Citation Nr: 9906242	
Decision Date: 03/05/99    Archive Date: 03/11/99

DOCKET NO.  94-25 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to special monthly compensation based on the 
loss of use of both lower extremities, pursuant to 
38 U.S.C.A. § 1114(l) (West 1991).

2.  Entitlement to specially adapted housing or a special 
home adaptation grant pursuant to 38 U.S.C.A. § 2101 (West 
1991).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and [redacted]



ATTORNEY FOR THE BOARD

G. Strommen, Associate Counsel


INTRODUCTION

The veteran served on active duty from December 1967 to 
December 1970.

This case comes before the Board of Veterans' Appeals (Board) 
from a rating decision rendered in February 1994, in which 
the St. Petersburg, Florida, Regional Office (RO) of the 
Department of Veterans Affairs (VA) denied the veteran's 
claims of entitlement to special monthly compensation for 
loss of use of both lower extremities and entitlement to 
specially adapted housing or a special adaptive housing 
grant.  The veteran subsequently perfected an appeal of that 
decision.

In a July 1997 Board decision, this case was remanded to the 
RO for additional development.  Upon completion of this 
development the RO again denied the veteran's claims.  
Accordingly, this case is properly before the Board for 
appellate consideration.


FINDINGS OF FACT

1.  All information necessary for an equitable disposition of 
the veteran's claims has been developed.

2.  The veteran has established service connection for a 
seizure disorder, evaluated as 100 percent disabling. 

3.  The evidence shows that a wheelchair has been determined 
to be medically necessary due to the veteran's service-
connected seizure disorder which regularly results in him 
falling and injuring himself.
4.  The evidence shows that the veteran's legs demonstrate 
atrophy of the lower extremities consistent with confinement 
to a wheelchair for at least two years.

5.  The veteran has active military service from 1967 to 
1970.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to special monthly 
compensation for loss of use of both lower extremities are 
met. 38 U.S.C.A. §§ 1114, 1502, 1521, 5107 (West 1991); 
38 C.F.R. §§ 3.350 (1998).

2.  The criteria for entitlement to specially adapted housing 
pursuant to 38 U.S.C.A. § 2101(a) (West 1991) are met.  
38 U.S.C.A. § 2101(a) (West 1991); 38 C.F.R. § 3.809 (1998).

3.  The criteria for entitlement to a special home adaptation 
grant under 38 U.S.C.A. § 2101(b) (West 1991) are not met.  
38 U.S.C.A. § 2101(b) (West 1991); 38 C.F.R. § 3.809a (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board finds that the veteran's claims are well 
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 
1991); that is, he has presented claims that are plausible.  
He has not alleged that any records of probative value that 
may be obtained, and which have not already been associated 
with his claims folder, are available.  The Board accordingly 
finds that all relevant evidence has been properly developed, 
and that the duty to assist in this case, has been satisfied.  
38 U.S.C.A. § 5107(a).

The veteran contends that he is entitled to special monthly 
compensation, to include entitlement to specially adapted 
housing, pursuant to the criteria of 38 U.S.C.A. §§ 1114(l), 
2101, due to loss of use of his lower extremities.  After a 
review of the record, the Board finds that the veteran's 
contentions are supported by the evidence, and that the 
criteria for entitlement to special monthly compensation for 
loss of use of his lower extremities and entitlement to 
specially adapted housing, pursuant to 38 U.S.C.A. 
§§ 1114(l), 2101 (West 1991); 38 C.F.R. §§ 3.350, 3.809 
(1998), are met.

The veteran has established service connection for a seizure 
disorder, evaluated as 100 percent disabling, with additional 
special monthly compensation assigned because he is 
housebound pursuant to 38 U.S.C.A. § 1114(s)(1) (West 1991) 
and because he is in need of regular aid and attendance 
pursuant to 38 U.S.C.A. § (l)(1) (West 1991).  The RO denied 
his request for additional special monthly compensation based 
on the functional equivalent of loss of use of both lower 
extremities because the veteran's lower extremities are not 
organically impaired, but rather, he is restricted to a 
wheelchair due solely to his seizure disorder which causes 
him to fall daily during seizures, resulting oftentimes in 
injuries to his head and body.  

1.  Entitlement to special monthly compensation due to loss 
of use of both lower extremities pursuant to 38 U.S.C.A. 
§ 1114(l).

Reviewing the statutory provisions in question, pursuant to 
VA's Schedule for Rating Disabilities, 38 C.F.R. § 3.350(b) 
(1998) (Schedule), which governs assignment of special 
monthly compensation for the loss of use of both feet, 
consideration is made of the requirements laid out in 
38 C.F.R. § 3.350(a)(2) (1998).  Pursuant to 38 C.F.R. 
§ 3.350(a)(2) (1998), loss of use of a hand or a 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., 
determination of loss of use of a hand or foot is not 
restricted to organic loss but includes functional loss as 
well." (emphasis added).  This section goes on to state that 
[f]indings which confirm loss of use, such as atrophy of 
involved extremities, are required to support determinations 
under 38 C.F.R. § 3.350(a)(2) of functional loss of use of a 
hand or foot."  While the Board recognizes that provisions 
of the M21-1 are not binding, they do serve to illuminate the 
scope and intentions of given code sections and are used as 
such in the present decision.

In the present case, the medical evidence reveals that the 
veteran suffers from a severe seizure disorder due to a blow 
to the head in service.  Medical records and the veteran's 
seizure calendar indicate that he has approximately one 
seizure per day.  If he is not secured in a wheelchair during 
these seizures, he falls and injures himself.  The record 
reveals that he has had numerous head injuries, burns, and 
other physical harm due to falls during seizures.  In 
February 1981, the VA issued the veteran a wheelchair with a 
safety belt, so that he could ambulate without walking, thus 
reducing his risk of injury when his seizures occur.  

The record further shows that the veteran has been treated by 
a private physician, Dr. Tatum, who specializes in epilepsy 
treatment.  Dr. Tatum has submitted two statements to the 
record, most recently in June 1996, asserting that the 
veteran's use of a wheelchair for ambulation is medically 
necessary due to the frequency, severity and uncontrolled 
nature of his seizures.  This opinion has been seconded by 
two separate VA physicians in June 1996 and December 1997 
statements.  The June 1996 statement avers that the veteran 
has been ordered to avoid walking and use a wheelchair for 
mobility to prevent injuries caused by his seizures, 
particularly head injuries.  The December 1997 statement 
comes as an addendum to a VA compensation examination 
performed in response to the July 1997 Board remand.  The VA 
examiner notes that the veteran is unable to walk without the 
aid of a wheelchair, and that this inability to walk without 
a wheelchair is due to his service-connected seizure 
disorder.  The examiner further notes that while there is no 
organic loss of use of his legs, the veteran cannot ambulate 
outside of the wheelchair because his seizure disorder is so 
unstable that he has had numerous falls and injuries when he 
attempts to walk.  Furthermore, the examiner notes that the 
physical examination of the veteran's lower extremities 
revealed that there was atrophy and poor muscle tone due to 
the veteran's extended wheelchair confinement.  

In fact, the examination report notes that he had atrophy of 
both the thigh and calf muscles and that the veteran 
attempted to stand but was very shaky and tremulous.  The 
examiner diagnosed lower extremity disorder secondary to 
weakness and atrophy due to disease.  A hospital report from 
July 1998 notes that the veteran had full range of motion of 
the extremities, with adequate pulses, but an unsteady gait 
and stance.

Given this medical evidence, the Board finds that the veteran 
has the functional equivalent of loss of use of both lower 
extremities due to his service-connected seizure disorder.  
He has been ordered by medical professionals familiar with 
the severity of his seizure disorder to ambulate solely via 
wheelchair to avoid injury when his seizures strike, which 
they apparently do with frequency and without warning.  The 
medical evidence also indicates that the head injuries 
suffered when he falls during attacks aggravates his 
condition and thus, must be avoided through use of the 
wheelchair.  Accordingly, regardless of the absence of 
organic loss of use, for all intents and purposes, the 
veteran has been restricted to a wheelchair due to his 
service-connected disorder.  Furthermore, recent medical 
evidence shows that he has atrophy of his lower extremities 
consistent with prolonged use of a wheelchair, thus 
establishing that he is in fact using a wheelchair to 
ambulate to avoid further physical damage.  The December 1997 
VA examiner noted that the longer the veteran is required to 
ambulate via a wheelchair, the greater his atrophy and other 
lower extremity disorder will become; thus indicating that 
the prognosis for the veteran's lower extremities is not good 
given his situation.  

The Board notes that the hearing officer's decision found 
that the veteran is not entitled to loss of use of both lower 
extremities on a "functional equivalent" basis because of a 
provision in the M21-1.  The cited provision states that 
special monthly compensation for loss of use of an apparently 
normal lower extremity because of a veteran's inability to 
walk is not appropriate if the inability to walk is due to 
the loss of use of the other lower extremity, not improved by 
prosthesis, and loss of use of the paired upper extremity, 
which precluded locomotion without prosthetic assistance.  
M21-1, part VI, Chapter 8.11(b).   This provision goes on to 
state that to qualify for special monthly compensation under 
38 U.S.C.A. § 1114 on account of loss of use of both lower 
extremities, there must be a loss of use of each lower 
extremity as defined in 38 C.F.R. § 3.350(a)(2) (1998).  The 
Board does not find this section dispositive of the veteran's 
situation for several reasons; initially, it does not address 
functional loss, and more importantly, the assumption in this 
provision is that the claimant at issue is already 
compensated for the loss of use of the disabled lower 
extremity and thus, to establish loss of use of both lower 
extremities based solely on the loss of use of the first 
lower extremity, is essentially pyramiding, and not 
permitted.  However, this is not the situation at hand, the 
veteran here has functional loss of use of both legs due to 
his seizure disorder because he is required to ambulate in a 
wheelchair to protect himself from falls.  Therefore, no 
pyramiding is present in this case.

Accordingly, based on the above evidence and findings, the 
Board concludes that due to his service-connected seizure 
disorder the veteran is entitled to special monthly 
compensation for the functional loss of both of his lower 
extremities pursuant to 38 U.S.C.A. § 1114(l).

2.  Entitlement to specially adapted housing under 
38 U.S.C.A. § 2101(a) or a special home adaptation grant 
under 38 U.S.C.A. § 2101(b). 

In order to be entitled to a certificate of eligibility for 
assistance in acquiring specially adapted housing under 
38 U.S.C.A. § 2101(a), a claimant must have active military 
service after April 20, 1898, a service connected disability 
due to this service, and entitlement to permanent and total 
disability due to 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.  38 C.F.R. 
§ 3.809(a), (b)(1) (1998).  The term "preclude locomotion" 
means 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) (1998).  A special 
home adaptation grant is only available to veteran's not 
entitled to a certificate of eligibility for assistance in 
acquiring specially adapted housing under 38 C.F.R. § 3.809.  
See 38 C.F.R. § 3.809a (1998).

The record shows that the veteran has active military service 
from 1967 to 1970, well after 1898, and that he has a 
service-connected seizure disorder incurred during this 
period of service.  Additionally, in light of the above 
decision awarding special monthly compensation for the 
functional equivalent of loss of use of both lower 
extremities, the veteran now satisfies the final requirement 
for a certificate of eligibility for assistance in acquiring 
specially adapted housing under 38 U.S.C.A. § 2101(a), that 
is, his service-connected disability requires that his normal 
mode of locomotion is a wheelchair.  This conclusion is 
supported by the M21-1, Part VI, Chapter 8.11, which states 
that if entitlement to special monthly compensation under 
38 U.S.C.A. § 1114(l) exists due to loss of use of both lower 
extremities, the veteran also meets the requirements for 
specially adapted housing under 38 U.S.C.A. § 2101.  
Accordingly, the veteran's claim of entitlement to specially 
adapted housing under 38 U.S.C.A. § 2101(a) is granted.

Given the grant of benefits under 38 U.S.C.A. § 2101(a), the 
veteran is not entitled to a special home adaptation grant 
under 38 U.S.C.A. § 2101(b), as dictated in the requirements 
of this provision laid out in 38 C.F.R. § 3.809a, because an 
award of benefits under both sections of 38 U.S.C.A. § 2101 
is precluded.  Therefore, to the extent that the veteran was 
claiming entitlement to benefits under 38 U.S.C.A. § 2101(b), 
this claim is denied.




ORDER

Entitlement to special monthly compensation for loss of use 
of both lower extremities under 38 U.S.C.A. § 1114(l) (West 
1991) is granted, subject to the laws and regulations 
governing monetary benefits.

Entitlement to specially adapted housing under 38 U.S.C.A. 
§ 2101(a) (West 1991) is granted, subject to the laws and 
regulations governing monetary benefits.

Entitlement to a special home adaptation grant under 
38 U.S.C.A. § 2101(b) (West 1991) is denied.



		
	JEFF MARTIN
	Member, Board of Veterans' Appeals



 Department of Veterans Affairs