Citation Nr: 22019630 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 09-18 750A DATE: April 2, 2022 ORDER A disability rating greater than 40 percent for residuals of cervical spine diskectomy and bone fusion is denied. A 10 percent disability rating for residuals of a left index finger fracture is granted. A compensable disability rating for residuals of a right fifth metacarpal fracture is denied. Special monthly compensation (SMC) based on the Veteran's need for the regular aid and attendance of another person is denied. SMC based on the Veteran's housebound status is denied. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only, is denied. Eligibility for financial assistance in acquiring specially adapted housing or a special home adaptation grant is denied. REMANDED Entitlement to a disability rating greater than 50 percent for a right upper extremity neurological disorder is remanded. Entitlement to a disability rating greater than 30 percent for a left upper extremity neurological disorder is remanded. FINDINGS OF FACT 1. The Veteran's cervical spine disability is manifest by significant daily pain with movement, limitation of motion of the neck especially in turning his head to either side, and localized tenderness. At no time during this appeal has the Veteran's cervical spine disability exhibited unfavorable ankylosis of the entire spine. 2. The Veteran's left index finger disability is manifest by arthritis, painful limitation of motion, numbness, and difficulties with holding items and gripping. 3. The Veteran's right fifth metacarpal (also called the little finger or pinky finger) disability is manifest by pain, limitation of motion, and difficulties with holding items and gripping. Although non-compensable, the Veteran is in receipt of the highest schedular rating available for painful motion of the right little finger. 4. The Veteran is not permanently bedridden or with such significant impairment from his service-connected disabilities as to require the regular aid and attendance of another person. 5. The Veteran is not permanently housebound by reason of his service-connected disabilities, nor in receipt of a 100 percent disability rating for a single service-connected disability with additional service-connected disabilities independently ratable at 60 percent. 6. The Veteran's service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes of a severity specified by regulation, severe burn injury, or amyotrophic lateral sclerosis. 7. The Veteran does not have ankylosis of one or both knees or hips due to a service-connected disability. 8. The Veteran's service-connected disabilities do not result in a loss or loss of use of a lower extremity or upper extremity, and service connection is not in effect for a severe burn injury, amyotrophic lateral sclerosis, blindness, or an inhalation injury. CONCLUSIONS OF LAW 1. The criteria are not met for a rating greater than 40 percent for the residuals of cervical spine diskectomy and bone fusion. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria are met to establish a 10 percent rating for residuals of left index finger fracture, and no higher. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, DC 5229. 3. The criteria are not met to establish a compensable rating for residuals of right 5th (little) finger fracture. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, DC 5230. 4. The criteria are not met to establish SMC based on a need for the regular aid and attendance of another person. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. 5. The criteria are not met to establish SMC based on housebound status. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. § 3.350(i). 6. The criteria are not met to establish eligibility for financial assistance in the purchase of an automobile or other conveyance with automobile adaptive equipment, or for automobile adaptive equipment only. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.808. 7. The criteria are not met to establish eligibility for financial assistance in acquiring specially adapted housing or special home adaptation. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served a lengthy 22-year career on active duty in the United States Army from June 1971 to June 1993 and is in receipt of many awards and decorations including the Bronze Star Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision. This appeal was last before the Board in August 2020 at which time additional evidentiary development was requested to comply with due process requirements. With the exception of the claims for increased ratings for bilateral upper extremity neurological disabilities again addressed by remand below, the evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has been returned to the Board for further appellate review. The Board has considered whether the matters adjudicated below are so intertwined as to be dependent on the outcome of the further evidentiary development requested in the remanded upper extremity rating claims, but finds that not to be the case here given the evidence of record. Specifically, the severity of the upper extremity disabilities is well documented, and the clarification sought as to which nerve groups is affected, while necessary to apply the proper legal criteria to assign the disability ratings for those conditions, does not have a direct bearing on questions of the actual functional impairment experienced in the Veteran's day-to-day activities, including the Board's determination of whether a loss of use of one or both upper extremities is present or whether the service-connected disabilities render the Veteran so helpless as to require the regular aid and attendance of another person. As such, the Board finds that the decided issues are not inexplicably intertwined with the remanded issues, and it is appropriate to adjudicate the remaining matters at this time to provide a resolution in those matters for the Veteran. Increased Rating 1. A disability rating greater than 40 percent for residuals of cervical spine diskectomy and bone fusion is denied. As a preliminary matter, internal VA documents show the diagnostic code (DC) assigned to the Veteran's cervical spine disability is DC 5293. No such code number exists, and it appears instead that this is a typographical error for DC 5243 used to evaluate intervertebral disc syndrome (IVDS). The Board nonetheless considers all diagnostic codes relevant to the cervical spine to determine if a higher rating is available under any other code and rating criteria. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The Board will not disturb the existing diagnostic code at this time. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a higher 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Here, there is no evidence that the Veteran has been prescribed bed rest by a physician, and certainly not bed rest of at least 6 weeks at any time during the present appeal. Thus, the Board turns to the General Rating Formula for Diseases and Injuries of the Spine instead. Under the General Rating Formula, the existing 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, the Board finds that the evidence persuasively weighs against a rating greater than 40 percent for the Veteran's cervical spine residuals of surgical diskectomy and bone fusion, because the Veteran is not shown to have unfavorable ankylosis of the entire spine at any time during the present appeal. Instead, recent medical evidence shows significant range of motion of the cervical spine is retained with no ankylosis, whether favorable or unfavorable, for any segment of the spine including the cervical spine. VA examination, October 2020. However, the Board will not disturb the existing rating for the Veteran's cervical spine disability as that is beyond the scope of this appeal, but finds no basis upon which to grant a higher rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakness, and additional loss of use on repetitive use. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his reports would not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. See, e.g., VA examination, October 2020. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral upper extremity neurological disorders and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating greater than 40 percent for his cervical spine disability. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F. 4th 776, (Fed. Cir. 2021). 2. A 10 percent disability rating for residuals of a left index finger fracture is granted. The Veteran is in receipt of a noncompensable (zero percent) rating for residuals of a left index finger fracture. The agency of original jurisdiction (AOJ) currently shows that Diagnostic Code 5299-5225 is used to rate the service-connected disability. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" using the first 2 digits from that part of the schedule most closely identifying the part, or system, of the body involved and "99" as the final 2 digits. 38 C.F.R. § 4.27. As such, the code 5299-5225 designates a disability of the spine or upper extremity that is based upon, or analogous to, ankylosis of the index finger. However, in this case based upon the evidence as a whole including that discussed below, the Board finds that the Veteran's service-connected left index finger disability is most nearly analogous to Diagnostic Code 5229 for limitation of motion of the index finger, because the anatomical localization and most prominent symptomatology is expressed by this diagnostic code. For this reason, and the sake of simplicity and clarity, the Board has changed the applicable diagnostic code to 5229, although application of all other potentially relevant codes has been considered and would not result in a higher disability rating given the circumstances of this case. Specifically, painful motion of any joint is an important factor of disability, and the intent of VA's rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the minimum compensable rating for the joints of the index or long finger is 10 percent. 38 C.F.R. § 4.71A. VA medical evidence clearly identifies that the Veteran regularly experiences painful motion of the left index finger joints with achy joint pain. See, e.g., VA examinations, October 2020 & January 2013. On this basis, the Board finds that a 10 percent rating is warranted under Diagnostic Code 5229. This is the highest available rating for the index finger, whether based on limitation of motion or ankylosis. The Board also notes that the medical evidence shows that the Veteran's degenerative arthritis is associated with the service-connected fracture residuals. VA examination, October 2020. The Board therefore makes no distinction between these conditions and considers arthritis of the left index finger to be part and parcel of the service-connected fracture residuals. Nonetheless, a higher disability rating is available only for ankylosis of multiple digits of the same hand. Here, only the index finger is subject to service connection on the Veteran's left hand at this time, thus a higher rating on the basis of ankylosis of multiple digits of the same hand is not available. Furthermore, even were multiple digits involved, ankylosis of the left index finger is not shown. Instead, motion of the joint remains, even where limited by pain. See VA examinations. In all, the regulations show that a 10 percent rating is warranted based on painful motion of the left index finger joints due to service-connected disability under Diagnostic Code 5229 for limitation of motion of the left index finger, and no higher. The appeal is granted. 3. A compensable disability rating for residuals of a right fifth metacarpal fracture is denied. The Veteran is in receipt of a zero percent rating for residuals of his right fifth finger fracture. As above, the Board is changing the diagnostic code used from 5299-5227 to 5230. Diagnostic Code 5230 establishes a zero percent rating for any limitation of motion of the ring or little fingers. This code is applied as it most nearly approximates the disability of the right little finger as experienced by the Veteran. However, under Diagnostic Code 5230, there is no mechanism for rating limitation of motion of this finger at a compensable level because a zero percent rating is explicitly assigned for this condition as the only possible rating. 38 C.F.R. § 4.71a. Of note, a zero percent rating would also be applied for the little finger even if ankylosis, whether favorable or unfavorable, was present. The evidence does not show that the Veteran suffers from any symptoms from right little finger fracture, including arthritis, other than painful limitation of motion that impacts the ability to hold and grip, which is explicitly contemplated by the established rating. The rating schedule is meant to compensate disabilities based on the average impairment of earning capacity caused by each listed disability. Regulators have determined that limitation of motion disabilities of the ring and small fingers do not warrant a compensable rating even were ankylosis to be present. The appeal must be denied. 4. SMC based on the Veteran's need for aid and attendance is denied. SMC based on the need for aid and attendance is payable when a veteran, as the result of service-connected disability, is helpless or so nearly helpless that he requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish the need for regular aid and attendance, the Veteran must, as a result of service-connected disability, (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for regular aid and attendance. Id. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Here, the record clearly reflects that the Veteran has experienced limitations compared to what he could do in the past, and has undergone significant lifestyle changes due to his disabilities. However, at the time of his hearing testimony in January 2012 the Veteran reported having the continued ability to take care of his daily needs such as feeding himself, shaving himself, and continuing to drive. The Veteran reported that due to his wife's disabilities, he actually did most of the household work at the time. In a March 2013 VA examination for aid and attendance purposes, the Veteran was found to be able to dress and undress himself and keep himself ordinarily clean and presentable, although dressing and undressing did present some difficulties. He had a special prosthetic brace to assist with ambulation and driving, but this prosthetic did not require frequent adjustment that could not be done without aid. The Veteran also remained able to feed himself and use a toilet. Similar results were shown upon examination in July 2015 where he was found to be able to feed, bathe, and toilet himself normally while experiencing some difficulties with grooming, dressing or undressing due to mild or moderate right upper extremity impairment. The Veteran was unable to use a bathtub, but could shower with the use of a shower chair. Side rails were used at steps and the entry/exit of his home for safety, and a higher toilet seat for comfort and ease of use. The Veteran remained able to walk without the assistance of another person for up to a few hundred yards. The most recent October 2020 VA examination for aid and attendance purposes shows that the Veteran was assisted by his wife who drove him to the appointment. However, the Veteran continued to experience some difficulty with dressing, undressing, and grooming due to his neck pain and restricted motion, similar to the descriptions from earlier periods in the appeal. The Veteran described impairment of the right hand limiting his ability to hold and carry objects due to pain, and difficulty with lifting objects from ground level, squatting, or climbing stairs due to right knee pain. However, he remained able to walk for a maximum distance of 500 yards without assistance from another person, and remained generally able to care for his personal needs. The record, taken as a whole, does not show that the Veteran requires the regular aid and attendance of another person because he is able to dress or undress himself and keep himself ordinarily clean and presentable, although dressing/undressing and grooming are difficult. He is able to feed himself and use a toilet, and is not shown to require care or assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. The evidence shows that the Veteran is reliant on his spouse for driving purposes at present, but is not shown to be so helpless as a result of service-connected disabilities as to require the regular aid and attendance of another person. The appeal for entitlement to special monthly compensation on this basis must be denied. 5. SMC based on a claimed housebound status is denied. Entitlement to special monthly compensation at the housebound rate under 38 U.S.C. § 1114(s) is warranted based upon either of two differing legal bases. First, this compensation is available on a statutory or mathematical basis (also known as total plus 60 percent) where a veteran has a single service-connected disability rated as 100 percent disabling, and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(h)(3)(i)(1). This method of entitlement does not require the Veteran to actually be substantially confined to his or her residence. In this case, as previously discussed, service connection is in effect for multiple disabilities which have combined to a total disability rating throughout the present appeal. However, no single disability is, or has been, evaluated as 100 percent disabling at any time during the appeal. Therefore, SMC on a statutory basis is not warranted because there is not a single 100 percent disabling disability. Second, this type of compensation based on housebound status is also available on a factual basis (also known as housebound-in-fact) where a veteran is permanently housebound by reason of his or her service-connected disability or disabilities. This requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to their dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(h)(3)(i)(2). The Board acknowledges the Veteran's report that his cervical spine disability precludes him from "doing much" and that he is usually confined to his home since it is difficult to drive. VA examination, October 2020. However, while assistance may be needed for transportation purposes, the evidence does not support that the Veteran is substantially confined to his dwelling as a direct result of his service-connected disabilities. Instead, the evidence reflects that when a driver is available, the Veteran remains able to leave his home as needed. The October 2020 examiner expressly found that the Veteran was able to leave his home or the immediate premises on a daily basis if his wife was available to drive him places. Earlier in the appeal, upon examination in July 2015, the Veteran described going to visit family members weekly, going to church, going out with friends, and doing his own grocery shopping. He reported being able to drive about 45 minutes at a time. His ability to leave the home was considered to be "unrestricted." VA examination, July 2015. Given the facts of this case, no longer being able to drive himself places does not equate to substantial confinement to the premises of his home as a direct result of his service-connected disabilities. In all, the evidence does not show that the Veteran is substantially confined to his home as a direct result of his service-connected disabilities, nor does he meet the mathematical criteria for a total plus 60 percent disability rating. As a result, the criteria are not met to establish entitlement to SMC at the housebound rate and the appeal must be denied. 6. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only, is denied. The Veteran reports that he was unable to drive due to loss of motion in the neck, and could no longer ride in a car because of low seats and lack of neck support, such that he purchased a different vehicle in 2009 with better seats and included functions such as power seats, moveable foot pedals, and a rear camera to make driving as comfortable as possible and allow the Veteran to continue to drive for a period, although he is again unable to drive himself at present. He seeks reimbursement or other financial assistance for automobile adaptive equipment on this basis. See, e.g., Board hearing transcript, January 2012; Veteran's statements, August 2008 & November 2006. Financial assistance in acquiring an automobile (or other conveyance) with adaptive equipment is available only 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; or (5) amyotrophic lateral sclerosis (ALS). Here, the Veteran does not have a service-connected vision impairment, burn injury, or ALS disability. The Board acknowledges that the Veteran has previously claimed service connection for ALS, and medical records in the past considered "possible early ALS", but a formal diagnosis of ALS has never been confirmed, and treatment or care for this condition is not shown in the Veteran's medical