Citation Nr: 1240366 Decision Date: 11/27/12 Archive Date: 11/30/12 DOCKET NO. 04-24 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the loss of use of both lower extremities. 2. Entitlement to automobile and adaptive equipment or adaptive equipment only. 3. Basic eligibility for assistance in acquiring specially adaptive housing. 4. Basic eligibility for assistance in acquiring a special home adaptation grant. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1978 and from June 1983 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered in May 2003 and April 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board by its January 2009 decision denied entitlement to each of the issues on appeal, which the Veteran then appealed to the U.S. Court of Veteran's Appeals (Court). The parties to that appeal thereafter jointly moved the Court to vacate the Board's decision and remand the appellate issues for further Board review. The Court by its March 2010 order granted the parties' motion. Following a return of the case to the Board, the Board in September 2010 remanded the appellate issues to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken for compliance with the Court's order, and following the completion of the requested actions, the case is again before the Board for review. FINDINGS OF FACT 1. A preponderance of the evidence of record shows that any loss of use of either of the Veteran's legs, to include that indicated from 2002 to 2010, is not attributable to his service-connected lumbar spine disability. 2. The Veteran does not have service-connected disabilities that have resulted in the loss or permanent loss of use of one or both feet or one or both hands, permanent impairment of vision of both eyes, or ankylosis of one or both knees or one or both hips. 3. The Veteran does not have service-connected disabilities that have resulted in the loss, or loss of use, of both lower extremities, or blindness in both eyes, or the loss of one lower extremity together with residuals of organic disease or injury that affects the functions of balance or propulsion, or loss of one lower extremity together with the loss or loss of use of one upper extremity that affects the functions of balance or propulsion. 4. The Veteran does not have a service-connected vision disorder resulting in 5/200 vision or less in both eyes, or the anatomical loss or loss of use of both hands. CONCLUSIONS OF LAW 1. The criteria for entitlement to SMC based on loss of use of both legs have not been met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2012). 2. The criteria for automobile and adaptive equipment and/or adaptive equipment have not been met. 38 U.S.C.A. §§ 3901, 3902 (West 2002); 38 C.F.R. §§ 3.350, 3.808 (2012). 3. The criteria for assistance in acquiring specially adapted housing have not been met. 38 U.S.C.A. § 2101(a) (West 2002); 38 C.F.R. § 3.809 (2012). 4. The criteria for acquiring a special home adaptation grant have not been met. 38 U.S.C.A. § 2101(b) (West 2002); 38 C.F.R. § 3.809a (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Remand Compliance The issues now before the Board were remanded by the Board in March 2007 and, most recently, in September 2010 in order to facilitate the conduct of additional evidentiary and/or procedural development. By its September 2010 remand, the Board directed the AMC to obtain pertinent medical records and to provide further notice to the Veteran and obtain his input regarding previously received medical treatment and to secure any additional treatment records. In addition, the AMC was directed to await the Veteran's initiation of an appeal, if any, of rating action undertaken in February 2010, denying intertwined issues involving entitlement to service connection for cervical and thoracic spine disorders and an arteriovenous malformation. While the case remained in remand status, no timely appeal was received by VA as to the adverse action of February 2010. The AMC advised the Veteran in writing in September 2010 of what additional evidence was needed to support his claims and requested him to provide supportive evidence or identify treatment providers and dates of treatment, so that assistance could be provided to obtain any additional records. No response from the Veteran was furnished and additional VA treatment records were obtained and added to the Veteran's VA claims folder, followed by readjudication of the appellate issues by way of a supplemental statement of the case of April 2012. All of the actions previously sought by the Board through its prior development requests appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of March 2003 and February 2004 letters from the RO to the Veteran. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice occurred prior to each of the RO's respective initial adjudicatory actions in 2003 and 2004, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by or on behalf of the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the Veteran's service treatment records, in addition to a variety of examination and treatment records compiled by VA and non-VA sources following the Veteran's discharge from service. In addition, the Veteran was afforded an RO hearing in August 2004, a transcript of which is on file. The record reflects that the Veteran was found to be entitled to disability benefits from the Social Security Administration (SSA) by a July 1991 decision of an Administrative Law Judge, that is of record, based on severe back pain, but also his testimony that he remained able to walk three blocks at a time and, thus, loss of use was not at issue. Given the foregoing, and in light of the fact that this appeal is based on claims received by VA not earlier than February 2003, complete SSA records are found to be unnecessary. The Veteran has not otherwise made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to fairly decide the claims herein addressed on their merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that the Veteran has been provided multiple VA medical examinations with respect to the principal issue relating to loss of use and its etiology and that VA medical opinions have been sought and obtained as to the dispositive issue. No objection as to the conduct of any VA examination or the substance of any medical opinion obtained is voiced by the Veteran or his representative. On that basis, further development action relative to the disability in question is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. SMC SMC is a special statutory award, in addition to awards based on the schedular evaluations provided by the Diagnostic Codes in the VA's Schedule for Rating Disabilities. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114 (k) through (s) and 38 C.F.R. §§ 3.350, 3.352. Under 38 U.S.C.A. § 1114(m) and 38 C.F.R. § 3.350(c), SMC is warranted if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prosthesis in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance. By his February 2003 claim, the Veteran alleged that he had loss of use of each of his legs and that such loss of use was directly attributable to his service-connected low back disorder. By a rating decision of November 1991, service connection was established for lumbar disc disease at L2-L3 with spondylolisthesis at L4-L5. Service treatment records identify that the Veteran fell from a tank in 1985 and was thereafter evaluated and treated for an injury to his back. SSA determined in August 1992 that the Veteran's low back disorder involving severe pain rendered him totally and permanently disabled, notwithstanding the fact that he continued to be able to walk three blocks at a time. In February 1993, the Veteran had a surgical procedure involving the lumbar spine in which spinal instrumentation in the form of Harrington rods were implanted at L4 and L5. In February 2003, the Veteran submitted a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, completed by a medical examiner. The restriction therein noted was described as a loss of ambulatory ability with loss of purposeful movement of the lower extremities. The Veteran underwent a VA examination in April 2003. After review of the Veteran's claims file and physical examination, the examiner, M.J.G., stated that there appeared to be changes at the L2-L3 disk on the right which did not include the distribution for the "loss of use" of bilateral feet in the strictest definition. There was no lower extremity dysfunction, with the exception of intermittent clonus that most likely occurred related to the lumbar spine condition. M.J.G. noted that in regard to the clonus, the lower right extremity intermittently spasmed severely as evidenced during the examination which affected the entire lower extremity. VA treatment records indicate that sometime in early 2003 the Veteran developed problems in his lower extremities and difficulty urinating. The Veteran reported difficulty standing and walking and was almost unable to walk secondary to significant lower extremity tremor or muscle spasm or both. After physical examination and radiological studies in July 2003, there was noted to be no evidence of myelopathy or spinal cord or peripheral nerve damage by magnetic resonance imaging (MRI) and myelogram. The Veteran did not have evidence of fasciculations, increasing muscle tone, hyperreflexia or long-tract signs. The neurosurgery resident noted that when the Veteran tried to stand up he had jerking movements in his lower extremities and was almost unable to stand up and walk on his own. An October 2003 MRI of the brain was negative. A May 2003 private medical record indicates that the Veteran was referred with spasming and jerking of the lower extremities and difficulty with walking of a progressive nature. Findings from a physical examination yielded a diagnostic impression of cervical spondylosis with myelopathy. The private physician, Dr. R.H., indicated that the Veteran did tend to exhibit myoclonic jerking of both legs, especially on movements when he was asked to ambulate or checking his muscle strength against resistance, right leg more than left. He was scheduled for a complete myelogram with special attention to the cervical area and a full MRA cerebral arteriogram. The tomogram/myelogram showed C5-C6, C6-C7 disc bulging, mild at C5-C6 with osteophyte noted; fixation screws noted at L4-L5; and some flattening noted at L2-L3, L3-L4. The Veteran underwent a VA examination in May 2004 and after review of the Veteran's claims file and physical examination, the examiner noted no objective evidence of peripheral nerve impairment and inconsistent responses to tactile stimulation. The examiner diagnosed neurologic symptoms inconsistent with a spinal lesion, myoclonus of lower extremities and right arm with inconsistent response to tactile stimulation, and intermittent external urinary catheter for reported incontinence without evidence of neurologic or orthopedic etiology. The examiner noted suspected malingering. The Veteran was afforded an RO hearing in August 2004, when he offered testimony in support of his entitlement to the benefits sought on appeal. He indicated that he had been confined to a wheelchair for some time due to his service-connected low back disorder and extreme jerkiness and spasm of his lower extremities. Frequent falls, inability to walk or stand, and voiding difficulties were alleged to be manifestations of the disability in question. He denounced any intention on his part to malinger or exaggerate the manifestations associated with his service-connected low back disorder. In August 2004, the Veteran presented to a VA neurology clinic for follow up and had with him the May 2004 VA examination report. The neurology consultant, S.S.M., stated that past evaluations had been read. S.S.M. noted that the Veteran's lower extremities had been reexamined, and as before, soon after arrival and in the initial stages of his physical examination there was much tremulousness and jumpiness of the lower extremities, especially in response to passive movements by the examiner and much less during later stages. S.S.M. reported that the Veteran wore a condom for urination outside of his home, but that he did not do so that day and voided without difficulty. The Veteran's sandals were not well worn out, although he reported wearing them regularly for two years. S.S.M. diagnosed tremulousness and spasm of an uncertain etiology and, as well, noted that a neurologic or nosologic diagnosis was unable to be provided and that there was no anatomically identifiable spinal cord lesion, a surgically correctible lesion, or a medically treatable lesion such as a B12 deficiency or multiple sclerosis. S.S.M. determined that it was, however, prudent to stop there and label the Veteran's symptoms as arising from an uncertain etiology and noted that he would hesitate to ascribe a motive because he had failed to find an anatomically recognizable lesion. S.S.M. also noted that inasmuch as all the symptoms arose after the fall, compression fracture, and surgical and medical care, there was circumstantial support to attribute the lower extremity symptoms currently experienced as related to the service-connected fall. VA treatment records show that the Veteran was treated at a spinal cord injury clinic and an August 2006 consultative record identifies an impression of an intervertebral disk disorder with myelopathy and muscle spasm. A May 2007 spinal cord injury annual examination report authored by Dr. X.Z. notes that the Veteran had muscle strength in the lower extremities of 3/5 bilaterally and a lot of muscle spasm in the lower extremities. The diagnostic impression was of an intervertebral disc disorder with myelopathy, stable, which caused muscle spasm and weakness in lower extremities. Submitted to VA in January 2007 on behalf of the Veteran were photocopied portions of medical textbooks or treatises. Accompanying argument from the Veteran's representative indicated that those materials were submitted in order to show that pathology in one segment of the spine may result in additional pathology in another spinal area and that an arteriovenous malformation may cause neurologic disability of the lower extremities. The Veteran underwent a VA examination in July 2008. After review of the Veteran's claims file and physical examination, the examiner, A.D.M., noted that a February 2003 tomogram/myelogram showed minimal disk bulge at L2-L3, postoperative changes with rods and screws at L4-L5, and an indentation on the right possibly due to a disk bulge or rupture with possible involvement of the right L2-L3 nerve roots. Nerve conduction studies and an electromyogram in June 2004 of the right leg were normal. A February 2008 MRI of the cervical spine disclosed degenerative changes with moderate stenosis at C3-C4 and borderline stenosis C4-C5 and C5-C6 due to degenerative changes; June 2008 MRI of the thoracic and lumbosacral spine revealed degenerative changes without stenosis in the thoracic spine; mild central spinal stenosis with moderate bilateral neural foraminal stenosis at L2-L3 secondary to disk bulge and endplate osteophytes; small right paramedial disk protrusion at L1-L2 with mild right lateral recess stenosis; and postoperative changes at L4-L5. A.D.M. stated that he believed that the Veteran had a severe low back pain syndrome secondary to chronic degenerative changes, spondylolisthesis, and possibly failed back syndrome with symptoms suggesting a lumbosacral radicular-type pain. A.D.M. opined that he had no explanation for the severe tremor which seemed to hinder the Veteran's ability to stand or move about easily and found that he could not ascribe the tremor to his degenerative disk disease at L2-L3 or spondylolisthesis at L4-L5 or the surgical procedure with L4-L5 instrumentation in 1993. A.D.M. stated that the Veteran did not appear to have findings suggesting a myelopathy and that the tremor did not appear to represent myoclonus. Additional VA examination and treatment records were made a part of the Veteran's VA claims folder on several occasions during 2009 and 2010. The Veteran was afforded VA medical examinations in February 2010 in connection with his claims for service connection for cervical and thoracic spine disorders and an arteriovenous malformation. On a VA neurological examination in February 2010, the Veteran reported increased muscle spasticity and continued inability to walk; deep tendon reflexes were 1/4 of the lower extremities and no clonus was present. There was no evidence of muscle wasting of either lower extremity and, in fact, muscle bulk in the bilateral quadriceps was quite full. In a February 2010 rating decision, the RO denied service connection for cervical spine and thoracic spine disorders and an arteriovenus malformation. The Veteran was notified of that decision and of his appellate rights as to that adverse action, but he did not initiate a timely of that denial, thereby rendering the February 2010 action final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2012). On a VA social work assessment in May 2010, the Veteran reported that he was able to move his legs, but that he had no control of them due to spasm when attempting to move. Use of an external urinary catheter and medication to control nighttime urination was noted. Assistance was provided by his spouse for bathing and dressing. A neurology consult in May 2010 indicated that gait testing could not be performed due to the Veteran's inability to walk; clonus-type movement of the right leg was present, although not a real clonus. Excellent muscle bulk of both legs was present and considerably more atrophy should have been present with a period of wheelchair use for nine years. The impression was of bilateral leg weakness, with absent sensation of the right leg; no neurological explanation for this. The motor score was S1 bilaterally because of non-testable lower extremity myotomes; the ASIA impairment scale was D. When the Veteran was seen at the VA spinal cord injury unit in November 2010, it was noted that he had resumed walking and that he was able to ambulate 58 feet with tolerable pain. The degree of organic versus functional impairment was noted to remain speculative, although it was determined that most likely the subjective degree of gait and strength impairment was heavily influenced by pain, anxiety, movement avoidance, and catastrophizing. The Board notes that based on the medical evidence of record, there is evidence to find that the Veteran effectively had loss of use of his legs, if not actual loss of use thereof, for a period prior to November 2010. There are indications within the record documenting the Veteran's ambulation beginning in or about November 2010, when he was shown to walk for approximately 58 feet. There is also evidence of his longstanding use of a wheelchair and a standing machine to propel him upwards, as well as clinical indications contradindicating loss of use involving normal muscle bulk of each leg, as opposed to muscle wasting and atrophy consistent with non-weight bearing status. However, with respect to whether that any loss of use of the lower extremities is due to service-connected lumbar spine disability, the Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran's inability to use his legs is related to service-connected lumbar spine disability, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part, that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Here, the Board places greater weight on the opinion of Dr. R.H., than it does on the other medical opinions of record, including the favorable April 2003 VA opinion. The April 2003 VA examiner, M.J.G., a nurse practitioner, related the Veteran's intermittent clonus to his lumbar spine disorder; however, a private physician in May 2003, Dr. R.H., related the myelopathy to the Veteran's nonservice-connected cervical spondylosis. The medical text and treatise evidence submitted has little or no relevance to the question of loss of use. When submitted, it was proffered to indicate a relationship between the Veteran's lumbar spine disorder and claimed cervical and thoracic spine problems and the impact of an arteriovenous malformation on the onset of neurological impairment. But, as indicated previously, those issues were fully addressed by VA through rating action in February 2010, which denied service connection for disorders of the cervical and thoracic spine and an arteriovenous malformation and which was not timely appealed. Thus, the rating decision relating to those matters is final and those matters are not within the Board's jurisdiction for review in the context of this appeal. Through his hearing testimony in August 2004 and various other statements of record, the Veteran has indicated that any loss of use of his legs is the direct result of service-connected low back disablement. He has described an inability to ambulate or otherwise make use of his legs, as well as the pain and weakness he experiences. The Veteran is most certainly competent to state what comes to him through his senses, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Medical evidence preponderates against a finding that any loss of use of the legs from 2002 to 2010 is directly related to service-connected disability, and inasmuch as he is not shown to be a medical professional, he is not competent to offer a medical diagnosis or a medical opinion as to causation or an inter-relationship between low back disablement and loss of use of the legs in the absence of a showing of the requisite medical education and training. The Board notes that medical evidence is not limited to that which is provided by doctors. Cox v. Nicholson, 20 Vet. App. 563 (2007) (holding that an examination required under 38 C.F.R. § 5103A may be conducted by a nurse practitioner, rather than a physician). However, in this case, the Veteran was actually referred to the private physician from an osteopathic physician specifically to assess his difficulty in controlling his legs; thus, the Board concludes that this private physician most likely has more medical expertise in this area than the VA nurse practitioner. Accordingly, the Board finds that M.J.G.'s opinion is afforded less probative weight than that of Dr. R.H.'s opinion. The other opinions of record are uncertain as to the etiology of the Veteran's leg tremors and other symptomatology. The May 2004 VA examiner could not find an etiology and suspected malingering. A VA physician, Dr. X.Z., diagnosed intervertebral disc disorder with myelopathy in May 2007, but did not identify whether the intervertebral disc disorder was in the cervical or lumbar spine. The July 2008 VA examiner, A.D.M., was unable to relate the tremors to the Veteran's degenerative disk disease at L2-L3 or spondylolisthesis at L4-L5 or following the surgical procedure with L4-L5 instrumentation in 1993. A VA neurology consultant, S.S.M., was unable to provide a neurologic or nosologic diagnosis and noted that there was but circumstantial support to attribute the lower extremity symptoms to the service-connected fall. With respect to S.S.M.'s opinion, the Board notes that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Therefore, the weight of the competent and probative medical evidence preponderates against the assertion that the Veteran's inability to use his legs is related to his service-connected lumbar spine disability. As loss of use of the veteran's legs has not been shown to be related to service or service-connected disability, a grant of special monthly compensation on this basis is not possible. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Automobile and Adaptive Equipment In order to be eligible to financial assistance in purchasing an automobile and/or adaptive equipment, the veteran must be entitled to compensation for any of the following disabilities: (i) The loss or permanent loss of use of one or both feet; (ii) the loss or permanent loss of use of one or both hands; (iii) the permanent impairment of vision of both eyes. 38 U.S.C.A. § 3902(a)(b); 38 C.F.R. § 3.808(b)(1). Additionally, a veteran who is not eligible for assistance under the foregoing criteria may nevertheless be entitled to adaptive equipment if he is entitled to VA compensation for ankylosis of one or both knees, or of one or both hips. 38 U.S.C.A. § 3902(b)(2); 38 C.F.R. § 3.808(b)(1)(iv). However, as shown above, the Veteran's service connected disability is limited to lumbar disc disease at L2-L3 with spondylolisthesis at L4-L5; and the loss of use of the Veteran's legs has not been shown to be related to service or service-connected disability. Thus, the evidence of record shows that the Veteran does not meet basic eligibility the criteria for automobile and adaptive equipment or adaptive equipment only. Denial of the benefits sought under the provisions of 38 U.S.C.A. § 3902 and 38 C.F.R. § 3.808 is therefore required. Specially Adapted Housing and Special Home Adaptation Grant A certificate of eligibility for assistance in acquiring specially adapted housing may be provided if, among other things, the veteran is entitled to service-connected compensation for permanent and total disability due to: (1) the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, or (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 38 U.S.C.A. § 2101(a); 38 C.F.R. § 3.809. In order for a veteran to be entitled to a certificate of eligibility for assistance in acquiring special home adaptation, he or she must be entitled to compensation for permanent and total disability that (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 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a. However, as shown above, the Veteran's service connected disability is limited to lumbar disc disease at L2-L3 with spondylolisthesis at L4-L5; and the loss of use of the Veteran's legs has not been shown to be related to service or service-connected disability. Thus, the evidence of record shows that the Veteran does not meet the criteria for specially adapted housing or a special home adaptation grant based on his service-connected disability. Thus, inasmuch as basic eligibility criteria have not been met, denial of the benefits under the provisions of 38 U.S.C.A. § 2101; 38 C.F.R. §§ 3.809, 3.809a is mandated. (CONTINUED ON NEXT PAGE) ORDER Entitlement to SMC based on the loss of use of both lower extremities is denied. Entitlement to automobile and adaptive equipment or adaptive equipment only is denied. Basic eligibility for assistance in acquiring specially adaptive housing is denied. Basic eligibility for assistance in acquiring a special home adaptation grant is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs