Citation Nr: 0814896 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-29 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left eye disorder. 2. Entitlement to service connection for a left eye disorder. 3. Entitlement to service connection for a right eye disorder, secondary to a left eye disorder. 4. Entitlement to an effective date earlier than February 24, 2003, for the award of a total disability rating based upon individual unemployability (TDIU). 5. Entitlement to specially adapted housing. 6. Entitlement to a special home adaptation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from December 1972 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) from November 2004 and January 2006 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the veteran's previously denied claim of entitlement to service connection for a left eye disorder, and denied his claims of entitlement to service connection for a right eye disorder, secondary to a left eye disorder; an effective date earlier than February 24, 200e, for the award of a TDIU rating; to specially adapted housing; and to special home adaptation. In October 2006 correspondence, the veteran sought to reopen his previously denied claim of entitlement to service connection for fibromyalgia, and raised new claims of entitlement to service connection for narcolepsy, peripheral neuropathy, peripheral arterial insufficiency, and a gastrointestinal disorder, to include as secondary to medications prescribed for service-connected orthopedic disabilities. The Board refers those claims to the RO for appropriate action. The issue of entitlement to an effective date earlier than February 24, 2003, for the award of a TDIU rating is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The claim for service connection for a left eye disorder was previously denied in a June 1978 rating decision. The RO and the Board declined to reopen the claim several times thereafter, most recently in March 2003. The veteran was notified of each of these decisions, but failed to perfect an appeal. 2. The evidence received since the last final denial in March 2003 is new, in that it is not cumulative and was not previously considered by decision makers. The evidence is also material because it raises a reasonable possibility of substantiating the veteran's claim. 3. The veteran's diagnosed left eye disorders (myopic astigmatism, presbyopia, and left incipient cataract) first manifested many years after service and are unrelated to his period of active service, or to any incident therein, including the conjunctival laceration sustained in May 1974. 4. The veteran's currently diagnosed right eye disorders (myopic astigmatism, presbyopia, and left incipient cataract) have not been demonstrated to be related to any service- connected disability. 5. The veteran is not service-connected for: (a) 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) 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 (d) loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. 6. The veteran is not in receipt of service connection for permanent and total disability due to blindness in both eyes and service connection has not been awarded for the anatomical loss or loss of use of both hands. CONCLUSIONS OF LAW 1. The June 1978 and March 2003 rating decisions that respectively denied declined to reopen the previously denied claim for service connection for a left eye disorder are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2007). 2. New and material evidence has been received to reopen the claim for service connection for a left eye disorder. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2007). 3. A left eye disorder was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2007). 4. The criteria for entitlement to service connection for a right eye disorder, secondary to a left eye disorder, have not been met. 38 C.F.R. § 3.310 (2007). 5. The criteria for assistance in acquiring specially adapted housing have not been met. 38 U.S.C.A. § 2101(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.809 (2007). 6. The criteria for assistance in acquiring a special home adaptation grant have not been met. 38 U.S.C.A. § 2101(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.809a (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence The RO denied the veteran's claim of entitlement to service connection for a left eye disorder in a June 1978 rating decision, and in several subsequent rating decisions declined to reopen the claim. Although the RO determined in a November 2004 rating decision that new and material evidence sufficient to reopen the claim had not been submitted, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The claim for service connection for a left eye disorder was previously denied in a June 1978 rating decision. The RO and the Board declined to reopen the claim several times thereafter, most recently in March 2003. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2006 and 2007). Thus, the June 1978 and March 2003 decisions became final because the veteran did not file a timely appeal from either. The claim of entitlement to service connection for a left eye disorder may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The veteran filed this application to reopen his claim in May 2004. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the prior final decision consisted of the veteran's service medical records, post-service treatment records, and the veteran's own statements. The RO found that the veteran's left eye disorder was not incurred in or aggravated by his period of active service. Accordingly, the claim was denied. The veteran applied to reopen his claim for service connection in May 2004. The Board finds that the evidence received since the last final decision in March 2003 is not cumulative of other evidence of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating his claim. Newly received evidence includes a December 2004 statement from the veteran's optometrist, in which the optometrist relates the veteran's current left eye disorders to the in- service accident in which the veteran injured his left eye. The Board finds this opinion relating the veteran's current left eye disorder to his period of active service to be evidence that is both new and material, as it demonstrates a nexus to service. The opinion has been presumed credible for the purpose of determining whether to reopen the claim. The new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Accordingly, the claim for service connection for a left eye disorder is reopened. As the Board has determined that new and material evidence has been submitted, it is necessary to consider whether the appellant would be prejudiced by the Board proceeding to a decision on the merits. In this case, the statement of the case and supplemental statements of the case provided the appellant with the laws and regulations pertaining to consideration of the claim on the merits. Also, the appellant provided arguments addressing his claim on the merits. He was afforded a VA examination in conjunction with this claim in October 2004, and the RO considered his claim on the merits in the rating decision, statement of the case, and supplemental statements of the case. Given that the appellant had adequate notice of the applicable regulations, the Board finds that the veteran would not be prejudiced by the Board's review of the merits of the claim at this time. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The veteran's diagnosed eye disorders (myopic astigmatism, presbyopia, and left incipient cataract), however, are not disorders for which service connection may be granted on a presumptive basis. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2007). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2007). Secondary service connection is permitted based upon aggravation. 38 C.F.R. § 3.310 (2007). Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service- connected disability. 38 C.F.R. § 3.303, 3.310 (2007). A. Left Eye The veteran contends that his current left eye disorders (myopic astigmatism, presbyopia, and left incipient cataract) and associated headaches are the result of a left eye injury sustained in service. His service medical records demonstrate that in May 1974 he reported to sick call after having been struck in the left eye by a fingernail while playing basketball. Physical examination revealed a laceration of the conjunctiva, interior and nasal to the cornea, approximately 4 to 5 millimeters in length. The cornea was determined to be "OK." The assessment was laceration of the conjunctiva. The laceration was sutured and medication was prescribed. The suture was removed later that month, and the laceration was described as having healed. The next complaint related to the eyes is dated in August 1974. At that time, the veteran reported to sick call with complaints of headaches and eye discomfort with exposure to direct sunlight. Examination revealed visual acuity of 20/20, bilaterally. The remainder of the eye examination was unremarkable. The veteran did not complain of photophobia when exposed to direct light on fundus examination. It was determined that the veteran's headaches related to sun exposure were not of ocular origin. There was no evidence of muscle or refractive deformity. Finally, on examination prior to separation from service, eye evaluation was described as normal. Distant vision in each eye was 20/20, and near vision was 20/25 uncorrected in the right eye, and 20/20 in the left eye. It was remarked that the veteran had reported an onset of eye trouble in 1974 related to a conjunctival laceration. The injury, however, had been treated with medication and sutures, with good results. The diagnosis was defective vision acuity, right eye, uncorrected. There was no diagnosis related to the left eye. As no chronic disorder of the left eye was diagnosed in service, the Board finds that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b). Post-service medical records reflect that the veteran has been found to have refractive error of the eyes (myopic astigmatism and presbyopia). Refractive error of the eyes, however, is not a disability for VA purposes. Accordingly, such a disorder cannot be service-connected, absent evidence of aggravation by superimposed disease or injury. 38 C.F.R. §§ 3.303(c), 4.9; Sabonis v. Brown, 6 Vet. App. 426 (1994); Monroe v. Brown, 4 Vet. App. 513 (1993); Carpenter v. Brown, 8 Vet. App. 240 (1995). Refractory errors of the eye include such eye disorders as myopia, presbyopia and astigmatism. The veteran's myopic astigmatism and presbyopia in this case, therefore, cannot be service-connected absent evidence of aggravation. The record, however, is negative for evidence of refractive error of the left eye in service, and therefore is negative for evidence of aggravation by a superimposed disease or injury in service. The veteran has undergone VA eye examination on three occasions. The first, conducted in January 1978, revealed 20/20 visual acuity and normal fundus of the left eye. The record reflects that the veteran was first diagnosed with myopia of the left eye in November 1984. On VA examination in December 1985, the veteran's ocular history was noted to be remarkable for myopia in the left eye and a question of corneal-type dystrophy in both eyes. Examination revealed corrected visual acuity of 20/20, bilaterally. Intraocular pressure was 19, bilaterally. The pupils measured 3.5 millimeters in the right eye, and 4.5 in the left eye. The pupils were 2 plus reactive to light; there was no afferent pupillary defect. Motility was full. Visual fields were full to finger counting. There was trace injection of the conjunctiva, bilaterally. There was a pre-Descemet's dystrophy noted on both corneas, described as mild. Anterior chambers were deep and quiet. The irises were normal. The lenses were clear and the fundi were within normal limits. The veteran voiced no ocular complaints during the examination. The impressions were mild myopia of the left eye, and mild pre-Descemet's corneal dystrophy, questionably posterior polymorphous. No mention was made of residuals of a conjunctival laceration. On VA examination in October 2004, the veteran reported a history of a conjunctival laceration in the left eye that he felt may have caused his current refractive error and headaches. He stated that he was on no eye medications and had no ocular problems aside from blurred vision. Examination revealed corrected visual acuity of 20/20, bilaterally, for both near and distant vision. The pupils reacted equally, directly, and consensually. There was no afferent pupillary defect. The applanation tension was 15, bilaterally. External eye examination was unremarkable. The conjunctivae were determined to be within normal limits on slit lamp examination. Corneas, anterior chambers, and irises were normal. The lenses were clear. Fundoscopic examination reveled macula, vessels, and periphery within normal limits, without pressure changes temporally and inferiorly. The impressions were myopic astigmatism and presbyopia. With regard to whether the veteran's left eye disorders were related to the in-service injury, the examiner determined that there was no evidence of any residual of the laceration, and there was accordingly no relationship between the current refractive error and the in-service injury. Post-service private clinical records pertaining to the eyes also demonstrate that the veteran has been diagnosed with myopia of the left eye. Additionally, the most recent records pertaining to eye treatment, dated in October 2006, demonstrate that the veteran has also been diagnosed with a left incipient cataract. These treatment records do not demonstrate the veteran's private optometrist has opined as to any relationship between the veteran's current left eye disorders and the in-service injury. However, in a type- written statement submitted by the veteran in December 2004, the optometrist related the veteran's current left eye disorders to the in-service accident in which the veteran injured his left eye. No specific comment was made as to aggravation of refractive error. Significantly, the optometrist did not affix his signature to the type-written opinion, but rather to an appended page, in a portion of a pre-printed form indicating that the optometrist knew the veteran's identity, as the person submitting the form to VA, to be true. Thus, it is not entirely clear to VA that the optometrist was aware that he was assigning his name to the prepared opinion. This fact, combined with the fact that the type-written paragraph mirrors the numerous statements submitted by the veteran on behalf of his claim, and the fact that all records submitted by the optometrist himself were handwritten, greatly diminish the persuasive and probative value of the opinion. The Board finds that there is no probative post-service evidence demonstrating that the veteran's refractive error was aggravated by disease or injury related to service. The private opinion submitted by the veteran is of little probative value and is outweighed by the October 2004 VA opinion finding no relationship between the veteran's current refractive error and the in-service injury. Despite that in the private opinion it was indicated that the veteran's service medical records had been reviewed in conjunction with preparing the opinion, given the nature of the signature and the fact that it is not entirely clear to VA that the optometrist was aware that he was assigning his name to the prepared opinion, it is not clear to VA that the private optometrist did in fact review the veteran's service medical records. Given this ambiguity, the probative value of the private opinion is outweighed by the probative value of the VA opinion, and the veteran's myopic astigmatism and presbyopia accordingly may not be service connected in this case. With regard to the veteran's left incipient cataract, the Board finds that service connection is not warranted. The veteran was not diagnosed with a left incipient cataract until October 2006, approximately 29 years after his separation from service. In view of the lengthy period without evidence of a cataract, there is no evidence of a continuity of symptomatology, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case there is no evidence establishing a direct medical nexus between military service and the veteran's cataract. Significantly, the veteran's private optometrist has not addressed whether there is any relationship between the cataract and the in-service injury. Accordingly, service connection for the cataract is not warranted. With respect to the veteran's claim for service connection for a left eye disorder, the Board has considered the veteran's statements asserting a relationship between his left eye disorder and active duty service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a lay person, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In sum, the Board has carefully weighed the evidence of record, the veteran's statements, and the treatment records, in light of the applicable law, and finds that the preponderance of the evidence fails to support the veteran's claim for service connection for a left eye disorder and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Right Eye The veteran contends that his currently diagnosed right eye disorders (myopic astigmatism and presbyopia) are secondary to, or the result of, his left eye disorders. Entitlement to secondary service connection presupposes the existence of an established service-connected disability. In this case, the veteran is not service-connected for a left eye disorder. There is no competent evidence of record showing that the veteran's right eye disorders are proximately due to or the result of any service-connected disability. Thus, there can be no secondary service connection for any condition allegedly due to the right eye disorders with which he has been diagnosed. Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. Sabonis v. Brown, 6 Vet. App. 426 (1994). As there is no legal basis for an award of secondary service connection for a right eye disorder, the claim must be denied as a matter of law. Specially Adapted Housing or a Special Home Adaptation Grant In order to be entitled to specially adapted housing, the veteran must be service- connected for a disability that results in the loss, or permanent loss of use of both lower extremities and requires the use of braces, crutches, canes, or a wheelchair in order to move from place to place; or, be service-connected for blindness in both eyes, having only light perception, together with the loss, or loss of use of one lower extremity; or be service-connected for the loss, or permanent loss of use of one lower extremity, together with residuals of an organic disease or injury that affects balance or ability to move forward and requires the use of braces, crutches, canes, or a wheelchair in order to move from place to place; or be service-connected for the loss, or permanent loss of use of one lower extremity together with the loss, or permanent loss of use, of one upper extremity that affects balance or ability to move forward and requires the use of braces, crutches, canes, or a wheelchair in order to move from place to place. 38 U.S.C.A. § 2101(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.809 (2007). Where entitlement to specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. In order to be entitled to special home adaptation, the veteran must not be entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809 nor have previously received assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a). A veteran may be entitled to special home adaptation if the evidence shows service-connected vision of 5/200 or less in both eyes; or the loss, or permanent loss of use of both hands. 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a (2007). The assistance referred to in this section will not be available to any veteran more than once. 38 U.S.C.A. § 2102. The term loss of use of a hand or foot is defined as that condition where 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, whether the acts of grasping, manipulation, etc., in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2). Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 of what constitutes loss of use of a foot or hand are extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more. Also considered as loss of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Under 38 C.F.R. § 4.124a, DC 8521, complete paralysis also encompasses foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. Service connection is currently in effect for major depressive disorder, rated as 50 percent disabling; arthritis of multiple joints with Tietze's syndrome of the ribs, rated as 20 percent disabling; a low back disability, rated as 20 percent disabling; bilateral tinnitus, rated as 10 percent disabling; hypertension, rated as 10 percent disabling; a right knee disability, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. 38 C.F.R. § 3.383 provides for compensation for the combination of service-connected and nonservice-connected disabilities as if both disabilities were service-connected, provided that the nonservice-connected disability is not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.383 specifically provides for compensation where there is loss or loss of use of one hand or foot as a result of a service-connected disability and loss of or loss of use of the other hand as a result of a nonservice-connected disability, and for deafness in one service-connected ear and deafness in the other ear as a result of nonservice-connected disability. 38 U.S.C.A. § 1160(a)(3); (4) (West 2002); 38 C.F.R. § 3.383(a)(3); (4) (2007). On VA examination of the joints in January 2001, March 2001, November 2002, and December 2003, the veteran reported that he had been using a cane for assistance with ambulation since 1992. He stated that he was required to use a cane due to pain in his back, hips, ankles, and knees. X-ray examination revealed severe arthritis of the cervical and lumbar segments of the spine, and of the knees. Examination of the back revealed pain on heel and toe raising, with poor heel and toe raising and poor gluteal tone. The veteran was noted to stand with his lumbar spine flexed at approximately 10 degrees. Range of motion testing revealed 40 degrees flexion, 15 degrees lateral bending, bilaterally, and 0 degrees extension of the lumbar spine; the veteran was unable to fully extend his back. There was evidence of muscle spasm in the paralumbar musculature at the pelvis level. He had no reflex, sensory, or motor defects. Examination of the knees revealed 110 degrees flexion and 0 degrees extension, bilaterally. There was no evidence of swelling of the knees or instability. There was bilateral subpatellar crepitus noted on subpatellar grinding, with associated pain. He had poor squatting capability. There was no rib pain. The diagnosis was arthritis of the cervical and lumbar spine segments, and of the knees, which negatively impacted the veteran's activities of daily living and resulted in functional loss. On examination for hypertension in November 2002 and December 2003, the veteran complained of experiencing occasional chest pain and intermittent shortness of breath. He denied experiencing post-nasal drip, cough, and hemoptysis. On examination in November 2002, the examiner opined that the veteran's hypertension had not produced any increase in his overall level of disability. The examiner additionally opined that the veteran's orthopedic disabilities were much more likely to be the basis of his disability problems. The December 2003 examiner did not comment as to the effect the veteran's hypertension had on his overall level of disability. The veteran underwent VA audiological examination in November 2002 and December 2003. On examination in November 2002, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 15 25 LEFT 15 10 10 20 15 The averages were 20 in the right ear and 14 in the left ear. Speech recognition ability was 96 percent, bilaterally. On examination in December 2003, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 30 30 LEFT 20 20 20 30 20 The averages were 28 in the right ear and 23 in the left ear. Speech recognition ability was 76 percent in the right ear, and 72 percent in the left ear. The examiner noted that the veteran's word recognition scores were invalid, as he demonstrated behavior during testing that indicated unreliable results. Finally, the veteran underwent VA examination of the eyes in October 2004. Examination revealed corrected visual acuity of 20/20, bilaterally, for both near and distant vision. The pupils reacted equally, directly, and consensually. There was no afferent pupillary defect. The applanation tension was 15, bilaterally. External eye examination was unremarkable. The conjunctivae were determined to be within normal limits on slit lamp examination. Corneas, anterior chambers, and irises were normal. The lenses were clear. Fundoscopic examination reveled macula, vessels, and periphery within normal limits, without pressure changes temporally and inferiorly. The impressions were myopic astigmatism and presbyopia. Treatment records dated from January 2001 to December 2006 demonstrate numerous complaints of all-over body pain and frequent assessments that the veteran was totally disabled and unable to attain substantially gainful employment. The vast majority of these complaints and assessments are related to the veteran's nonservice-connected fibromyalgia and peripheral neuropathy. The veteran frequently reported that he required the use of assistive devices for the activities of daily living. Treatment records during this period also show, however, that the veteran exaggerated the extent of his disability. On strength testing of the lower extremities in February 2003, the veteran reported that he was unable to lift his leg when asked to do so. However, when positioned by the examining physician, the veteran was able to hold the leg with normal strength. Similarly, in October 2003, the examining physician noted that he was unable to determine the veteran's muscle strength because the veteran's examination did not accurately reflect his physical strength. Specifically, on this occasion the veteran was able to lift his leg when instructed to do so, but was unable to exert "one ounce" of pressure against the examiner when so instructed. On a separate occasion in October 2003 the veteran denied experiencing any weakness in any of his limbs. In April 2005, the veteran reported experiencing difficulty walking due to increased myalgias. The increased pain was determined to be related to fibromyalgia. In September 2005, the veteran reported experiencing numbness in both hands. He was noted to continue using a cane for assistance with ambulation. In support of his claims, the veteran submitted a December 2005 letter from his treating physician in which the physician stated that the veteran would benefit from a special home adaptation grant "given his current medical condition." The physician noted that the veteran suffered from multiple illnesses "mostly involving the muscles, i.e., chronic fatigue syndrome and fibromyalgia." The physician did not indicate the extent of the disability associated with these illnesses, or the extent of disability associated specifically with his service-connected disabilities. In June 2006, the same physician submitted an additional letter in support of the veteran's claims, this time stating that the veteran suffered from severe arthralgias secondary to osteoarthritis and fibromyalgia, causing him to feel quite weak. Given the veteran's particular service-connected disabilities, he is not entitled to specially adapted housing assistance or a special home adaptation grant on the basis of visual or upper extremity disabilities. Additionally, the veteran is not entitled to specially adapted housing assistance or a special home adaptation grant on the basis of his bilateral hearing loss, as he does not have deafness in either ear. The question before the Board is thus whether the veteran has 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 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. Upon review of the clinical records dated from January 2001 to December 2006, and the reports of examination dated in January 2001, March 2001, November 2002, and December 2003, the Board finds no evidence confirming that the veteran has 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 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. While he has been shown to have limitation of motion of the back and knees on examination, the veteran has consistently been shown to be able to ambulate with the assistance of a cane, and the strength of his lower extremities has consistently been determined to be greater than that displayed by the veteran on examination. Significantly, the use of a single cane does not satisfy the criteria which contemplate the use of "canes," and the requirement of using a cane and his limitation of motion of the knees does not equate to loss of use of either lower extremity. Additionally weighing against such a finding is that the majority of the veteran's physical limitations appear to be related to his nonservice-connected fibromyalgia. Thus, while the veteran's agility is certainly limited, there is no indication, even considering the veteran's fibromyalgia and peripheral neuropathy, that he has 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 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. Accordingly, the Board concludes that the criteria for entitlement to specially adapted housing assistance, and the criteria for a special home adaptation grant under 38 C.F.R. § 3.809a have not been met. The preponderance of the evidence is against the claim and therefore the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in August 2004 and November 2005; rating decisions in November 2004 and January 2006; statements of the case in July 2005 and November 2006; and a supplemental statement of the case in November 2006. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. Additionally, at the time of the prior final denial of the claim for service connection for a left eye disorder in March 2003, VA informed the veteran that his claim for service connection for a left eye disorder was denied because he had failed to submit evidence that demonstrated that his left eye disorder was incurred or aggravated by his period of active service. This communication, in addition to the above correspondence, satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the January 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER The claim for service connection for a low back disability is reopened. To that extent only, the appeal is allowed. Service connection for a left eye disorder is denied. Service connection for a right eye disorder, secondary to a left eye disorder, is denied. Entitlement to specially adapted housing is denied. Entitlement to a special home adaptation is denied. REMAND Additional development is needed prior to further disposition of the claim of entitlement to an effective date earlier than February 24, 2003 for the award of a TDIU rating. With regard to the veteran's claim for an earlier effective date for the award of a TDIU rating, the Board finds that this claim is inextricably intertwined with the veteran's pending application to reopen his previously denied claim of entitlement to service connection for fibromyalgia, and new claims of entitlement to service connection for narcolepsy, peripheral neuropathy, peripheral arterial insufficiency, and a gastrointestinal disorder, to include as secondary to medications prescribed for service-connected orthopedic disabilities, as the resolution of those claims might have bearing upon the claim for an earlier effective date for the award of a TDIU rating. The appropriate remedy where a pending claim is inextricably intertwined with other claims is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the veteran's application to reopen his previously denied claim of entitlement to service connection for fibromyalgia, and his new claims of entitlement to service connection for narcolepsy, peripheral neuropathy, peripheral arterial insufficiency, and a gastrointestinal disorder, to include as secondary to medications prescribed for service- connected orthopedic disabilities. 2. Then, readjudicate the veteran's claim of entitlement to an earlier effective date for a TDIU rating. If the decision remains adverse to the appellant, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs