Citation Nr: 1328475 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-19 316 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to a certificate of eligibility for specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant (the Veteran) is represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from January 1974 to February 1976. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the RO in Oakland, California. In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The evidence supporting that the Veteran's permanent and total service-connected disability results in the loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair is in relative equipoise with the evidence against the claim. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a certificate of eligibility for specially adapted housing are met. 38 U.S.C.A. §§ 2101, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.809 (2012). 2. The claim of entitlement to a special home adaptation grant lacks legal merit. 38 U.S.C.A. § 2101 (West 2002 & Supp. 2012); 38 C.F.R. § 3.809a (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 which 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 U.S.C.A. § 2101; 38 C.F.R. § 3.809(b). 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(c). During the course of this claim, VA regulations for specially adapted housing and special home adaptation grants were revised. Effective October 25, 2010, 38 C.F.R. § 3.809 was amended to include provisions (5) and (6) above. See 75 Fed. Reg. 57,861 -57,862 (Sept. 23, 2010); 38 C.F.R. § 3.809(a), (b). As these provisions are not pertinent to the Veteran's specific disabilities, a discussion of the various effective dates governing the amended provisions is not necessary. 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). The assistance referred to in this section will not be available to any veteran more than once. 38 C.F.R. § 3.809a(a). The Veteran is assigned a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective March 24, 2004. A veteran's receipt of a TDIU satisfies the prerequisite of a permanent and total rating for purposes of receipt of Chapter 11 compensation benefits, including as to eligibility for financial assistance in the acquisition of specially adapted housing. See VAOPGCPREC 94-90. Thus, even though he does not have a single disability that is rated as 100 percent disabling, the Veteran is determined to satisfy the requirement of a permanent and total service-connected disability. After a review of all of the evidence, the Board finds that the evidence tending to show that the Veteran has lost the use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, is in relative equipoise with the evidence against such a finding. In denying the claim, the RO cited several notations in the Veteran's clinical records to the effect that the Veteran was trying not to use a wheelchair or scooter as much or as often, and was instead walking, or being encouraged to walk, in order to maintain muscle tone. However, the RO appears to have applied the incorrect standard for loss of use of the lower extremities, as it cited the standard for loss of use found under the provisions governing special monthly compensation, see 38 C.F.R. § 3.350(a)(2)(i) (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). The provisions governing a certificate of eligibility for specially adapted housing provide their own definition of loss of use of the lower extremities. Application of the more stringent standard contained in 38 C.F.R. § 3.350(a)(2)(i), which governs an entirely separate benefit, was not appropriate in this case. Regarding references to the Veteran walking or being encouraged to walk, the Board simply notes that none of these references asserts or implies that the Veteran was walking unassisted by braces, crutches, or canes. The pertinent regulation does not require the use of a wheelchair in order to obtain the benefit, and none of the references cited by the RO suggests that the Veteran was walking unassisted. Indeed, the clinical and lay evidence indicates that the Veteran uses a wheelchair, braces, crutches or canes as a normal mode of locomotion. An April 14, 2006 hospital discharge summary notes that exercise helps the Veteran's back pain, specifically walking; however, the same note reveals that the Veteran walks with a cane, and that a consultation had been placed for the Veteran to be evaluated for a 4-wheel walker with a seat. It was noted that the Veteran requires a "big boy" walker because of his size and for safety. A July 2008 general medicine clinic note reveals that the Veteran slipped and fell on a wet deck while watering plants. A March 2009 VA general medicine clinic note reveals that, during the examination, the Veteran was in a wheelchair and got up with difficulty. The examiner described the Veteran as "wheel chair bound for the most part." A January 2008 letter from a Vet Center counselor notes that the Veteran struggles with standing, sitting, and walking. The counselor reported that "I have always seen him with some form of support such as cane, walker, or his electric wheelchair." In addition, a May 2009 letter from a friend of the Veteran provides competent and credible evidence regarding the Veteran's reliance on assistive devices. W.R.C. noted that the Veteran could barely walk and that the only way he can get around is with a walker. A medical opinion was requested, apparently by the Veteran, from a VA physician, in May 2009. The May 2009 note indicates the belief on the part of the VA physician that she was being asked to verify that the Veteran had lost the use of both legs. She noted that she was unable to verify this and that this was really not a true statement. She noted that, while she supports the benefit the Veteran is seeking, she could not state that the Veteran had "lost the use of both legs." As set out above, the regulations do not require the actual loss of use of both legs in order to obtain a certificate of eligibility for specially adapted housing. They essentially require that braces, crutches, canes, or a wheelchair, are necessary. Accordingly, the finding of the VA physician that the Veteran has not lost the use of both legs is not material to the issue. The Board finds it significant that the VA physician noted that she supports the Veteran's efforts to obtain a certificate of eligibility for specially adapted housing and that the Veteran has difficulty walking and relies on the use of a scooter and/or walker. The evidence which weighs most heavily against the Veteran's claim was submitted by the Veteran himself. The reason is unclear, but the Veteran submitted photographs, apparently taken of him, walking behind a lawnmower. There is no notation as to when the photos were taken. The photographs do not reveal any assistive devices being used. The Board will not speculate as to whether the handle of the lawnmower provides any meaningful support or stability. The Board finds that there is significant evidence that the Veteran routinely uses a wheelchair, braces, crutches, or canes as a normal mode of locomotion, and that he is unstable on his feet without assistive devices. The fact that he may be capable of limited unassisted locomotion does not preclude entitlement to the benefits sought. As set out above, the regulations specifically contemplate that "occasional locomotion by other methods may be possible." See 38 C.F.R. § 3.809(c). There can be no doubt that further inquiry could be undertaken with a view towards development of this claim; however, such development would not materially assist the Board in this determination. Under the benefit-of-the-doubt rule, the factual evidence need not show a certainty of entitlement to a benefit. Instead, where there exists an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52 (1993); see also Massey v. Brown, 7 Vet. App. 204 (1994). The Board finds that the evidence in favor of the claim is in relative equipoise with the evidence against the claim. The benefit of all reasonable doubt is resolved in the Veteran's favor. Turning to the matter of entitlement to a grant for special home adaptations, there is no dispute of fact regarding the pertinent criteria here. As mentioned above, a Veteran is not eligible for a home adaptation grant if he is entitled to a certificate of eligibility in acquiring specially adapted housing. Thus, as the Veteran has been granted such entitlement, eligibility for a home adaptation grant must be denied. 38 C.F.R. § 3.809a, Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board notes that, while the RO did not directly address the question of entitlement to a special home adaptation grant in the April 2009 rating decision, due to the interrelated nature of benefits under 38 C.F.R. §§ 3.809, 3.809a, and due to the RO's denial of benefits under 38 C.F.R. § 3.809, the RO should have addressed potential entitlement to benefits under 38 C.F.R. § 3.809a. The Board finds that there is no prejudice in the Board's adjudication of the issue, as the Board has found that, in light of the grant of benefits under 38 C.F.R. § 3.809, there is no dispute of fact as to entitlement under 38 C.F.R. § 3.809a; rather, the issue is being denied due to lack of legal merit. See Bernard v. Brown, 4 Vet. App. 384 (1993) (when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the veteran has been given adequate notice to respond and, if not, whether he has been prejudiced thereby). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting a certificate of eligibility for specially adapted housing, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Regarding the special home adaptation grant, VCAA notice is not required when, as a matter of law, entitlement to the benefit claimed cannot be established. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). See also 38 C.F.R. § 3.159(b)(3)(ii); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). ORDER A certificate of eligibility for specially adapted housing is granted. A special home adaptation grant is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs