Citation Nr: 1311918 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 07-11 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for chronic poly-peripheral neuropathy of the upper extremities, to include as due to herbicide exposure. 2. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1965 to December 1968 and from October 1988 to November 1988. These matters come before the Board of Veterans' Appeals (Board) from July 2006 and May 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Providence, Rhode Island. In January 2010, the Veteran and a witness testified at a videoconference hearing before a Veterans Law Judge. A transcript of that hearing is of record. In January 2013, VA informed the Veteran that the Veterans Law Judge who conducted the January 2010 hearing was no longer employed by the Board; VA informed the Veteran that he could have another hearing if he wished. In correspondence received by VA in February 2013, the Veteran stated that he did not wish to appear at a hearing and that the Board should consider his case on the evidence of record. These matters were previously before the Board in April 2010 and were remanded for further development. They have now returned to the Board for further appellate consideration. The Board finds that VA substantially complied with the mandates of its remand, and will proceed to adjudicate the appeal. FINDINGS OF FACT 1. The Veteran had service in Vietnam in 1966, 1967, and 1968. 2. The Veteran has a diagnosis of polyneuropathy of the upper extremities. 3. The record contains clinical evidence that the Veteran's polyneuropathy is more likely than not related to herbicide exposure in service. 4. With regard to his ability to ambulate, the Veteran is service connected for lumbar disc disease with L5 radiculopathy, and peripheral neuropathy of the lower extremities. 5. The Veteran is in receipt of total rating for compensation purposes based on individual unemployability (TDIU), effective from December 1990. 6. The competent medical, and/or competent and credible lay, evidence of record, reflect that the Veteran has incomplete paralysis of the nerves of both lower extremities, pain and discomfort of both lower extremities, and poor balance, which together are severe enough to be analogous to loss of use of the lower extremities so as to preclude locomotion without the use of an assistive device. CONCLUSIONS OF LAW 1. The Veteran's polyneuropathy of the upper extremities was incurred in active service. 38 U.S.C.A. §§ 101(24), 1110, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for a certificate of eligibility for assistance in acquiring specially adapted housing have been met. 38 U.S.C.A. §§ 2101(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.809 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in May 2004, January 2007, March 2007, and May 2010. VA has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA and private medical records and correspondence, and the statements of the Veteran and others in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. VA examinations and/or opinions were obtained in February 2007, November 2010, June 2011, June 2012, and August 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board, in the decision below, grants the Veteran's claims; thus, he cannot have been prejudiced by inadequacies, if any, in the examinations and opinions. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Service Connection - in general Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Presumptive service connection- herbicide exposure In addition to the presumption noted above, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Specially Adapted Housing 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 (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 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). A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who served on active duty after April 20, 1898, and 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) (2012). Effective October 25, 2010, 38 C.F.R. § 3.809 was amended to include the following: (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); 38 C.F.R. § 3.809(a), (b) (2012). The criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). 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(d) (2012) (emphasis added). 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 31/2 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 (2011). In Tucker v. West, 11 Vet. App. 369, 373 (1999), the 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. The provisions of 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. Above all, a coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21 (2012); 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). 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(a); 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 C.F.R. § 3.809a (a), (b) (2012). Under the revisions to 38 C.F.R. § 3.809a, the disability may also be due (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). See 75 Fed. Reg. 57,861 -57,862 (Sept. 23, 2010); 38 C.F.R. § 3.809a (2012). The provisions of 38 C.F.R. § 3.809a provide 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. The probative value of a physician's statement is dependent, in part, upon the extent that it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. 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 U.S. 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 the claims. Poly-peripheral neuropathy of the upper extremities Numerous medical records reflect that the Veteran has polyneuropathy of the bilateral upper and lower extremities (e.g. January 2004 Cape Cod neurology record and January 2009 VA EMG neurology testing record). The Veteran has reported that his symptoms began in approximately 1990 (more than 20 years after service in Vietnam) and have lasted more than 20 years in duration. The Veteran avers that his disability is due to herbicide exposure in Vietnam. The Board will first consider the presumption of herbicide exposure. The Veteran's DD-214 reflects that he was granted the Republic of Vietnam campaign medal. It also reflects that he had two years and 11 months of foreign and/or sea service. His personnel records reflect that he served in Vietnam during the period required under 38 C.F.R. § 3.309 (i.e. between January 9, 1962 and May 7, 1975). Despite the presumption of herbicide exposure in service, service connection is not warranted on a presumptive basis. Service connection is only warranted on a presumptive basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e) as listed above. As the Veteran's diagnosed disability of polyneuropathy, with an onset date of approximately 1990 and a duration in excess of 20 years is not among the diseases recognized under 38 C.F.R. § 3.309(e), as a disease associated with exposure to certain herbicide agents, presumptive service connection on the basis of herbicide exposure is not warranted. The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 1992 VA clinical records reflect that the Veteran had a central disc bulge or herniation at C2-3 and post operative changes on the left at C3-4 with left sided bony foraminal stenosis and slight narrowing of the central canal. May 2005 correspondence from Dr. K.S. reflects that the Veteran suffers from "progressive neuropathy of all his extremities secondary to cervical disc disease." The Veteran is not service connected for a cervical disc disability; thus, polyneuropathy as secondary to a cervical spine disability is not warranted. The Veteran is service connected for lumbar disc disease with L5 radiculopathy. An August 2006 VA psychiatrist record reflects that the Veteran reported that his neuropathy developed after his back surgery. The psychiatrist stated that "as neuropathy developed after this surgery there appears to be a direct correlation between the two." A February 2007 VA examination report reflects that the Veteran reported low back pain beginning in 1988, and spinal surgery in 1990. The examiner noted that the Veteran had a history of idiopathic peripheral polyneuropathy. The examiner opined that the Veteran's peripheral polyneuropathy is not related to his low back disability. February 2008 correspondence from Dr. K.S. reflects that the Veteran had unsuccessful back surgery in 1990 which could have triggered underlying neuropathy. A March 2009 VA clinical record reflects that the etiology of the Veteran's neuropathy is unclear. The examiner stated, in pertinent part, as follows; [the extensive workup without finding an etiology] raises the possibility that the neuropathy might be due to chemical exposure in Vietnam. What he calls "neuropathy pain", however started about 10 years ago; he had no major discomfort until 1988 back injury and the 1990 back surgery. It's unclear if the "neuropathy pain" is actually related to the neuropathy. If so, that would make it less likely that the neuropathy was due to chemical exposure in Vietnam (pain would have been expected to begin much sooner after exposure). It is quite possible, however, that an otherwise asymptomatic neuropathy could have occurred due to chemical exposure in Vietnam. Patient states he's been told he's borderline diabetic; if so, that could potentially be a cause of neuropathy. A November 2010 VA examination report reflects that the Veteran had an electromyogram performed in October 2008 which was an abnormal study compatible with a mild polyneuropathy. The examiner opined, with regard to the lower extremities, that "although he is not a diabetic, it is possible that this peripheral neuropathy may have been related to his dioxin." A June 2011 VA examination report reflects, in pertinent part, the opinion of the examiner as follows: it is very difficult to ascertain the etiology of his polyneuropathy. An extensive examination has been performed in the past, all of which was negative. His only toxin exposure was to dioxin. He is a nondiabetic. I do not believe that his peripheral neuropathy is related to his lumbar radiculopathy. It is clear, however, from the patient, that his symptoms began following his surgery. There has been definite progression of his peripheral neuropathy since I evaluated him some seven months ago. The more likely scenario for him is that his neuropathy may be related to his exposure to Agent Orange during Vietnam. A June 2012 VA examination report addendum reflects the opinion of the examiner, Dr, J. C.-P., in pertinent part, as follows: As I have said before this is a complicated Viet Nam veteran who was exposed to dioxin in country who had a clear mixed axonal/demyelinating neuropathy without the benefit of true etiology being found despite extensive work up but with clinical and electrodiagnostic evidence of such. This painful peripheral neuropathy was then complicated by lumbar disc surgery followed by IMMEDIATE worsening of his neuropathy systems in his [lower extremities]. . . . In terms of definitive diagnosis, I am impressed that his peripheral neuropathy is more likely than not related to his exposure of Agent orange. June 2012 correspondence, associated as a clinical record, reflects the opinion of Dr. J.D. (Diplomate, American Board of Psychiatric and Neurology and the Veteran's mental health provider), in pertinent part, as follows: [the Veteran] has consistently and convincingly connected this massive problem (disabling pain in the legs and arms) to his exposure to toxic substances while on active military service. I think it is more likely than not that he is correct. I hope our VA's disability examiners will find it in their wisdom to do a careful review of all data that is available that makes the association between toxic exposures like [the Veteran] describes and the polyneuropathy that he has suffered. This has been documented; the association is complicated by the other, related reasons for his neuropathic condition - cervical and lumbar disc abnormalities and sequellae from surgeries, etc." In sum, the Veteran's polyneuropathy has been possibly associated with his service-connected back disability, his non-cervical spine disability, exposure to herbicides in service, and/or possible prediabetes. It has also been noted to be not related to his radiculopathy, and noted to be of unknown etiology. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) The evidence of record reflects that, despite various diagnostic testing, both private and VA examiners have been unable to definitively provide an etiology for the Veteran's polyneuropathy. Although the Veteran's private physician, Dr. K.S., originally noted that the Veteran's neuropathy of all his extremities was secondary to cervical disc disease, the doctor later changed the opinion to state that the Veteran may have had an underlying neuropathy which was triggered by unsuccessful back surgery in 1990. (See February 2008 correspondence.) VA clinical opinions also support a finding that the Veteran may have had peripheral neuropathy due to herbicide exposure in service, which did not manifest until years later. The Board, based on the foregoing, and in giving the benefit of the doubt to the Veteran, finds that there is sufficient evidence to support a finding of entitlement to service connection for polyneuropathy of the upper extremities. 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Specially adapted housing The Veteran is service-connected for lumbar disc disease with L5 radiculopathy, major depressive disorder and anxiety disorder with some features of posttraumatic stress disorder (PTSD), peripheral neuropathy of the right lower extremity associated with lumbar disc disease with L5 radiculopathy and peripheral neuropathy of the left lower extremity associated with lumbar disc disease. He is in receipt of TIDU effective from December 1990. In the decision above, the Board found that service connection for bilateral upper extremity peripheral neuropathy is also warranted. The claims file includes lay statements and medical records with regard to the Veteran's ability to balance and to walk with, and without, assistance. In May 2007 correspondence to former Secretary of Defense Robert Gates, the Veteran's spouse stated that VA has granted the Veteran a scooter, a lift for the car, and a ramp for the front of the house. The Veteran was requesting an adaptive housing grant to widen the bedroom so a wheelchair can fit beside the bed, and to obtain a walk-in shower. A December 2011 record from Emerald Physicians reflects that the Veteran's "chronic weakness is exacerbated by his diffuse musculoskeletal pain and arthritis and to a lesser extent his polyneuropathy." A June 2011 VA examination report reflects that the Veteran reported painful peripheral neuropathy with dysesthesias in the lower extremities. He reported that he continued to have more weakness in his lower extremities and frequent falls. The Veteran reported that his house had been adapted for him, and he uses a scooter and cane to ambulate. Upon clinical examination, it was noted that the Veteran cannot tandem walk and his "romberg is shaky, but he does not fall over." (The Romberg test is a test of the body's sense of positioning.) June 2012 correspondence from the Veteran's psychiatrist reflects that the Veteran has pain in his legs and arms. The physician stated " I do not remember any time when in our clinic [since autumn 2007] he has been able to sit down because of his constant discomfort, relieved only by shifting his position while standing or moving about in the standing position. He is weak in all of his limbs and needs support by using a cane or walker and has been trying to do all he can to retain some of his functions." A July 2012 VA Form 21-2680 reflects the findings of the Veteran's doctor, Dr. K.S., that the Veteran has "very poor balance - needs walker for ambulation. No atrophy or contractures in lower legs." The examiner also noted that the Veteran is "uncomfortable due to pain and discomfort in hands and legs. Patient is restless and constantly shifts his position when standing or sitting (due to discomfort)." It was also noted that he had limited flexion and extension in the spine and trunk, and that he required aids or assistive of another person for locomotion. It was noted that with such aids or assistance, the Veteran can travel less than a block. A July 2012 statement from the Veteran's spouse states that the Veteran "trips and falls frequently. He needs me here in case he needs medical as well as aid getting up of [sic] the floor, sidewalk, etc. He has been using 2 canes and a wheelchair to get around." An August 2012 VA examination report is of record. It reflects that the Veteran has lumbar radiculopathy of the bilateral lower extremities. The examination report reflects that the Veteran had knee extension bilaterally of 4/5 (active movement against some resistance), ankle plantar flexion of 4/5 on the right and 3/5 on the left (active movement against gravity). He did not have muscle atrophy. With regard to reflexes, he had 1+ (hypoactive) for the knees and ankles bilaterally. His sensation to light touch was decreased, but not absent, for the thighs, knees, lower legs, ankles, feet, and toes. His gait was abnormal (antalgic) due to bilateral radiculopathy in the lower extremities. He had incomplete paralysis of the sciatic nerve which was moderately severe bilaterally. He also had incomplete paralysis of the external popliteal nerve. It was moderate in the right leg, and severe in the left leg. He had incomplete paralysis of the musculocutaneous nerve which was moderate in the right leg, and severe in the left leg. He had incomplete paralysis of the anterior tibial nerve which was moderate in the right leg and severe in the left leg. He had incomplete paralysis of the internal popliteal nerve which was moderate in the right leg, and severe in the left leg. He had incomplete paralysis of the anterior crural nerve which was moderate in the right leg and severe in the left leg. He had incomplete paralysis of the internal saphenous nerve which was moderate in the right leg and severe in the left leg. He had incomplete paralysis of the obturator nerve which was moderate in the right leg and severe in the left leg. He had incomplete paralysis of the external cutaneous nerve which was moderate in the right leg and severe in the left leg. He had incomplete paralysis of the ilio-inguinal nerve which was moderate in the right leg and severe in the left leg. The August 2012 VA examiner noted that the Veteran uses a cane occasional as a normal mode of locomotion and uses a scooter constantly. The examiner stated that functioning is not so diminished that amputation with prosthesis would equally serve the Veteran; however, the examiner did not provide a narrative rationale for this finding. The examiner also noted that a January 2009 EMG study reflected asymmetric abnormalities involving the left leg with denervation of the gastroc, low motor amplitudes, and preserved sensory potentials. (Denervation is interruption of the nerve connection to an organ or part). The Board notes that the cited EMG study was in 2009; June 2012 correspondence from Dr. J.C.-P., associated with the claims file as a electronic mail, reflects that there is a "worsening of clinical exam from one year to the next by me with lengthening of sensory loss and then additional reflex loss in Ankle jerks." The Veteran has essentially alleged that he has loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The Board will first consider whether the Veteran has loss of use of the lower extremities. As noted above, 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. In terms of the foot, the determination will be made on the basis of the actual remaining function, such as balance or propulsion, etc. The medical evidence clearly shows that the Veteran does not have anatomical loss of one or both lower extremities. His clinical records do not demonstrate that the Veteran has extremely unfavorable ankylosis of either knee, or complete ankylosis of two major joints of an extremity, or the shortening of the lower extremity of 3 and 1/2 inches or more, or complete paralysis of any of the external popliteal (common peroneal) nerve and consequent foot-drop. The Board has considered that the August 2012 VA examiner opined that the Veteran's functioning is not so diminished that amputation with prosthesis would equally serve the Veteran. However, the Board has also considered that the Veteran has pain and discomfort in the lower extremities, cannot tandem walk, has "very poor balance", and has moderate to severe incomplete paralysis of all examined nerves of the lower extremities. Although the Veteran still has the ability to stand, his balance has been described as "very poor." The Board finds that amputation with prosthesis would also allow the Veteran to stand. The Veteran's balance is so poor that he needs assistive devices to walk, and even with assistance, he cannot walk one block. The lay statements and clinical records reflect that the Veteran is in almost constant need of an assistive device for locomotion. As noted above, 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(d) (2012). The Board finds that the Veteran is competent to report the difficulties that he experiences with ambulation and balance. There is no evidence of record that he, or his spouse, is less than credible with regard to his falls, balance, and use of aid or assistance in locomotion. In sum, and in given the benefit of the doubt to the Veteran, the Board finds that his disability symptoms more nearly approximate the loss of his feet such as to preclude locomotion without regular and constant aid. He has "very poor balance", pain and discomfort, weakness, and incomplete paralysis of all lower extremity nerves. He uses a scooter almost constantly for locomotion, and cannot walk even one block with an assistance device. Therefore, the Veteran is entitled to a certificate of eligibility for financial assistance for specially adapted housing. ORDER Entitlement to service connection for chronic poly-peripheral neuropathy of the upper extremities, to include as due to herbicide exposure, is granted. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing is granted. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs