Citation Nr: 0812451	
Decision Date: 04/15/08    Archive Date: 05/01/08

DOCKET NO.  05-26 083	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake 
City, Utah


THE ISSUES

1.  Entitlement to specially adapted housing under 
38 U.S.C.A. § 2101(a).  

2.  Entitlement to special home adaptation grant under 
38 U.S.C.A. § 2101(b).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel





INTRODUCTION

The veteran had active military service from July 1964 to 
July 1966.   

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of an April 2005 rating action by the 
Department of Veterans Affairs (VA) Regional Office (RO) 
located in Salt Lake City, Utah. 

The veteran has been found to be entitled to a total 
disability rating based on individual unemployability (TDIU) 
and has been determined to be permanently and totally 
disabled, effective from January 1, 2004.  He also receives a 
special monthly compensation for the loss of the use of a 
creative organ, effective from May 20, 2001.                     


FINDINGS OF FACT

1.  The veteran's service-connected disabilities include 
residuals of compression fracture of L1 with degenerative 
changes and sciatica, rated 70 percent; osteoarthritis of the 
left knee, rated 10 percent; residuals of left knee injury 
(other than arthritis), rated 10 percent; and osteoarthritis 
of the right knee, rated 10 percent.     

2.  The evidence is in relative equipoise as to whether the 
veteran has effectively lost use of both lower extremities 
(including the feet) such as to preclude locomotion without 
the aid of knee and back braces and a cane.


CONCLUSIONS OF LAW

1.  With application of the doctrine of reasonable doubt, the 
criteria for a certificate of eligibility for assistance in 
acquiring specially adapted housing are met.  38 U.S.C.A. 
§§ 2101(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.809 
(2007).     

2.  In view of the grant of a certificate of eligibility for 
assistance in acquiring specially adapted housing, the claim 
for a certificate of eligibility for assistance in acquiring 
necessary special home adaptations is dismissed as moot.  
38 U.S.C.A. §§ 2101(b) (West 2002); 38 C.F.R. § 3.809(a) 
(2007).   


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), in part, 
describes VA's duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326(a).  To the extent that there may be any 
deficiency of notice or assistance, there is no prejudice to 
the veteran in proceeding with this appeal given the Board's 
decision herein granting entitlement to a certificate of 
eligibility for assistance in acquiring specially adapted 
housing.  As to the remaining claim on appeal, entitlement to 
a certificate of eligibility for assistance in acquiring 
necessary special home adaptations, VCAA notice is not 
required because, as explained below, since the Board is 
awarding entitlement to a certificate of eligibility for 
assistance in acquiring specially adapted housing, the 
veteran is precluded from receiving a special home adaptation 
grant.  See 38 C.F.R. § 3.809a.  As the veteran qualifies for 
assistance in the acquisition of specially adapted housing, 
home adaptations are included in the construction.  Under 
these circumstances, this latter claim must be dismissed as 
moot.  See VAOPGCPREC 5-2004 (June 23, 2004) (VA is not 
required to provide notice of the information and evidence 
necessary to substantiate a claim where that claim cannot be 
substantiated because there is no legal basis for the claim 
or because undisputed facts render the claimant ineligible 
for the claimed benefit).    

To establish entitlement to specially adapted housing under 
38 U.S.C.A. § 2101(a), a veteran must be entitled to 
compensation for permanent and total 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 anatomical loss or loss of 
use of one lower extremity; or (3) the loss or loss of use of 
one lower extremity together with 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 of 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.  
See 38 C.F.R. § 3.809.  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) (2007).       

Alternatively, 38 U.S.C.A. § 2101(b) states, in pertinent 
part, that, where the veteran is not entitled to a 
certificate of eligibility for assistance in acquiring 
specially adapted housing, a certificate of eligibility for 
assistance in acquiring necessary special home adaptations, 
or, on or after October 28, 1986, for assistance in acquiring 
a residence already adapted with necessary special features, 
under 38 U.S.C.A. § 2101(b) may be issued to a veteran who is 
entitled to compensation for permanent and total disability 
which (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.  See 38 C.F.R. § 3.809a.

In October 1965, while the veteran was on active duty, he 
injured his back when a jeep fell on him.  X-rays of the 
lumbosacral spine revealed a compression fracture to the 1st 
lumbar vertebra.  The veteran was hospitalized for 33 days 
for treatment, including bedrest and physical therapy.  
Following service, he developed chronic low back pain and his 
low back disability progressively worsened with evidence of 
sciatica.  At present, the veteran's service-connected 
disabilities include residuals of compression fracture of L1 
with degenerative changes and sciatica, rated 70 percent; 
osteoarthritis of the left knee, rated 10 percent; residuals 
of left knee injury (other than arthritis), rated 10 percent; 
and osteoarthritis of the right knee, rated 10 percent.     

In this case, the veteran has been diagnosed with macular 
degeneration.  However, there is no medical evidence that he 
is blind.  Regardless, the veteran is not service-connected 
for eye disease, to include macular degeneration.  
The veteran has claimed that his service-connected 
disabilities (particularly the lumbar and bilateral knee 
conditions) affect the function of his lower extremities to a 
degree that essentially precludes locomotion without the aid 
of a back brace, left knee brace, and a cane.  As explained 
in more detail below, the Board has determined that the 
relevant positive and negative medical and lay evidence is in 
approximate equipoise as to whether the first listed criteria 
at 38 C.F.R. § 3.809 are met and, therefore, entitlement to 
specially adapted housing is warranted.

In April 2004, the veteran underwent a VA examination which 
was conducted by QTC Services.  At that time, he stated that 
he had chronic pain in his lumbosacral spine and knees.  He 
indicated that he also had sciatica with burning pain and 
numbness down his legs.  According to the veteran, because of 
the numbness, he often could not tell where his feet were.  
The veteran noted that his left knee would intermittently 
give out and that he had to wear a knee brace on the left 
knee and use a cane.  The examiner stated that although the 
veteran required a knee brace and a cane for ambulation, he 
had not been incapacitated by his condition.  The veteran 
reported functional impairment of having difficulty walking 
due to the instability of the knee.  Upon physical 
examination, the veteran's gait was normal.  Examination of 
the veteran's feet revealed no sign of abnormal 
weightbearing.  The veteran wore a brace on his left knee.  
Range of motion of the right and left knees was from zero to 
140 degrees.  Range of motion was not affected by pain, 
weakness, fatigue, lack of endurance, or incoordination.  
Examination of the right and left knees revealed crepitus 
throughout the range of motion.  There was no recurrent 
subluxation, locking pain, or joint effusion on either the 
right or left knee.  In regard to range of motion of the 
lumbosacral spine, flexion was to 30 degrees; extension was 
to 10 degrees; right lateral flexion was to 5 degrees; left 
lateral flexion was to 5 degrees; and rotation was to zero 
degrees, bilaterally.  All motions were limited by fusion and 
pain.  The pertinent diagnoses were sciatica; degenerative 
arthritis of the right and left knees, with instability of 
the right knee; and residuals of compression fracture of L1, 
with degenerative changes.       

In the veteran's notice of disagreement, received in May 
2005, he stated that he had a "bad back" and "bad knees," 
and that if he fell, he would be in "a wheelchair real 
easy."  According to the veteran, due to his low back 
disability, he had trouble with his balance and had to use a 
cane.  He noted that if he did not use a cane, he had to lean 
on his wife or something else to balance himself.  The 
veteran indicated that every day, he used a back support and 
wore a knee brace on his left knee in order to stand and 
walk.  In the veteran's substantive appeal, dated in August 
2005, the veteran reported that he had a hard time with steps 
and was prone to falling down steps.

In the instant case, there is evidence of record that both 
supports and weighs against the claim for entitlement to a 
certificate of eligibility for assistance in acquiring 
specially adapted housing.  On the one hand, in the April 
2004 VA (QTC) examination, the examiner noted that the 
veteran's gait was normal and that he had full range of 
motion of the knees.  In addition, the examiner stated that 
although the veteran required a knee brace and a cane for 
ambulation, he had not been incapacitated by his condition.  
However, aside from the fact that the veteran has significant 
limitation of motion of the lumbar spine with all motions 
limited by fusion and pain, along with pain and instability 
of the knees, the examiner noted that the veteran required a 
knee brace and a cane for ambulation.  The Board also notes 
that in the veteran's May 2005 notice of disagreement, he 
indicated that due to his low back disability, he had trouble 
with his balance and had to lean on his wife or something 
else to balance himself.  He further stated that in order to 
stand or walk, he needed a back support, a left knee brace 
and a cane on a daily basis.  

The Board acknowledges that the veteran has been able to 
ambulate (at least to some degree) without the aid of his 
cane or braces in clinical settings over the years.  However, 
he has consistently reported that on a daily basis, his 
ability to move his lower extremities is severely limited, 
particularly due to his low back and bilateral knee 
disabilities.  His current 70 percent rating for a back 
disability with sciatica and three 10 percent ratings for his 
knees confirm significant functional impairment. More 
importantly, the most recent examiner specifically noted that 
the veteran required a knee brace and a cane for ambulation 
as it is clear that this is the result of the veteran's 
service-connected back and knee disabilities.  

In light of the above, the Board finds the evidence at least 
in relative equipoise as to whether the veteran has 
effectively lost the use of both lower extremities such as to 
preclude locomotion without the aid of his back and knee 
braces and a cane, within the meaning of the applicable 
regulation.  See 38 C.F.R. § 3.809.  Accordingly, with 
application of the doctrine of reasonable doubt, the criteria 
for a certificate of eligibility for assistance in acquiring 
specially adapted housing under 38 U.S.C.A. § 2101(a) have 
been met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

As the Board decision grants entitlement to a certificate of 
eligibility for assistance in acquiring specially adapted 
housing, the veteran is precluded from receiving a special 
home adaptation grant.  See 38 C.F.R. § 3.809a.  Essentially, 
since he qualifies for assistance in the acquisition of 
specially adapted housing, home adaptations are included in 
the construction.  Accordingly, the claim for a special home 
adaptation grant must be dismissed.


ORDER

A certificate of eligibility for assistance in acquiring 
specially adapted housing under 38 U.S.C.A. § 2101(a) is 
granted.      

Entitlement to a certificate of eligibility for assistance in 
acquiring necessary special home adaptations under 
38 U.S.C.A. § 2101(b) is dismissed as moot.  



____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs