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