BVA9505878 DOCKET NO. 93-04 567 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Ripley P. Schoenberger, Counsel INTRODUCTION The veteran served on active duty from April 1946 to April 1947. This appeal arises from an August 1992 decision by the denying his application for a certificate of eligibility for financial assistance for the purchase of an automobile or other conveyance and adaptive equipment. A Notice of Disagreement was received in September 1992. A statement of the case was furnished in December 1992 and VA Form 9, Appeal to the Board of Veteran's Appeals was received in January 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that due to the severity of the service connected pes planus, he is wheel chair bound. Thus, he has lost the use of his feet, and his appeal should be allowed. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered of all the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for entitlement to a certificate of eligibility for financial assistance for the purchase of an automobile or other conveyance and adaptive equipment. FINDINGS OF FACT 1. Service connection has been established for pes planus, evaluated as zero percent disabling. 2. The veteran does not have loss or permanent loss of use of one or both feet, loss or permanent loss of use of one or both hands, ankylosis of one or both knees or one or both hips or blindness in both eyes, as a result of injury or disease incurred in or aggravated during active service. CONCLUSION OF LAW The criteria for a certificate of eligibility for financial assistance in the purchase of an automobile or conveyance and adaptive equipment have not been met. 38 U.S.C.A. §§ 1114(k), 3901, 3902, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.305(a)(2), 3.808 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. Service connection has been established for pes planus, currently evaluated as zero percent disabling. A certificate of eligibility for financial assistance in the purchase of one automobile or other conveyance in an amount not exceeding the amount specified under 38 U.S.C.A. § 3902 (including all State, local and other taxes where such are applicable and included in the purchase price) and of basic entitlement to necessary adaptive equipment will be made where the claimant has: (i) Loss or permanent loss of use of one or both feet; (ii) Loss or permanent loss of use of one or both hands; (iii) Permanent impairment of vision of both eyes with 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 the visual field subtends an angular distance no greater than 20 degrees in the better eye. (iv) Adaptive equipment eligibility exists when there is ankylosis of one or both knees or one or both hips. 38 U.S.C.A. § 3901; 38 C.F.R. § 3.808. Loss of use of a hand or 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 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 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. (b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, 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 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a)(2). On VA examination, conducted in August 1991, the veteran stated that his feet had become progressively worse, and he had had to use a wheel chair a few times in the past. Currently, he used a cane. His medical history included hypertension, and he had had several strokes, one major, which affected his left side. He complained that his feet and legs ached and hurt all the time, and he got severe cramps in his legs. He had difficulty walking because of pain in his feet and legs. At times, his lower legs had severe cramps. On examination, it was reported that the veteran's longitudinal arches were fairly well preserved, even with weight bearing. The transverse arches were flat, and there was bilateral hallux valgus. The feet were cool to touch, and the toes were somewhat cyanotic with poor circulatory return. His gait was hobbling with short painful steps. He was unable to rise on his toes or walk on his heels. Pronation and supination of the feet were normal, and no callous formation was noted. X-ray films were interpreted to show no bony abnormalities, and no evidence of pes planus. The relevant diagnoses were moderate bilateral pes planus, and apparent circulatory disturbance of the feet. On the most recent VA examination, conducted in November 1992, the veteran stated that he had been confined to a wheel chair for the last 4 months, and was unable to ambulate without assistance. He described severe pain in his feet which was made worse by weight bearing. He described most of the pain as being in the arch region as well as extending up into the ankles and calves. On examination it was reported that the veteran had marked difficulty in getting from the wheel chair across the room to the examining table. The examiner reported that there was minimal pes planus. The range of motion of the right ankle was from 10 degrees dorsiflexion to 30 degrees plantar flexion. The veteran complained of pain in the ankle with the range of motion studies, but most of the pain appeared to be in the area of the calcaneal insertion of the plantar fascia. There was also tenderness over the plantar arch region. The veteran was unable to heel and toe walk or to squat and rise again. X-ray films were interpreted to show no fractures or bony dislocations, and that the soft tissue was unremarkable. The impression was plantar fasciitis. The veteran does not contend, and the evidence does not show, that he is blind or has lost the use of either hands. The veteran maintains that he has lost the use of both feet due to the severe pain caused by the service connected pes planus. The evidence show that the veteran complains of severe pain in his feet. However, the recent VA examinations described only moderate pes planus, and the examiners did not attribute the severe pain in the feet to the service connected pes planus. In addition, the X-ray films were interpreted as being within normal limits, that is they did not show severe pes planus. He does not have extremely unfavorable complete ankylosis of either knee, complete ankylosis of two major joints of either lower extremity, 3 1/2 inch shortening of one leg, or complete paralysis or either common peroneal nerve. In addition, he is able to ambulate to some degree. Thus, since the veteran does not have loss of use of either foot due to a service connected disability, he does not meet the criteria for a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment. ORDER Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and necessary adaptive equipment is denied. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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.