Citation Nr: 1306548	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  10-42 615	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to specially adapted housing.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from July 1958 to July 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to specially adapted housing.  In December 2012 the Veteran and his spouse provided testimony before the undersigned at a Travel Board hearing in Waco, Texas; a transcript of that hearing is of record.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  This file has been reviewed and considered in connection with this claim.

The issue of entitlement to special monthly compensation based on the need for aid and attendance has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran has effectively lost the use of both of his lower extremities due to his service-connected disabilities of diabetic nephropathy with hypertension, peripheral neuropathy of the bilateral lower extremities, peripheral neuropathy of the bilateral upper extremities, peripheral vascular disease of the bilateral lower extremities, depressive disorder, diabetes mellitus, and bilateral cataracts, which require the use of a wheelchair.


CONCLUSION OF LAW

The criteria for entitlement to assistance in acquiring specially adapted housing have been met.  38 U.S.C.A. §§ 2101(a), (b), 5107 (West 2002); 38 C.F.R. §§ 3.350(a), 3.809, 4.63 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to specially adapted housing.  Because the Board's disposition constitutes a complete grant of the benefits sought on appeal, no discussion of VA's duties to notify and assist is required.

The initial question is whether recently-enacted revisions to the applicable regulations concerning specially adapted housing and a special home adaptation grant apply.  While revisions to 38 C.F.R. § 3.809 and 3.809a were effectuated as of October 25, 2010, it is clear from the Federal Register that the relevant revisions (§§ 3.809(b) (introductory text, 5, 6) and 3.809a (b)) are applicable to claims received on or after December 10, 2004, or July 30, 2008, depending on the subsection.  See 75 Fed. Reg. 57859-57862 (Sept. 23. 2010).  In this case, the Veteran's claim was received in March 2010, so the revised provisions apply.

A certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) is warranted if the Veteran is entitled to compensation for permanent and total service-connected disability due to: (A) 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; (B) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; 
(C) 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; D) 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 and propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; E) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or F) 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 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 Veteran's service connected disabilities consist of: diabetic nephropathy with hypertension, rated as 60 percent disabling; peripheral neuropathy, right lower extremity, 40 percent; peripheral neuropathy, left lower extremity, 40 percent; peripheral neuropathy, right upper extremity, 40 percent; peripheral neuropathy, left upper extremity, 40 percent; depressive disorder, 30 percent; diabetes mellitus, type II, with erectile dysfunction, 20 percent; peripheral vascular disease, right lower extremity, 20 percent; peripheral vascular disease, left lower extremity, 20 percent; and bilateral cataracts, 10 percent.

A February 2012 VA artery examination report reflects that the Veteran had a diagnosis of peripheral vascular disease.  The examiner indicated that the Veteran experienced claudication of both lower extremities on walking less than 25 yards on a level grade at 2 miles per hour.  The examiner remarked that the Veteran was required to use an assistive device as a normal mode of locomotion, although occasional locomotion by other methods may be possible.  It was specified that the Veteran had to use canes regularly at home and a motorized scooter for outdoor needs.  The examiner also stated that there was not functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  The examination report further reflects that the Veteran had poor balance, an inability to feel the ground when walking, and severe weakness of the lower extremities.

A February 2012 VA peripheral neuropathy examination report reflects that the Veteran had diagnoses of peripheral neuropathy of the lower extremities and arterial peripheral disease of the lower extremities.  The examiner noted that the Veteran had weakness of both lower extremities and experienced intermittent claudication at a 10 yard walk.  The Veteran's spouse indicated that she had to place chairs at every 10 yards in the back yard.  The examiner opined that the Veteran's symptoms had increased in intensity since his previous compensation and pension examination in 2008, in that for the previous two years, the Veteran has required the use of a scooter for out of home errands and appointments and a cane at home.  The examiner indicated that the Veteran had poor balance due to poor sensation in his feet.  The report reflects that the Veteran had moderate pain and severe constant numbness in his bilateral lower extremities.  Sensation to light touch and monofilament testing was decreased in the thighs and ankles and absent in the feet and toes bilaterally.  Sense of position was absent in the lower extremities bilaterally.  No muscle atrophy was present.  The examiner remarked that the Veteran had a wide base gate and absent forefront push.  The examiner opined that the Veteran had moderately severe incomplete paralysis of the sciatic nerve affecting his bilateral lower extremities.  The examiner further specified that the Veteran's weakness of both lower extremities caused poor balance and hazardous functioning.

At his hearing before the undersigned in December 2012, the Veteran testified that he used canes to walk in his house.  He mentioned that his halls were too narrow for a wheelchair, and without his canes, he would fall down.  He related that when he tried to walk, he dragged his feet.  The Veteran's spouse testified that the Veteran would fall, and she had to help him bathe.  She had observed that the Veteran did not have the power to lift his feet, and he would fall when he tried to walk.  She added that the Veteran was unable to dress himself, and she had to help the Veteran feed himself.

The Board finds that the evidence of record shows that the Veteran has effective loss of use of his lower extremities.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04. 

The second inquiry involves considering whether the medical expert provided a fully articulated opinion.  Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 

Additionally, the Board notes that it is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2012).

The February 2012 VA examination reports contain some evidence against the Veteran's claim, as they indicate that the Veteran does not have complete paralysis of the nerves affecting his legs and feet.  They also reflect that the Veteran would not be equally well served by prosthetics.  However, the Board notes that both examination reports also include statements about the Veteran's ability to walk.  Both examiners observed that the Veteran's lack of sensation in his feet caused hazardous balance problems.  It was noted that the Veteran was unable to feel the ground and had severe weakness in his lower extremities.  Perhaps most importantly, both examiners remarked that the Veteran was required to use canes at home and a scooter outside for locomotion.  As such, taken as a whole, the evidence favoring the Veteran's claim from the February 2012 VA examination reports outweigh the evidence against the Veteran's claim.

The Veteran has been issued a wheelchair and he has provided credible written statements and testimony with regard to the level of his current disability and his need to use a wheelchair.  The evidence as a whole shows a progression in the severity of the Veteran's service-connected disabilities.  The current disability picture, with his lack of sensation and balance and resultant basic inability to walk, is tantamount to loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 

As such, extending every benefit of the doubt to the Veteran, entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) has been shown.  


ORDER

Entitlement to specially adapted housing is granted.



____________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs