Citation Nr: 0810792 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 01-07 796A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. M. Kreitlow, Associate Counsel INTRODUCTION The veteran had active military service from June 1970 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The veteran moved to California during the pendency of his appeal, and his claim file was transferred to the RO in Oakland, California. FINDINGS OF FACT 1. The veteran is service-connected for major depressive disorder with cognitive dysfunction, coronary artery disease status post myocardial infarction, degenerative disc disease of the cervical spine, left clavicle fracture, anterior crucial ligament deficiency of the right knee, left rib fracture, tinnitus, sinusitis status post septoplasty and left turbinectomy, left pneumothorax, excision of cancer lesion from left border of tongue, post-operative right auxillary lymph node, and post-operative thyroidectomy for adenoma. 2. The medical evidence fails to show that the veteran has loss or loss of use of at least one lower extremity due to his service-connected disabilities. 3. The veteran is not permanently and totally disabled due to blindness in both eyes with 5/200 visual acuity or less, or the anatomical loss or loss of use of both hands. CONCLUSION OF LAW The criteria for establishing entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant have not been met. 38 U.S.C.A. §§ 2101(a), 2101(b), 5107 (West 2002); 38 C.F.R. § 3.809 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; (3) of the information and evidence that the claimant is expected to provide; and (4) that he or she should provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1) (2005); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, notice was provided to the veteran in February 2005, subsequent to the initial AOJ decision. Although notice was provided after the initial adjudication, the Board finds that the veteran has not been prejudiced thereby. The content of the February 2005 notice fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Moreover his claim was subsequently readjudicated in May 2007 after providing the veteran with sufficient opportunity to respond. Furthermore, the veteran was told it was his responsibility to support the claim with appropriate evidence, and he was provided with the text of the relevant regulations relating to VA's duty to notice and assist. Thus VA has cured the late timing of the notice by providing the veteran appropriate notice and subsequent adjudication. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Finally, the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the veteran submitted substantial evidence in connection with his claim, which indicates he knew of the need to provide VA with information and evidence to support his claim. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the veteran. With respect to VA's duty to assist, the RO attempted to obtain all medical records identified by the veteran. VA treatment records are in the record for July 2000 through September 2006. In addition, private medical treatment records identified by the veteran were obtained. The veteran was notified in the rating decision, Statement of the Case and Supplemental Statement of the Case of what evidence the RO had obtained and considered in rendering its decisions. He has not identified any additional evidence. VA is only required to make reasonable efforts to obtain relevant records that the veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1) (West 2002). VA, therefore, has made every reasonable effort to obtain all records relevant to the veteran's claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The veteran was provided VA examinations in October 2001, May 2003, January 2004, August 2006 and September 2006. Thus, the Board finds that VA has satisfied its duties to inform and assist the veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis A certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) is warranted if the veteran is entitled to compensation for permanent and total service-connected disability due to: (A) 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; (B) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (C) The loss or loss of use of one lower extremity together with residuals of organic disease or injury or the loss or loss of use of one upper extremity that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (D) The loss, or loss of use, of both upper extremities such as to preclude the use of arms at or above the elbows. 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). In addition, a certificate of eligibility for assistance in acquiring a special home adaptation grant may be granted under 38 U.S.C.A. § 2101(b) where the veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a). The veteran must be entitled to compensation for permanent and total disability that (1) is due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands. The Board has reviewed all the evidence of record, which consists of the veteran's statements, VA treatment records, private treatment records and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, it is not required to discuss each and every piece of evidence in the case. The Board will summarize the relevant evidence where appropriate. By a June 1993 rating decision, the veteran was granted service connection for coronary artery disease status post myocardial infarction; dysthymic disorder; left clavicle fracture; degenerative disc disease of the cervical spine; left rib fractures; tinnitus; sinusitis; status post septoplasty and left turbinectomy; left pneumothorax; status post excision of cancer lesion on left border of tongue; post-operative right axillary lymph node; and status post right thyroidectomy for adenoma. As of July 2000, the veteran's dysthymic disorder (reclassified as major depressive disorder with cognitive dysfunction) and coronary artery disease have been evaluated as 100 percent disabling each. In addition, the veteran's degenerative disc disease of the cervical spine is evaluated as 20 percent disabling. The remainder of his service-connected disabilities have been evaluated as noncompensably disabling. These are the only disabilities for which the veteran is in receipt of, or eligible for, compensation. None of these disabilities involve the loss of or loss of use of either lower extremity. It appears from the record, however, that the veteran is claiming entitlement based upon the need to use a wheelchair or walker due to his major depressive disorder, coronary artery disease and/or degenerative disc disease of the lumbar spine. After a careful review of the lay and medical evidence, the Board finds that the preponderance of the evidence is against the claim. First the Board notes that there is no evidence, nor has it been argued, that the veteran has actual loss of at least one lower extremity. Thus, in discussing the veteran's claim, the Board will only refer to whether the evidence establishes loss of use of at least one lower extremity. The Board acknowledges that the medical evidence reflects the veteran's has used a wheelchair and walker since at least 2000. The medical evidence also shows, however, that this use is not due to the loss of use of at least one lower extremity. Rather the medical evidence indicates that the veteran was initially given a wheelchair because he was at risk for falls secondary to a shuffling gait. The cause of the veteran's shuffling gait is not clear but appears to be due to medications he takes for either his cervical spine or psychiatric disabilities, or both. The medical evidence also shows that for a period of time in 2001 the veteran was in a near vegetative state (catatonic) due to his service- connected psychiatric disorder and was wheelchair bound because of this. The Board finds, however, that this evidence does not show the veteran had loss of use of at least one lower extremity. Having a shuffling gait with risk of falling requiring the use of a wheelchair or a walker is tantamount to loss of use of a lower extremity. Although VA does not specifically define "loss of use" of a lower extremity, it does define loss of use of a hand or foot in 38 C.F.R. § 4.63, which is instructive as to what needs to be shown in order to establish loss of use. Generally, 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 elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (2007). In addition, extremely unfavorable complete ankylosis of the knee, or complete ankylosis of 2 major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches (8.9 cms.) or more, will be taken as loss of use of the hand or foot involved. 38 C.F.R. § 4.63(a) (2007). Finally, complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, 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 C.F.R. § 4.63(b) (2007). Section 4.63 makes it is clear that loss of use contemplates the functionality of the limb and whether functionality will be equally well accomplished by an amputation stump with prosthesis. In the present case, the medical evidence shows that the veteran can walk. In fact, at the most recent VA examination in September 2006, the veteran reported using a walker for assistance because he falls down frequently, but he is able to walk without it. He had a shuffling and broad- based gait, but he was able to stand on his heels and toes at the examination. The veteran attributed his gait problems to the use of his psychiatric medications. The examiner stated that it is less likely than not that the veteran's cervical spine, right knee and clavicle disabilities are causing the weakness in the lower extremities and his necessity to use a wheelchair. There is no indication in the medical evidence that the veteran would be better off with an amputated stump with prosthesis of either lower extremity. It is difficult to see how the functionality of the veteran's lower extremities would be improved by amputating either one or both them. In fact, it is clear that there would be no change in the veteran's gait disturbance because its not due to any physical disorder of either lower extremity but is due to either his cervical spine disability or his psychiatric disability or both, which would still exist post-amputation. In addition, although the medical evidence from 2001 shows the veteran was wheelchair bound, which was due to his being in a vegetative state, he was basically nonresponsive in all aspects. (See VA examination conducted in October 2001.) Clearly the veteran's lower extremity functionality would not have been improved by amputation with prosthesis at that time because he was catatonic. Furthermore, it is clear that the veteran's vegetative state was only temporary as medical evidence after 2001 shows he is aware and responsive to his surroundings and is able to walk. Finally, although service connection is in effect for a right knee disorder, the medical evidence shows that this is not a significant disability. This disability is rated as zero percent disabling. In addition, the veteran has only complained of minimal problems caused by his knee disability, and VA examination revealed only minimal functional limitation due to it. Furthermore, the veteran has never claimed that this disability is the cause of his ambulation problems. Thus this disability is not a basis for finding that the veteran has loss of use of the right lower extremity. For the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that the veteran has loss or loss of use of at least one lower extremity. Entitlement to specially adapted housing being contingent upon such a finding, the veteran's claim must be denied. As for entitlement to a special home adaptation grant, the medical evidence does not show that the veteran is entitled to receive compensation for permanent and total disability due to blindness in both eyes or anatomical loss or loss of use of both hands. Although the medical evidence shows the veteran has some decreased sensation and coordination in his upper extremities due to his cervical spine disability, there is no evidence that the veteran is unable to use both of his hands. Thus the preponderance of the evidence is also against finding that the veteran is entitled to a special home adaptation grant. The preponderance of the evidence being against the veteran's claim, the benefit of the doubt doctrine is not applicable. Consequently, the veteran's claim must be denied. ORDER Entitlement to specially adapted housing is denied. The claim of entitlement to special home adaptation grant is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs