Citation Nr: 21022716 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 181228-2050 DATE: April 19, 2021 REMANDED Eligibility for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to February 1970. A rating decision was issued under the legacy system in April 2018 by a Department of Veterans Affairs (VA) Regional Office. In May 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in November 2018, which is the decision on appeal. The Veteran appealed this decision to the Board of Veterans’ Appeals (Board) in December 2018, and elected the Direct Review docket. In August 2019, the Board denied the claims on appeal. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020 the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand (Joint Motion). In an October 2020 Order, the Court granted the motion, and remanded the case to the Board. In the October 2020 Joint Motion, regarding the claim for financial assistance for automobile or other conveyance and adaptive equipment, or for adaptive equipment only, the parties determined that “the Board erred in finding a September 2015 VA examination adequate for purposes of evaluating loss of use” in accordance with the definition of loss of use in 38 C.F.R. § 3.350(a)(2). They found that the examiner’s conclusion that the Veteran “did not have loss of use of his feet… was based, at least in part, on the rationale that [the Veteran] ‘does not meet medical criteria for consideration of amputation of foot (feet) to best serve his needs. Thorough review of [the Veteran’s] medical records are silent for evaluation in regard to amputation by board certified vascular surgeon.’” According to the parties, the “rationale does not comport with the standard under Section 3.350(a)(2)(ii),” which was “not whether [the Veteran] needs to have his feet amputated, but whether he has so little ‘actual remaining function’ that the acts of ‘balance and propulsion, etc.’ of his feet could be equally well accomplished by an amputation stump with a prothesis.” The parties thus concluded that “[r]emand is required for a new examination which renders an opinion based on appropriate consideration of the relevant regulations.” The parties further stated that, regarding the Board’s decision to deny SMC based on the need for aid and attendance, “to the extent the Board relied on the September 2015 examination in this determination, that examination is inadequate.” They did not provide further explanation for this conclusion. The matters are therefore REMANDED for the following action: Schedule the Veteran for an examination of his service-connected peripheral neuropathy by an appropriate clinician. The clinician should determine whether the Veteran has permanent loss of use of one or both feet due to his service-connected disabilities, in accordance with the standard in 38 C.F.R. § 3.350(a)(2). 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.” The examiner should note that the relevant standard is not whether the Veteran needs to have his feet amputated; it is whether he has so little “actual remaining function” that the acts of “balance and propulsion, etc.” of his feet could be equally well accomplished by an amputation stump with a prothesis. All opinions are to be accompanied by a rationale consistent with the evidence of record. 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.