Citation Nr: 21008628 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 20-10 927 DATE: February 17, 2021 ORDER Eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not result in loss or loss of use of a hand or foot, permanent impairment of both eyes, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of a knee or hip. CONCLUSION OF LAW The criteria for eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, have not been met. 38 U.S.C. § 3901, 3902, 5107; 38 C.F.R. § 3.808, 3.350(a)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to January 1978. This appeal is before the Board of Veterans’ Appeals (Board) from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office. The agency of original jurisdiction (AOJ), in a May 2020 rating decision, denied several claims including entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU). The Veteran appealed the decision to the Board in the modernized review system, also known as the Appeals Modernization Act (AMA), and that appeal has been separately docketed at the Board. See 38 C.F.R. § 3.2400(a)(1). The AOJ also, without explanation, readjudicated the TDIU issue in a June 2020 supplemental statement of the case, in which it also readjudicated the automotive/adaptive equipment issue on appeal. However, the TDIU issue has not been properly appealed to the Board through the VA legacy system; while a TDIU was previously denied in a November 2017 rating decision, the Veteran filed no timely notice of disagreement to that decision, and no statement of the case was issued by VA. See 38 C.F.R. § 19.20. As the issue of a TDIU has been properly appealed to the Board in the AMA system and is separately docketed at the Board, the matter will be addressed in a separate Board decision for that AMA appeal, and will not be addressed here. VA medical records were associated with the claims file after the current appeal had been certified by the AOJ, but are not pertinent to the issue on appeal. The Board will thus proceed with a decision on the merits. See 38 C.F.R. § 20.1305(c). 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. The term “loss of use of a hand or foot” is defined as existing 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 elbow or knee with the use of a suitable prosthetic appliance.” 38 C.F.R. § 3.350(a)(2). The Veteran’s service connected disabilities are as follows: memory loss, residual of traumatic brain injury (TBI), rated 40 percent; headaches, not otherwise specified, as a residual of TBI, rated 30 percent; scar, post left parietal craniotomy for skull fracture (painful), rated 10 percent; and scar, post left parietal craniotomy for skull fracture, rated noncompensable (0 percent). Eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is denied. The Veteran has not contended—and the record does not otherwise reflect—that his service-connected disabilities of memory loss, headaches, or left parietal craniotomy scars have resulted in any of the disabling conditions listed in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808. Rather, as indicated in a September 2017 statement, the Veteran has asserted that he has a right upper extremity disability related to an in-service TBI, including numbness and functional impairment of the right arm and hand, amounting to loss of use of the hand. In that statement, he asserted that, due to his hand function, he was able to shave with clippers but not a razor, had difficultly eating because of loss of sensation the right hand, and performed tasks with his left hand that he used to perform with his right. In October 2020, he asserted that his right hand cramped up at times and the last three fingers of the hand tingled and were numb. In an October 2020 vocational rehabilitation report submitted by the Veteran, it was noted that he reported experiencing chronic numbness of the right hand and arm, occasionally dropping items, and difficulty with griping a pen or pencil to write. However, to the extent that the Veteran contends that such right upper extremity symptoms constitute loss of use under 38 C.F.R. §§ 3.808 and 3.350(a)(2), he is not service-connected for any disability of the right upper extremity, and no right upper extremity impairment has been shown to result from any currently service-connected disability. In this regard, claims by the Veteran for right arm numbness and loss of use of the right hand, secondary to TBI residuals, were denied in a November 2017 rating decision, which the Veteran did not appeal. More recently, in 2020, the Veteran again claimed, and separately appealed to the Board in the AMA system, service connection for a number of disabilities including disabilities of the right arm. These issues are not before the Board in this appeal, and will be separately adjudicated in another Board decision. Should service connection be granted for any asserted right upper extremity disability or any other disability that might meet the criteria for permanent loss of use of a hand under 38 C.F.R. §§ 3.808 and 3.350(a)(2), the Veteran may again file a claim for financial assistance for automobile or other conveyance and adaptive equipment, based on any such disability. However, there is no disability that meets the criteria for basic eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, under 38 U.S.C. § 3902, for which the Veteran is currently service-connected. Therefore, his claim for such must be denied for lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.