Citation Nr: 21030547 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-55 205A DATE: May 19, 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 does not have a service-connected disability that has resulted in loss of use of a hand or foot, ankylosis of a hip or knee, or central visual acuity of 20/200 or less in the better eye, with corrective glasses, or a visual field no greater than 20 degrees in the better eye. 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. §§ 3.102, 3.159, 3.808. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to April 1970. This appeal is before the Board of Veterans' Appeals (Board) from a February 2017 rating decision. In March 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) to update and review new medical record. The ordered development was performed, and there is thus substantial compliance with the Board's remand instruction. 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." The determination is made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example: (a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved; and (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. § 3.350(a)(2). The Veteran's service-connected disabilities are: depression, rated 50 percent; left sciatic nerve paralysis associated with stroke residuals, rated 40 percent; type II diabetes mellitus; left upper extremity paralysis due to stroke, rated 20 percent; hypertension, rated 10 percent; and incomplete paralysis of the facial nerve, rated 10 percent. These ratings, alone, do not establish loss of use. The available VA treatment records reflect that in April 2016, on examination, the Veteran was noted to have had a normal gait and full strength in the bilateral upper extremities throughout, with normal symmetric tone. He had hypoesthesia to light touch in the right thumb and index finger, but otherwise sensation intact to light touch throughout the bilateral upper extremities. Median, radial, and ulnar nerve testing was intact bilaterally, with symmetric reflexes of the triceps and brachioradialis. They also reflect that, on July 2016 eye examination, the Veteran reported lost his glasses and wanted an updated prescription. It was noted that he thought that his vision was stable overall, and that, although the Veteran had diabetes mellitus, he had no diabetic retinopathy or retinopathy related to hypertension; he was diagnosed with congenital and senile cataracts, not visually significant, and refractive visual error. The Veteran submitted a January 2018 statement from his treating VA physician asserting that the Veteran had left foot drop related to his residual left hemiparesis, as well as peripheral vascular disease. Also, in an August 2018 statement, the Veteran asserted that he was blind in his left eye and had a weak right eye due to his amyotrophic diabetes; a very weak left hand; a prosthetic brace in his left shoe due to his left lower extremity disability; and little use of his whole left side. In light of these statements, the Board previously remanded for updated treatment records to be obtained. After review, the AOJ continued the denial. On review, the subsequent treatment records do not warrant a finding that any service-connected disabilities have resulted in loss of use of a hand or foot, ankylosis of a hip or knee, or central visual acuity of 20/200 or less in the better eye, with corrective glasses, or a visual field no greater than 20 degrees in the better eye. See August 2019 VA Eye Treatment note (noting corrected visual acuity of right eye: 20/40; left eye: 20/25); October 2019 VA Mental health note (noting the Veteran continues to enjoy reading); March 2017 VA treatment note (noting the Veteran reporting that he enjoys playing basketball with his 12 year old grandson); May 2019 VA Primary Care Nursing Triage Note (noting Veteran to be ambulatory, and to walk with a cane); February 2020 Emergency department note (Veteran noted to be ambulatory when presenting for treatment of bilateral ear ache, noted not to be a fall risk). Although there is evidence of left foot drop, a September 2017 VA physical therapy note indicates the condition is treated with a brace and the Veteran is ambulatory, and the disability picture presented is not such that a finding of loss of use of a hand or foot would be appropriate. A VA examination specific to this claim was not obtained. The evidence of record, however, contains sufficient information for the Board to decide the claim. As such, the Board does not find the criteria for automobile or other conveyance and adaptive equipment, or adaptive equipment only to have been met. The evidence preponderates against the claim, and the benefit sought remains denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING, Associate 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.