Citation Nr: 21076998 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-54 105 DATE: December 28, 2021 ORDER Entitlement to financial assistance in purchasing an automobile or other conveyance is granted. FINDING OF FACT The Veteran's service-connected back disability and calcium deficiencies contributing to left ankle fractures associated with pelvic inflammatory disease (left ankle disability) result in loss of use of the left lower extremity. 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 Navy from December 1974 to March 1977. On her VA Form 9, dated October 2016, the Veteran requested a hearing before a member of the Board. In November 2019, the Veteran failed to report to a Board hearing. In a September 2021 letter, VA notified the Veteran that she was scheduled for a hearing before a member of the Board on October 15, 2021. This notice was mailed to the Veteran's last known address of record. It was not returned as undeliverable by the postal service. The Veteran failed to report for this scheduled hearing without good cause. The Board acknowledges that in November 2021, the Veteran's representative submitted a letter, dated November 2, 2021, indicating that the Veteran will be prepared to present testimony before the Board during her October 15, 2021, hearing. While the fact that the letter was drafted after the hearing appears to be an oversight on the part of the representative, the letter provides no explanation, let alone good cause, as to why the Veteran failed to appear for the October 2021 hearing. As the Veteran has failed to appear for her scheduled hearing without good cause and there has been no request for postponement, her request for a hearing will therefore be considered withdrawn. 38 C.F.R. § 20.704(d). In any event, even assuming good cause for the failed to report for the hearing, which is not shown, given the complete grant of the benefit sought on appeal, the Veteran is not prejudiced. Entitlement to financial assistance in purchasing an automobile or other conveyance is granted. The Veteran seeks financial assistance in purchasing an automobile. See Claim (January 27, 2015). 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's service-connected disabilities include pelvic inflammatory disease with endometriosis, rated 50 percent disabling; a left ankle disability, rated 30 percent disabling; a left shoulder disability, rated 20 percent disabling; a low back disability, rated 20 percent disabling; and right lower extremity radiculopathy, rated 10 percent disabling. Throughout the pendency of the appeal, the Veteran has been in receipt of a combined 80 percent rating and a total disability rating based on individual unemployability due to service-connected disabilities. Initially, the Veteran does not contend, and the evidence does not suggest that her service-connected disabilities result in loss of use of an upper extremity, permanent visual impairment, severe burns, or ankylosis of the knees or hips. Moreover, in light of the nature of the Veteran's disabilities of the back and left ankle disabilities, her claim turns on whether she experiences loss of use of one of both feet. 38 U.S.C. § 3901; 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. 38 C.F.R. §§ 3.350 (a)(2). Under these unique circumstances, the evidence shows that the Veteran's service-connected disabilities results in loss of use of the left lower extremity for purposes of establishing entitlement to financial assistance in purchasing an automobile or other conveyance. Here, an April 2011 VA examiner provided the following assessment: [the Veteran] is unable to ambulate and, currently, is unable to use any other ambulatory aid including crutches, a walker, cane, etc. She also has a number of additional wall aids at her home. . . . [She] is unable to stand with weight on her left foot and with considerable effort is able to transfer from electrified chair to the examining table. Thus, it is not practical to have her standing erect in order to complete low back examination." In July 2011, the Veteran's treating physician opined that the Veteran's left ankle disability results in significant limitation of motion and pain, which necessitates a motorized scooter for any activities outside of her home. Finally, the most recent VA treatment note of record shows that the Veteran was hospitalized after she fell while attempting to transfer from her bed. See VA treatment note (March 21, 2016). The note indicates that the Veteran ambulates about her home using crutches. In an August 2016 statement of the case (SOC) the Agency of Original Jurisdiction denied entitlement to an automobile allowance on the basis that the March 2016 treatment note shows that she does not have loss of use of the lower extremity as it shows that she can walk about her home. In her October 2016 VA Form 9, the Veteran disagreed with the SOC's finding that she can walk about her home. She explained that she experiences loss of use of the left foot, cannot bear weight on the foot, and only uses crutches for transfers and to move through areas of her apartment where her scooter is not accessible. The Board finds that the Veteran's October 2016 statement adds critical context to evidencenamely the April 2011 opinion and the March 2016 treatment notewhich indicates that she is able to ambulate with crutches. Indeed, the October 2016 statement indicates that she only uses crutches areas of her apartment where her scooter will not fit and for transfers. Moreover, the April 2011 VA examination reports provides the only detailed description of the manner by which the Veteran's service-connected disabilities impair balance and propulsion: stating that she is unable to ambulate, even with assistive device; that it took considerable effort for her to transfer from her scooter to the examination table; and that her disabilities made it impractical to examine her back disability. When coupled with the Veteran's competent, credible statements, the Board finds that the April 2011 VA examination report and the March 2016 VA treatment note show that it is at least as likely as not that the Veteran's service-connected disabilities impair propulsion and balance so much so that she is not able to transfer or ambulate with crutches in a safe or consistent manner. After resolving any doubt in the Veteran's favor, the Board finds that the Veteran's service-connected back and left ankle disabilities result in loss of use of the left lower extremity for purposes of acquiring 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.