Citation Nr: 1335361 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-30 270 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to June 1970. His decorations include the Combat Action Ribbon and the Purple Heart Medal. This appeal to the Board of Veterans' Appeals (Board) arises from a July 2009 RO rating decision which, inter alia, denied entitlement to a special home adaptation grant as well as specially adapted housing. In September 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals), in July 2010. In March 2013, the Veteran testified during a Board hearing before a Veterans Law Judge at the RO; a transcript of that hearing is associated with the Virtual VA electronic records storage system. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran is in receipt of compensation for permanent and total service-connected disability due to the loss of one lower extremity (service-connected right above-the-knee amputation) which, together with what appears to be the residuals of organic injury (service-connected bilateral carpal tunnel syndrome), so affects the functions of balance or propulsion as to preclude locomotion without the aid of an electric wheelchair. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a certificate of eligibility for assistance in acquiring specially adapted housing are met. 38 U.S.C.A. §§ 2101, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.50, 3.809, 4.63 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the fully favorable disposition of this claim, the Board finds that all notification and development action needed to fairly adjudicate such claim has been accomplished. II. Analysis The Veteran seeks VA assistance in obtaining a new home or modifying his home to accommodate being wheelchair-bound. He asserts that his immobility is due to service-connected disabilities. A 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; 38 C.F.R. § 3.809(a), (b). A certificate of eligibility for assistance in acquiring a special home adaptation grant may be issue 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. See 38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a. 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 Board observes that, 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). As the claim may be granted under the older provisions, the Board need not discuss the revised criteria. 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. See 38 C.F.R. § 3.809(d). 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. 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. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the United Court of Appeals for Veterans Claims (formerly, the United States Court of Veterans Appeals) held 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 and the disability therefrom 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 (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). In adjudicating a claim for VA benefits, VA is responsible for determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The facts of this case may be briefly summarized. The Veteran incurred fragment wounds to the right leg and ankle during combat in Vietnam. Post-service, the Veteran experienced numerous complications and underwent multiple surgeries due to retained foreign bodies and recurrent infections. In December 1979, the Veteran underwent a below-the-knee amputation. An October 1980 RO rating decision granted entitlement to special monthly compensation on account of anatomical loss of one foot. A May 1983 VA physician statement reported that the Veteran's right leg stump was chronically infected which prohibited use of a prosthesis. Due to these recurrent infections, the Veteran underwent a re-amputation of the right leg above the knee. The Veteran developed numbness and tingling sensation of his hands in 2008. A February 2008 VA clinic record noted that the Veteran was in need of a grant to modify his home to accommodate a wheelchair necessitated by loss of use of the right leg and repeated injuries to his left leg. The Veteran was diagnosed with impaired mobility in March 2008. In April 2008, an electromyography (EMG) study of the upper extremities was interpreted as showing bilateral carpal tunnel syndrome. A risk assessment reflected that the Veteran was unable to walk more than 100 feet, or use more than 4 steps. A June 2008 VA clinic record noted that the Veteran had been prescribed an electrically assisted wheelchair as the pain, tingling and numbness of both hands made it increasingly more difficult to support himself and, in particular, it was becoming increasingly more painful and dangerous for him to use his bathroom which required a modification to accommodate his wheelchair. In October 2008, it was noted that the Veteran seldom used his crutches, and that use of his wheelchair was becoming difficult due to his carpal tunnel syndrome. He was wearing hand splints, and was deemed to be in significant need of an electric scooter. On October 2010 plastic surgeon consultation, the examiner found that the Veteran had no pinprick or pressure sensation in any of his fingers. The Veteran subsequently underwent carpal tunnel release on the right with no resolution of symptoms. A January 2011 VA clinic record found that the Veteran's right hand symptoms were not "solely" due to carpal tunnel syndrome. A March 2011 VA Compensation and Pension examination found that, in additional to bilateral carpal tunnel syndrome, the Veteran also demonstrated pan-neuropathy with clubbing of all fingers of unknown etiology. It was opined that the Veteran's carpal tunnel syndrome was a result of overuse syndrome attributed to the Veteran's long-time use of crutches due to service-connected right leg disability. In an April 2011 rating decision, the RO granted service connection for right and left carpal tunnel syndrome, rated as 10 and 30 percent disabling, respectively, from September 30, 2009. Considering the pertinent evidence in light of the applicable criteria, and resolving all reasonable doubt in the Veteran's favor, the Board finds that competent, probative evidence supports a finding that the Veteran is entitled to a certificate of eligibility for assistance in acquiring specially adapted housing. In this respect, the Veteran is in receipt of compensation for permanent and total service-connected disability due to the loss of one lower extremity (service-connected right above-the-knee amputation) and the collective lay and medical evidence indicates that that disability, that together with what appear to be residuals of organic injury (service-connected bilateral carpal tunnel syndrome) so affects the functions of balance or propulsion as to preclude locomotion without the aid of an electric wheelchair. The Veteran has been in receipt of a 100 percent service-connected rating since July 17, 1986. He has been in receipt of special monthly compensation due to anatomical loss of right foot since December 20, 1979. The dispositive issue on appeal concerns whether the Veteran manifests additional service-connected organic disease or injury which so affects his functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. Here, the Veteran is service-connected for bilateral carpal tunnel syndrome which, in part, has prevented him from using crutches as well as a manual wheelchair. He has lost complete sensation in all of his fingers. The Board is aware that, subsequent to right carpal tunnel release, the Veteran's symptoms in his right hand did not improve. It is suspected that there may be an additional cause of his bilateral hand numbness and clubbing of his fingers other than carpal tunnel syndrome. However, the evidentiary record does not identify any such cause, nor is there an indication that such cause is identitfiable. Notably, the VA clinicians have appeared to rule out a potential cervical spine etiology. In light of the inconclusive medical findings, and clear bilateral CTS confirmed by EMG study, the Board resolves all reasonable doubt in the Veteran's favor by attributing all of his bilateral hand symptoms to service-connected CTS. See Mittleider v. West, 11 Vet. App. 181 (1998). In light of this finding, the Board finds that the Veteran's service-connected loss of the right foot combined withwhat appears to be the residuals of his bilateral service-connected CTS so affects his functions of balance and propulsion so as to preclude locomotion without the aid of an electric wheelchair. Thus, the Board finds that the criteria for a certificate of eligibility for assistance in acquiring specially adapted housing. The appeal, therefore, is granted. Notably, an award of a certificate of eligibility for assistance in acquiring specially adapted housing is a greater benefit than a certificate of eligibility for assistance in acquiring a special home adaptation grant. As a certificate of eligibility for assistance in acquiring specially adapted housing has been awarded, and the law precludes the award of both benefits, the question of the Veteran's entitlement to a special home adaptation grant has been rendered moot. ORDER A certificate of eligibility for assistance in acquiring specially adapted housing is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs