Citation Nr: 1312413 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-13 756A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to specially adapted housing benefits. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1969 to April 1972, and from February 1979 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In April 2011, the Veteran testified at a Travel Board hearing held at the RO. A transcript of the hearing has been associated with the Veteran's claims folder. Unfortunately, the judge who conducted that hearing has since retired from the Board. The Board sent the Veteran a letter informing him of this and asking him if he wished to attend another hearing before a Veterans Law Judge who would render a determination in his case. In a January 2013 written response, the Veteran stated he did not desire another hearing. Therefore, remand is not required to afford this Veteran an additional hearing. In a December 2011 decision, the Board denied the Veteran entitlement to special adapted housing. This determination was appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2012 order, the Court granted a Joint Motion for Remand (Joint Motion) which had the effect of vacating the December 2011 denial and returning the issue to the Board for further consideration. FINDINGS OF FACT 1. The Veteran is service connected for Type II diabetes mellitus, evaluated as 40 percent disabling; right below-the-knee amputation associated with type II diabetes mellitus, evaluated as 40 percent disabling; hypertension with proteinuria associated with type II diabetes mellitus, evaluated as 30 percent disabling; peripheral vascular disease of the right foot with foot ulcer, evaluated as 20 percent disabling; peripheral neuropathy of the left foot associated with type II diabetes mellitus, evaluated as 20 percent disabling; chondromalacia of the right and left knees, evaluated each as 10 percent disabling; diabetic retinopathy with severe cataracts associated with type II diabetes mellitus, evaluated as 10 percent disabling; and, infectious hepatitis, nondisplaced fracture of the right little toe, peripheral vascular disease with diabetic ulcer of the left foot associated with type II diabetes mellitus, and erectile dysfunction associated with type II diabetes mellitus, all evaluated as noncompensably disabling. 2. Resolving all reasonable doubt in the Veteran's favor, he has 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, due to his service-connected disabilities. CONCLUSION OF LAW The criteria for specially adapted housing are met. 38 U.S.C.A. §§ 2101(a), 5107 (West 2002); 38 C.F.R. § 3.809 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. The Veteran seeks assistance for special adapted housing. He asserts that his service-connected disabilities and overall level of disability warrant the award of a certificate of eligibility for this benefit. Under 38 C.F.R. § 3.809 eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) may be granted if a Veteran is entitled to compensation for permanent and total 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; (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 that 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 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). Effective October 25, 2010, VA amended its regulations regarding eligibility for specially adapted housing, but the revisions do not make any substantive changes that would be applicable to the Veteran's claim. The revised 38 C.F.R. § 3.809 provide that a veteran must be entitled to compensation under Chapter 11 of Title 38, United States Code, for a disability rated as permanent and total. The disability must be 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, 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. 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 final rulemaking provided specific applicability dates for some of the amended regulations: the revisions to the introductory text of 38 C.F.R. § 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 38 C.F.R. § 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 38 C.F.R. § 3.809 pertaining to severe burns apply to all applications for such grants received by VA on or after July 30, 2008. As the Veteran's claim was received in September 2008, both the older and revised criteria apply, whichever is more favorable. However, the amendments did not change any provisions that would be relevant to the Veteran's appeal. It is noted that term "loss of use" of a hand or foot is also defined by 38 C.F.R. § 3.350(a)(2). However, the definition of "loss of use" for the purposes of 38 C.F.R. § 3.350 appears to be stricter than it does for 38 C.F.R. § 3.809. As such, because this case deals with specially adapted housing , the Board will focus on the definition of "loss of use" contained in 38 C.F.R. § 3.809. In the present case, the Veteran has been granted service connection for Type II diabetes mellitus, evaluated as 40 percent disabling; right below-the-knee amputation associated with type II diabetes mellitus, evaluated as 40 percent disabling; hypertension with proteinuria associated with type II diabetes mellitus, evaluated as 30 percent disabling; peripheral vascular disease of the right foot with foot ulcer, evaluated as 20 percent disabling; peripheral neuropathy of the left foot associated with type II diabetes mellitus, evaluated as 20 percent disabling; chondromalacia of the right and left knees, evaluated each as 10 percent disabling; diabetic retinopathy with severe cataracts associated with type II diabetes mellitus, evaluated as 10 percent disabling; and, infectious hepatitis, nondisplaced fracture of the right little toe, peripheral vascular disease with diabetic ulcer of the left foot associated with type II diabetes mellitus, and erectile dysfunction associated with type II diabetes mellitus, all evaluated as noncompensably disabling. Additionally, prior to August 25, 2010, the Veteran's peripheral neuropathy of the right foot associated with type II diabetes mellitus was assigned a 20 percent disability rating but after that date, the condition was assigned a noncompensable rating. His combined disability rating is 90 percent. The Veteran has also been granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective December 21, 2005. He is also in receipt of special monthly compensation for loss of use of a creative organ, and loss of use of a foot, as due to his below-the-knee amputation. The Board also observes that the Veteran's compensation benefits have been awarded under Chapter 11 of Title 38, United States Code; thus, he is eligible for special adapted housing benefits under both the current and prior versions of 38 C.F.R. § 3.809. The evidence of record includes a May 2009 VA medical examination. A history of right below-the-knee leg amputation in July 2008 was noted. Post-operative healing of the Veteran's stump was slow, but eventually it healed without abnormal residuals. He has been fitted for three prostheses of the right leg. The examiner stated the Veteran was able to ambulate without an assistance device. Regarding the left lower extremity, the Veteran has undergone four surgeries on his left foot for diabetic ulcerations which required debridement. On physical evaluation, the Veteran's left foot displayed decreased sensation and intermittent pain was reported. He wore a diabetic shoe on the left foot but did not use a brace or other device. The Veteran denied any significant impairment of the upper extremities. The examiner noted that the Veteran had a walker at home, but noted that he did not need it to get to the examination. At the time of the examination the Veteran had no problems with activities of daily living. On physical examination of the left lower extremity the examiner noted that there was Dorsalis pedis pulse of 1+, no sensation at the dorsal aspect of the foot and decreased sensation to light touch. A second VA medical examination was afforded to the Veteran in August 2010. The examiner noted that due to the Veteran's right below-the-knee amputation, he no longer experienced symptoms of neuropathy of the right lower extremity. He did, however, experience chronic neuropathy of the left lower extremity, involving the foot and lower leg. This neuropathy had the effect, in the opinion of the examiner, of resulting in "total complete paresthesias of the left lower extremity." His left toes "curled up", requiring his use of a cane to walk. The examiner stated that the Veteran's use of a cane was a "necessity" for mobility. Exercise was also precluded. The Veteran testified before a Veterans Law Judge in April 2011. He reported that his right leg was amputated below the knee in 2008 due to a diabetes-related infection. Since that time, he has continued to experience difficulty with his left leg. He reported paresthesia of the lower portion of the left leg, resulting in instability. He testified that he required a metal brace on his left lower extremity to help him maintain his balance when he walked. He also used a cane for balance assistance, as well as an electric wheelchair, issued by VA, when traveling greater distances. The Veteran testified that he always needed the cane. Upon taking into account all relevant evidence, and resolving all doubt in favor of the Veteran, the Board finds that the evidence of record does show loss of use of the Veteran's lower extremities, such that entitlement to specially adapted housing is warranted. In this regard, the Board finds probative the Veteran's hearing testimony in April 2011, at which time he testified, under oath, that use of a left foot brace and/or cane was required in order for him to ambulate. As noted above, the Veteran's right leg has been amputated below the knee, a disability which is service-connected. The Veteran's testimony regarding his ambulation is consistent with the 2010 examination report which described the Veteran's use of a cane as a "necessity" and stated that his peripheral neuropathy of the left lower extremity was appropriately characterized as "total complete paralysis of the left lower extremity." The Board is aware of the 2009 VA examination report which found the Veteran able to ambulate without the use of an assistance device, but also accepts his assertions that unassisted ambulation is only possible for very short distances. In conclusion, the Board finds this level of disability consistent with a finding of essentially loss of use of both lower extremities, and therefore finds that the Veteran is entitled to specially adapted housing on that basis. ORDER The claim of entitlement to a certificate of eligibility for specially adapted housing is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs