Citation Nr: 1314047 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 08-26 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to a special home adaptation grant. 3. Entitlement to special monthly compensation (SMC) based on the need of the Veteran's spouse for regular aid and attendance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to August 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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. The Veteran's service-connected disabilities do not cause 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; blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; 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; 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; the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or 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. 2. The Veteran is not entitled to compensation for a permanent and total disability due to blindness in both eyes with 5/200 visual acuity or less; anatomical loss or loss of use of both hands; 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 of subdermal burns that have resulted in contractures with limitation of motion of one or more of the extremities or the trunk; or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 3. The Veteran's spouse is not blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; is not a patient in a nursing home because of mental or physical incapacity; and does not have a factual need for aid and attendance demonstrated by an inability to care for most of her daily personal needs or protect herself from the hazards and dangers of her daily environment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing or a special home adaptation grant are not met. 38 U.S.C.A. §§ 1115, 2101, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.809, 3.809a (2012). 2. The criteria for SMC based on the Veteran's spouse's need for regular aid and attendance have not been met. 38 U.S.C.A. §§ 1115, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.350, 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). II. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA to assist a claimant in obtaining this evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in November 2009 and June 2010, prior to initially adjudicating the claims in July 2010. The letters informed him of the evidence required to substantiate the claims currently on appeal. VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained VA outpatient treatment records and arranged for VA compensation examinations in November 2009, May 2010, and April 2011. Attempts to obtain the Veteran's complete service treatment records from the service department have been made. The service department responded in March 2007 that the service treatment records are fire-related. However, of record is the Veteran's August 1953 report of medical history at separation. While the Board therefore has a heightened duty to explain its findings and conclusions because of the missing records and to carefully consider the benefit-of-the-doubt rule, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. Compare Cromer v. Nicholson, 19 Vet. App. 215 at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In sum, VA's heightened duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. III. Decision Merits of the Specially Adapted Housing and Special Home Adaptation Grant Claims A veteran can qualify for a grant for necessary special home adaptations if entitlement to specially adapted housing is established and if he/she is entitled to compensation for a permanent and total service-connected disability that meets certain criteria. 38 U.S.C.A. § 2101(b). 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. 57,861-57,862 (Sept. 23, 2010). This provision applies to claims received on or after December 10, 2004. Id. The amended provision applies in the instant case as the Veteran's claim was received in June 2009. 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 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). Eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) or 2101A(a) may be granted if a veteran is entitled to VA 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; (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; 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 (2012)(Italics added). A certificate of eligibility for assistance in acquiring necessary special home adaptations may be issued to a veteran who is entitled to VA compensation for a permanent and total service-connected disability, if: (a) the Veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809 and had not previously received assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a); and (b) the Veteran is entitled to compensation for permanent and total disability which includes the anatomical loss or loss of use of both hands, or is due to (1) blindness in both eyes with 5/200 visual acuity or less; or (2) 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 (3) full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or (4) residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a (2012). 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. See 38 C.F.R. § 3.809(d) (2012). The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.50(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 3 1/2 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 (2012). 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. 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; and above all, a coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21 (2012) (application of rating schedule); 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). In a June 2009 VA Form 26-4555 (Veteran's Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant), the Veteran indicated that he is blind and cannot hear out of both ears. He requested that his home be specially adapted to assist him with his disabilities. Specifically, he requested enlargement of his bathrooms with a walk-in bathtub, proper toilet adaptation for his disabilities, along with other home adaptations to make the home safer for him. The evidence of record indicates that the Veteran is in receipt of service connection for the following disabilities: post operative cataract, glaucoma, right eye with no light perception and open angle glaucoma, left eye, evaluated as 90 percent disabling; post operative cataract, glaucoma, right eye with no light perception based on 1151, evaluated as 30 percent disabling; visual field defect of the left eye associated with post operative cataract, glaucoma, right eye with no light perception and open angle glaucoma, left eye, evaluated as 20 percent disabling; and tinnitus, evaluated as 10 percent disabling. The Veteran's combined service-connected disability evaluation is 90 percent. Additionally, the Veteran was awarded entitlement to a total disability rating due to individual unemployability (TDIU) from May 5, 2008. He was also awarded special monthly compensation (SMC) under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) from June 9, 1995 for the loss of use of one eye having only light perception. However, the Veteran is clearly not in receipt of VA compensation for permanent and total disability due to 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; 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; 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; the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or 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. The crux of this case concerns whether the Veteran has blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity. The Veteran is legally blind secondary to glaucoma. In a July 2008 VA outpatient treatment note, visual acuity testing showed no light perception in the right eye and 20/50 visual acuity in the left eye. The Veteran was diagnosed as being legally blind secondary to glaucoma. In November 2009, the Veteran underwent a VA eye examination. It was noted that the Veteran was legally blind from loss of the visual field. Visual acuity testing revealed no light perception in the right eye and 20/100 corrected/uncorrected visual acuity in the left eye. The Veteran was diagnosed with open angle glaucoma of the left eye and legal blindness by virtue of having less than 20 degrees of visual field remaining in the left eye. At an April 2011 VA examination, visual acuity testing showed no light perception in the right eye and 20/300 visual acuity in the left eye, or 10/200 visual acuity for rating purposes. The VA examiner noted that the Veteran's right eye only has visual acuity worse than 5/200 since it lacks light perception. He was diagnosed with glaucoma in both eyes and legally blind from the results of complications of cataract surgery of the right eye and glaucomatous damage to both eyes. Thus, while the Veteran has been diagnosed as being blind in both eyes, he has not been diagnosed as being blind in both eyes, having only light perception. Furthermore, there is no evidence of the anatomical loss or loss of use of one lower extremity. As previously stated, the Veteran is not in receipt of compensation for permanent and total disability due to the anatomical loss or loss of use of one lower extremity. Additionally, there is no objective evidence showing a loss or loss of use of a lower extremity. In fact, at a May 2010 VA examination for aid and attendance or housebound, it was noted that the Veteran was able to walk up to a few hundred yards with the assistance of a cane. At an April 2011 VA general medical examination, the VA examiner indicated that his gait was stopped, slow, and careful with a mildly shuffling gait, and his overall general debility was with limited range of motion to all major joints. Therefore, the Veteran does not possess blindness in both eyes, having only light perception, and the anatomical loss or loss of use of one lower extremity at this time, and thus does not meet the criteria for specially adapted housing on that basis. Additionally, the Veteran is not entitled to compensation for a permanent and total disability due to blindness in both eyes with 5/200 visual acuity or less; anatomical loss or loss of use of both hands; 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 of subdermal burns that have resulted in contractures with limitation of motion of one or more of the extremities or the trunk; or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). Of note, and as noted, at the most recent VA examination in April 2011, the Veteran demonstrated no light perception in the right eye and visual acuity of 20/300 or 10/200 for rating purposes. Entitlement to a certificate of eligibility for a special home adaptation grant cannot therefore be granted. The criteria for specially adapted housing or special home adaptation are not met. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Merits of the SMC based on the Need of the Veteran's Spouse for Regular Aid and Attendance Increased compensation is payable to a veteran by reason of the veteran's spouse being in need of aid and attendance. 38 U.S.C.A. § 1115(E); 38 C.F.R. § 3.351(a)(2). A Veteran's spouse shall be considered to be in need of regular aid and attendance if: he or she is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a); 38 C.F.R. § 3.351(c). Determinations as to the need for aid and attendance are based on the actual requirements of personal assistance from others. In determining the need for regular aid and attendance, consideration will be given to the inability of the Veteran's spouse to dress or undress himself or herself, or to keep himself or herself clean; frequent need of adjustment of any prosthetic which by reason of the disability cannot be done without aid; inability of the Veteran's spouse to feed himself or herself; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect himself or herself from the hazards or dangers of his or her daily environment. Bedridden will be that condition which, through its essential character, actually requires that the claimant's spouse remain in bed. 38 C.F.R. § 3.352(a). In May 2010, the Veteran's spouse was afforded a VA aid and attendance or housebound status examination. She was accompanied to the examination by her son and had not been hospitalized. Upon physical examination, the VA physician reported that the Veteran's spouse's posture was normal with a "wide based" gait. She maintained the ability to walk without the assistance of another person and assistive devices, and is able to leave her home as needed. There were no noted restrictions of the upper and lower extremities, and overall, she demonstrated generalized weakness. There were also no restrictions of the spine, trunk, or neck, but the VA physician indicated that the spouse demonstrated poor balance and problems walking short distances. The VA physician diagnosed her with hypertension, left renal mass, and degenerative joint disease. The VA physician concluded that the Veteran's spouse is in "good shape for her age," and certified that daily skill services are not needed. The evidence preponderates against a finding that the Veteran's spouse meets the requirements for aid and attendance. There is no evidence showing that the Veteran's spouse is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity or that she is bedridden. There is also no evidence that she is unable to dress or undress herself, keep herself clean, feed herself, attend to the wants of nature, or has required care or assistance on a regular basis to protect herself from the hazards or dangers of her daily environment. Therefore, aid and attendance benefits for the Veteran's spouse must be denied. As there is no competent medical evidence of record to support the claim of entitlement to special monthly compensation based on the need for aid and attendance of another person for the Veteran's spouse, the preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to specially adapted housing is denied. Entitlement to a special home adaptation grant is denied. Entitlement to special monthly compensation (SMC) based on the need of the Veteran's spouse for regular aid and attendance is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs