet, is not found on examination, the examiner must address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosed bilateral lower extremities' disorder, the examiner is requested to provide an opinion as to whether each diagnosed bilateral lower extremities' disorder is a symptom of the Veteran's service-connected plantar fasciitis with bunions of the bilateral feet disorder or whether each disorder is a distinct disability. For each bilateral lower extremities' disorder that is determined to be a distinct disability (other than the service-connected plantar fasciitis with bunions of the bilateral feet disorder), the examiner should provide opinions for the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the disorder(s) manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service. (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's disorder is proximately due to or caused by her service-connected disabilities, to include her service-connected anorexia, her service-connected plantar fasciitis with bunions of the bilateral feet, and her non-service-connected residuals of her in-service operation of her left foot. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's disorder, was aggravated (worsened in severity beyond a natural progression) by her service-connected disabilities to include her service-connected anorexia, her service-connected plantar fasciitis with bunions of the bilateral feet, and her non-service-connected residuals of her in-service operation of her left foot. (d.) Whether the Veteran's service-connected disabilities results in the loss of use of her bilateral lower extremities. The examiner should consider all medical and lay evidence of record when making his or her determinations. Any opinion offered must be supported by a complete rationale. If the clinician feels that the requested opinion cannot be rendered without resorting to speculation, he or she must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given current medical science and the known facts); by a deficiency in the record (i.e., additional facts are required); or by a deficiency in the examiner (i.e., the examiner does not have the needed knowledge or training). 3. The AOJ should schedule the Veteran for a VA examination, preferably with an examiner other than the one who performed the September 2020 VA examination, to determine the current severity of her various service-connected disabilities as they relate to her ability to use her hands, upper extremities, and lower extremities. The examiner should be provided with a list of the Veteran's service-connected disabilities. The claims file and a copy of this remand must be made available to the examiner for review. The examiner should review the claims file (including this remand) and note such review was conducted. Any essential tests and studies should be accomplished. After reviewing the evidence of record, the Veteran's lay statements, and the results of any testing performed at the examination, the examiner should provide opinions as to the following: (a.) Whether the Veteran's service-connected disabilities alone, are of such severity as to preclude her from walking without the use of an ambulatory device. 1. In responding to this question, the examiner should address whether and how frequently the Veteran must use an ambulatory device (cane, wheelchair, crutches, brace, etc.) in order to walk and get around (both within and outside her home). Answers to questions such as the following may prove helpful: What ambulatory aids does the Veteran use for locomotion, and with what frequency? How far, if at all, is the Veteran able to walk independently? Does the Veteran use ambulatory devices inside the home, and if so, what type and how frequently? 2. In responding to this question, the examiner is asked to provide a detailed description of the type and extent of functional limitations due to the Veteran's service-connected disabilities as it affects her ability to perform various activities of daily living/functions. (b.) Whether it is at least as likely as not that the Veteran's service-connected disabilities of the lower extremities limit her ability to use her feet or legs, or her hands or arms to such an extent that she would be equally well-served by amputation with use of appropriate prosthetic. (c.) Whether it is at least as likely as not that the Veteran's service-connected disabilities equate to loss of use of one hand, both hands, one foot, and or both feet. (d.) Whether the Veteran's service-connected disabilities affect her functions of balance and propulsion. The examiner should consider all medical and lay evidence of record when making his or her determinations. Any opinion offered must be supported by a complete rationale. If the clinician feels that the requested opinion cannot be rendered without resorting to speculation, he or she must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given current medical science and the known facts); by a deficiency in the record (i.e., additional facts are required); or by a deficiency in the examiner (i.e., the examiner does not have the needed knowledge or training). 4. Re-adjudicate the loss of use, SAH, SHA, and automobile/adaptive equipment claims. MARTHA L. TIERNEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.