Citation Nr: 1111558 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 08-27 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to specially adapted housing or a special housing adaptation grant. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Alsup, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from March 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the Veteran's claim for entitlement to specially adapted housing or a special housing adaptation grant. The Veteran disagreed and perfected an appeal. In February 2011, the Veteran and his representative presented testimony in support of the Veteran's claim at a video teleconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. FINDINGS OF FACT 1. The Veteran suffers chronic pain due to service-connected removal of his left testicle that is relieved by baths, warm compresses, anti-inflamatories and use of a crutch. 2. The Veteran has not suffered the loss or permanent loss of use of one or both feet, one or both hands, permanent impairment of vision of both eyes, or ankylosis of one or both knees or one or both hips due to service-connected disability. CONCLUSION OF LAW The basic eligibility requirements for specially adapted housing special housing adaptation grant have not been met. 38 U.S.C.A. §§ 2101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.809, 3.809a (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, a veteran of World War II, is service-connected for residuals of removal of his left testicle which is currently evaluated as 30 percent disabling effective May 31, 2001. The essential residual of his service-connected disability is chronic inguinal pain that is relieved only by warm baths, warm compresses and, when walking, pain that is relieved to a limited degree by use of a cane. The Veteran seeks entitlement to VA benefits that would pay for the costs of purchase and installation of a walk-in bath in his home. The Board will first address preliminary matters and then render a decision on the issue on appeal. Duties To Notify And To Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1). The Veteran was notified in a November 2007 letter of the evidence required to substantiate a claim for special adapted housing and special housing adaptation grant. The Veteran was further informed of the steps VA would take to assist him in developing his claim, including providing him with a medical examination and obtaining pertinent records from VA, military and other federal and state agencies, and from private medical or employment providers. The record shows that VBA obtained service treatment records, VA treatment records and private medical records that were identified by the Veteran, and the Veteran received VA medical examinations in December 2007 and January 2010, and a VA rehabilitation consult in November 2009. The Veteran has been represented by a service representative and has been informed by the RO of the law and regulations that apply to his claims. As noted in the Introduction, the Veteran presented testimony at a video conference hearing in February 2011 before the undersigned VLJ. For those reasons, the Board finds that VBA satisfied the duties to assist and notify the Veteran, and that all due process has been provided. The Board will proceed to a decision on the claim on appeal. Relevant law and regulations Specially adapted housing A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service- connected disability due to (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (2) blindness in both eyes, having only light perception, plus, the anatomical loss or loss of use of one lower extremity, or (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 38 U.S.C.A. § 2101 (West 2002); 38 C.F.R. § 3.809(a), (b) (2010). The term "preclude locomotion" means the necessity for regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion' although occasional locomotion by other methods may be possible. See 38 C.F.R. § 3.809(d) (2010). The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.50(a)(2) 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 the elbow or knee with the 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. See also 38 C.F.R. § 4.63 (2010). Examples under 38 C.F.R. § 3.350(a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and 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 that nerve. See also 38 C.F.R. § 4.63 (2010). In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. 38 C.F.R. § 3.350(a)(2) and 38 C.F.R. § 4.63 only provide examples and not an exclusive list of manifestations of loss of use of a foot or hand. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21 (2010) [application of rating schedule]; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002) [the specified factors for each incremental rating were examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme]. Certificate of eligibility for special home adaptation grant A certificate of eligibility for assistance in acquiring a special home adaptation grant may be issue to a veteran who served after April 20, 1898; is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809 and has not previously received assistance in acquiring specially adaptive housing under 38 U.S.C.A. § 2101(1); and is entitled to compensation for permanent and total disability which (1) is due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands. See 38 U.S.C.A. § 2101(b) (West 2002); 38 C.F.R. § 3.809a (2010). 38 C.F.R. § 3.809a(a) provides that a veteran who first establishes entitlement under this section and who later becomes eligible for a certificate of eligibility under 38 C.F.R. § 3.809 may be issued a certificate of eligibility under § 3.809. However, no particular type of adaptation, improvement, or structural alteration may be provided to a veteran more than once. Analysis The essential residual of his service-connected disability is chronic inguinal pain that is relieved only by warm baths, warm compresses and, when walking, pain that is relieved to a limited degree by use of a cane. The Veteran seeks entitlement to VA benefits that would pay for the costs of purchase and installation of a walk-in bath in his home. The Veteran's chronic inguinal pain is well documented in the medical evidence. A July 1991 letter from Dr. T.W., the Veteran's private physician, indicated that the Veteran had "mild right epididymal pain." Within the pendency of the Veteran's current claim, the medical evidence includes a December 2007 VA examiner's note that the Veteran had pain after his left testicle was removed and that the only thing that helps the pain is warm baths. The examiner further noted that the Veteran reported his bathroom was so small, the Veteran's wife could not assist him to enter the bathtub. Thus, the Veteran had resorted to treatment consisting of application of warm compresses by his wife. A September 2007 letter from Dr. T.W. indicates that the Veteran has reported chronic pain for many years and that he needed warm soaking baths to relieve pain. Dr. T.W. also commented that the Veteran's bathroom is so small it restricts the Veteran from being assisted when he wants to take a soaking bath. A November 2009 VA rehabilitation assessment indicates that the Veteran has "considerable problems with his knees" and with swelling of the lower extremities. The assessment also notes that the Veteran had been having "severe hyperpathic pain from his previous exposure to radiation therapy in the form of radiation seeding to his prostate gland." The assessing officer provided the following diagnoses/impressions: (1) cancer of the prostate with successful orchiectomy and prostate seeding radiation therapy; (2) chronic lymphedema syndrome, bilateral lower extremities, due to radiation therapy; (3) moderately severe chronic neuropathic pain, perineum; and (4) cardiac pacemaker placement, stable coronary artery disease. The assessing officer also noted the Veteran had expressed he had "considerable problems with his knee pain and discomfort, especially his chondromalacia of the knee joints, moreso to the left than the right side." The Veteran's gait was described as "weight shift to the sides are normal," and "hence cadence is normal without antalgia." The Veteran's leg strength was described as normal and his range of motion of the ankle was normal, although the "strength involving both lower extremities is about 4-, proximally and distally." A January 2010 note from Dr. T.W. indicates the Veteran has "chronic inguinal pain" that predates the prostate cancer he experienced. Finally, a January 2010 VA examiner noted the Veteran's right testicle was removed following carcinoma of the prostate, and that the Veteran reported that he cannot get into a tub. The examiner noted that the Veteran had "much difficulty getting out of a chair, both in the examining room and in the waiting room," and that the Veteran used a "wheeled walker." The examiner also noted "2 to 3+" peripheral edema of the lower extremities, and observed that the Veteran had "tenderness very high in the scrotal area at the site that the spermatic cord would reach the abdominal wall." No hernia, mass or adenopathy was observed. The Veteran testified at the February 2011 hearing that soaking in a tub provided the only relief he had from pain and that he cannot step into a tub by himself. See hearing transcript at page 4. He testified that his pain was chronic and that the pain from the removal of his left testicle affected his ambulation. See hearing transcript at page 6. The Veteran also testified that he had pain when he walked and that use of a cane relieved some of the pain. See hearing transcript at page 7. The Veteran's contention is that his chronic pain can only be relieved by warm baths and that the pain affects his ambulation. As noted above, a certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service-connected disability due to (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (2) blindness in both eyes, having only light perception, plus, the anatomical loss or loss of use of one lower extremity, or (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The Veteran currently is service-connected with a 30 percent disability for residuals of left testicle removal. The medical evidence shows that the Veteran does not receive compensation for permanent and total service-connected disability due to loss of use of either lower extremity, blindness, or an upper extremity, and he does not suffer from an organic disease or injury that affects the functions of balance or propulsion. The Board has considered the effect of the Veteran's chronic pain, but finds that Veteran's chronic pain does not result in any lack of function of the Veteran's lower extremities. Rather, the Veteran's non-service-connected knee and lower extremity conditions result in decreased functioning of his lower extremities and, specifically, his inability to step over a bath tub. At most the Veteran's service-connected chronic inguinal pain makes it uncomfortable for him to walk, but that pain is relieved to a limited extent by the use of a cane; the chronic inguinal pain does not preclude him from walking or preclude the use of his lower extremities. For those reasons, the Board finds that the criteria of 38 C.F.R. § 3.809 are not met and that entitlement to specially adapted housing under 38 U.S.C.A. § 2101(a) is not warranted. The medical evidence also does not show the Veteran is not entitled to compensation for permanent and total disability which is due to blindness in both eyes with 5/200 visual acuity or less, or includes the anatomical loss or loss of use of both hands. Thus, the Board finds that the criteria of 38 C.F.R. § 3.809a are not met and that entitlement to special home adaptation grants under 38 U.S.C.A. § 2101(b) is not warranted. ORDER Entitlement to specially adapted housing and a special housing adaptation grant is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs