Citation Nr: 1329165 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 94-49 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaption grant. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2000 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By that rating action, the RO denied the claim of entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaption grant. The Veteran appealed this rating action to the Board. This appeal has a long procedural history but, in the interest of brevity, the Board will refer the reader to the November 2010 Remand for that history. This appeal was last before the Board in September 2012. At that time, the Board remanded the claim to the RO for an additional VA opinion. A VA physician provided the requested opinion in May 2013. A copy of the May 2013 VA opinion has been associated with the claims files. The appeal has returned to the Board for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has established entitlement to service connection for intervertebral disc syndrome (IVDS), evaluated as 60 percent disabling; right lower extremity radiculopathy associated with IVDS, evaluated as 20 percent disability; bilateral hearing loss, evaluated as 20 percent disabling; and, bilateral otitis externa and tinnitus, each evaluated as 10 percent disabling. He has been awarded a total rating based on individual unemployability due to service-connected disability (TDIU) from August 17, 1988. 2. The Veteran has permanent loss of use of both lower extremities that precludes locomotion except with the aid of braces, crutches, canes, or wheelchair and is the result of axonal sensorimotor peripheral neuropathy of both legs due to nonservice-connected diabetes mellitus. 3. The Veteran is not blind in either eye and does not have anatomical loss or loss of use of both hands due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 2101(a) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.350, 3.809 (2009). 2. The criteria for a certificate of eligibility for a special home adaptation grant have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 2101(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.809a (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim decided herein. I. Duty to Notify and Assist Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his attorney has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been satisfied. The Veteran was notified via an April 2004 letter of his and VA's respective duties for obtaining evidence. This letter, however, did not provide the elements necessary to substantiate his claim for a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaption grant. Notwithstanding this omission, the Board finds that the purpose behind the notice requirements has been fully satisfied because the Veteran and his attorney have been afforded a meaningful opportunity to participate effectively in the processing of the claim before the Board and The United States Court of Appeals for Veterans Claims (Court) on multiple occasions. Thus, any deficiency in notice must be regarded as constituting harmless error. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). While the April 2004 letter was not provided under after the RO's initial adjudication of the claim in February 2000, the matter was also readjudicated following complete notice in a June 2000 statement of the case and supplemental statements of the case issued throughout the appeal; thus, curing the notice timing defect. Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Veteran was not advised of how VA assigns disability ratings and effective dates. To the extent that the Court's holding in Dingess is applicable to the claims herein, the Veteran is not prejudiced by any omission, as the claim is being denied. Thus any notice regarding disability ratings and/or effective dates would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran should be avoided). VA has also fulfilled its duty to assist with respect to the claim decided herein. The Veteran's relevant post-service VA and private treatment and examination reports have been associated with the physical claims files. The Veteran has actively participated in the processing of his claim, and the statements submitted in support of his claim have indicated familiarity with the requirements for the benefit sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran was afforded VA examinations and opinions in connection with the claims, most recently in May 2013 (opinion only). To that end, 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). Recently, pursuant to the Board's September 2012 remand directives, a VA examiner reviewed the claims files to provide an opinion as to whether the Veteran's service-connected low back and right leg disabilities had caused loss of use of his lower extremities, criteria that are necessary in order to prevail on the claim herein. A VA examiner provided this opinion in May 2013. A copy of the May 2013 report has been associated with the claims files. The Board finds the VA examiner's May 2013 opinion to have been thorough and adequate upon which to base a decision of the claim. The May 2013 VA examiner reviewed the Veteran's entire claims files, to specifically include a May 2004 electromyography (EMG) and nerve conduction velocity reports, and bolstered her opinion with medical reasoning. As a result, the Board finds that additional development by way of another opinion would be redundant and unnecessary. See 38 C.F.R. §§ 3.326, 3.327 (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that there has been substantial compliance with its September 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has also not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim in the analysis set forth below. II. Laws and Regulations The Veteran seeks a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaption grant. During the course of this appeal, VA regulations for specially adapted housing and special home adaptation grants were revised, effective October 25, 2010. See 75 Fed. Reg. 57,861 -57,862 (Sept. 23, 2010). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The final rulemaking provided specific applicability dates for some of the amended regulations, including: the revisions to the introductory text of § 3.809(b) pertaining to eligibility for persons disabled by VA treatment or vocational rehabilitation, apply to applications for such grants received by VA on or after December 10, 2004; the addition of § 3.809(b)(5), pertaining to loss or loss of use of both upper extremities as a qualifying disability, applies to all applications received by VA on or after December 10, 2004 and the addition of paragraph (b)(6) to § 3.809 pertaining to severe burns apply to all applications for such grants received by VA on or after July 30, 2008. Here, VA received the Veteran's claim for specially adapted housing or a special home adaption grant in January 2000. (See VA Form 26-455, Veteran's Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant, dated in late January 2000). Thus, the new amendments do not apply to the Veteran's claim. Thus, the Board will only apply the regulations in effect prior to October 25, 2010. Specially Adapted Housing Under the regulations effective prior to October 25, 2010, certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for 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. 38 U.S.C.A. § 2101 (West 2002); 38 C.F.R. § 3.809(a), (b) (2009). 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) (2009). Special Home Adaptation Under the regulations effective prior to October 25, 2010, 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(1); 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 U.S.C.A. § 2101(b) (West 2002); 38 C.F.R. § 3.809a (2009). 38 C.F.R. § 3.809a(a) provides that a veteran who first establishes entitlement under this section and who later becomes eligible for a certificate of eligibility under 38 C.F.R. § 3.809 may be issued a certificate of eligibility under § 3.809. However, no particular type of adaptation, improvement, or structural alteration may be provided to a veteran more than once. The term "loss of use" of a hand or foot constitutes 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 elbow or knee with use of a suitable prosthetic appliance. The determination is 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." 38 C.F.R. §§ 3.350(a)(2) , 4.63 (2009). Examples which constitute loss of use of a foot or hand are extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3-1/2 inches or more. Also considered as loss of use of a foot 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 this nerve. 38 C.F.R. §§ 3.350(a)(2) (2009). III. Merits Analysis The Veteran seeks a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaption grant. He contends that because of his service-connected low back disability, currently evaluated as 60 percent disabling, and right lower extremity radiculopathy associated with the service-connected low back disability, evaluated as 20 percent disabling, he has lost the use of both of his lower extremities and is only able to ambulate inside his home on crutches or in a scooter or wheelchair if he is outside (See July 2011 VA Aid and Attendance examination report). The Veteran has been awarded service connection for a low back disability and right lower extremity radiculopathy associated with the low back disability; 60 and 20 percent disability ratings have been assigned, respectively. The Veteran has also been awarded service connection for bilateral hearing loss, evaluated as 20 percent disabling, and bilateral otitis externa and tinnitus, each evaluated as 10 percent disabling. He has been awarded a TDIU from August 17, 1988. (See May 2012 rating action). The Board finds that the preponderance of the evidence is against the claim for Add because the evidence does not show that the Veteran's loss of use of the lower extremities is the result of his service-connected low back and right leg disabilities, as alleged. Based on a thorough review of the evidence, the Board concludes that the Veteran has loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. VA examiners throughout the appeal have uniformly concluded that the Veteran has loss of use of the lower extremities as a result of severe axonal peripheral neuropathy that has caused severe weakness with bilateral foot drop and loss of sensation, as shown on electromyography (EMG) and nerve conduction velocity reports performed in May 2004. (See VA examination reports, dated in May 2004, September 2009 and July 2011, and VA opinions, dated in May 2012 and May 2013). In September 2012, the Board remanded the Veteran's claim to have a VA examiner provide an opinion as to the exact etiology of the Veteran's severe axonal peripheral neuropathy of the lower extremities. A VA examiner provided this opinion in May 2013. After a review of the entire record, the VA physician opined that it was less likely as not that the Veteran's service-connected disabilities had caused or aggravated the axonal sensorimotor peripheral neuropathy of the lower extremities and that the most likely cause was his nonservice-connected diabetes. The VA examiner further expounded that the Veteran's intervertebral disc syndrome and paralysis of the sciatic nerve did not cause or aggravate his axonal problems but rather the symptoms and signs of the low back and sciatic nerve disabilities was radiculopathy of the nerves of the legs, a finding that was not shown on the May 2004 EMG/NCV. (See May 2013 VA opinion). The Board is aware of a September 2009 VA physician's assistant's opinion that the Veteran's bilateral lower extremity axonal sensorimotor peripheral neuropathy was "[m]ost likely due to his service connected disability of lumbar spine degenerative disc disease and is the cause of his right leg condition. This is medically known as bilateral lower extremity radiculopathy." (See September 2009 VA examination report). However, the September 2009 VA examination report was co-signed by a May 2004 VA examiner, who had concluded in May 2004 that the Veteran did not have radiculopathy, per the above-referenced EMG and NCV study, and then later found him to have had diabetic peripheral neuropathy of the bilateral lower extremities during a July 2011 VA aid and attendance examination. (See May 2004, September 2009 and July 2011 VA examination reports, authored by the same VA physician). Thus, the Board attaches less probative weight to the September 2009 VA physician's assistant's opinion which is not only contradicted by the VA physician who co-signed the examination report in September 2009, but also another VA physician in May 2013. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board finds that the opinion of the May 2013 VA physician is more probative than the September 2009 VA physician's assistant's opinion. The May 2013 VA physician reviewed the Veteran's entire claims files, which included his VA and private treatment records and previous examination reports, to include the above-cited September 2009 VA physician's assistant's opinion. Based on all of the evidence, the May 2013 VA physician rendered an opinion that was supported by a detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Thus, the Board finds this opinion to be the most probative evidence of record. Further, the evidence of record does not demonstrate, nor does the Veteran contend, that he has permanent and total disability resulting in blindness in both eyes, having only light perception, or that loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or loss, or loss of use, of both upper extremities such as to preclude use of the arms at or above the elbows. Consequently, the Board must conclude that the requirements for a certificate of eligibility for assistance in acquiring specially adapted housing have not been met. 38 U.S.C.A. § 2101; 38 C.F.R. § 3.809. Additionally, 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. Thus, the Board must conclude that the requirements for a certificate of eligibility for assistance in acquiring a special home adaptation grant have also not been met. 38 U.S.C.A. § 2101; 38 C.F.R. § 3.809(a). As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply, and the Veteran's claims for eligibility for assistance in acquiring specially adapted housing or a certificate of eligibility for assistance in acquiring a special home adaptation grant are denied. See 38 U.S.C.A §5107. ORDER Entitlement to a special adaptive housing or special home adaptation grant is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs