Citation Nr: 1307010 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-38 151 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to a special home adaptation grant. 2. Entitlement to specially adapted housing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 1958 to August 1959. This matter came to the Board of Veterans' Appeals (Board) on appeal from an November 2007 rating decision by the RO. 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). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the matters herein decided has been accomplished. 2. The Veteran's service-connected right leg amputation, degenerative disc disease of the lumbar spine, and left knee arthritis, so affect the functions of balance or propulsion as to preclude locomotion without the aid of canes or wheelchair. 3. The Veteran's permanent and total service-connected disability is not due to the anatomical loss or loss of use of both hands, blindness in both eyes with 5/200 visual acuity or less, 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 or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more 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 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). 2. The claim of entitlement to a special home adaptation grant lacks legal merit. 38 U.S.C.A. § 2101(a), 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.809a (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to special home adaptation grant and entitlement to specially adapted housing. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In June 2007, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria to establish entitlement to a special home adaptation grant and entitlement to specially adapted housing. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of records and reports from the Veteran's longtime treating physicians, W. H. K., M.D. and C. L. L., M.D. Recent reports from Dr. K. reflect the Veteran's treatment from July 2008 through August 2012, while those from Dr. L. reflect the Veteran's treatment in July 2008 and September 2010. In January 2008 and February 2010, VA examined the Veteran to determine the nature and extent of impairment attributable to his service-connected disabilities. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, VA offered the Veteran an opportunity to present additional evidence and argument at a real on appeal. However, to date, he has declined to accept that offer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support either of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran seeks entitlement to special home adaptation grant and specially adapted housing. He states that he has lost his right lower extremity below the knee and together with his service-connected degenerative disc disease at L4-L5, neuropathy of the left lateral femoral cutaneous nerve, left knee degenerative arthritis an varus deformity, and mood disorder with depressive features so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. After reviewing the evidence of record in light of the applicable law and regulations, the Board agrees. Accordingly entitlement to a special home adaptation grant is warranted, and to that extent, the appeal is allowed. However, as will be discussed below, there is no legal merit to the Veteran's claim of entitlement to specially adapted housing. Therefore, to that extent, the appeal is denied. 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. 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 that: includes the anatomical loss or loss of use of both hands, or is due to blindness in both eyes with 5/200 visual acuity or less, or 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 full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 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) . A review of the evidence shows that the Veteran has established service connection for the following disorders: a right below the knee amputation, evaluated as 40 percent disabling; degenerative disc disease at L4-L5, evaluated as 20 percent disabling; neuropathy of the left lateral femoral cutaneous nerve, evaluated as 10 percent disabling; left knee degenerative arthritis and varus deformity, evaluated as 10 percent disabling; mood disorder with depressive features, evaluated as 10 percent disabling; a bone graft scar on the Veteran's left tibia, evaluated as noncompensable; a bone graft scar on the Veteran's right iliac crest, evaluated as noncompensable; and skin problems, characterized as itchiness and abrasions, evaluated as noncompensable. In addition, the Veteran has a total rating due to individual unemployability caused by his service-connected disabilities. Multiple records and reports from the Veteran's private treating physicians, Dr. K. and Dr. L. show that due, primarily, to his service-connected right leg amputation, degenerative disc disease of the lumbar spine, and left knee arthritis, the Veteran has marked difficulty standing. They concur that he cannot stand for prolonged periods of time such as when shaving or brushing his teeth and that he needs a wheelchair accessible bathroom. Dr. K. notes that the Veteran's condition is chronic and will not improve. He states that the Veteran can ambulate without canes for only short periods of time and that he will also require the use of a wheelchair to care for his daily needs. Moreover, Dr. K. notes that the Veteran's service-connected low back disorder is of such a degree that it requires epidural steroid injections for pain. In conjunction with his claims, the Veteran was examined by VA on two occasions. During the January 2008 VA examination, it was noted that the Veteran could stand erect and that he could ambulate with a prosthesis on his right lower extremity. Although the examiner stated that the Veteran experience no restriction on the performance of routine, simple daily activities, the Veteran stated that he that he could not stand for prolonged periods of time, walk for more than 100 feet at a time, or climb many stairs. Indeed, the VA examiner noted that the Veteran required a cane and wheelchair for short and long ambulation respectively. During the February 2010 VA examination, it was noted that the Veteran did not wear a back brace or knee brace and that he had an artificial right leg. His muscle tone was good with no spasm or atrophy. However, during the examination, the Veteran was in a wheelchair. He reported that when he was at home and during shopping, he used a cane, walker, and sometimes a wheelchair for ambulation. The examiner found that the daily occupational activities would be moderately impaired and that his ability to perform the activities of daily living were limited. While the Veteran does not demonstrate the loss or loss of use of both lower extremities, the foregoing evidence shows that he has the service-connected loss of the right lower extremity with service-connected residuals of organic disease or injury of the low back and left knee which so affect the functions of balance or propulsion as to preclude locomotion without the aid of canes or a wheelchair. As such, he meets the criteria for a special home adaptation grant set forth in 38 C.F.R. § 3.809. At the very least, there is an approximate balance of evidence both for and against the claim Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. Accordingly, a special home adaptation grant is warranted; and to that extent, the appeal is allowed. Turning to the matter of entitlement to a grant for special home adaptations, while the Veteran has compensation based on permanent and total service-connected disability, there is no dispute of fact regarding the pertinent criteria here. The Veteran's permanent and total service-connected disability is not due to the anatomical loss or loss of use of both hands, is not due to blindness in both eyes with 5/200 visual acuity or less, is not due to 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, is not due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, and is not due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b). Thus, there is simply no legal basis on which to allow grant for special home adaptations. The law is dispositive of the issue; and, therefore, that portion of the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). ORDER Entitlement to a special home adaptation grant is granted. Entitlement to specially adapted housing is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs