Citation Nr: 0812174	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  05-21 908	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Entitlement to a certificate of eligibility for financial 
assistance in the purchase of specially adapted housing.
 
2.  Entitlement to a certificate of eligibility for financial 
assistance in the purchase of an automobile or other 
conveyance or adaptive equipment only.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

B. Adams, Associate Counsel


INTRODUCTION

The veteran served on active duty from January 1985 to July 
1985.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a June 2003 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Nashville, 
Tennessee.

In November 2005, the veteran testified at Travel Board 
hearing before the undersigned Veterans Law Judge.  A 
transcript of that proceeding is of record.

The Board remanded this case for additional evidentiary 
development in May 2007.  The case has since been returned to 
the Board for further appellate action.


FINDINGS OF FACT

1.  The veteran's service-connected disability does not 
result visual impairment or the loss or permanent loss of use 
of a hand or foot.

2.  The veteran's service-connected disability does not 
result in ankylosis of one or both knees or one or both hips.  


CONCLUSIONS OF LAW

1.  The criteria for entitlement to assistance in acquiring 
specially adapted housing have not been met.  38 U.S.C.A. 
§ 2101 (West 2002 & Supp. 2007); 38 C.F.R. § 3.809 (2007).

2.  The criteria for entitlement to assistance in acquiring 
an automobile and adaptive equipment, or for adaptive 
equipment only, have not been met.  38 U.S.C.A. §§ 3901, 3902 
(West 2002); 38 C.F.R. § 3.808 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2007), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.  
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  In addition, VA also must request 
that the claimant provide any evidence in the claimant's 
possession that pertains to the claim.

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time" 
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  The Court further held that VA failed to demonstrate 
that "lack of such a pre-AOJ-decision notice was not 
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as 
amended by the Veterans Benefits Act of 2002, Pub. L. No. 
107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n 
making the determinations under [section 7261(a)], the Court 
shall...take due account of the rule of prejudicial error')."  
Id. at 121.  

The record reflects that the RO provided the veteran with the 
notice required under the VCAA, to include notice that he 
should submit any pertinent evidence in his possession, by 
letter mailed in March 2004.  Although this letter was not 
sent prior to the initial adjudication of the claims, the 
Board has determined that there is no prejudice to the 
appellant in proceeding with the issuance of a final 
decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  
In this regard, the Board notes that following the provision 
of the March 2003 notice and the completion of all ordered 
development, the originating agency readjudicated the 
veteran's claims in August 2007.  There is no indication or 
reason to believe that the ultimate decision of the RO on the 
merits of either claim would have been different had VCAA 
notice been provided at an earlier time.  

The record reflects that service and post-service medical 
records have been obtained and that the veteran has been 
afforded an appropriate VA examination.  Neither the veteran 
nor his representative has identified any outstanding 
evidence, to include medical records, that could be obtained 
to substantiate either of the claims.  The Board also is 
unaware of any such outstanding evidence.  Therefore, the 
Board is satisfied that the originating agency has complied 
with the duty to assist requirements of the VCAA and the 
pertinent implementing regulation.

Accordingly, the Board will address the merits of the claims.

Specially Adapted Housing

In order to qualify 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; (2) blindness in both eyes, having only light 
perception, plus the loss or loss of use of one lower 
extremity; (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.  38 U.S.C.A. 
§ 2101(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.809 (2007).

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).

The veteran has one service-connected disability, 
hypertension with diminished left ventricular function.  He 
was rated totally disabled due to this disability in an 
August 2002 rating decision.  In addition to his service-
connected cardiovascular disability, the veteran also has 
experienced residuals of arsenic poisoning since the late 
1980s.  These residuals, which include severe muscle atrophy 
and ankylosis of the joints resulting in bilateral hip and 
elbow replacements, are not service-connected.

The veteran contends that he is entitled to a certificate of 
eligibility for financial assistance in the purchase of 
specially adapted housing because his service-connected 
cardiovascular disability alone requires him to use a 
wheelchair for locomotion.  In an April 2004 statement and at 
the November 2005 hearing, he explained that the disability 
causes severe swelling and pain in his lower extremities, as 
well as loss of balance and severe shortness of breath, and 
essentially results in the loss of use of both lower 
extremities.  In his June 2005 substantive appeal (VA Form 
9), he stated that he would be required to use a wheelchair 
because of his cardiovascular disability even absent the non-
service-connected residuals of arsenic poisoning.

The veteran has submitted several statements from private 
physicians in support of his claim.  In September 2002, March 
2003, April 2003, and October 2003 letters, the veteran's 
physicians stated that his cardiovascular disability produces 
fatigue and shortness of breath with minimal activity and 
that it limits his stamina and mobility.  Letters dated in 
April 2004 note that his cardiovascular disease alone is 
significant enough to adversely affect his ambulation and 
limit his activity.  However, none of this medical evidence 
addresses whether the service-connected cardiovascular 
disability, by itself, is sufficient to result in the loss of 
use of an extremity or whether the impairment from the 
disability is sufficient to preclude locomotion without the 
aid of braces, crutches, canes, or a wheelchair.

Pursuant to the Board's May 2007 remand instructions, the 
veteran was afforded a VA examination in July 2007.  The 
examiner physically examined the veteran and reviewed the 
claims files, including the letters from his private 
physicians.  He agreed that the veteran's cardiovascular 
disease was very severe and that it was sufficient, by 
itself, to cause significant limitation of activity.  
However, the examiner also stated that it was less likely 
than not that the cardiovascular disability alone would 
preclude locomotion without the aid of braces, crutches, 
canes, or wheelchair.  The examiner explained that, absent 
the residuals of arsenic poisoning, the veteran likely would 
be able to perform limited ambulation and the activities of 
daily living despite the limitations imposed by his 
cardiovascular disability.

The Board acknowledges that the veteran's service-connected 
disability would result in significant limitations on 
activity even absent the residuals of arsenic poisoning.  
However, the VA examiner opined that his cardiovascular 
disability alone would not preclude locomotion, and there is 
no contrary medical opinion of record.  While the veteran has 
opined that his service-connected disability alone is 
sufficient to result in the loss of use of both lower 
extremities, as a layperson without medical training, he is 
not qualified to render a medical opinion.  See Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992).  Accordingly, the 
claim of entitlement to a certificate of eligibility for 
financial assistance in the purchase of specially adapted 
housing must be denied.




Automobile and Adaptive Equipment

A certification of eligibility for financial assistance in 
the purchase of one automobile or other conveyance and of 
basic entitlement to necessary adaptive equipment will be 
made where a veteran who, due to service-connected 
disability, has: (1) the loss or permanent loss of use of one 
or both feet; (2) the loss or permanent loss of use of both 
hands; or (3) permanent impairment of vision in both eyes, 
resulting in 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.  For 
entitlement to assistance in the purchase of adaptive 
equipment only, a claimant is qualified if ankylosis of one 
or both knees or one or both hips results from a service-
connected disease or injury.  38 U.S.C.A. §§ 3901, 3902; 
38 C.F.R. §§ 3.808, 17.156 (2007).

Loss of use of 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 
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 balance, propulsion, 
etc., could be accomplished equally well by an amputation 
stump with prosthesis.  Extremely unfavorable complete 
ankylosis of the knee, or complete ankylosis of two major 
joints of an extremity, or shortening of the lower extremity 
of three and one-half inches or more, will constitute loss of 
use of the foot involved.  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 C.F.R. §§ 3.350(a)(2), 
4.63 (2007).

Here, the veteran does not contend and the record does not 
show permanent impairment of vision or the loss or permanent 
loss of use or both hands.  In addition, the record reflects 
that the veteran's multiple joint ankylosis was caused by 
arsenic poisoning, rather than his service-connected 
cardiovascular disability.  The veteran's claim is based on 
the argument that his cardiovascular disability, by itself, 
is sufficient to require him to use a wheelchair and, 
therefore, effectively results in the loss of use of both 
lower extremities.

There is no medical evidence of record to suggest that no 
effective function, other than that which would be equally 
well-served by an amputation stump at the site of election 
below knee with use of a suitable prosthetic appliance, 
remains in the veteran's lower extremities.  As discussed 
above, the July 2007 VA examiner opined that, in the absence 
of the non-service-connected residuals of arsenic poisoning, 
the veteran likely would be able to perform limited 
ambulation and the activities of daily living despite the 
severity of his cardiovascular disability.  Similarly, the 
statements from the veteran's private physicians indicate 
that his cardiovascular disability would limit, but not 
preclude, ambulation and activity.

Accordingly, since the veteran does not have a service-
connected qualifying impairment, he does not meet the basic 
eligibility criteria for financial assistance in the purchase 
of an automobile or conveyance or for adaptive equipment 
only.  


ORDER

Entitlement to a certificate of eligibility for financial 
assistance in acquiring specially adapted housing is denied.

Entitlement to a certificate of eligibility for financial 
assistance in the purchase of an automobile or other 
conveyance or adaptive equipment only is denied.




____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs