Citation Nr: 1315433	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  09-46 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Denver, Colorado


THE ISSUES

1.  Entitlement to a separate compensable disability rating for erectile dysfunction associated with and currently rated as a complication of service-connected diabetes mellitus. 

2.  Entitlement to specially adapted housing.  

3.  Entitlement to a special home adaptation grant.  


REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from November 1964 to April 1969.  

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the RO in San Diego, California, and from an August 2008 rating decision of the RO in Denver, Colorado.

In October 2012, the Veteran presented testimony at the RO in Denver, at a Board hearing, chaired via videoconference by the undersigned Acting Veterans Law Judge, seated in Washington, D.C.  The Veteran accepted such hearing in lieu of an in-person hearing.  See 38 C.F.R. § 20.700(e) (2012).  A transcript of the hearing is associated with the claims file.  The record was held open for an additional 30 days to allow for receipt of additional evidence.  

In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  





FINDINGS OF FACT

1.  On the record of the October 2012 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal regarding the claim for a separate compensable disability rating for erectile dysfunction.

2.  The Veteran has service connected disabilities rated as permanent and total which result in "loss of use" of his lower extremities to the extent that locomotion is precluded without the aid of a cane or wheelchair.

3.  Special home adaption grants are precluded by law when specially adapted housing is found to be warranted.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal regarding a separate compensable disability rating for erectile dysfunction have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  Criteria for specially adapted housing have been met.  38 U.S.C.A. §§ 1151(c)(1), 2101, 2001A (West 2002); 38 C.F.R. § 3.809 (2012).   

3.  Criteria for a special home adaption grant are not met.  38 U.S.C.A. §§ 1151(c)(1), 2101, 2001A, 2104 (West 2002); 38 C.F.R. § 3.809a (2012).   


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  WITHDRAWAL OF APPEAL

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran has withdrawn the appeal as to the issue of entitlement to a separate compensable disability rating for erectile dysfunction and, hence, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue.  Accordingly, the Board does not have jurisdiction to review the appeal as to that issue and it is dismissed.

II.  SPECIALLY ADAPTED HOUSING

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).

In this case, the Veteran has multiple service connected disabilities which are rated permanent and total.  Specifically, he is service connected for diabetic neuropathy of all four extremities, for diabetes mellitus, for erectile dysfunction, for tinnitus, for bilateral hearing loss, and for bilateral cataracts.  He has received a total disability rating based on individual unemployability (TDIU) since November 2007.  Of particular note the Veteran is service connected for diabetic neuropathy of both lower extremities, and each is rated at 40 percent.  The Board concludes that this disability is sufficient to meet the criteria for a permanent and total disability for the purposes of 38 C.F.R. § 3.809.

At his hearing, the Veteran testified that he had really bad neuropathy in both legs.  He indicated that he was mostly restricted to using his electric scooter.  It is also noted that the undersigned witnessed the Veteran relying heavily on a cane to get into his Board hearing.  He asserted that he needed his cane for any walking, even short distances.

The Veteran's claim was denied, as the RO concluded that he did not have loss of use of his lower extremities.  However, in doing so, the RO imposed the "loss of use" standard from special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), which provides that loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.  However, "loss of use" is not a uniform term of art for VA purposes, and under 3.809 "loss of use" is found when locomotion is precluded without the aid of braces, crutches, canes, or a wheelchair.  Thus, loss of use for the purposes of 38 C.F.R. § 3.809 is much less onerous and exacting than it is for special monthly compensation.

In this case, the Veteran has credibly testified that he mainly uses a scooter to get around and when a scooter is not practical, he requires a cane.  In November 2012, the Veteran was examined by a VA doctor who indicated that the Veteran was able to leave his residence with the use of assistive devices, such as a motorized scooter, or a cane for short distances.  The examiner also noted that the aids such as cane, braces or crutches were required.

Because the Veteran requires the use of assistive devices for locomotion, largely on account of diabetic neuropathy in both lower extremities (a permanent and total disability), the Board believes that reasonable doubt should be resolved on his behalf.  Therefore, the Veteran's claim for specially adapted housing is granted.

The Veteran also has a claim pending before the Board for special home adaption under 38 C.F.R. § 3.809(a).  However, 38 C.F.R. § 3.809(a) specifically provides that a Veteran is not eligible for assistance under this section if he is entitled to assistance under 38 C.F.R. § 3.809, as is the case here.  Therefore, because the Veteran's claim under 38 C.F.R. § 3.809 has been granted, his entitlement to a grant under 38 C.F.R. § 3.809(a) is precluded as a matter of law and is dismissed.

In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error).
 

ORDER

The appeal of the denial of a separate compensable disability rating for erectile dysfunction is dismissed.

The appeal as to entitlement to specially adapted housing is granted.  

The appeal as to entitlement to a special home adaptation grant is dismissed.  


____________________________________________
MATTHEW W. BLACKWELDER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs