Citation Nr: 1502273 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 12-02 583A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to specially adapted housing or a special home adaptation grant. 2. Entitlement to special monthly compensation (SMC) based on a higher level of aid and attendance. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008 and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Gretna, Louisiana and New Orleans, Louisiana. The issue of entitlement to SMC based on a higher level of aid and attendance is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected disabilities have resulted in permanent and total disability that is due to the loss or loss of use of one or both lower extremities so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. CONCLUSION OF LAW The criteria for entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing are met. 38 U.S.C.A. §§ 2101, 5107(b) (West 2014); 38 C.F.R. § 3.809 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board grants entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing, which constitutes a complete grant of the Veteran's claim, no discussion of VA's duty to notify or assist is necessary. For a certificate of eligibility for assistance in acquiring specially adapted housing, the evidence must establish permanent and total service-connected disability due to: 1) the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair; or 2) blindness in both eyes, having only light perception, plus the loss of use of one lower extremity; or 3) the loss, or loss of use, of one lower extremity together with the residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair; or 4) the loss, or loss of use, of one lower extremity together with the loss, or loss of use, one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair; or 5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or 6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C.A. § 2101(a) (West 2014); 38 C.F.R. § 3.809(b) (2014). The term "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d) (2014). Where entitlement to specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. 38 U.S.C.A. § 2101(b) (West 2014); 38 C.F.R. § 3.809a(b) (2014). The Veteran is currently service-connected for posttraumatic stress disorder (PTSD), 100 percent disabling; bladder incontinence associated with Degenerative Joint Disease (DJD) of the lumbar spine, 60 percent disabling; DJD of the lumbar spine, 40 percent disabling; left upper extremity radiculopathy , 40 percent disabling; left lower extremity radiculopathy, 40 percent disabling; diabetes mellitus, 20 percent disabling; DJD of the cervical spine, 20 percent disabling; hepatitis C, 20 percent disabling; right upper extremity radiculopathy, 20 percent disabling; DJD of the thoracic spine, 10 percent disabling; radiculopathy and diabetic peripheral neuropathy of the right lower extremity, 10 percent disabling; and loss of erectile power, 0 percent disabling. The Veteran has a combined rating of 100 percent. Accordingly, the Veteran has a permanent and total disability. The Veteran asserts that his disabilities result in the loss, or loss of use, of both lower extremities so as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. Here, the Veteran has mild right lower radiculopathy with diabetic peripheral neuropathy, moderately severe left lower extremity radiculopathy, moderate right upper extremity radiculopathy, moderately severe left upper extremity radiculopathy, and varying degrees of DJD in his cervical, thoracic, and lumbar spine. Moreover, VA treatment records and VA examination reports indicate that the Veteran regularly and consistently uses a wheel chair as his normal mode of locomotion. A March 2010 VA examination report noted that the Veteran had a walker and a wheel chair at home, but due to trouble with numbness and strength in his hands and legs he was generally wheelchair bound. The examiner further noted that due to weakness and numbness in his lower extremities the Veteran was unable to balance and thus could not stand without the use of another person. VA treatment records in September 2011 noted that the Veteran arrived to VA medical appointments in a wheel chair and was unable to stand without assistance due to lower extremity pain and weakness. In a January 2012 letter, Dr. Lippert, a VA physician, stated that due to the Veteran's trouble standing and walking the Veteran used a power chair. A February 2012 VA examination report indicated that for normal locomotion, the Veteran required constant use of a wheelchair, regular use of a cane(s), and the occasional use of a walker. After reviewing all the evidence and resolving any doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities manifest in the loss of use of one or both lower extremities as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. 38 C.F.R. §§ 3.102, 3.809 (2014). Therefore, entitlement to a certificate for assistance in acquiring specially adapted housing is granted. In light of the grant of entitlement to a certificate of eligibility for specially adapted housing, the claim for a special home adaptation grant is rendered moot, as that benefit is available only if a Veteran is not entitled to the more substantial benefit of the certificate of eligibility for assistance in acquiring specially adapted housing. See 38 C.F.R. § 3.809a (West 2014). ORDER Entitlement to specially adapted housing is granted. REMAND After a review of the record, the Board finds that further development is needed prior to adjudicating the remaining claim. Initially, the Board notes that there may be relevant outstanding VA and private treatment records. In an October 2013 correspondence, the Veteran indicated that his VA treatment provider had been reducing, on a monthly basis, the amount of pain medication he was prescribed, which in turn increased his pain and worsened his condition. The most recent VA treatment records, which are dated in December 2011, do not document the asserted reduction in the Veteran's pain medication. Accordingly, the Board finds that there may be outstanding VA treatment records. Moreover, an October 2013 letter, from J. B. of Help At Home Incorporated, indicated that beginning October 29, 2013 the Veteran received in-home assistance with various activities of daily living. However, the October 2013 letter does not indicate whether any assistance was provided by a licensed healthcare professional or under the regular supervision of a licensed healthcare professional. Accordingly, on remand any private in-home assistance records should be obtained. Lastly, in his October 2013 correspondence the Veteran indicated that his condition had worsened, that his pain had increased, and that his need for assistance had increased. VA's duty to assist includes conducting a thorough and comprehensive medical examination. Baker v. Derwinski, 2 Vet. App. 315 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old to adjudicate the Veteran's claim. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Based on the foregoing, the Board finds that the Veteran's disabilities may have worsened since his last VA examination, which in turn may affect his eligibility for a higher level of aid and attendance. Accordingly, upon remand a VA examination is warranted to determine the current effect the Veteran's service-connected disabilities have on his need for aid and attendance. 38 C.F.R. § 3.159(c)(4)(i) (2014); see Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he clarify whether either any person who provides him with in-home services is licensed to provide such services or provides such services under the regular supervision of a licensed healthcare profession. 2. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for all private treatment records related to his service-connected disabilities, to include Help At Home Incorporated. Upon receipt of such, VA must take appropriate action to request all identified treatment records. All efforts to obtain these records must be documented. Additionally, the Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. Obtain all VA treatment records for the Veteran dated from December 2011 to present. These treatment records should be associated with the Veteran's claims file. 4. Thereafter, schedule the Veteran for a VA examination to determine his need for a higher level of aid and attendance. The claims file and a copy of this remand must be made available to the examiner prior to the examination. Any necessary tests and studies should be accomplished. The examiner must evaluate the nature and severity of all of the Veteran's current service-connected disabilities. The Board notes that the Veteran is service-connected for PTSD; bladder incontinence; DJD of the cervical spine, thoracic spine, and lumbar spine; right and left upper extremity radiculopathy; right and left lower radiculopathy; diabetes mellitus; hepatitis C; and loss of erectile function. The examiner is asked to address: a. Whether the Veteran needs a higher level of care (that is, the need for personal healthcare services provided on a daily basis in the Veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed healthcare professional). b. Whether in the absence of the provision of such higher level of care the Veteran would require hospitalization, nursing home care, or other residential institutional care. In rendering the requested opinions, the examiner should reconcile his or her opinion with the October 2010 letter from Dr. Keller indicating that due to his chronic medical problems absent twenty-four hour attendant care the Veteran would require a long-term care placement and the January 2012 correspondence from Dr. Lippert stating that the Veteran would probably benefit from a higher level of care and absent such care, might require hospitalization, nursing home care, or other residential institutional care. 5. After the above development has been completed, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs