Citation Nr: 0826459	
Decision Date: 08/06/08    Archive Date: 08/18/08

DOCKET NO.  02-11 985	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois

THE ISSUES

1. Entitlement to service connection for arthritis and loss 
of use of the right upper extremity as secondary to service-
connected residuals of shrapnel wounds and donor site graft 
of the right upper extremity.  

2. Entitlement to a certificate of eligibility for financial 
assistance in acquiring special adaptive housing.  

3. Entitlement to a certificate of eligibility for financial 
assistance in acquiring special home adaptation.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and J. F. 

ATTORNEY FOR THE BOARD
J. Fussell, Counsel


INTRODUCTION

The veteran, who is the appellant, served on active duty from 
January 1967 to May 1969. 

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of rating decisions in May 2002 and in September 
2006 of the Department of Veterans Affairs (VA) Regional 
Office (RO) in Waco, Texas.  

In February 2005, the veteran appeared at a hearing before 
the undersigned Veterans Law Judge.  A transcript of the 
hearing is in the record.  

In May 2005, the Board remanded the claims for special 
adaptive housing and special home adaptation. 

In January 2008, Report of Contact, the veteran withdrew his 
request for a hearing before the Board. 

The claim of service connection for arthritis and loss of use 
of the right upper extremity to include as secondary to 
service-connected residuals of shrapnel wounds and donor site 
graft of the right upper extremity is deferred until the 
claim for specially adaptive housing is finally adjudicated, 
which is REMANDED to the RO via the Appeals Management Center 
in Washington, DC. 


FINDING OF FACT

The veteran does not have service-connected blindness in both 
eyes with 5/200 visual acuity or less and he does not have 
service-connected disability of the left hand.  

CONCLUSION OF LAW

The criteria for a certificate of eligibility for financial 
assistance in acquiring special home adaptation are not met.  
38 U.S.C.A. § 2101(b) (West 2002 & Supp. 2008). 38 C.F.R. 
§ 3.809a (2007).  

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA amended VA's duties to notify and to assist a 
claimant in developing information and evidence necessary to 
substantiate a claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 
C.F.R. § 3.159.

In this case, the facts are not in dispute.  Resolution of 
the appeal is dependent on interpretation of the VA 
regulations pertaining to the certificate of eligibility for 
financial assistance in acquiring special home adaptation.  
As the claim is denied as a matter of law, the VCAA does not 
apply.  Mason v. Principi, 16 Vet. App. 129, 132 (2002).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The veteran's service-connected disabilities are: residuals 
of a shrapnel wound of the left lower extremity with fracture 
of the lower third of the left tibia and left second 
metatarsal with retained foreign bodies, 40 percent; post-
traumatic stress disorder, 30 percent; residuals of a left 
knee sprain with torn anterior cruciate ligament, 10 percent; 
residuals of shrapnel wounds and donor site for graft of the 
right upper extremity to include shrapnel wounds of the right 
shoulder, right upper arm, skin loss due to graft of the 
right elbow, 10 percent; residuals of multiple shrapnel wound 
scars of the face and neck, 10 percent; residuals of shrapnel 
wounds of the left thorax with retained foreign bodies, 10 
percent; osteopenia of the right femur, 10 percent; bilateral 
hearing loss, 10 percent; tinnitus, 10 percent; and a 
noncompensable rating for residuals of multiple shrapnel 
wounds of the right lower extremity and the right and left 
pectoral regions; the combined disability rating is 80 
percent; the veteran is also in receipt of a total disability 
rating for compensation based on individual unemployability 
and of special monthly compensation for loss of use of one 
foot.   

In February 2005, the veteran testified that he was safer in 
a wheelchair because of loss of use of the left lower 
extremity and right knee instability.  The veteran testified 
that he could grasp objects with his right hand and he could 
pick up a cup or a glass as well as write with his right 
hand, but he could not open a jar and although he could bring 
his right thumb to his fingers, he could not move them 
together and he had no feeling.  

Special Home Adaption Grant

Under 38 C.F.R. § 3.809a, a certificate of eligibility for 
assistance in acquiring a special home adaptation grant 
requires that a veteran not be entitled to a certificate of 
eligibility for assistance in acquiring specially adapted 
housing under 38 C.F.R. § 3.809 (specially adapted housing).  

A veteran who first establishes entitlement under 38 C.F.R. 
§ 3.809a, who later becomes eligible for a certificate of 
eligibility under 38 C.F.R. §  3.809 may be issued a 
certificate of eligibility under 38 C.F.R. § 3.809.  However, 
no particular type of adaptation, improvement, or structural 
alteration may be provided to a veteran more than once.

The disabilities that qualify for special home adaptation 
under 38 C.F.R. § 3.809a are service-connected blindness in 
both eyes with 5/200 visual acuity or less, or anatomical 
loss or loss of use of both hands.



Analysis

An adverse decision under 38 C.F.R. § 3.809a does not 
preclude the veteran from subsequently establishing eligible 
for a certificate of eligibility under 38 C.F.R. § 3.809.  
For this reason, as the law is dispositive and the facts are 
not disputed, the Board is deciding the claim for special 
home adaptation under 38 C.F.R. § 3.809a. 

The record clearly shows that the veteran does not have a 
service-connected eye disability or a disability of the left 
upper extremity.  In the absence of service-connected 
blindness in both eyes with 5/200 visual acuity or less, or 
anatomical loss or loss of use of both hands, there is no 
factual or legal basis to support the claim for special home 
adaptation under 38 C.F.R. § 3.809a.  

Where the law and not the evidence is dispositive, the claim 
must be denied because of the lack of entitlement under the 
law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).    


ORDER

Entitlement to a certificate of eligibility for financial 
assistance in acquiring special home adaptation is denied.  

REMAND

Pursuant to the Board's remand in May 2005, the veteran was 
afforded a VA examination in April 2006 to determine whether 
he had loss of use of the right upper extremity and, 
alternatively, if loss of use of the right upper extremity 
was not found, whether he had residuals of injuries to the 
right upper and right lower extremity together with loss of 
use of the left lower extremity that so affected the function 
of balance or propulsion as to preclude locomotion without 
the aid of braces, crutches, canes, or a wheelchair.  As the 
examiner did not specifically address the Board's remand 
request, in June 2006, the RO requested an addendum to the 
report of the VA examination.    

In July 2006, VA reported that the requested examination was 
cancelled because the veteran withdrew his claim.  As the 
veteran had not withdrawn his claim, it is appears that the 
examination was inadvertently cancelled.

In accordance with Stegall v. West, 11 Vet. App. 268 (1998) 
(a remand by the Board confers on the veteran a right to 
compliance), the claim is REMANDED for the following action:

1. Schedule the veteran for a VA 
examination by a physician to determine 
whether the veteran has loss of use of 
the right upper extremity.  The claims 
folder should be made available for 
review by the examiner.

In formulating an opinion, the term 
"loss of use" means: the actual 
remaining function of the hand and 
whether the acts of grasping and 
manipulation can be accomplished 
equally well by an amputation stump 
with prosthesis.  

Alternatively, only if loss of use of 
the right upper extremity is not found, 
the examiner is asked to express an 
opinion on whether the residuals of 
injuries to the right upper extremity, 
namely, shrapnel wounds and donor site 
for graft of the right upper extremity 
to include shrapnel wounds of the right 
shoulder, right upper arm, and skin 
loss due to graft of the right elbow, 
rated 10 percent, and the injuries of 
the right lower extremity, namely, 
osteopenia of the right femur, rated 10 
percent, and noncompensable scars, 
together with loss of use of the left 
lower extremity so affect the function 
of balance or propulsion as to preclude 
locomotion without the aid of braces, 
crutches, canes, or a wheelchair. 

In formulating an opinion, the term 
"preclude locomotion" means the 
necessity for regular and constant use 
of a wheel chair, braces, crutches, or 
canes as a normal mode of locomotion 
although occasional locomotion by other 
methods may be possible. 

2. After the development is completed, 
adjudicate the claim special adaptive 
housing.  If the benefit sought 
remains, furnish the veteran a 
supplemental statement of the case and 
return the case to the Board. 

The veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner. 
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs