Citation Nr: 1443217 Decision Date: 09/26/14 Archive Date: 10/06/14 DOCKET NO. 12-24 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a certificate of eligibility for specially adapted housing. 2. Entitlement to a certificate of eligibility for a special home adaptation grant. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and wife ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from February 1981 to May 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing via videoconference before the undersigned Veterans Law Judge via in August 2014. FINDING OF FACT The Veteran has permanent and total service-connected disabilities that effectively result in the loss of use of the lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. CONCLUSIONS OF LAW 1. The criteria for entitlement to a certificate of eligibility for specially adapted housing have been met. 38 U.S.C.A. § 2101(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.809 (2013). 2. The claim for a special home adaptation grant is denied as moot. 38 U.S.C.A. § 2101(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.809a (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 due to: (A) 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; (B) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (C) 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; or (D) The loss, or loss of use, of both upper extremities such as to preclude the use of arms at or above the elbows. See 38 C.F.R. § 3.809. 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). In addition, a certificate of eligibility for assistance in acquiring a special home adaptation grant may be granted under 38 U.S.C.A. § 2101(b) where the Veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a). The Veteran must be entitled to compensation for permanent and total disability that (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. The Veteran is service connected for ataxia of the left lower extremity and ataxia of the right lower extremity due to cerebellum ataxia with symptoms affecting propulsion. The Veteran is also service connected for ataxia of the right and left upper extremities, ataxia dysarthria, and associated adjustment disorder with mixed anxiety and depressed mood with a combined 100 percent evaluation. The evidence shows that the Veteran's service-connected disabilities result in the loss of use of both lower extremities; these disabilities together preclude his locomotion without the aid of a walker. At his August 2014 hearing, the Veteran stated that he is mostly confined to a wheelchair in his living room, other than walking a short distance to the bathroom which required the use of a walker and put him at risk of falling. He stated that he also has difficulties using his upper extremities in addition to the problems noted with his lower extremities. Medical evidence shows that the Veteran suffers from symptoms similar to those described by the lay evidence. The July 2012 VA central nervous system examination report reflects the Veteran's abnormal gait results in difficulty standing and a requirement for consistent regular use of a wheel chair. It was noted that when his wheelchair did not have access to a doorway the Veteran had to use a walker for assistance. Difficulty with eating due to tremors was noted and assistance with daily activities, such as zipping, buttoning, tying shoes, and combing hair was noted. Taken together, the evidence shows that, on account of the Veteran's service-connected loss of use of his lower extremities, the Veteran is unable to walk without a walker. The Veteran thus meets the criteria for specially adapted housing, as there is permanent and total service-connected disability due to the loss of use of both lower extremities such as to preclude locomotion without assistance. 38 U.S.C.A. § 2101(a); 38 C.F.R. § 3.809. Having determined that the Veteran is eligible for assistance under 38 U.S.C.A. § 2101(a) for specially adapted housing, the law precludes an award of special home adaptation grant under 38 U.S.C.A. § 2101(b). The special home adaptation claim therefore must be denied as a matter of law. See 38 C.F.R. § 3.809a(a) (requiring that the veteran is not entitled to a certificate for acquiring specially adapted housing under 38 C.F.R. § 3.809). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a certificate of eligibility for specially adapted housing is granted. Entitlement to a certificate of eligibility for a special home adaptation grant is denied as moot. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs