Citation Nr: 1237709 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-39 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a certificate of eligibility for an automobile and/or specially adapted equipment. 2. Entitlement to a certificate of eligibility for specially adapted housing. 3. Entitlement to a certificate of eligibility for a special home adaptation grant. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to April 1977. He received the Army Commendation Medal and Air Medal. These matters initially came before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2010, the Board remanded these matters for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. FINDINGS OF FACT 1. The Veteran has permanent and total service-connected disability that results in the permanent loss of use of the feet and so affects the functions of balance or propulsion as to preclude locomotion without the aid of a cane, scooter, or wheelchair. 2. The grant of eligibility for specially adapted housing is a greater benefit than an award of a special home adaptation grant. CONCLUSIONS OF LAW 1. The criteria for a certificate of eligibility for an automobile and/or specially adapted equipment have been met. 38 U.S.C.A. §§ 3901, 3902(b)(2), 5107(b) (West 2002); 38 C.F.R. § 3.808 (2012). 2. The criteria for a certificate of eligibility for specially adapted housing have been met. 38 U.S.C.A. §§ 2101(a), 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. § 3.809 (2012). 3. The claim of entitlement to a certificate of eligibility for a special home adaptation grant is dismissed. 38 U.S.C.A. § 2101(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.809a (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the claims of entitlement to certificates of eligibility for an automobile and/or specially adapted equipment and specially adapted housing, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis To warrant entitlement to automobile and adaptive equipment under 38 U.S.C.A. § 3901, the evidence must demonstrate service-connected disability (or disabilities) resulting in the loss, or permanent loss of use, of at least one foot or a hand; or, permanent impairment of vision in both eyes, resulting in (1) vision of 20/200 or less in the better eye with corrective glasses, or, (2) vision of 20/200 or better, if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of the visual field subtends an angular distance no greater than twenty degrees in the better eye. 38 C.F.R. § 3.808(a). The law also provides that a veteran is entitled to adaptive equipment if he has ankylosis of at least one knee or one hip due to service-connected disability. 38 U.S.C.A. § 3902(b)(2); 38 C.F.R. § 3.808(b)(1)(iv). Specially adapted housing is available to a veteran who has a 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, or with 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; or 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(a); 38 C.F.R. § 3.809. The phrase "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d). If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he has compensation based on permanent and total service-connected 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. 38 C.F.R. § 3.809a(b). The assistance referred to in this section will not be available to any veteran more than once. 38 C.F.R. § 3.809a(a). Loss of use of a hand or foot, for the purpose of special monthly compensation, 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. 38 C.F.R. § 3.350(a)(2) (2012). Such a 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. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 that constitute loss of use of a foot or hand include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, and 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. 38 C.F.R. §§ 3.350(a)(2), 4.63 (2012). Under 38 C.F.R. § 4.124a, Diagnostic Code 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. In this case, the Veteran is service-connected for type II diabetes mellitus with erectile dysfunction, rated 20 percent disabling. He is also service-connected for the following disabilities, all of which are associated with the service-connected diabetes mellitus: coronary artery disease status post myocardial infarction, status post aortic coronary bypass times four, rated 100 percent disabling; diabetic nephropathy with hypertension, rated 100 percent disabling; non-proliferative diabetic retinopathy of the right eye with vitreous hemorrhage, rated 30 percent disabling; right upper extremity peripheral neuropathy, rated 30 percent disabling; left upper extremity peripheral neuropathy, rated 10 percent disabling; right lower extremity peripheral neuropathy, rated 20 percent disabling; left lower extremity peripheral neuropathy, rated 10 percent disabling; history of status post stroke with right hemiparesis and aphasia, rated 10 percent disabling; and hypothyroidism, rated 10 percent disabling. A total disability rating based on individual unemployability (TDIU) was in effect from July 1, 2005, to January 5, 2006. Medical records dated from May 2005 to May 2011, VA examination reports dated in July 2005, October 2009, May 2010, May 2011, and June 2012, Social Security Administration (SSA) disability records, and the Veteran's January 2007 notice of disagreement (VA Form 21-4138) include reports of right-sided weakness, bilateral foot and knee pain, lower extremity weakness, extreme shortness of breath with exertion, and an inability to walk greater than 10 feet or perform activities of daily living due to lower extremity neuropathy and congestive heart failure. The Veteran was generally unable to walk and get around unassisted and used a walker, scooter, and wheelchair for ambulation, but nonetheless experienced some falls due to instability. He required assistance with many activities of daily living (including meal preparation, bathing, dressing, undressing, toileting, bathing, and grooming), was occasionally described as being bedridden, and left the house only on a limited basis with an attendant for medical appointments. A physician who conducted a January 2006 VA evaluation reported that the Veteran was unable to work, that he had such limited exercise tolerance that he was housebound, that he was only housebound ambulatory, and that his condition was unlikely to improve. Also, a physician who conducted a June 2008 VA evaluation reported that the Veteran was "scooter bound" and spent much of his day sitting. Objective examinations revealed minimal motor weakness with fine finger movement, mild right arm and leg weakness (4/5), somewhat diminished (1+) arm, knee, and ankle reflexes, occasionally increased right side reflexes, neutral plantar responses, slightly diminished sensation to pinprick over the right forearm and foot, absent monofilament perception on the mid foot distally, mild clumsiness with right heel to shin testing, occasional extremity edema, a decreased ability to lift the left thigh and extend the knee due to pain, and a limp/right hemiparetic type gait. Diagnoses of, among things, diabetes mellitus, coronary artery disease, cardiomyopathy, hypertension, congestive heart failure, renal failure, and residuals of cerebral vascular accident were provided. In November 2010, a VA physician reviewed the Veteran's medical records and opined that the residuals of his stroke (i.e. right hemiparesis) was likely (at least as likely as not) due to his service-connected illness and that his left thigh pain and weakness was due to a different disability, identified as probable neuropathy. During a June 2012 VA neurologic examination the Veteran reported mild paresthesias and/or dysesthesias in the right upper extremity and bilateral lower extremities, mild numbness in the upper and lower extremities bilaterally, right sided weakness, and a marked gait difficulty. Examination revealed somewhat impaired (4/5) muscle strength associated with right elbow and wrist flexion and extension, bilateral hand grip and pinch, and right ankle plantar flexion and dorsiflexion. Deep tendon reflexes were absent at the biceps, triceps, brachioradialis, and ankles bilaterally and sensation to light touch was decreased at the right shoulder, inner/outer forearm, hand/fingers, knee/thigh, and ankle/lower leg and feet/toes bilaterally. Also, sensation to vibration was decreased at the left lower extremity and absent at the right upper and lower extremities and sensation to cold was decreased at the upper and lower extremities bilaterally. There was bilateral and symmetric muscle atrophy of the legs in the gastrocnemius region. Overall, there was moderate incomplete paralysis of the radial, median, ulnar, and sciatic nerves on the right and mild incomplete paralysis of these nerves on the left. The right hemiparesis was associated with the Veteran's previous cerebral infarctions and the polyneuropathy was associated with his diabetes. His strokes were the major contributing problem causing his inability to ambulate. He was diagnosed as having diabetic neuropathies. The physician who conducted the June 2012 VA examination concluded that the Veteran experienced difficulty with walking following multiple cerebral infarctions (with diabetes being a known risk factor for stroke), that he used a cane for ambulation prior to 1999, a walker from 1999 to 2006, and a scooter since 2006, and that the progression of his gait difficulty occurred in steps (which was consistent with multiple cerebral infarctions). The distal sensory and motor disturbances from his polyneuropathy also contributed to the progression of his gait difficulty. The majority of his loss of upper and lower limb use was due to the prior cerebral infarctions, with a lesser contribution from neuropathy. An exact apportionment between stroke and neuropathy as a cause of the Veteran's gait disturbance and weakness could not be determined without resorting to mere speculation. In light of the above evidence, the Board finds that the Veteran has a permanent and total service-connected disability due to the loss of use of the bilateral lower extremities that so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. The Veteran has required the use of canes, walkers, wheelchairs, and scooters for many years due to problems caused by his service-connected diabetes mellitus, including neurologic impairment associated with his service-connected residuals of strokes and peripheral neuropathy of the lower extremities and symptoms associated with coronary artery disease. He is unable to ambulate to any significant degree without these assistive devices and, even with the use of these devices, has fallen due to instability. Thus, the regulatory definition of "preclude locomotion" has been met in this case in that the Veteran has a longstanding need "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). As explained above, "loss of use" under 38 C.F.R. § 3.350(a)(2) exists when 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. This determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. The Board notes that this standard has not been met in this case. Nevertheless, 38 C.F.R. § 3.350 pertains to special monthly compensation, and there is nothing to indicate that the definition of "loss of use" in that regulation is applicable to claims for an automobile and/or specially adapted equipment or specially adapted housing. Rather, the specialized definition of "preclude locomotion" suggests that loss of use is assessed on this basis, at least with regard to claims for specially adapted housing. Thus, the Board finds that all statutory and regulatory criteria for certificates of eligibility for an automobile and/or specially adapted equipment and specially adapted housing have been met. Accordingly, the full benefit sought on appeal is granted. In light of the grant of entitlement to a certificate of eligibility for specially adapted housing, the claim for a special home adaptation grant under 38 U.S.C.A. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C.A. § 2101(a). ORDER Entitlement to a certificate of eligibility for an automobile and/or specially adapted equipment is granted, subject to governing criteria applicable to the payment of monetary benefits. Entitlement to a certificate of eligibility for specially adapted housing is granted, subject to governing criteria applicable to the payment of monetary benefits. The appeal, as to entitlement to a certificate of eligibility for a special home adaptation grant, is dismissed. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs