Citation Nr: 1421797	
Decision Date: 05/14/14    Archive Date: 05/21/14

DOCKET NO.  10-20 063	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to specially adapted housing.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1971 to December 1975.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). 

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2011. 
 
In March 2012, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDING OF FACT

The Veteran's loss of use of his lower extremities, such as to preclude unassisted locomotion, is primarily due to nonservice-connected disabilities.


CONCLUSION OF LAW

The criteria for a certificate of eligibility for specially adapted housing have not been met.  38 U.S.C.A. § 2101 (West 2002 & Supp. 2013); 38 C.F.R. § 3.809 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013).  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

A July 2009 letter satisfied the duty to notify provisions.  This letter notified the Veteran of the evidence needed to establish entitlement to specially adapted housing.  Thus, VA's duty to notify has been met.

The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any outstanding treatment records pertinent to the appeal.  More recent records from the Lincoln VA Medical Center were obtained pursuant to the Board's March 2012 remand.  Additionally a VA medical opinion was obtained in May 2012 from an April 2010 VA examiner pursuant to the Board's remand.  

In a March 2013 brief, the Veteran's representative contends that the May 2012 opinion was inadequate because the VA examiner failed to opine as to whether the Veteran would be ambulatory in the absence of obesity and degenerative joint disease.  

In fact, the VA examiner opined that the Veteran's service-connected varicose veins contribute to his bilateral lower extremity pain, but the majority of factors contributing to the Veteran's lack of locomotion include his obesity and severe bilateral degenerative joint disease of the knees.  The Board finds that the May 2012 opinion is adequate in order to determine whether the Veteran has loss of use of the lower extremities as contemplated by 38 C.F.R. § 3.809, and, if so, whether such loss of use is due to his service-connected disabilities.  The examination was provided by a physician and based on a thorough review of the claims file, interview with the Veteran, and physical examination.  Moreover, the VA examiner provided clear conclusions with supporting data, and a reasoned medical explanation connecting the two.  Thus, the record contains a sound medical opinion upon which a decision may be based.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless.  

Specially Adapted Housing

The Veteran seeks specially adapted housing on the basis that his service-connected bilateral varicose veins preclude locomotion.

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, in pertinent part, to the loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.  38 U.S.C.A. § 2101(a); 38 C.F.R. § 3.809(b).  There are also provisions pertaining to the upper extremities and vision; however, they are not pertinent to the Veteran's claim as service connection is in effect for disabilities affecting the lower extremities.

"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).

In a May 2012 VA opinion report, a VA examiner who conducted an examination in April 2010 expressed the opinion that the Veteran has lost use of both lower extremities such as to preclude locomotion.  The VA examiner further opined that the Veteran's difficulty with motion is multifactorial in nature and that although the Veteran's service-connected varicose veins of the bilateral lower extremities may contribute to his bilateral lower extremity pain, the majority of factors contributing to the Veteran's lack of locomotion include his obesity and severe bilateral degenerative joint disease of the knees.

The Veteran contends that his obesity is due to the loss of use of the bilateral lower extremities, which he believes is due to service-connected varicose veins.  An opinion as to the etiological relationship between the Veteran's loss of use of the bilateral lower extremities and his varicose veins, obesity, and degenerative joint disease involves complex medical issues that must be resolved by competent medical evidence.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  The Veteran's case is especially complex because he has suffered from the aforementioned medical conditions for decades prior to losing use of his lower extremities.  

The Veteran has not shown that he is qualified through education, training, or experience to offer medical opinions on complex medical issues.  Thus, he is not competent to offer an opinion as to the etiology of his loss of use of the bilateral lower extremities.  His opinion in this regard is of no probative value.

The competent medical evidence of record pertaining to whether the Veteran's loss of use of the lower extremities is due to a service-connected disability consists of the May 2012 VA examiner's opinion.  The VA examiner, a physician, explained that the Veteran's preclusion of locomotion is primarily due to nonservice-connected disabilities, and that the Veteran's service-connected bilateral varicose vein disabilities only cause pain.  The opinion of the VA examiner constitutes competent, persuasive medical evidence, which weighs against the claim.   As the opinion is factually accurate, fully articulated, and based on sound reasoning, it is afforded significant weight.

Thus, based primarily on the medical expert opinion evidence, the Board finds that the Veteran's loss of use of his lower extremities, such as to preclude unassisted locomotion, is primarily due to nonservice-connected disabilities.  Along these lines, the Board finds that the Veteran's service-connected varicose veins of the lower extremities do not result in the loss of use of his lower extremities.  Consequently, the criteria for a certificate of eligibility for specially adapted housing have not been met. See 38 U.S.C.A. § 2101; 38 C.F.R. § 3.809.


In sum, the preponderance of the evidence is against the claim for specially adapted housing; there is no doubt to be resolved; and specially adapted housing is not warranted.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).


ORDER

Specially adapted housing is denied.



____________________________________________
RYAN T. KESSEL 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs