Citation Nr: 1334252 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-09 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to special home adaptation assistance. 3. Entitlement to automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to June 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran is currently service connected for arteriosclerotic heart disease, status post myocardial infarction, angioplasty, and stent placement times three, rated 60 percent disabling; hypertension, rated 10 percent disabling; tinnitus, rated 10 percent disabling; a left shoulder disability, status post Bankhart procedure, rated 0 percent disabling; hydrocele - epididymitis, rated 0 percent disabling; and hearing loss, rated 0 percent disabling. The combined schedular evaluation is 70 percent, and the Veteran has been determined to be unemployable due to service-connected disabilities since September 11, 2003. 2. The Veteran's service-connected disabilities do not cause (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. 3. The Veteran does not have service connected disabilities that cause blindness in both eyes with 5/200 visual acuity or less. 4. The Veteran's service-connected disabilities do not result in anatomical loss or loss of use of both hands. 5. The Veteran's service-connected disabilities are not comprised of certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. 6. The Veteran's service connected disabilities do not result in the loss or permanent loss of use of one or both feet; loss or permanent loss of use of one or both hands or; permanent impairment of vision of both eyes. CONCLUSIONS OF LAW 1. The criteria for a certificate of eligibility for assistance in acquiring specially adapted housing have not been met. 38 U.S.C.A. §§ 2101(a), 5107 (West 2002); 38 C.F.R. §§ 3.809, 3.809(a) (2013). 2. The criteria for a special home adaptation grant have not been met. 38 U.S.C.A. §§ 2101, 5107; 38 C.F.R. § 3.809a (2013). 3. The criteria for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment have not been met. 38 U.S.C.A. §§ 5103, 5103A, 3901, 3902, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.808, 4.63 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for a special home adaptation. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and 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. See 38 U.S.C.A. § 5103(a). A January 2009 letter fully satisfied the duty to notify provisions, including the evidence necessary to substantiate his claim under then-existing law, prior to initial adjudication of the Veteran's claim in February 2009. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). During the course of this appeal, VA regulations for specially adapted housing and special home adaptation grants were revised. Effective October 25, 2010, 38 C.F.R. § 3.809a was amended to provide these benefits for certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. 75 Fed. Reg. 57,861 (Sept. 23, 2010), 38 C.F.R. § 3.809 and § 3.809a. This revision applies to claims received on or after December 10, 2004. The Veteran's claim was received in September 2008. The RO did not consider the amended version of this regulation (codified at 38 C.F.R. § 3.809a) in adjudicating the Veteran's appeal. The Veteran was not provided notice of these changes. As will be described, the Veteran is not service connected for any disability involving burns or inhalation injury. The failure to consider the amendments could not be prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the special home adaptation claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.326(a) (2013). The Veteran was not provided with a VA examination in connection with his appeal. However, the record contains sufficient findings for application of the special home adaptation criteria. With one exception, the Veteran is not service connected for disabilities that could qualify him for the claimed benefits. He is service connected for a left shoulder disability; but has not alleged that the disability causes loss of use of a hand, nor is there other evidence suggesting loss of use of a hand. The record does contain a summary from his treatment providers in February 2009; and the report of a VA evaluation in December 2008. Therefore, an examination could not aid in substantiating his claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Special adaptive housing A certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) is warranted if the Veteran is entitled to compensation for permanent and total service-connected disability(ies) 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 or the loss or loss of use of one upper extremity 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 both upper extremities such as to preclude the use of arms at or above the elbows; (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(b) (2013). 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(d). A Veteran, not entitled to eligibility in acquiring specially adapted housing under the provisions of 38 C.F.R. § 3.809, with a service-connected disability rated as permanent and total that is due to blindness in both eyes, that includes the anatomical loss or loss of use of both hands, or is due to a severe burn injury, will be eligible for a special home adaptation grant. 38 C.F.R. § 3.809a. The Veteran is service connected for arteriosclerotic heart disease, status post myocardial infarction, angioplasty, and stent placement times three, rated 60 percent disabling; hypertension, rated 10 percent disabling; tinnitus, rated 10 percent disabling; a left shoulder disability, status post Bankhart procedure, rated 0 percent disabling; hydrocele - epididymitis, rated 0 percent disabling; and hearing loss, rated 0 percent disabling. The combined schedular evaluation is 70 percent, and the Veteran has been determined to be unemployable due to service-connected disabilities since September 11, 2003. In the Veteran's September 2012 VA Form 646, he contended that arteriosclerotic heart disease precluded him from climbing or descending stairs, which required him to utilize a stair lift. A June 2012 outpatient treatment report in Virtual VA reflects that the Veteran arrived to his appointment by electric scooter. The question is whether the Veteran's service-connected disabilities result in loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The Veteran is not service connected for any disabilities of the lower extremities. Consequently, he is not service connected for disabilities that result in the loss or loss of use of both lower extremities such as to preclude locomotion. 38 C.F.R. § 3.809(b)(1). The record suggests that he has dyspnea related to heart disease. The Veteran does not have service connected disabilities that involve the eyes or vision and that could cause blindness. 38 C.F.R. § 3.809(b)(2). Although there is evidence in the claims file (most notably a December 2008 outpatient VA treatment report) which shows that the Veteran was seeking a brace to fix his left shoulder in place, the care provider was skeptical of the need for this, and in any event, even if loss of use of an upper extremity could be found, there is not service connected loss of use of one lower extremity so as to affect the functions of balance or propulsion or as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 38 C.F.R. § 3.809(b)(3). The Veteran is not service connected for the loss of use of both upper extremities. 38 C.F.R. § 3.809(b)(4-5). The Veteran is not service connected for any burn disabilities. 38 C.F.R. § 3.809(b)(6). As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to specially adapted housing. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Special Home Adaptation The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where entitlement to assistance in acquiring specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. This benefit requires that the evidence show permanent and total service-connected disability that either results in blindness in both eyes with 5/200 visual acuity or less, or involves the anatomical loss or loss of use of both hands, or certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a(b). The Board finds that the Veteran does not have blindness in either eye with 5/200 visual acuity or less. The Veteran is not service connected for any visual disability. The Veteran's statements in support of his claim do not reference any visual problem. The preponderance of the evidence establishes that the Veteran does not have blindness in both eyes with 5/200 visual acuity or less, regardless of his service-connected disabilities. See 38 C.F.R. § 3.809a(b). The Board also finds that the Veteran does not have anatomical loss or loss of use of both hands due to a service-connected disability. The Board notes that loss of use of the hands for special monthly compensation purposes is defined in 38 C.F.R. § 4.63 (2012). Specially adapted housing benefits under 38 U.S.C.A. § 2101 consist of a one-time benefit and are not periodic monetary benefits. Pappalardo v. Brown, 6 Vet. App. 63-65 (1993). As a result, specially adapted housing benefits are not a form of special monthly compensation. See id. The 38 C.F.R. § 4.63 definition of loss of use of the hands is the only such definition available; the Board will apply it by analogy. Loss of use of a hand 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 the elbow with use of a suitable prosthetic appliance. 38 C.F.R. § 4.63. The determination will be made on the basis of the actual remaining function of the hand, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. Id. Complete ankylosis of 2 major joints of an extremity will be taken as loss of use of the hand involved. Id. The Veteran has not alleged anatomical loss or loss of use of both hands in any statement in support of this claim. The Veteran does not have anatomical loss or loss of use of both hands, regardless of his service-connected disabilities. See 38 C.F.R. § 3.809a(b). The Veteran's service-connected disabilities do not involve burns or residuals of an inhalation injury. See 38 C.F.R. § 3.809a(b). As such, the preponderance of the evidence is against the Veteran's special home adaptation grant claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Automobile and adaptive equipment or for adaptive equipment only VA provides financial assistance for the purchase of one automobile and adaptive equipment to a Veteran who has a service-connected disability resulting in one of the following: loss or permanent loss of use of one or both feet; loss or permanent loss of use of one or both hands; or permanent impairment of vision of both eyes. 38 U.S.C.A. § 3902 (West 2002 & Supp. 2012); 38 C.F.R. § 3.808(a), (b)(1), (2), and (3) (2013). The term "loss of use" of a hand or foot is defined 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 the knee with 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, in the case of the hand; or balance, propulsion, 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) (2013). There is no evidence that the Veteran's service-connected disabilities result in (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands or; (3) permanent impairment of vision of both eyes. The Veteran is not service connected for any disability involving the feet, hands, or eyes. Although he contended that he has loss of use of his knees and left upper extremity, he is not service connected for any knee disability. Nor is there evidence that his left shoulder disability results in the "loss of use" of the Veteran's left hand 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. The February 2009, evaluation shows that he retained in both hands the ability to grasp, turn, and twist objects and accomplish fine manipulations with the fingers. The December 2008 evaluation shows that pain was in the left shoulder region without mention of the hand. It was noted that he had carpal tunnel syndrome, but this is not service connected. The Veteran also reported that he drove and had not problems with driving. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to automobile and adaptive equipment or for adaptive equipment only. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to specially adapted housing is denied. Entitlement to special home adaptation is denied. Entitlement to automobile and adaptive equipment or for adaptive equipment only is denied. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs