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