Citation Nr: 25005077 Decision Date: 04/15/25 Archive Date: 04/15/25 DOCKET NO. 21-00 564A DATE: April 15, 2025 ORDER Entitlement to a certificate for financial assistance in the purchase of an automobile or adaptive equipment is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance for the period prior to September 2, 2021 is denied. FINDINGS OF FACT 1. The Veteran does not meet the requirements for entitlement to a certificate of eligibility in the purchase of an automobile or other conveyance and adaptive equipment. 2. The weight of the evidence indicates the Veteran did not require regular aid and attendance prior to September 2, 2021. CONCLUSIONS OF LAW 1. The criteria for establishing eligibility for financial assistance for in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only, are not met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.808. 2. The criteria for SMC based on the need for the regular aid and attendance of another person are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1993 to May 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2023, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A transcript of his testimony is of record. These matters were previously before the Board in November 2024, when they were remanded for additional development. Automobile and/or Adaptive Equipment The Veteran seeks financial assistance for an automobile and adaptive equipment, or for adaptive equipment only. Specifically, he asserts that he "has effectively lost all use of his right leg for purposes of driving" due to his service-connected radiculopathy, and right thigh strain. See Hearing Transcript at pgs. 6-9 (asserting he has effectively lost all use of his right leg for purposes of driving because of weakness and difficulty feeling the gas and brake pedal with driving longer than 30 minutes). He further noted that his ability to drive is further complicated by his bilateral upper extremity peripheral neuropathy. Id. 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 (ALS); or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. §§ 3901, 3902; 38 C.F.R. §§ 3.808, 17.156. The term "permanent loss of use" is not defined under 38 C.F.R. § 3.808 for automobile and adaptive equipment. However, under other relevant VA regulations, "loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be 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 a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. In the present case, the Veteran does not have a service-connected burn injury, ALS, or loss of a hand or foot. Additionally, he has not asserted, and the evidence does not otherwise indicate, that his service-connected disabilities result in ankylosis of one or both knees or one or both hips or that his service-connected bilateral diabetic retinopathy without macular edema with pinguecula results in permanent impairment of vision of both eyes. See Hearing Transcript at pg. 7 (denying that he has "ankylosis of either knee -- one or both knees, or one or both hips" or permanent visual impairment.) As such, this matter turns on whether the Veteran's service-connected conditions manifest with the permanent loss of use of one or both hands or feet. The Veteran asserts his service-connected disabilities "effectively" result in loss of use of his right leg" and that his upper extremity peripheral neuropathy complicates his ability to safely drive. See January 2023 hearing transcript at pgs. 7, 11 and April 29, 2021 Report of General Information. The Veteran has the following service-connected disabilities: unspecified anxiety disorder, rated 70 percent disabling from September 26, 2013 to August 6, 2018, and 100 percent disabling thereafter; obstructive sleep apnea with respiratory disability and bronchitis to include status-post pneumonia, rated 50 percent disabling effective September 26, 2013; lumbosacral strain, rated as 40 percent disabling effective June 13, 2011; right left lower extremity radiculopathy, rated 40 percent disabling effective February 14, 2020; left lower extremity radiculopathy, rated 20 percent disabling effective February 14, 2020; right anterior thigh strain with limitation of flexion, rated 20 percent disabling from June 13, 2011 to June 13, 2022 and 40 percent disabling thereafter; right anterior though strain with limitation of extension, rated 10 percent disabling from June 13, 2011; diabetes mellitus with erectile dysfunction, rated 20 percent disabling from February 25, 2014; right and left upper extremity diabetic neuropathy each separately rated 20 percent disabling from February 25, 2014; right hip strain with limitation of adduction, rated 10 percent disabling from June 13, 2011 to June 13, 2022 and 20 percent thereafter; right and left knee patellofemoral syndrome each separately rated 10 percent disabling; chronic sinusitis, rated 10 percent disabling from June 13, 2011; hypertension, rated 10 percent disabling from February 25, 2014; right thigh muscle group disability, rated 10 percent disabling from February 14, 2020; and bilateral diabetic retinopathy without macular edema with pinguecula, rated as noncompensable from February 25, 2014 until March 8, 2022 and 10 percent disabling thereafter. See December 2024 Rating Codesheet. After reviewing the evidence of record, the Board finds the weight of the evidence is against finding the Veteran's disabilities manifest with the permanent loss of use of one or both hands or feet. See e.g., June 2022 VA hip and thigh, and muscle injury examinations; February 2020 VA hip and thigh examination, August 2019 knee examination; May 2017 knee examination; April 2016 muscle injuries and hip examinations; and July 2015 knee examination (noting the Veteran's disabilities did not result in functional impairment of an extremity such that no effective functions remains other than that which would be equally well served by an amputation with prosthesis). In so finding, the Board acknowledge the evidence indicating the Veteran was unable to drive a company vehicle due to his functional limitations and that he had significant numbness of his lower extremities. See September 16, 2019 Dr. Kelly record and January 17, 2022 Vocational Assessment. Nevertheless, for the reasons discussed above, these limitations do not rise to the level required for permanent loss of use of one or both feet because the evidence is against finding that 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 use of a suitable prosthetic appliance. In sum, the Veteran is not service-connected for burn injury, or ALS, nor do his service-connected conditions manifest with permanent impairment of vision of both eyes, or loss or permanent loss of use of one or both hands and feet to warrant financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment. Accordingly, the Veteran 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. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. §5107(b); 38 C.F.R. § 3.102. SMC for the Period Prior to September 2, 2021 SMC is a special statutory award in addition to awards based on the schedular evaluations provided in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. §§ 1114(k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. In pertinent part, SMC under subsection (l) is payable when, as a result of service-connected disability, the Veteran has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. SMC under subsection (s) is payable where the veteran has a single service-connected disability rated as 100 percent, and (1) has either 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114; 38 C.F.R. § 3.350 With respect to entitlement to SMC under 38 U.S.C. § 1114(l), the Veteran has not asserted that he has anatomical loss or loss of use of both feet or one hand and one foot, that he has blindness in both eyes with visual acuity of 5/200 or less, or that he is permanently bedridden. See January 2023 hearing transcript at pgs. 7, 11. Rather, he contends that he is entitled to SMC based on the need for regular aid and attendance. The criteria for regular aid and attendance are set forth in 38 C.F.R. § 3.352(a), in accordance with 38 C.F.R. § 3.351(c)(3). The following are for consideration: inability of claimant to dress or undress, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; 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. It is not required that all the disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. Id. For the period prior to September 2, 2021, the Veteran's service-connected disabilities were: unspecified anxiety disorder, rated 70 percent disabling from September 26, 2013 to August 6, 2018, and 100 percent disabling thereafter; obstructive sleep apnea with respiratory disability and bronchitis to include status-post pneumonia, rated 50 percent disabling effective September 26, 2013; lumbosacral strain, rated as 40 percent disabling effective June 13, 2011; right left lower extremity radiculopathy, rated 40 percent disabling effective February 14, 2020; left lower extremity radiculopathy, rated 20 percent disabling effective February 14, 2020; right anterior thigh strain with limitation of flexion, rated 20 percent disabling from June 13, 2011 to June 13, 2022; right anterior though strain with limitation of extension, rated 10 percent disabling from June 13, 2011; diabetes mellitus with erectile dysfunction, rated 20 percent disabling from February 25, 2014; right and left upper extremity diabetic neuropathy each separately rated 20 percent disabling from February 25, 2014; right hip strain with limitation of adduction, rated 10 percent disabling from June 13, 2011 to June 13, 2022; right and left knee patellofemoral syndrome each separately rated 10 percent disabling; chronic sinusitis, rated 10 percent disabling from June 13, 2011; hypertension, rated 10 percent disabling from February 25, 2014; right thigh muscle group disability, rated 10 percent disabling from February 14, 2020; and bilateral diabetic retinopathy without macular edema with pinguecula, rated as noncompensable from February 25, 2014 until March 8, 2022. See December 2024 Rating Codesheet. Upon review, the Board finds the weight of the evidence against finding that the Veteran is in need for regular aid and attendance for the period prior to September 2, 2021. Specifically, the evidence of record prior to September 2, 2021 repeatedly indicates the Veteran was not unable to perform his activities of daily living (ADLs) due to his service-connected disabilities. See e.g., VA records from January 10, 2015, April 29, 2016, August 29, 2016, February 28, 2017, July 13, 2017, February 1, 2018, April 30, 2018, August 28, 2018, September 19, 2018, September 27, 2018, November 7, 2018, November 13, 2019 (noting the Veteran had no problems with his ADLs, was able to perform his activities of daily living independently). See also February 2020 VA hip and thigh examination and August 2019 knee examination (noting difficulty sitting, standing, walking for long periods, driving, bending, squatting, lifting but silent regarding any inability of claimant to dress or undress, keep himself ordinarily clean, need for assistance with adjustment of prosthetic or orthopedic appliances, inability to feed himself; inability to attend to the wants of nature; or incapacity requiring care or assistance on a regular basis to protect against hazards or dangers in his daily environment), May 2017 VA knee examination (noting difficulty bending but silent regarding difficulty with ADLs), April 2016 muscle injuries, hip, and knee examinations (noting the Veteran's disabilities resulted in no functional limitations). The evidence clearly shows some restrictions in the Veteran's functional abilities that impact his ability to perform ADLs, such as shopping in crowds and that his wife "helps him to remember to take his medications." See November 13, 2019 and April 8, 2019 VA records. The Veteran's wife also reported that she quit her job in 2017 to be the Veteran's caregiver. See e.g., May 17, 2022 VA record. Nevertheless, the evidence does not indicate the Veteran needed regular aid and attendance with regard to the factors set forth in 38 C.F.R. §§ 3.351(c), 3.352(a). Specifically, there is no indication the Veteran is unable to dress or undress, to keep himself ordinarily clean and presentable, to feed himself, to attend to the wants of nature, or to protect himself from hazards or dangers incident to his daily environment prior to September 2, 2021 due to his service-connected disability. To the contrary, the weight of the evidence indicates that he was generally able to perform his activities of daily living without regular assistance and, at times, acted as the "primary caretaker" for his wife and children. See e.g., February 13, 2020 VA treatment record (stating the "Veteran reports he is continuing to act as primary caretaker to wife and children." Finally, he is not restricted to either his home or bedridden because of his service-connected disabilities. See e.g. November 13, 2019 and September 23, 2019 VA records (noting the Veteran attends church, plays in a band, and attends an art program in the community and that he is able to go to the grocery store). The Board acknowledges that February 11, 2016 VA record noted the Veteran had shoulder pain affecting inter alia his ADLs. Nevertheless, the Veteran is not service connected for a shoulder disability. See December 2024 Rating Decision Codesheet. Accordingly, that impairment cannot be considered. The Board also considered the April 2022 VA mental disorder examination, which noted memory impairment. Nevertheless, that examination is dated well outside the period at issue and the Veteran's wife specifically reported that "across the past year she has observed... [the Veteran] forget to complete tasks (ie take his medications), forget to turn off appliances including their stove." Accordingly, even the retrospective nature of that reported impairment, falls outside the period on appeal. As such, it is significantly less probative than the other evidence of record. In sum, while the record reflects some restrictions and assistance from his spouse due to his disabilities, it does not reflect that the Veteran is so helpless as to be in regular need of aid and attendance. Accordingly, entitlement to SMC is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. §5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.