Citation Nr: 1335391 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-18 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a certificate of eligibility for specially adapted housing or for a special home adaption grant. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from February 1965 to December 1973. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran does not have permanent and total service-connected disability that produces (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 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 (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. 2. The Veteran does not have permanent and total service-connected disability that includes the anatomical loss or loss of use in both hands or is due to (1) blindness in both eyes with 5/200 visual acuity or less, or (2) 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 (3) full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or (4) residuals of an inhalation injury. CONCLUSION OF LAW The basic eligibility requirements for a certificate for specially adapted housing or a certificate for a special home adaption grant have not established. 38 U.S.C.A. §§ 2101, 2104, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.809, 3.809a (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (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 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 Board observes that the amendments do not specifically apply to the Veteran's physical circumstances; hence, there is no prejudice to him in the Board's considering them in the first instance. A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who served on active duty after April 20, 1898, and 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). Effective October 25, 2010, 38 C.F.R. § 3.809 was amended to include the following: (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. See 75 Fed. Reg. 57,861-57,862 (Sept. 23, 2010); 38 C.F.R. § 3.809(a), (b) (2013). The criteria for the establishment of this benefit are in the disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). 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) (2013). The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.350(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 (2013). 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 31/2 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 (2013). In Tucker v. West, 11 Vet. App. 369, 373 (1999), the 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. 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). 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 (2013). As noted, the provisions of 38 C.F.R. § 3.809a provide that in order for a Veteran to receive a home adaptation grant, he must not be entitled to a certificate of eligibility in acquiring specially adapted housing. If a Veteran first establishes entitlement to a home adaptation grant but only later becomes eligible for a certificate of eligibility in acquiring specially adapted housing, he could be provided both benefits. If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected disabilities include partial complex seizures (100%), post-traumatic stress disorder (70%), left shoulder impairment (30%), right knee chondromalacia (10%), residuals of left wrist injury associated with partial complex seizures (10%), bilateral tinnitus (10%), laceration of right check and chin (10%), gunshot wound scar (10%), bilateral hearing loss (noncompensable), malaria (noncompensable), posterior chest scar (noncompensable), epidermophytosis of the feet (noncompensable), and otitis externa (noncompensable). In his December 2009 notice of disagreement, the Veteran stated that due to his partial complex seizure disability he has unsteady balance and has fallen down his stairs, damaging his right shoulder and left foot. In his May 2010 substantive appeal, the Veteran stated that due to his right knee he is unable to climb the stairs in his house. He also has seizures that cause motor and coordination difficulty. He also reported muscle spasms in his back. He said he uses a walking cane to steady his weight on his right knee. The Veteran underwent a VA examination in June 2007. He reported he has pain in his right knee and sometimes it buckles and goes out. He reported he always uses a cane and is able to stand for 15 to 20 minutes and walk 1/4 mile. His flexion was measured at 0 to 130 degrees and extension at 90 to 0 degrees. At a February 2008 VA examination for aid and attendance the Veteran reported he has up to seven to eight grand mal seizures per month, which can occur while sleeping. He also reported from three to more than 20 episodes of generalized non-conclusive epilepsy or complex partial epilepsy per day. He reported he frequently falls due to seizures and uses a single cane for ambulation. He reported constant dizziness and imbalance affecting his ability to ambulate. The examiner noted the Veteran is able to walk without the assistance of another person only within his home. He requires a cane to ambulate. The examiner noted mildly impaired coordination in both of the Veteran's lower extremities and limitation of motion of his left hip and knee. The examiner noted the Veteran has a somewhat slow gait with mildly poor propulsion and mildy limited balance. The examiner found the Veteran had 5/5 strength in his lower extremities on all movements. In July 2009 the Veteran was found to have early peripheral neuropathy in his lower extremities. Service connection for peripheral neuropathy was later denied. In August 2009 an occupational therapy note for the Veteran's elbow pain reflects that be ambulated to the clinic using a cane. In March 2010 when the Veteran underwent a colonoscopy, a fall assessment noted that the Veteran was using an ambulatory aid, had fallen in the past three months, and had a normal gait. In August 2010 the Veteran underwent a VA examination for his shoulder. The examiner noted that the Veteran is able to stand for 15 to 30 minutes and walk more than 1/4 mile but less than one mile and did not use an assistive device or aid. While the Board recognizes the mobility limitations described by the Veteran, the Board finds that the Veteran does not meet the requirements for a certificate of eligibility for assistance in acquiring specially adapted housing. None of the Veteran's medical records indicate he has lost any of extremities. He has reported using a cane to ambulate. However, the evidence does not suggest that the Veteran has lost the use of either or both lower extremities. He is service-connected for right knee chondromalacia but is not service-connected for any left knee disability. With respect to the Veteran's service-connected right knee disability, the evidence reflects the Veteran experiences pain and mildly impaired coordination of his right leg. The Veteran has stated he is unable to climb stairs due to his right knee and uses a walking cane to steady his weight on that knee. Overall, the February 2008 VA examiner found the Veteran to have a somewhat slow gait with mildly poor propulsion and mildly limited balance with full strength in his lower extremities. He was noted both at that examination and again in August 2010 to be able to stand for 15 to 30 minutes and walk about 1/4 mile. Thus, while the evidence does show the Veteran has some impairment, it is not to the extent that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a suitable prosthetic appliance. For example, the evidence does not show ankylosis of the Veteran's lower extremity, any shortening of the lower extremity, or complete paralysis of the external popliteal nerve. The Board has considered the Veteran's complaints of right knee pain, but finds such pain does not have such a functional impact as to reduce the Veteran's effective function of that leg to a degree that he would be equally well served by an amputation with use of a suitable prosthetic appliance. The Board does recognize the Veteran's report of balance and coordination problems and falls as a result of his seizure disorder, however even considering the affect that condition has on the Veteran's functions of balance and propusion, the Veteran would not be entitled to certificate of eligibility for assistance in acquiring specially adapted housing without the loss or loss of use of one lower extremity. The evidence further does not show the Veteran is blind in both eyes, has lost or lost use of either upper extremity, or has any burns that have resulted in contractures with limitation of motion. Based on the forgoing, the Board finds the Veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing. The Board further finds the Veteran is not entitled to a certificate of eligibility for assistance in acquiring a special home adaptation grant as the evidence does not show the Veteran is blind in both eyes, has loss or lose of use of both hands, has burns that have resulted in contractures with limitation of motion, or has residuals of an inhalation injury. In conclusion, the Board finds a preponderance of the evidence is against finding that the Veteran meets the criteria for a certificate of eligibility for specially adapted housing or for a special home adaption grant. Therefore, his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b)(1). The Veteran was provided notice as to these matters by correspondence dated in December 2008, thus fufilling the duty to notify. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). 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; 38 C.F.R. § 3.159(c). The Board finds that all necessary development has been accomplished as the RO has obtained the Veteran's VA treatment records and neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Although the Veteran was not provided with a VA examination specifically with respect to his claim for to a certificate of eligibility for specially adapted housing or for a special home adaption grant, the Board finds a separate examination is not necessary. A VA aid and attendance examination was conducted in February 2008 that included an evaluation of the Veteran's limitations due to his disabilities, including his mobility. Further, in June 2007 the Veteran underwent VA examinations for both his right knee chondromalacia and his partial complex seizures. The Veteran has not alleged a change in his condition since the February 2008 examination and his VA treatment records do not suggest a worsening of his condition, particularly with respect to his right knee disability, since he was last evaluated by a VA examiner. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. ORDER A certificate of eligibility for specially adapted housing or for a special home adaption grant is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs