Citation Nr: 1318079 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 10-26 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1967 and from August 1988 to September 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2009, a statement of the case was issued in April 2010, and a substantive appeal was received in May 2010. The Veteran presented testimony at a Board hearing in March 2013, and a transcript of the hearing is associated with his claims folder. At the hearing, the Veteran submitted additional evidence and waived RO consideration of it. FINDINGS OF FACT The Veteran does not presently have a loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; he does not have blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; he does not have 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; he does not have 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; he does not have the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; and he does not have 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. CONCLUSION OF LAW The basic eligibility requirements for specially adapted housing or a special home adaptation grant have not been met. 38 U.S.C.A. § 2101 (West 2002); 38 C.F.R. § 3.809, 3.809(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veterans Benefits Administration Adjudication Procedures Manual, M21-1MR, has a specific section that addresses the language to be used in providing notice for claims involving specially adapted housing. See M21-1MR, Part IX, Subpart i, 3.3.d. The Veteran was provided notice as to these matters by correspondence dated in March 2009. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available evidence includes service treatment records, VA treatment and examination reports, Social Security Administration records, and statements and testimony in support of the claim. The available medical evidence is sufficient for a fair and impartial determination regarding the claim. VA's duty to assist is met. Initially, it is significant to note that during the course of this appeal the regulations applicable to claims for specially adapted housing were amended in October 2010. See 75 Fed. Reg. 57,859-62 (Sept. 23, 2010). The general effective date of the changes was October 25, 2010; however, there were no substantial revisions to the criteria applicable to the present appeal. Prior to October 25, 2010, 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; 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 that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (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) (October 25, 2010). Under the revised criteria, 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). 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) (2012). Here, the Veteran appeals for specially adapted housing or a special home adaptation grant due to his service-connected disabilities. The Board has considered all the evidence of record, including that found on Virtual VA (VA's electronic data storage system). The Veteran testified during his March 2013 hearing before the undersigned that he feels the benefits are warranted due to his back, right shoulder, neck, and balance. He mentioned that they give him problems and that he wears a knee brace and has right knee symptoms, that a doctor has told him to avoid steps, that his wife helps him with the 2 steps they have at home so that he does not stumble and fall, and that he uses a cane to walk outside in the yard and elsewhere. Also, he has numbness in his hands, legs, and feet. He has made modifications to his home including some new floor sheet vinyl in the bathroom, handicapped bars and toilets, and a higher vanity in his bathroom, and submitted a picture of a shower chair in his bathtub. Sometimes if he gets a pain in his legs, his legs get weak and he stumbles, or will have to lean up against a wall or something else. VA records show service connection is established for cervical spine degenerative joint disease status post fusion (30 percent); migraines (30 percent); posttraumatic stress disorder (30 percent), lumbosacral spine degenerative disc disease status post fusion (20 percent), benign prostatic hypertrophy (20 percent), left and right lower extremity radiculopathy (20 percent each), left and right radial nerve paresthesias and carpal tunnel syndrome (20 percent each), right knee degenerative joint disease, 10 percent), right acromioclavicular joint degenerative joint disease (10 percent), left hip degenerative joint disease (10 percent), tinnitus (10 percent), scar status post right foot ganglion cyst removal (10 percent), scar status post lumbar fusion (10 percent), scar status post umbilical hernia repair (10 percent), scar right shoulder status post rotator cuff repair/excision of basal cell (10 percent), scars status post squamous cell carcinoma removal/cervical fusion/thyroidectomy (10 percent), status post thyroid removal (10 percent), right hip degenerative joint disease (10 percent), left knee strain (10 percent), temporomandibular joint dysfunction (10 percent), and for bilateral hearing loss, gastroesophageal reflux disease, erectile dysfunction, rosacea of the nose and cheeks, and right foot plantar fasciitis (each noncompensable). The Veteran's combined service-connected disability rating is 90 percent before December 3, 2010 and became 100 percent from that date. A total rating based upon individual unemployability was established effective from January 2008 until December 3, 2010. The Veteran has been treated both by VA and privately on numerous occasions since the claim was filed in February 2009, and none of the treatment reports show that the Veteran uses more than one cane, or uses crutches or a wheelchair, or that he was ever accompanied by an assistant on any of his medical visits. The March 2011 VA examination report indicates that he had an antalgic gait and no thoracolumbar spine atrophy. His motor was 5/5 for bilateral elbow, wrist, hip, and knee flexion and extension and for left ankle dorsiflexion and plantar flexion, and for bilateral great toe extension, and for right ankle plantar flexion. Right ankle dorsiflexion was 4/5. It was indicated that the Veteran was unable to stand for more than a few minutes and that he was able to walk 1/4 mile. That report indicates that the Veteran uses one cane always. A March 2011 VA psychiatric examination report indicates that the Veteran was going to school full time and that he spent time going out to various places with his wife, like running errands. All reports commenting on his development and ambulation ability indicate that the Veteran is well developed and ambulates. The April 2012 VA examination report indicates that he uses one cane regularly instead of constantly, and that he can walk 200 yards before he has pain. The Veteran's wife was contacted by phone at their home in September 2012, at which time she indicated that the Veteran was not at their home, but was instead at school, indicating that he was attending school without her assistance. His private doctor indicated in October 2012 that the Veteran has real and significant limitations in ambulation and mobility and that ultimately, he would need a ramp in order to maintain access to his house. Based upon the evidence of record, the Board finds the Veteran does not presently have a loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; he does not have blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; he does not have 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; he does not have 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; he does not have the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; and he does not have 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 evidence shows that the Veteran had 5/5 motor strength in every joint tested on VA examination in March 2011, including the elbows, wrists, hips, knees, ankles, and great toes, except for 4/5 right ankle dorsiflexion strength, and that he ambulates with one cane. While the Board sympathizes with the Veteran on the state of his health due to the number and severity of his service-connected disabilities, the overall evidence does not demonstrate that he has the loss or loss of use of either lower extremity. Accordingly, the requirements for specially adapted housing are not met. 38 U.S.C.A. § 2101; 38 C.F.R. § 3.809. Moreover, the evidence of record does not demonstrate, nor does the Veteran contend, that he has a permanent and total service-connected disability that involves blindness in both eyes with 5/200 visual acuity or less or anatomical loss or loss of use of both hands. To the contrary, the March 2011 VA examination report showed significant function remaining in the Veteran's hands. Therefore, the Board finds the requirements for a certificate of eligibility for assistance in acquiring a special home adaptation grant have not been met. 38 U.S.C.A. § 2101; 38 C.F.R. § 3.809(a). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to specially adapted housing or a special home adaptation grant is denied. ______________________________________________ Michael Martin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs