Citation Nr: 1303722 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-34 128 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to a special home adaptation grant. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by which the RO denied entitlement to the benefits sought herein. In connection with this appeal, the Veteran requested a personal hearing before a Veterans Law Judge at the RO. He withdrew his hearing request in October 2009. Accordingly, the Board will proceed with consideration of the Veteran's claim based on the evidence of record. See 38 C.F.R. § 20.704(e) (2012). FINDINGS OF FACT 1. The Veteran's service-connected disabilities do not cause (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. 2. The Veteran is not entitled to compensation for a permanent and total disability due to blindness in both eyes with 5/200 visual acuity or less; anatomical loss or loss of use of both hands; deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; full thickness of subdermal burns that have resulted in contractures with limitation of motion of one or more of the extremities or the trunk; or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). CONCLUSIONS OF LAW 1. The criteria for specially adapted housing are not met. 38 U.S.C.A. § 2101 (West 2002 & Supp. 2012); 38 C.F.R. § 3.809 (2012). 2. The criteria for a special home adaptation grant are not met. 38 U.S.C.A. § 2101 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.809a (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system, to insure a total review of the evidence. Specially Adapted Housing and Special Home Adaptation During the course of this appeal, VA regulations for specially adapted housing and special home adaptation grants were revised, effective October 25, 2010. See 75 Fed. Reg. 57,861-57,862 (Sept. 23, 2010). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The final rulemaking provided specific applicability dates for some of the amended regulations, including: the revisions to the introductory text of § 3.809(b) pertaining to eligibility for persons disabled by VA treatment or vocational rehabilitation, apply to applications for such grants received by VA on or after December 10, 2004; the addition of § 3.809(b)(5), pertaining to loss or loss of use of both upper extremities as a qualifying disability, applies to all applications received by VA on or after December 10, 2004 and the addition of paragraph (b)(6) to § 3.809 pertaining to severe burns apply to all applications for such grants received by VA on or after July 30, 2008. The Veteran's claim was received in September 2008. However, the Board observes that the amendments do not specifically apply to the Veteran's physical circumstances; hence, there is no prejudice to him in the Board's considering them in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under the regulations effective prior to October 25, 2010, 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) (2009). Under the regulations effective prior to October 25, 2010, a certificate of eligibility for assistance in acquiring a special home adaptation grant may be issued 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. 38 U.S.C.A. § 2101(b) (West 2002); 38 C.F.R. § 3.809a (2009). 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. On October 25, 2010, the pertinent portions of the regulations were changed as follows: After 3.809 paragraph (4) the following paragraphs were inserted: (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. See 75 Fed. Reg. 57,861-57,862 (Sept. 23, 2010). Under the revisions to 38 C.F.R. § 3.809a (b), the disability must: (1) Include the anatomical loss or loss of use of both hands, or (2) be due to: (i) Blindness in both eyes with 5/200 visual acuity or less, or (ii) Deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or (iii) Full thickness of subdermal burns that have resulted in contractures with limitation of motion of one or more of the extremities or the trunk, or (iv) Residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). Id. 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(c) (2012). The term "loss of use" of a hand or foot is defined at 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 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 (2012). 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. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the United States Court of Appeals for Veterans Claims (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 (2012) (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). Discussion The record reflects that the Veteran would like funding for wheelchair accessibility to his kitchen and bathroom as well as ramps to his home. He also indicated a desire to have his bathroom modified. Evidence of record indicates that service connection is established for posttraumatic stress disorder (PTSD) (100 percent effective February 29, 2008 and 30 percent before that date), prostate cancer (40 percent effective November 1, 2008 and 100 percent before that date), hypertensive cardiovascular disease (30 percent), residuals of a gunshot wound to the right (dominant) shoulder with traumatic arthritis (20 percent), and for erectile dysfunction (zero percent). The Veteran's combined service-connected disability rating is 100 percent effective August 11, 2004. The Veteran was awarded special monthly compensation (SMC) under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ, effective August 11, 2004. He was awarded SMC under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) for the time periods from August 14, 2007 to November 1, 2008 and again effective from November 1, 2008. Additional benefits awarded include entitlement to a scooter with a 20" seat and a lift and a specific kind of vehicle. The medical evidence of record indicates that the Veteran has multiple nonservice-connected disabilities. For example, he has polyarthralgia involving the right hip, knees, ankles, and hands as well as avascular necrosis of the right hip with absorption of the head with surgery being the only possible solution for mobility. He has a history of obstructive sleep apnea and a diagnosis of diabetes mellitus. He also wears glasses, and he has drusen and a peripheral pigment abnormality. Right eye vision is 20/200-1, and left eye vision is 20/25+2. Based on the foregoing evidence, the Board finds that the Veteran is not entitled to specially adapted housing or to a special home adaptation grant. Neither the Veteran nor the record gives the impression that there are vision problems requiring specially adapted housing or a home adaptation grant. Rather, the Veteran seems to argue that his physical disabilities that impede mobility entitle him to the benefits sought. The Board acknowledges the Veteran's arthralgia of multiple joints, right hip avascular necrosis, and seriously impaired mobility. The foregoing facts alone, however, do not give rise to entitlement to specially adapted housing or a home adaptation grant. As to specially adapted housing, the criteria for such benefit are not met under either the former or current criteria because the Veteran does not have any service-connected disabilities of the lower extremities, service-connected blindness in both eyes, a service-connected organic disease or injury that so affects the function of balance or propulsion as to preclude locomotion, a service-connected disability of an upper extremities that together with a lower extremity disability so affects the functions of balance or propulsion as to preclude locomotion, a service-connected disability of both upper extremities precluding the use of the arms at or above the elbows, or service-connected full thickness or subdermal burns. 38 C.F.R. § 3.809 (2009, 2012). The Board emphasizes that there is no evidence that the Veteran has blindness in both eyes, having only light perception, the loss or loss of use of one or both upper extremities, organic disease or injury that so affects the function of balance or propulsion as to preclude locomotion, or 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. The Veteran does, however, have disabilities of the lower extremities to include the knees, ankles, and right hip. These are not subject to service connection. The Veteran does have a right (dominant) shoulder disability that is service connected. This disability is rated only 20 percent disabling, which suggests that it is not productive of major impairment. In any event, the service-connected right shoulder disability has not been found, by itself or in conjunction with other disabilities, to have any impact upon balance or locomotion. As no criterion that would entitle the Veteran to specially adapted housing is present, the Veteran does not meet the criteria for specially adapted housing at this time. Id. Additionally, the Veteran is not entitled to compensation for a permanent and total disability due to blindness in both eyes with 5/200 visual acuity or less; anatomical loss or loss of use of both hands; deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; full thickness of subdermal burns that have resulted in contractures with limitation of motion of one or more of the extremities or the trunk; or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). Therefore, he does not meet the criteria for a special home adaptation grant under the former or current criteria. 38 C.F.R. § 3.809a (2009, 2012). In reaching the conclusions herein, the Board has considered the Court's determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007). In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. However, unlike compensation for a service connected disability, for which a veteran continues to receive compensation as long as he or she is disabled, a grant of specially adapted housing or special home adaptation is a onetime expenditure for a specific home modification. Staged rating takes into account the fact that a veteran will be receiving compensation over an extended period of time, so considering changes in a veteran's disability over time makes sense. However, where VA is assisting the Veteran in acquiring specially adapted housing, the time period over which funds are disbursed is limited and the focus must be on whether at the time the funds are disbursed, the Veteran is entitled to specially adapted housing or a special home adaptation grant. Here, based on the most current medical evidence, the Veteran does not meet the criteria for specially adapted housing or special home adaptation. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The provisions VCAA, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled. In this case, the Veteran's claim for entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing or a special home adaptation grant was received in September 2008. He was notified of the provisions of the VCAA by the RO in correspondence dated in October 2008. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. The Veteran was not advised of how VA assigns disability ratings and effective dates. To the extent that the Court's holding in Dingess is applicable to the claims herein, the Veteran is not prejudiced by any omission, as the claims are denied. Thus any notice regarding disability ratings and/or effective dates would be superfluous and serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided). VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records as well as VA clinical records. The Veteran was not afforded a VA medical examination in furtherance of the claims because no examination is necessary herein. The Veteran does not have the types of service-connected disabilities that would give rise to entitlement to the benefits sought herein. Thus, there is no need for a medical examination or opinion regarding the impact upon service-connected disabilities upon matters of mobility and the like. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to specially adapted housing is denied. Entitlement to a special home adaptation grant is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs