Citation Nr: A25035405 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240720-458026 DATE: April 17, 2025 ORDER Entitlement to an allowance for an automobile or other conveyance, and adaptive equipment is granted. FINDING OF FACT The competent and probative evidence demonstrates that service connected status post right carpal and lateral epicondylar release with residual right hand radial neuropathy has resulted in the permanent loss of use of one hand. CONCLUSION OF LAW The criteria for entitlement to an allowance for an automobile or other conveyance, and adaptive equipment are met. 38 U.S.C. §§ 3901, 3902, 5103, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.808. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to January 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from February 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to an allowance for an automobile or other conveyance, and adaptive equipment, or adaptive equipment only The Veteran contends he is entitled to financial assistance for an automobile or other adaptive equipment due to permanent loss of use of one or both hands or permanent loss of use of one or both feet due to service connected disabilities. Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. See 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. See 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. 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. See 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. Examples under 38 C.F.R. § 3.35(a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. Further, in Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance. The Board must also consider the impact of pain. Id. In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court further clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350(a)(2)(i) and § 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities." Id. The Jensen Court did note, however, that "loss of use" in a general sense was the "deprivation of the ability to avail oneself" of that extremity. Id. After reviewing the competent and probative evidence of record, the Board finds that entitlement to an allowance for an automobile or other conveyance, and adaptive equipment is warranted. The Veteran has several service-connected disabilities. For the purposes of the claim, the relevant disabilities are status post right carpal and lateral epicondylar release with residual right hand radial neuropathy, left wrist strain, degenerative arthritis cervical spine, lumbar spine strain with intervertebral disc syndrome, patellofemoral syndrome and right knee degenerative joint disease, and left knee patellofemoral syndrome. The Veteran was afforded a peripheral nerve conditions examination in December 2023 to evaluate the severity of right hand radial neuropathy. The Veteran reported his right upper extremity is like a club. He stated that he cannot tie his shoes, grip anything, or use for hygiene or writing. The Veteran further reported that he requires his wife's help with all activities of daily living. The examiner found the symptoms attributable to right hand radial neuropathy included moderate right upper extremity intermittent pain. Right extremity examination revealed normal reflex and sensory with right wrist flexion, grip, and pinch strength reduced to active movement against gravity. The examiner opined that functioning of the right upper extremity is so diminished that amputation with prothesis would equally serve the Veteran. Private treatment records from April 2023 demonstrate that the Veteran has a contracture of his right hand making it very hard to extend and open fully. (Continued on the next page) ? Considering the following, the Board finds that the competent and probative evidence demonstrates that service connected status post right carpal and lateral epicondylar release with residual right hand radial neuropathy has resulted in the permanent loss of use of one hand. The Board finds the December 2023 VA examination and April 2023 private medical evidence to be the most probative evidence of record. Accordingly, entitlement to an allowance for an automobile or other conveyance, and adaptive equipment is granted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B Jackson, M. 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.