records. Service connection for ALS has been denied. See Rating decisions, May 2018 & January 2014. So, at this time, ALS is not a disease incurred or aggravated during active service, and cannot be a basis upon which to establish entitlement to the automotive adaptive benefit sought, nor does the medical evidence establish that the Veteran actually has ALS. Instead, the remaining eligibility criteria for consideration are whether he has anatomical loss or permanent loss of use of one or both hands or feet. The applicable regulation does not further define the phrase "loss or permanent loss of use." Under the eligibility criteria found in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, the appellant must show that he or she had anatomical loss of a foot or hand, or permanently lost the use of a foot or hand due to service-connected disability. The Board notes that the term "loss of use" is used in several places in various statutes and regulations describing disability ratings by VA. In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), loss of use of a hand or 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 elbow or knee with use of a suitable prosthetic appliance. A less restrictive definition is written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing. That regulation specifies that "loss of use" was defined by the adjacent modifier, "such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). However, this modifier is noticeably absent from 38 U.S.C. § 3901 and 38 C.F.R. § 3.808 and had Congress or the Secretary of VA wished for such a definition to apply to the legal requirements for automobile and adaptive equipment benefits, it presumably would have been included. As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of functional use of the body part(s), with any need of assistive devices being relevant to, but not dispositive of the question of whether the Veteran experiences a permanent loss of use. To establish eligibility for financial assistance for the purchase of automobile adaptive equipment only, ankylosis of one or both knees or one or both hips is required. 38 C.F.R. § 3.808. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007). In this case, service connection is in effect for the following disabilities: posttraumatic stress disorder (PTSD) rated 50 percent disabling; neurological deficit of the right upper extremity rated 50 percent; residuals of cervical spine diskectomy and fusion rated 40 percent; left upper extremity radiculopathy rated 30 percent; residual of right elbow fracture rated 20 percent; residual of right shoulder fracture, right knee patellofemoral syndrome, tinnitus, sinusitis with headaches, eczema of the hands, and fracture of left index finger each rated 10 percent disabling; and allergic rhinitis, fracture of right 5th metacarpal, bilateral hearing loss and cervical spine surgical scars each rated as noncompensably, zero percent, disabling. The Veteran has been in receipt of a total, 100 percent, disability rating since November 2006, throughout the present period on appeal. However, considering the relevant evidence in its entirety, the Board finds that the Veteran's service-connected disabilities do not result in such a severe degree of functional impairment as to approximate "permanent loss of use" of at least one hand, nor ankylosis of the service-connected right knee. Service connection is not in effect for any disability of either foot, or any lower extremity disability other than the right knee patellofemoral syndrome. Furthermore, the medical evidence confirms that ankylosis of the knee is not present here. See, e.g., VA examination, October 2020 (recording flexion of the right knee from zero to 115 degrees with no ankylosis of the right knee joint). The Board thus turns to whether the evidence supports a permanent loss of use of at least one hand, but determines that it does not. The Board acknowledges the statement by Dr. RP in December 2011 that the Veteran has "loss of use in all upper extremities" but this is contradicted by the remainder of the evidence, including the Veteran's own testimony provided in January 2012 regarding his remaining functional capacity using his upper extremities. The Veteran reports difficulty with dressing, undressing, and grooming due to neck pain and restricted motion. See VA examination, October 2020. He does not describe these impairments or difficulties as being due to any loss of use in the hands, however. The Board acknowledges the Veteran's description of his right upper extremity condition as limiting his ability to hold and carry objects due to pain, and does not doubt the sincerity of this report. However, functional limitation is the basis for the assigned disability ratings but does not in itself equate to a "permanent loss of use" which is a significantly higher standard showing a loss or absence of effective function, much more than an impairment of function alone. In all, the evidence is found to demonstrate that while the Veteran suffers from pain and functional impairment from his service-connected bilateral upper extremity disabilities, he retains range of motion in the joints of the hands and the ability to make use of his hands for most or many activities. Therefore, the evidence persuasively weighs against finding that the Veteran has a permanent loss of use of at least one hand due to service-connected disability, and there is no ankylosis of either knee. In so finding, the Board recognizes that the Veteran suffers impairment due to his service-connected disabilities that could potentially benefit from automobile adaptive equipment in some form. However, eligibility for this benefit is determined by the existing law and regulations that require the Veteran to meet at least one of the six criteria enumerated under 38 C.F.R. § 3.808. The claim cannot be granted based upon need or usefulness alone, without meeting the underlying eligibility criteria. Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet, does not have ankylosis of his knees or hips, and does not have any of the other physical disabilities listed among the relevant criteria, he does not qualify as eligible for financial assistance in the purchase of an automobile or other conveyance with adaptive equipment, or for adaptive equipment only, under 38 C.F.R. § 3.808. As such, the appeal must be denied. 7. Eligibility for financial assistance in acquiring specially adapted housing or a special home adaptation grant is denied. Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature. Additionally, a special home adaptation grant is available for a veteran that has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b). Generally, an eligible veteran will be provided one-time only assistance with a special home adaptation grant or specially adapted housing. However, issuance of a special home adaptation grant before a veteran becomes eligible for specially adapted housing under 38 C.F.R. § 3.809 does not preclude a later grant for specially adapted housing. 38 C.F.R. § 3.809a(a). The Veteran's service-connected disabilities and associated ratings were listed in the section above and will not be repeated here. However, as previously described, service connection is not in effect for ALS, blindness, or other vision impairment, burn injuries, or residuals of inhalation injury. Instead, the Veteran describes adaptations to his home that have been necessary such as office chair seating, a specialized mattress, and a higher toilet seat. He seeks financial assistance for adapted housing on this basis. The remaining criteria for consideration in this case are whether the Veteran experiences loss or loss of use of both upper extremities due to service-connected disability such as to preclude use of the arms at or above the elbows; the loss, or loss of use, of both lower extremities; the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion; or the anatomical loss or loss of use of both hands. So, the remainder of the discussion here will focus on loss of use of the various extremities. Service connection is in effect for disabilities affecting both upper extremities, but only the right lower extremity (knee). "Loss of use" is not specifically defined under 38 C.F.R. §§ 3.809 or 3.809a. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. In claims for specially adapted housing based on loss of use of a lower extremity, consideration is to be given to whether the Veteran's loss of use precludes locomotion without the aid of assistive devices. The term "preclude locomotion" means the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). The Court of Appeals for Veterans Claims found that a "loss of use" exists when there is "deprivation of the ability to avail oneself" of that extremity, and functional impairment caused by pain, weakness, or incoordination should be considered when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). Here, the probative medical evidence persuasively demonstrates that the Veteran does not have loss of use of either upper extremity or his right lower extremity due to a service-connected disorder. There is no question that the Veteran experiences functional impairment and day-to-day difficulties due to the service-connected disabilities, especially in areas such as driving a car, dressing, and undressing himself, and grooming due to neck pain and restricted motion, as well as difficulties with holding and carrying objects with his right upper extremity due to pain. See, e.g., VA examinations, October 2020. However, these functional impairments are the basis for the existing disability ratings and the evidence does not show a severity nearly equal to the loss of use of any given extremity. The Veteran remains able to walk up to 500 yards without the assistance of another person and does not use a mechanical aid for walking. He remains able to perform most activities of daily living, although some assistance is needed with dressing and grooming. While the Veteran may have decreased range of motion and reduced lifting or grip strength, the evidence shows that the Veteran is able to perform his daily functions with accommodations as needed. The Board finds that at no time during the present appeal has the Veteran had loss of use of either upper extremity such that he is unable to avail himself of the use of his hands or unable to use the upper arms at or above the elbow, nor does he have loss of use of the right lower extremity such that he is precluded from all locomotion without the aid of a wheelchair, braces, crutches, or cane. The Board assigns great weight to the medical evidence and notes that it is the Board's responsibility, not the evaluating medical professionals, to determine whether "loss of use" exists. Tucker v. West, 11 Vet. App. 369 (1998). The Board has considered the lay statements of the Veteran regarding his problems with grip strength, turning the head, and other functional impairments. The Board does not doubt those assertions, as the Veteran is competent to report that he has difficulty with driving, dressing, undressing, and grooming. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Those statements are credible and consistent with the medical evidence of record. These statements, however, are insufficient to establish that the Veteran has lost the use of at least one hand, and they do not outweigh the medical evidence that demonstrates that the claimant does not meet any of the required criteria under 38 C.F.R. §§ 3.809 or 3.809a. The Board acknowledges the Veteran's contentions that because of his service-connected disabilities, his house has required some alterations to accommodate his functional limitations. These assertions are likely true, but the Veteran does not qualify for a specially adapted housing or home adaptation grant under 38 C.F.R. §§ 3.809 or 3.809a, and grants for home alterations cannot be made under these VA regulatory provisions. In sum, the competent and probative medical evidence of record persuasively weighs against finding that the Veteran's service-connected disabilities meet any of the criteria under 38 C.F.R. §§ 3.809 or 3.809a, and the claim is denied. REASONS FOR REMAND 8. Entitlement to a disability rating greater than 50 percent for a right upper extremity neurological disorder is remanded. 9. Entitlement to a disability rating greater than 30 percent for a left upper extremity neurological disorder is remanded. Clarification is needed to resolve a discrepancy in the medical evidence regarding the Veteran's upper extremity neurological disorders. Peripheral nerve disorders are evaluated under rating criteria that distinguish between which nerve group is affected (in this case, the upper radicular group fifth and sixth cervicals, the middle radicular group, and/or the lower radicular group). 38 C.F.R. § 4.124A. An additional diagnostic code, with a potentially higher rating is available if all radicular groups are affected by the service-connected disability. Id. at Diagnostic Code 8513. A January 2013 VA examination identifies involvement of the upper, middle, and lower radicular groups. A July 2015 VA examination identifies inolvement of the upper radicular group. A November 2020 VA examination identifies involvement of the middle radicular group but only for the right upper extremity as the left upper extremity appears to no longer be affected by radiculopathy that is now inactive or dormant. In order to apply the proper disability rating, an addendum opinion is requested to provide clarification and identify if the medical circumstances changed over time in terms of which nerve group was affected, or if one or more nerve group more accurately reflects the elements of the disability present. See 38 C.F.R. § 4.2. The matters are REMANDED for the following action: Obtain an addendum medical opinion to clarify the nerve groups affected by the Veteran's service-connected right and left upper extremity neurological disorder throughout the period on appeal. A review of the evidentiary record is required, but an additional in-person examination of the Veteran is not necessary unless the examiner determines that an additional examination is necessary. TO THE EXAMINER: Please consider the Veteran's right and left upper extremity neurological disorders in relation to their history since November 2006. The Board acknowledges that different examiners, at different times, will not describe the same disability in the same language and that has occurred here were different radicular groups have been identified as affected. For example, compare VA examinations in January 2013, July 2015, and November 2020. The Board must reconcile the various reports into a consistent picture so that the ratings established may accurately reflect the elements of disability present. To that end, please clarify whether, to the best of your knowledge in a full review of the evidence: (a) Has the nerve group affected by the Veteran's right and left upper extremity neurological disorders changed over time since November 2006, or is this merely a difference in the descriptions used by different examiners? Please explain to the extent possible. (b) If the affected nerve group has changed, please describe the nerve group(s) affected and an approximate time frame for each identified change in nerve group affected since November 2006. (c) If the affected nerve group has not changed, please identify the nerve group(s) that most accurately reflect all elements of the upper extremity neurological disabilities present from November 2006 to the present. (d) If ALL radicular groups have exhibited components of incomplete paralysis at any given point since November 2006, please estimate the time period for which all radicular groups were/are affected. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.