92 Decision Citation: BVA 92-14335 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-47 776 ) DATE ) ) ) Sitting at White River Junction, Vermont THE ISSUE Entitlement to payment for or reimbursement of the costs of certain unauthorized adaptive equipment for an automobile. (The issue of the veteran's entitlement to an increased rating for neurodermatitis is the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: A representative of the Veterans Service Division of the Department of Veterans Affairs (VA) WITNESSES AT HEARING ON APPEAL Appellant, spouse, & B. Cottle ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (BVA) on appeal from adverse action taken in June 1991 by the Medical Administration Service (MAS) of the Department of Veterans Affairs (VA) Medical and Regional Office Center in White River Junction, Vermont. The veteran served on active duty from September 1965 to September 1968. The notice of disagreement was received by VA in June 1991, and a statement of the case was furnished to the veteran in September 1991. The veteran's substantive appeal was received by VA in October 1991. The veteran was afforded a hearing before a Traveling Section of BVA in October 1991, at which time testimony was received in support of the benefit sought. The case was received and docketed at BVA in November 1991, and it is of note that the veteran has elected to represent himself for purposes of this appeal, although he was provided assistance through VA in connection with the hearing in October 1991. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran that he is entitled to payment for or reimbursement of the costs of certain adaptive equipment, to include an automatic transmission, power brakes, power windows and door locks, power steering, cruise control, air conditioning, and an auxiliary fuel tank, which were obtained at the time of his purchase of a new, 1987 Ford van in August 1988. Allegations are advanced to the effect that his purchase of the van was made with the full knowledge and approval of the case manager of the VA Vocational Rehabilitation and Counseling (VR&C) staff. At the time of the van's purchase, the veteran was involved in a program of vocational rehabilitation services administered by VA under Chapter 31 of the United States Code. Specifi- cally, he was about to begin a program of unpaid, on-the-job training at a VA facility in connection with his previously developed individualized written rehabilitation plan and transportation to that facility was needed. Entitlement to the benefit sought is felt to exist under the provisions of Chapter 31, or in the alternative, under Chapter 39. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of BVA that the preponderance of the evidence is against the veteran's claim for entitlement to payment for or reimbursement of the costs of certain automobile adaptive equipment obtained at the time of the veteran's purchase of a van in August 1988. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by VA. 2. Service connection has not been established for any disability resulting in loss or permanent loss of use of one or both of the veteran's feet, loss or permanent loss of use of one or both hands, permanent impairment of vision of both eyes with central visual acuity of 20/200 or less in the better eye with correction, or ankylosis of one or both knees or one or both hips. 3. The automobile adaptive equipment obtained by the veteran at the time of his purchase of a van in August 1988 was secured without prior authorization from the VR&C case manager or the prosthetics representative of MAS. CONCLUSION OF LAW The criteria for payment for or reimbursement of the costs of automobile adaptive equipment under the provisions of either Chapter 31 or 39 of the United States Code have not been met. 38 U.S.C. §§ 3102, 3104, 3901, 3902, 5107; 38 C.F.R. §§ 3.808, 21.216. REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, we find that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C. § 5107(a). That is, we hold that he has presented a claim which is plausible. As well, we are satisfied, following a review of the record, that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case for additional action. Accordingly, VA has no further obligation to assist the veteran in the development of facts pertinent to this claim. 38 U.S.C. § 5107(a). Some of the basic facts are not in dispute. Service connection has been established for a scar of the left posterior arm, evaluated as 10 percent disabling; minute scars of both legs, evaluated as 10 percent disabling; a scar of the right posterior upper thorax, evaluated as 10 percent disabling; neurodermatitis, evaluated as 10 percent disabling; and cellulitis of the left arm due to a shrapnel wound, evaluated as noncompensable. A permanent and total disability rating, based on the combination of service-connected and nonservice-connected disorders, has been in effect since April 1973, with there being entitle- ment to special monthly pension at the housebound rate under 38 C.F.R. § 3.351. As a result of a postservice motor vehicle accident in 1973, with multiple surgical procedures, the veteran has been confined to a wheelchair since the early 1980's. Facts which are in dispute will be discussed below. Entitlement to payment or reimbursement of the costs of automobile adaptive equipment is contingent on meeting certain criteria outlined in the United States Code and the Code of Federal Regulations. Entitlement under Chapter 39 of the United States Code is conditioned on the presence of one or more service-connected disabilities resulting in loss or permanent loss of use of one or both feet or hands, or service-connected disabilities involving severe visual impairment or ankylosis of one or both knees or hips. 38 U.S.C. §§ 3901, 3902. See 38 C.F.R. § 3.808. In this instance, service connection has not been established for any of the noted disabilities, such as would result in entitlement under Chapter 39. A veteran not entitled under Chapter 39 may, nonetheless, receive necessary special adaptive automobile equipment, if he or she is pursuing a program of vocational rehabilitation services under 38 U.S.C. Chapter 31. 38 U.S.C. §§ 3102, 3104; 38 C.F.R. § 21.216; Opinion of the VA General Counsel, February 9, 1984. See VA's Veterans Benefits Administration (VBA) Manual M21-1, paragraph 300.06(c). Here, the record establishes that the veteran was, at the time of the van's purchase in August 1988, a Chapter 31 beneficiary with a compensable service-connected disability and a bona fide need for rehabilitation due to the presence of an employment handicap to which his service-connected disability materially contributed. 38 U.S.C. § 3102. Evidence on file reveals that, in June 1988, it was determined by VR&C staff that the veteran's previously completed training under Chapter 31 had been insufficient for him to overcome the handicapping effects of his service-connected and nonservice-connected disabilities. He was at that time found to be eligible for employment services under Chapter 31, and in connection with a subse- quently developed individualized written rehabilitation plan, he was to begin, in August 1988, an unpaid, on-the-job training program as a computer technician/programmer at a VA facility. During a counseling session in late July 1988, the veteran initially expressed his belief that he was in need of a new van in order to enter training and that he expected VA to assist him financially with its purchase. It was noted by the VA counseling psychologist that the veteran was fearful about being stranded in his current vehicle, a 1986 Nissan station wagon, although its odometer registered only 50,000 miles and it had never had any problems in the past. A VA vocational rehabilitation specialist was advised in early August 1988 by the veteran that he intended to go ahead with his purchase of a new van, and that the purchase was to be made with monetary assistance from the State of New Hampshire, Division of Vocational Rehabilitation. That same individual was notified in September 1988 of proposed van modifications, not herein at issue. In October 1988, a VA counseling psychologist determined that the veteran was in need of those van modifications; specifically, installation of certain adaptive equipment, such as hand controls, steering knob, and wheelchair lift. That determination was then forwarded to the prosthetics service of VA for approval, which was later granted in April 1989. The modifications in question, which totaled $14,725, eventually were made to the veteran's van at VA expense. Evidence on file reveals that it was not until August 1990 that the veteran made inquiry of VA personnel as to his entitlement to payment or reimbursement for certain items, including air conditioning and an automatic transmission, which were obtained with the van's purchase in August 1988. In response, the veteran was advised in correspondence, dated in September 1990, that he had not previously filed an application for adaptive equipment involving either air conditioning or an automatic transmission. In October 1990, the veteran filed with VA an Application for Adaptive Equipment-Motor Vehicle, in which he sought payment or reimbursement of the costs of various items of adaptive equipment, to include automatic transmission, power brakes, power steering, power windows and door locks, tilt steering wheel, cruise control, air conditioning, and an auxiliary fuel tank. He further indicated in a letter, dated in October 1990, that no application had been made for the noted adaptive equipment prior thereto, because he had not been timely advised that he was entitled, and VA personnel with whom he was in contact likewise were without the knowledge that payment or reimbursement could not be made without prior authorization. As noted above, the dispositive factor in this case is the fact that the veteran did not obtain authorization for those items of automobile adaptive equipment which were obtained in connection with the van's purchase, as required by 38 C.F.R § 21.216(a)(3). His statements that the van was acquired with the VA's approval, or at the behest of VA as had been reported to a U.S. Senator's aide in early 1989, are totally unsupported. VA guidelines, as set forth in VBA Manual M28-1, Part III, paragraph 6.09(f), indicate that once the VR&C case manager determines that there exists a need for automobile adaptive equipment for a Chapter 31 beneficiary, the request for consideration of the need for adaptive equipment is to be forwarded to the prosthetics representative of MAS for approval. Also, VA is therein noted to have no obligation or responsibility to reimburse a veteran who secures adaptive equipment, van modification, or other alteration without the prior approval of the prosthetics representative. VBA Manual M28-1, Part III, paragraph 6.09(f)(3)(c)(1). While we take note of the veteran's and VR&C staff's lack of familiarity with pertinent law and regulations, as well as administrative guidelines governing claims for automobile adaptive equipment under Chapter 31, as indicated by the testimony of the veteran and a VR&C employee at the hearing conducted in October 1991, one of the threshold criteria for entitlement to payment for or reimbursement of the costs of the adaptive equipment in question is prior authorization, which clearly was absent in this case. The veteran testified at the recent hearing that he previously had secured automobile adaptive equipment through VA for other vehicles, and the record reflects that a wheelchair carrier and trailer hitch for his automobile were secured through VA in 1982 and that a scooter lift for his Nissan wagon was obtained from VA in 1987. As a result, the veteran must be found to have had at least some familiarity with program requirements concerning the need for prior approval by VA personnel. In response to testimony offered by a VR&C staffer as to existing practices regarding reimbursement of Chapter 31 beneficiaries for items purchased without prior authoriza- tion, we observe that that prior authorization is required by the case manager in all cases, except where supplies sought consist of standard sets of books, tools, or supplies which the training facility requires all trainees or employees to have. 38 C.F.R. § 21.218(a); See VBA Manual M28-1, Part III, paragraph 6.07(a)(1) & (2). The general rule is that VA will not reimburse a veteran who personally buys supplies, as that term is defined by 38 C.F.R. § 21.210(b), except where the vendor or facility agrees to return the amounts(s) paid, so that the charges remain an unpaid obligation of VA, or where the facts and equities involved warrant payment by VA. 38 C.F.R. § 21.220(b); VBA Manual M28-1, Part III, paragraph 6.06(g). Automobile adaptive equipment is, for Chapter 31 purposes, special equipment, and not a supply subject to the aforementioned exceptions. 38 C.F.R. § 21.216(a); VBA Manual M28-1, Part III, paragraph 6.09(f)(3)(c). Rather, the regulation and the corresponding manual provisions explicitly require authorization by VA prior to the purchase of automobile adaptive equipment. Notwithstanding the well-intentioned testimony of the veteran and others, it is clear that prior authorization for the equipment in question was necessary, and as it was not obtained in this instance, we are without recourse but to deny the benefit sought. 38 U.S.C. §§ 3102, 3104; 38 C.F.R § 21.216. ORDER Entitlement to payment for or reimbursement of the costs of certain unauthorized automobile adaptive equipment is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 HALSTEAD H. CLARK UN HUN ANG, M.D. BRUCE E. HYMAN NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.