Citation Nr: 1300656 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-10 208A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a certificate of eligibility for specially adapted housing. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran's DD Form 214 reflects confirmed active service from June 1971 to September 1974. His DD Form 214 also reflects he had 5 years and 6 months of prior active service, and other documents reflect that his active service initially began in December 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in January 2011 when, in pertinent, part, the Board remanded the matter on appeal for additional development. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are: adenocarcinoma of the prostate, rated 100 percent; residuals of a left lower lobectomy for squamous cell carcinoma, rated 30 percent; right knee chondromalacia patella with arthritis, rated 30 percent; residuals of a right femur fracture, rated 30 percent; right bunion with fifth metatarsal head condylectomy, rated 10 percent; left bunion with fifth metatarsal head condylectomy, rated 10 percent; and residuals of a laceration to the right eyebrow, rated 0 percent; he has been awarded a total disability rating based on individual unemployability (TDIU). 2. The Veteran's service-connected disabilities do not result in permanent and total disability compensation due to the loss, or loss of use, of both lower extremities; blindness in both eyes plus the anatomical loss, or loss of use, of one lower extremity; loss, or loss of use, of one lower extremity together with residuals of organic disease or injury which affect functions of balance and/or propulsion so as to prevent locomotion without assistive device; loss, or loss of use, of one lower extremity together with the loss, or loss of use, of one upper extremity such as to affect function of balance or propulsion so as to preclude locomotion without assistive devices; loss, or loss of use, of both upper extremities such as to preclude use of the arms at or above the elbow; or, full thickness or subdermal burns which are related to service or to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a certificate of eligibility for specially adapted housing have not been met. 38 U.S.C.A. §§ 2101(a), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.809 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A November 2005 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent postservice treatment records (including from the Social Security Administration (SSA)) have been secured. Pursuant to the Board's January 2011 remand instructions, the Veteran was afforded a VA examination in May 2011. A review of the examination report shows that it contains sufficient clinical findings and informed discussion of the pertinent history and features of the disabilities pertinent to this appeal to provide probative medical evidence adequate for the purposes of appellate review. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis A certificate of eligibility for assistance in acquiring specially adapted housing may be provided if, among other things, a 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; or, (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or, (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C.A. § 2101(a); 38 C.F.R. § 3.809(b). 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. 38 C.F.R. § 3.809(c). The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(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 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 of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. § 3.350(a)(2), which constitute loss of use of a foot, include extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 31/2 inches or more, or complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop. The Veteran has established service connection for: adenocarcinoma of the prostate, rated 100 percent; residuals of a left lower lobectomy for squamous cell carcinoma, rated 30 percent; right knee chondromalacia patella with arthritis, rated 30 percent; residuals of a right femur fracture, rated 30 percent; right bunion with fifth metatarsal head condylectomy, rated 10 percent; left bunion with fifth metatarsal head condylectomy, rated 10 percent; and residuals of a laceration to the right eyebrow, rated 0 percent. He has also been awarded TDIU prior to being granted service connection for adenocarcinoma of the prostate. In the instant case, the evidence does not show that the Veteran has loss or loss of use of an upper or lower extremity, blindness or full thickness or subdermal burns which is related to service to a service-connected disability. While the Veteran uses a cane (since approximately 1999) and orthotic inserts for assistive aids for ambulation, on May 2011 VA examination, he was able to walk unaided with only a slight antalgic gait, and the examiner noted that the Veteran did not utilize the cane for weight bearing. In addition, on May 2011 VA examination, the Veteran reported he experiences a burning pain in the plantar surfaces of both feet, as well as pain in the right knee and occasional soreness in his hands. However, on physical examination, there was no right knee effusion, crepitus or instability, and no ankylosis of any lower extremity; the abnormal findings were listed as right hip and right knee tenderness to palpation, and restricted range of motion. Regarding the feet, the examiner found only right foot plantar tenderness and bunions; there was no swelling or deformity, and no evidence of flatfoot. Regarding the hands, there was no evidence of hand abnormality. In short, the clinical findings did not show loss or loss of use of an upper or lower extremity due to the Veteran's service-connected right knee chondromalacia patella with arthritis, residuals of a right femur fracture, or bilateral bunions with fifth metatarsal head condylectomy. Review of Virtual VA (i.e., VA's electronic data storage system) treatment records noted the Veteran's complaint of extremity weakness, difficulty grabbing things, as well as pain in his right hip and lower extremities. However, it was also noted that he was still able to go for daily walks and ride his bicycle. See June 2011 VA internal medicine outpatient report. Nonetheless, review of such records also did not show loss or loss of use of an upper or lower extremity due to the Veteran's service-connected right knee chondromalacia patella with arthritis, residuals of a right femur fracture, or bilateral bunions with fifth metatarsal head condylectomy. The Board notes that the Veteran's right lower extremity is shorter than his left lower extremity. Specifically, VA treatment records show that his right lower extremity is 3/4 of an inch shorter than his left lower extremity. See August 2002 orthopedic surgery consult report. However, as noted above, under 38 C.F.R. § 3.350(a)(2), in order to constitute loss of use of a foot, the shortening of the lower extremity must be 31/2 inches or more. Inasmuch as the right lower extremity is only shown to be 3/4 of an inch shorter than his left lower extremity, the extremity length discrepancy is insufficient to qualify as loss of use of a foot under governing regulations. The Veteran is service connected for residuals of a laceration to his right eyebrow. However, he has not established service connection for any disability resulting in loss of visual acuity. In addition, his service-connected disabilities do not include (nor are shown to result in) loss of use (as defined by 38 C.F.R. § 3.350(a)(2)) of an upper extremity. The Board acknowledges that due to his service-connected disabilities the Veteran may well have challenges in everyday living. However, they do not amount to the specific level of impairment necessary to satisfy the legal criteria for the benefits sought. Because the Veteran is not shown to have the requisite service-connected disabilities needed to establish entitlement to such, entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing cannot be granted. ORDER Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs