Citation Nr: 1342200	
Decision Date: 12/20/13    Archive Date: 12/31/13

DOCKET NO.  10-00 028	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a special home adaptation grant.

2.  Entitlement to specially adapted housing.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

Robert E. P. Jones, Counsel
INTRODUCTION

The Veteran served from April 1980 until his retirement from active duty in May 2000.  

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
 
A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim.

The issue of entitlement to specially adapted housing is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran does not have a permanent and total 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.


CONCLUSION OF LAW

The criteria for entitlement to a special home adaptation grant have not been met. 38 U.S.C.A. § 2101 (West 2002); 38 C.F.R. § 3.809a (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Here, notice dated in October 2007 informed the appellant of what evidence VA would seek to provide and what evidence the appellant was responsible for providing.  The appellant was specifically informed as to what the evidence needed to show in order to substantiate his claim for a special home adaptation grant.  Thereafter, the Veteran's claim was initially adjudicated in July 2008.

Next, VA has a duty to assist the Veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the claims file contains rating decisions, VA medical records, and private medical records which provide all the information necessary to adjudicate a claim for special home adaptation grant.  The Board further notes that the Veteran provided testimony at a hearing and that the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).

The Board finds that all necessary development has been accomplished with regard to the claim for special home adaptation grant, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

In order for a veteran to be entitled to a certificate of eligibility for assistance in acquiring special home adaptation, he or she must be entitled to compensation for permanent and total disability that includes (1) anatomical loss or loss of use of both hands, or (2) be due to: (i) blindness in both eyes with 5/200 visual acuity or less, or (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 or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or (iv) residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease).  38 U.S.C.A. § 2101(b); 38 C.F.R. § 3.809a.

The Veteran essentially argues that his service-connected disabilities qualify him for VA financial assistance in modifying his home.

The Veteran's service-connected disabilities are degenerative disc disease of the lumbar spine, rated 40 percent; degenerative disc disease of the cervical spine, rated 20 percent; radiculopathy of the left lower extremity, rated 10 percent; tinnitus, rated 10 percent; bilateral hearing loss, rated at zero percent; residuals of a fracture of the nose, rated zero percent; chronic rhinitis, rated zero percent; and temporomandibular joint dysfunction, rated zero percent.  He has been awarded a total disability rating based on individual unemployability (TDIU).

The Veteran testified at his hearing that he has trouble walking and that he needs his home modified so that he can use a wheelchair and a scooter inside his house.  He said that he needs ramps built so that he can get his scooter into the house.  He also said that the halls and doorways in his house need to be widened.  However, the evidence of record, to include the Veteran's statements, fails to show that there is any evidence of service-connected loss or loss of use of both hands, visual impairment, burns that result in limitation of motion, or residuals of an inhalation injury.  

There is no medical or lay evidence to even suggest that the Veteran meets any of the criteria associated with a special home adaptation grant.  As the preponderance of the evidence is against this claim, the doctrine of the benefit of the doubt does not apply.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the claim is denied.


ORDER

Entitlement to a special home adaptation grant is denied.


REMAND

The Veteran contends that he is entitled to specially adapted housing because of his service-connected disabilities.  As noted above, his orthopedic service-connected disabilities are: degenerative disc disease of the lumbar spine, rated 40 percent; degenerative disc disease of the cervical spine, rated 20 percent; and radiculopathy of the left lower extremity, rated 10 percent.  He has also been awarded TDIU. 

Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing may be established if the evidence shows that the Veteran has permanent and total service-connected disability due to 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.  Entitlement may also be established if service-connected disability results in 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.  See 38 C.F.R. § 3.809.  The Veteran has service connection in effect for disabilities of the left lower extremity and the spine.  Furthermore the record reveals that the Veteran uses a cane to ambulate and that he uses a scooter.  The Veteran submitted his specially adapted housing claim in August 2007 and he has not been provided a VA medical examination since that time.  The Board notes that the record is not clear as to whether the Veteran's service-connected spine and left lower extremity disabilities preclude locomotion without the aid of braces, canes, or similar devices. 

The Veteran's updated VA treatment records should be obtained and associated with the claims file. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain copies of the Veteran's VA medical records dated from June 2009 to present. 

2.  Send the Veteran and his representative a letter requesting that the Veteran provide the necessary authorizations so that copies of any treatment records pertinent to his claims for specially adapted housing may be requested from his non-VA medical providers.  The Veteran should be informed that he need not respond if all such private medical records have already been submitted.

3.  When the above action has been accomplished the Veteran should be afforded a VA orthopedic examination.  The examiner should ascertain the extent of impairment attributable to the Veteran's service-connected lumbar spine, cervical spine and left lower extremity radiculopathy disabilities, particularly with respect to locomotion and any possible loss of use of any extremity.  The examiner should report whether the Veteran has: 

a.  lost the use of his lower extremities due to his service-connected spine and left lower extremity disabilities so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. (The term "preclude locomotion" means a necessity for regular and constant use of braces, crutches, canes, or a wheelchair as a normal mode of locomotion, although occasional locomotion by other methods may be possible.), or 

b.  lost the use of one lower extremity due to his service-connected disabilities and has a service-connected disability which so affects the function of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 

4.  After the above actions have been accomplished, reconsider the Veteran's claim.  If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran and his representative the opportunity to respond thereto.  Thereafter, the case should be returned to the Board for appellate review

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



_________________________________________________
MICHAEL A. PAPPAS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs