Citation Nr: 1323541 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-27 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a certificate of eligibility for specially adapted housing or special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1964 to January 1968, from September 1986 to May 1987, from December 1990 to September 1991, and from August 1992 to January 1995. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2011, a video conference Board hearing was held before the undersigned in Detroit, Michigan. A transcript of the hearing is associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is claiming a certificate for specially adapted housing or special home adaptation grant. 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) (West 2002); 38 C.F.R. § 3.809 (2012). 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). If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he/she has compensation based on permanent and total service-connected disability that: includes the anatomical loss or loss of use of both hands, or is due to blindness in both eyes with 5/200 visual acuity or less, or 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 full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b) (2012). The assistance referred to in this section will not be available to any veteran more than once. 38 C.F.R. § 3.809a(a) . For the issue of special adapted housing and home adaptation, eligibility for these benefits requires loss of use of one or more extremities. In this case, the Veteran is service connected for bilateral hearing loss, rated 100 percent disabling; status post right heel spur resection with plantar fasciotomy, rated 20 percent disabling; tinnitus, rated 10 percent disabling; and plantar fasciitis of the left foot, rated zero percent disabling. In addition, the Veteran is in receipt of special monthly compensation on account of deafness in both ears. The service-connected disabilities most pertinent to these requirements are the disorders of both lower extremities. Although the Veteran has not been found to have lost the use of either of his lower extremities, he has not been specifically evaluated by VA for such a determination as to loss of use of the lower extremities. In addition, the Veteran has contended that he has disabilities of his knees, hips and low back that are proximately due to or aggravated by his service connected lower extremity disabilities. It is argued that these additional disabilities affect his ability to walk to the point where he has lost the use of his lower extremities. The Veteran has not been afforded a VA examination in relation to his claim. In light of the lay and medical evidence of record, the Board finds that a VA examination is warranted. Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim. See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board finds that a VA compensation examination is needed for proper adjudication of the above claim. Furthermore, the Board finds that the outcome of the claims for entitlement to service connection for bilateral knee, hip and low back disabilities may affect the outcome of the claims for specially adapted housing and special home adaptation. As noted, the Veteran claims that his knee, hip and low back disabilities are secondary to his service connected lower extremity disabilities. As such, the Board finds that the claims are inextricably intertwined. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Therefore, they should be adjudicated prior to returning the case to the Board. Under these circumstances, the Board finds that an additional examination is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should arrange for the Veteran to undergo a VA examination to ascertain the extent of disabilities of his lower extremities, including whether he has loss of use of one or both of the lower extremities. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that any disability of either knee, either hip or the low back is proximately due to, or aggravated by, the service-connected foot disabilities. The VA examiner should then be requested to render an opinion regarding whether, in accordance with the criteria set forth in 38 C.F.R. § 4.63 (2012), it is at least as likely as not (probability 50 percent of more) that the Veteran has lost the use of either of his lower extremities. The relevant documents in the claims folder should be made available for review in connection with this examination. The examiner should provide a rationale for all conclusions reached. 2. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits. The Veteran and his representative should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).