Citation Nr: 1325034 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-02 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to special home adaptation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied entitlement to specially adapted housing or a special home adaptation grant. The Veteran recently submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the appeal may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDING OF FACT The Veteran's service-connected disabilities do not result in the loss or loss of use of one or 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 or both upper extremities 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 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; and he does not have residuals of an inhalation injury. 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 FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 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 June 2008. The Veteran's VA treatment records and lay statements have been associated with the claims file. The Veteran was also afforded a VA examination. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA medical development is adequate as it contains a description of the history of the disabilities at issue; documents and considers the relevant medical facts and principles; and records the relevant findings for assessing the Veteran's service-connected disabilities as they pertain to the criteria for the benefits sought on appeal. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Specially Adapted Housing/Special Home Adaptation Grant 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 also 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 upper extremities such as to preclude use of the arms at or above the elbow; or (2) 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). A certificate of eligibility for assistance in acquiring a special home adaptation grant may be issued to a veteran who served after April 20, 1898; is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809; and has not previously received assistance in acquiring specially adaptive housing under 38 U.S.C.A. § 2101(a); and is entitled to compensation for permanent and total disability which (1) is due to blindness in both eyes with 5/200 visual acuity or less, or (2) includes the anatomical loss or loss of use of both hands. 38 C.F.R. § 3.809a (a), (b) (2010). Under the revisions to 38 C.F.R. § 3.809a, the disability may also be due (ii) 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 (iii) 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 (iv) Residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). See 75 Fed. Reg. 57,861 -57,862 (Sept. 23, 2010); 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. 38 C.F.R. § 3.809(c) (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). An example under 38 C.F.R. §§ 3.350(a)(2) and 4.63 which constitutes loss of use of a hand is complete ankylosis of two major joints of an extremity. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the U.S. Court of Appeals for Veterans Claims (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 or disability 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). The Veteran is service-connected for the following disabilities: peripheral vascular disease with peripheral neuropathy of the lower left extremity (40 percent); peripheral vascular disease with peripheral neuropathy of the lower right extremity (40 percent); chronic fatigue with depression and dysthymia (40 percent); diabetic enteropathy (30 percent); hypertension (20 percent); diabetes type II (20 percent); bilateral hearing loss (10 percent); tinnitus (10 percent); peripheral neuropathy of the upper left extremity (10 percent); peripheral neuropathy of the upper right extremity (10 percent); trigeminal neuropathy of the face and scalp (10 percent); bilateral cataracts (0 percent); erectile dysfunction (0 percent); and onychomycosis of the bilateral feet (0 percent). VA treatment records dated May 2008 and June 2008 show the Veteran reported being able to walk about one block, or 100 yards, before the onset of pain in his bilateral calves. He had pain in his upper extremities, but was able to ambulate independently. In July 2008, the Veteran had a normal gait with no loss of balance. Upper extremity strength ranged from 4- to 4+ at the various joints. Sensation was normal in the right upper extremity, but generally decreased in the left upper extremity. Reflexes were decreased bilaterally. Additional records from August 2008 show complaints of arm numbness, tingling, and pain. The Veteran underwent a VA examination in October 2008. He reported tingling, numbness, coldness, and cramps in his lower extremities when walking. Examination revealed diminished pulses, but no trophic changes or ulceration. He had weaker than normal ankle flexion and extension. Muscle tone and bulk was normal. Pin prick and light touch sensation were decreased, but vibratory sense and position sense were normal. Reflexes were decreased. In February 2010, the Veteran reported that his lower extremity sensation was "fine." However, in October 2012, the Veteran was given a rollator walker due to gait instability. The basic eligibility requirements for specially adapted housing or a home adaptation grant have not been met. First, the Veteran's service-connected disabilities do not result in any blindness of the eyes or limitation of motion due burns and associated contractures. Second, the evidence reflects that the Veteran was prescribed a walker for gait instability. Therefore, his locomotion is "precluded" as defined by the regulations. However, his service-connected disabilities do not result in the loss of use of either his upper or lower extremities. The Veteran is service-connected for vascular disease and peripheral neuropathy of the lower extremities. As noted above, one example of loss of use of the feet is 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. These symptoms are consistent with the criteria found under the 40 percent rating for "complete paralysis" under Diagnostic Code 8521. See 38 C.F.R. § 4.124a. The Veteran's lower extremity disabilities are rated under Diagnostic Code 8520, which has similar criteria addressing foot dangle and drop. However, the evidence does not demonstrate that either of the Veteran's lower extremities is affected by neuropathy that results in complete paralysis of the affected nerves. While his condition results in decreased reflexes, sensation, and pulses, these physical findings were not noted to be dysesthetic or absent. There was no muscle atrophy or trophic changes, and there are no reports of foot drop at any point during the period on appeal. The October 2008 VA examiner described the Veteran's condition as "moderate." Therefore, while the Veteran requires a walker for gait instability, his service-connected disabilities do not result in "loss of use" of the lower extremities as defined by the regulations. Similarly, while the Veteran is service-connected for neuropathy of the upper extremities, his condition does not result in the loss of use of those extremities. The evidence reflects findings of pain, tingling, and numbness. However, there are no reports of hand or finger drop, "griffin claw" deformity, "ape hand" deformity, atrophy, or other findings consistent with complete paralysis of the upper extremities. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8516. For these reasons, specially adapted housing and home adaptation benefits are not warranted. ORDER Entitlement to specially adapted housing or a special home adaptation grant is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs