Citation Nr: 1311822 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 08-04 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to December 1968, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge and Purple Heart Medal. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2013, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. The issues of whether new and material evidence has been received in order to reopen claims of entitlement to service connection for a heart disorder and lung clots have been raised by the record-see August 2011 claim-but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board thus does not have jurisdiction over them, and they are 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 degenerative disc disease of the cervical spine and degenerative arthritis of the lumbosacral spine. CONCLUSION OF LAW The criteria for entitlement to assistance in acquiring specially adapted housing have been met, thereby precluding a special home adaptation grant. 38 U.S.C.A. §§ 2101(a), (b), 5107 (West 2002); 38 C.F.R. §§ 3.350(a), 3.809 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants entitlement to specially adapted housing, which renders moot his claim for special home adaptation grant. 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. As an initial matter, the Board notes that the Veteran originally filed a claim for specially adapted housing or special home adaptation in March 2003, which the RO denied by a rating decision that same month. The Veteran filed a timely notice of disagreement in April 2003, and the RO issued a statement of the case in August 2003. The Veteran did not file a substantive appeal as to that issue. However, pertinent new evidence-specifically, a VA examination of the Veteran's lumbosacral spine-was performed in September 2003, within one year of the March 2003 rating decision. The Veteran's claim thus remained open because VA was in receipt of new and material evidence within one year of the rating decision, and must relate any communication subsequent back to this original claim. 38 C.F.R. § 3.156(b); see Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Thereafter, in September 2004, the Veteran informed VA by letter that he was withdrawing all of his claims. Thus, the Veteran's March 2003 claim for specially adapted housing or special home adaptation was withdrawn. His claim on appeal was filed in February 2007. A certificate of eligibility for assistance in acquiring specially adapted housing 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 or the loss or loss of use of one upper extremity that 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 both upper extremities such as to preclude the use of arms at or above the elbows; or (E) 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 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). In addition, a certificate of eligibility for assistance in acquiring a special home adaptation grant may be granted under 38 U.S.C.A. § 2101(b) where the Veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a). The evidence of record shows that the Veteran has effective loss of use of his lower extremities. The Veteran's service connected disabilities include degenerative disc disease of the cervical spine, degenerative arthritis of the lumbosacral spine, as well as ten other disabilities warranting a 100 percent combined evaluation as well as special monthly compensation under subsections (s), (k), and (l). At the February 2013 Board hearing, the Veteran's spouse testified that it is hard for him to get in and out of a room without needing help, and it is hard to get him in and out of the tub. See transcript, p. 3. She stated that he can walk for no more than two or three feet. Id., pp. 5, 10-11. The Veteran testified that he spends 90 percent of his time in his room and stated that VA doctors gave him a wheelchair because he had fallen multiple times and broken at least three pairs of glasses, resulting in lacerations on his face and other parts of his body. Id., pp. 3-4, 6-7. The evidence in the Veteran's VA treatment records corroborates the testimony of the Veteran and his spouse, and demonstrates that he has effectively lost the use of both of his lower extremities due to his service-connected degenerative disc disease of the cervical spine and degenerative arthritis of the lumbosacral spine. Indeed, in April 2008, the Veteran's wife told his treating VA clinician that when he is walking he bends over and his legs seem to get very shaky, and he has to sit down. She explained that the doorways to their bedroom and bathroom are too narrow to accommodate his walker, and their shower is so small that putting a chair in it is unsafe. The treating VA clinician opined that the Veteran "definitely needs to work on getting the grant [of entitlement to specially adapted housing] approved so that he would have a more accessible home since obviously his back and neck problems are never going to improve." In September 2008, VA provided the Veteran with an examination of his neck and low back. The VA examining physician concluded that the Veteran's "lower extremities allows him limited ambulation, but he is very slow, halting, and unsteady with a maximum ambulatory capability estimated to be about 50 feet. The veteran is very unsteady and needs to hang on to something when ambulating." In March 2009, the Veteran's wife told his treating VA clinician that the Veteran needs assistance with transferring from a chair to his wheelchair or scooter. Additionally, she stated that the Veteran requires assistance with putting on his shoes, socks, and pants due to his back pain. The treating VA clinician wrote that: [The Veteran] tells me he was not able to get the adaptability done for his house because they are saying that he doesn't have anything that is a permanent disability that keeps him from using his legs. I told him I will certainly be sure and put something in this note explaining that because with his chronic back pain, he is pretty much unable to use his lower legs unless he has his wheelchair, scooter, [or] walker. He doesn't just get up and walk without assistance and that is not going to change. We know that he has multilevel spondylopathy of his cervical spine with a lot of disk problems. He has essentially the same thing in his lower back." The Board acknowledges the evidence to the contrary from a December 2007 VA examiner of the Veteran's knee, who found that the Veteran was able to ambulate to his office without complaints, and had normal gait with no braces or other support devices used. Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). Here, the findings and opinions of the Veteran's treating VA clinician and September 2008 VA examiner warrant greater probative weight than do those of the December 2007 examiner. First, the Veteran's treating VA clinician's opinions are more probative because she has greater experience evaluating and treating him over multiple office visits. Second, the December 2007 examiner's findings are inconsistent with not only the Veteran's VA medical records, but also with the available evidence from the examination. As the Veteran explained in a June 2008 letter, he had no complaints about walking to the examiner's office because he arrived in a wheelchair, and his gait was normal because the examiner only asked him to walk five steps forward and five steps back. Consequently, the Board finds that the December 2007 examiner's opinions warrant less probative weight than those of the Veteran's treating VA clinician and September 2008 VA examiner. Thus, the most probative evidence shows that the Veteran has effective loss of use of his lower extremities due to manifestations of his service-connected degenerative disc disease of the cervical spine and degenerative arthritis of the lumbosacral spine. As such, entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) has been shown. Having determined that he is eligible for assistance under 38 U.S.C.A. § 2101(a) for specially adapted housing, the law precludes an award of special home adaptation grant under 38 U.S.C.A. § 2101(b). Thus, his special home adaptation claim must be denied as moot. ORDER Entitlement to specially adapted housing is granted. The claim of entitlement to special home adaptation grant is denied as moot. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs