Citation Nr: 1513660 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 10-23 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to specially adaptive housing or a special home adaption grant. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado, that determined that new and material evidence had not been received to reopen a claim for entitlement to specially adapted housing or a special home adaption grant. An April 2010 RO decision (issued in a statement of the case) denied the Veteran's claim for entitlement to specially adapted housing or a special home adaption grant on a de novo basis. The case was later transferred to the Houston, Texas, Regional Office (RO). The Board notes that the June 2009 RO decision (noted above) addressed the issue involving entitlement to specially adapted housing or a special home adaption grant, on the basis of whether new and material evidence had been received to reopen that claim. The Board observes, however, that a claim for entitlement to specially adapted housing or a special home adaption grant is more analogous to an increased rating claim in that service-connected disabilities may evolve to the extent that specially adapted housing or a special home adaption grant may be necessary. The Board also notes that the RO already addressed the issue of entitlement to specially adapted housing and a special home adaption grant on a de novo basis in an April 2010 statement of the case. Additionally, no prejudice results to the Veteran because the claim for entitlement to specially adapted housing or a special home adaption grant was considered on the merits by the agency of original jurisdiction (AOJ). See Bernard v. Brown, 4 Vet. App. 384 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to specially adaptive housing or a special home adaption grant. He specifically maintains his service-connected disabilities have essentially left him lying flat on his back and unable to ambulate. He also essentially indicates that his psychiatric condition has affected his physical condition, and has made it necessary to obtain specially adaptive housing or a special home adaption grant. The Veteran is service-connected for posttraumatic stress disorder (PTSD) with a recurrent major depressive disorder (rated 100 percent) and for erectile dysfunction (rated 0 percent). The Veteran has submitted several medical statements in support of his claim for entitlement to specially adaptive housing or a special home adaption grant. For example, a May 2009 statement from E. Lincoln, M.D., noted that she was the primary care provider for the Veteran. Dr. Lincoln stated that the Veteran had a very complicated medical history which made it difficult for him to assess his functional status. Dr. Lincoln indicated that the Veteran suffered two strokes with resulting weakness of his left face, arm, and leg. It was noted that the Veteran also had antiphosphoid antibody syndrome with a vena cava filter and resulting severe edema of his legs. Dr. Lincoln indicated that those conditions made it very difficult for the Veteran to stand, balance, and walk. It was noted that the Veteran could transfer independently, but that he otherwise spent most of his time in a wheelchair. Dr. Lincoln stated that the Veteran would benefit from having his house modified to be wheelchair accessible. A June 2009 statement from a VA social worker indicated that he had treated the Veteran since January 2006 and that he had been diagnosed with a major depressive disorder and PTSD. It was noted that the Veteran had a disability rating of 100 percent for depression. The social worker reported that as a result of his mental health disorders, the Veteran suffered from anxiety, anger, frustration, depression, and episodic periods of social ideation. The social worker indicated that the Veteran's living situation was triggering such symptoms because he was unable to perform basic functions in the home such as preparing food, performing laundry tasks, or attending to bathroom needs in privacy. The social worker indicated that it was likely that the Veteran's mental health would be in jeopardy of decompensating as long as those stressors were not addressed or resolved. The social worker asked that such information be considered as the Veteran's petition for a grant to modify his house was reviewed. A July 2009 statement from M. Burkman, M.D., noted that she highly advocated that the Veteran receive a specially adaptive housing grant. Dr. Burkman stated that the Veteran was unable to maneuver around his kitchen, bathroom, and laundry room without assistance. Dr. Burkman reported that the Veteran's psychiatric state had worsened in direct conjunction with his immobility at home, so that his levels of depression and anxiety had both worsened causing the Veteran to feel worthless and hopeless. It was noted that if the Veteran was more independent at home, his mood would improve and lead to more mental stability. A November 2009 statement from E. Whyte, M.D., related that the Veteran had been in treatment for many years for symptoms of depression, PTSD, and anxiety, and that he had been found to be fully disabled by such condition with a 100 percent disability rating. Dr. Whyte stated that in addition to the Veteran's severe psychiatric symptoms, he suffered profound physical disability due to his history of stroke and subsequent hemiplegia and chronic lower leg pain and weakness. It was noted that the Veteran was essentially wheelchair bound. Dr. Whyte maintained that in reviewing the Veteran's medical and psychiatric record it was clear to him that there was an interrelationship between his psychiatric condition and his physical condition. Dr. Whyte stated that he believed that specially adaptive housing would clearly enhance their ability to treat the Veteran's service-connected depression as well as enhance his quality of life. The Veteran presents with a complex medical situation. It is clear the he has multiple, significant disabilities, some of which are service-connected disabilities and some of which are not. It is unclear whether his use of a wheelchair is dictated by his service-connected PTSD or by his nonservice-connected disabilities. A medical opinion addressing this question must be obtained. 38 C.F.R. § 3.159(c)(4). Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all medical providers who have treated him for service-connected disabilities since June 2010. Obtain copies of the related medical records, which are not already in the claims folder. Document any unsuccessful efforts to obtain records, inform him of such, and advise him he may obtain and submit those records. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to ascertain the extent of impairment attributable to his service-connected disabilities, to specifically include his service-connected PTSD with a recurrent major depressive disorder. The entire claims file, to include any electronic records, must be reviewed by the examiner. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not (a 50 percent or greater probability) that Veteran's service-connected disabilities have resulted in (1) 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 anatomical loss or loss of use of one lower extremity; (3) 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, which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) 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; (5) blindness in both eyes with 5/200 visual acuity or less; or (6) the anatomical loss or loss of use of both hands. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Finally, readjudicate the issue on appeal. If the benefits sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).