Citation Nr: 1600788 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 06-18 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant. (The issue of entitlement to an effective date prior to April 1, 2015 for the award of additional compensation for the Veteran's dependent step-son, TKB, is addressed in a separate decision issued simultaneously herewith under a different docket number based upon the fact that the Veteran is unrepresented in that appeal.) REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to March 1988. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a May 2009 decision, the Board denied the Veteran's claim for a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant (hereinafter referred to as specially adapted housing). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While her claim was pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion in June 2010 requesting that the Court vacate the Board's decision and remand the case to the Board for further development and readjudication. In a June 2010 Order, the Court granted the Joint Motion for Remand (JMR) and vacated the Board's May 2009 decision. The case was returned to the Board for compliance with the terms of the JMR. In an April 2011 decision, the Board denied the Veteran's claim for specially adapted housing. The Veteran appealed that determination to the Court. By a December 2011 Order, the Court granted a December 2011 JMR, and vacated the April 2011 Board decision. The case was returned to the Board for compliance with the terms of the JMR. In a September 2012 decision, the Board again denied the Veteran's claim for specially adapted housing, and the Veteran again appealed to the Court. By an April 2013 Order, the Court granted an April 2013 JMR, vacated the Board's September 2012 decision and remanded the matter for compliance with the terms of the JMR. In September 2013, the Board remanded the matter to the RO for additional development of the record. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's service-connected disabilities, which temporarily resulted in loss of use of the left foot, and temporarily precluded locomotion without the aid of braces, crutches, canes, or a wheelchair, have not, at any time covered by this claim, been shown to be permanent and total. 2. The Veteran does not have permanent and total service-connected disabilities which cause (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; 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 that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 3. The Veteran is not entitled to compensation for a permanent and total disability due to blindness in both eyes with 5/200 visual acuity or less; anatomical loss or loss of use of both hands; 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; 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 residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). CONCLUSION OF LAW The criteria for entitlement to assistance in acquiring specially adapted housing or a special home adaptation grant have not been met at any time covered by this claim. 38 U.S.C.A. §§ 2101, 5107(b) (West 2002 & 2014); 38 C.F.R. §§ 3.102, 3.809, 3.809a (2010 & 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By correspondence dated in July 2004, August 2004, September 2004, and March 2006, VA notified the Veteran of the information needed to substantiate and complete her specially adapted housing claim, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. It is not alleged that notice was less than adequate. In addition, all medical records identified by the Veteran has pertinent to her claim have been obtained and reviewed, and the Veteran has not alleged that there any additional outstanding records that would support her claim. Pursuant to September 2013 remand directives, the Veteran was afforded an examination of the spine and an examination of the feet in May 2014. The Veteran was also afforded an examination in July 2014 for the specific purpose of determining basic eligibility for specially adapted housing. An addendum opinion was obtained in November 2014 after it was determined that the May 2014 foot examiner did not adequately address a pertinent issue in this case. The findings from these examinations, and in particular the opinion from November 2014, are adequate because the examiner discussed the Veteran's medical history, described her disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The appellant has not identified any pertinent evidence that remains outstanding with respect to this claim. VA's duty to assist is met. The Veteran asserts that she is entitled to specially adapted housing based on the loss of use of the left foot, and, 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. 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. 57,861-57,862 (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. As noted in more detail below, this case ultimately turns on whether the Veteran's service-connected disabilities that affect her lower extremities are permanent and total, as this is a prerequisite for establishing entitlement to specially adapted housing. Both the prior version of the regulations and the revised regulations require that the disabilities in question be permanent and total to be considered for specially adapted housing and/or a special home adaptation grant. Because the evidence of record is against a finding of permanent and total disability affecting the lower extremities at any time during the period covered by this claim, neither version of the regulation favors the appellant. Prior to October 25, 2010, 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 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) (2010). A certificate of eligibility for assistance in acquiring a special home adaptation grant may be issue 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(1); 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. See 38 U.S.C.A. § 2101(b) (West 2002); 38 C.F.R. § 3.809a (2010). 38 C.F.R. § 3.809a(a) provides that a veteran who first establishes entitlement under this section and who later becomes eligible for a certificate of eligibility under 38 C.F.R. § 3.809 may be issued a certificate of eligibility under § 3.809. However, no particular type of adaptation, improvement, or structural alteration may be provided to a veteran more than once. On October 25, 2010, the pertinent portions of the regulations were changed as follows: After 3.809 paragraph (4) the following paragraphs were inserted: (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). Under the revisions to 38 C.F.R. § 3.809a (b) , the disability must: (1) Include the 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 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). Id. 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. See 38 C.F.R. § 3.809(d) (2015). 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 (2015). 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 3 1/2 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 (2015). 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. 38 C.F.R. § 3.350(a)(2) and 38 C.F.R. § 4.63 only provide examples and not an exclusive list of manifestations of loss of use of a foot or hand. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. See 38 C.F.R. § 4.21 (2015) (application of rating schedule); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the specified factors for each incremental rating were examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme). Service connection is established for: bipolar disorder with psychotic features and polysubstance abuse in remission (70 percent); polycystic ovarian disease with amenorrhea, post-operative hysterectomy with bilateral salpingo-oophorectomy (50 percent); chronic lumbar back strain with degenerative disc disease and degenerative arthritis (40 percent); post-operative metatarsal cuneiform joint of the left foot with degenerative joint disease and Achilles calcific tendonitis (40 percent); scar of right dorsal foot (10 percent); scar of left dorsal foot (10 percent); post-operative metatarsal cuneiform joint of the right foot with degenerative joint disease and Achilles calcific tendonitis (0 percent); and bilateral sensorineural hearing loss (0 percent). The Veteran's combined service-connected disability rating is 100 percent. The Veteran was awarded entitlement to a total disability rating due to individual unemployability (TDIU) from July 16, 1993 to December 9, 2005. She was awarded special monthly compensation (SMC) under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) for loss of use of a creative organ, effective March 22, 1988, and for loss of use of one foot, effective December 9, 2005. She was also awarded SMC under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) for the time periods from August 29, 1996 to November 1, 1996, from December 9, 2005 to May 1, 2006, and from February 24, 2009 to June 1, 2009. Additional benefits awarded include entitlement to automobile and adaptive equipment as well as basic eligibility under 38 U.S.C. Chapter 35, effective January 25, 1994. At the outset, the Veteran is not blind in either eye. See private treatment notes from A.S., O.D. dated in May 2004 and June 2004; a November 2005 treatment note from Crystal Vision, and a September 2006 VA eye clinic examination report. The Veteran was prescribed a back brace for chronic low back pain in August 2004. Private treatment notes dated from October 2005 to July 2006 from Trinity Wellness Center reflect treatment for recurrent major depression, and cocaine and alcohol dependence, in remission. In November 2005, the Veteran indicated that she has been disabled since 1996 for depression, feet, and back trouble. An October 2005 treatment note from C.Y., D.P.M. showed complaints of foot pain with walking. Orthopedic evaluation revealed discomfort with palpation in the area of the met cuneiform joint and small palpable ostophytic proliferations. An October 2005 lumbar spine X-ray report from New Hanover Regional Medical Center listed an impression of thoracolumbar spondylosis. A November 2005 treatment note from Wilmington Orthopaedic Group listed an impression of degenerative spondylolisthesis at L4/5 and low back pain. The Veteran described her pain as constant and increased with activity. She indicated that she could walk for about 15 minutes, stand for 30 minutes, and sit for one hour. Physical examination findings were noted as normal lower extremity motor exam and diffuse tenderness in low back in paralumbar region. A December 2005 operative report from New Hanover Regional Medical Center listed postoperative diagnoses of bilateral metatarsal cuneiform exostosis and likely neuroma of the saphenous nerve. Additional treatment notes dated from December 2005 to April 2006 from C.Y., D.P.M. reflected complaints of numbness and sensory loss of the left foot. A February 2006 lumbar myelogram report from New Hanover Regional Medical Center listed an impression of moderate degenerative disc disease at T11-12, T12-L1, and L1-L2 as well as mild anterolisthesis of L4 on L5 with no significant stenosis or nerve root impingement. A February 2006 postmyelogram/postcontrast CT report of the lumbar spine revealed moderate degenerative disc disease at T12-L1 and L1-L2, disc bulges at T12-L1, L1-L2, and L2-L3 causing mild central canal stenosis, and Grade I anterolisthesis of L4 on L5 secondary to severe bilateral facet joint degenerative joint disease. VA treatment notes dated in February 2006, April 2006, and May 2006 detail that the Veteran received a lumbar corset brace, a cane and a left ankle fixation orthotic, and was evaluated for use of a manual wheelchair. A March 2006 treatment note from Wilmington Orthopaedic Group listed an impression of nonmobile spondylolisthesis at L4/5 and severe facet disease with no evidence of spinal stenosis. In an April 2006 VA Form 26-4555, the Veteran reported that she walked with a cane, has been given a foot and leg brace, and had lost use of her left foot for walking ability. In an April 2006 treatment record from C.Y., D.P.M., the Veteran complained of not being able to walk well with her left foot and leg, to include difficulty going up stairs and tripping at times. The physician discussed the Veteran's fairly severe lumbosacral history and noted physical examination findings of paresthesias to the left leg, loss of extensor and pronator strength to the left leg, and hyperesthesia due to resection of the neuroma. In a July 2006 prescription, the physician noted that the Veteran had drop foot of the left ankle and was not able to lift up her foot. An April 2006 flow sheet from New Hanover Regional Medical Center - Outpatient Rehabilitative Services detailed that the Veteran was given a TENS unit. A May 2006 bone densitometry report from New Hanover Regional Medical Center listed an impression of normal lumbar spine and normal total hip region. Additional VA treatment notes dated in May and August 2006 detail that the Veteran ambulated with a cane as well as foot brace and was treated for low back pain, left foot tendonitis, left foot drop, lumbar spondylosis with stenosis, and sensorineural hearing loss. A May 2006 treatment record from Carolina Sports Medicine listed an impression of lumbar pain and possible stenosis. The Veteran complained of pain in her buttock running down the posterior aspect of her right leg. Evaluation forms dated in June 2006 from Hanger Prosthetics indicated that the Veteran was prescribed a lower limb orthosis for varus valgus correction and listed a diagnosis of left drop foot with loss of balance of lumbosacral etiology. Environmental barriers were listed to be level surfaces, and the Veteran was not noted to be using any current assistive devices. Functional goals of the devices were selected to be joint stabilization, increase range of motion, prevent or correct deformity, and increase activities of daily living. The Veteran was noted to have only trace left side strength/range of motion in the ankle. A June 2006 MRI report from Delaney at Ashton revealed the following findings: 1) thoracolumbar degenerative changes with endplate modic changes at T12-L1 and L1-L2; 2) mild central canal stenosis at T12-L1 from disc osteophyte; 3) minimal 3 millimeter of anterolisthesis of L4 on L5, severe arthrosis and ligamentum flavum hypertrophy at L4-5 with mild central canal stenosis, and mild right-sided neural foraminal stenosis; and 4) moderate to severe facet arthrosis at L4-5 without significant central canal stenosis or neural foraminal stenosis. Evaluation reports dated in June and July 2006 from Coastal Rehabilitation Medical Associates list assessments of lumbago. The Veteran indicated that her low back pain restricted her from walking, housework, reaching upwards, climbing stairs, turning her head, and carrying groceries/packages. In a June 2006 evaluation report, the Veteran's gait was noted to be slightly antalgic on the left with ambulation on the outside of her left foot. Additional physical examination findings were listed as motor function in the lower extremities of 5/5 and symmetric. Sensation of the lower extremities was noted to be 2/2 and symmetric except for decreased sensation on the anterior aspect of her left foot and great toe secondary to a surgical procedure. In a July 2006 statement, the Veteran reported that she could no longer walk and used a leg brace and cane. She also indicated that she had vision problems and used a wheelchair due to loss of mobility with her left foot. In an October 2006 VA fee-based examination report, the Veteran complained of foot pain elicited by physical activity, left foot numbness, and lower back pain that radiates down the back of her legs. The Veteran indicated that she has pain and swelling while standing or walking. Her low back pain was noted not to cause incapacitation but functional impairment while bending, reaching, and sitting up for a long period of time. Examination of the feet revealed no signs of abnormal weight bearing. The Veteran's gait was abnormal with limping, requiring a left ankle and foot drop prosthesis for ambulation, and noted limitations with standing and walking. Neurological examination findings in the lower extremities were noted as abnormal motor function in left foot and decreased sensation in the left medial foot. The examiner diagnosed polycystic ovarian disease with amenorrhea, post hysterectomy with bilateral salpingo-oopherectomy, postoperative metatarsal cuneiform joint of both feet with degenerative joint disease and surgical scars, Achilles calcific tendonitis, and chronic lumbar strain with degenerative disc disease and arthritis. In February 2009, the Veteran underwent left first metatarsal cuneiform arthrodesis with graft from calcaneus for osteoarthritis of the left first metatarsocuneiform joint. The surgeon, C.Y., D.P.M. indicated that, due to osteoarthritis of the left midfoot, the Veteran's post-operative restrictions precluded her from walking without the assistance of another person. He noted that the Veteran would be in a cast for 10 weeks and would need to use a walker or crutches for 10 to 12 weeks. In March 2011, the Veteran sought treatment from Dr. R.P. of Atlantic Orthopedics with complaints of bilateral midfoot pain, as well as some numbness and tingling in the left foot, which worsened with activity. Significantly, the Veteran did not complain of left foot drop at that time. While the Veteran was observed to have an antalgic gait, she was not observed to be wearing or using any assistive devices, including a foot brace. On examination, the Veteran had some diminished sensation over the deep peroneal nerve distribution, but sensation was otherwise intact and the examiner did not report that the Veteran had a foot drop. Range of motion of the ankle and sub-talar joint were diminished, but not completely lost. X-rays showed non-union of the left first tarsometatarsal joint, bilateral degenerative arthritis of the midfeet, gastrosoleus contracture, and neuritis of the deep peroneal nerve. In July 2011, the Veteran underwent surgery which included left second tarsometatarsal joint arthrodesis, left iliac crest bone marrow aspirate for augmentation of fusion, left gastrosoleus open Z-lengthening, and neurolysis of the left deep peroneal nerve. Two weeks following the procedure, the Veteran was doing well, with good sensation throughout the deep and superficial peroneal nerve distributions. She was placed in a short leg non-weightbearing cast. At six weeks following surgery, the Veteran was observed to be ambulating without her splint, despite instructions not to bear weight, although she was using a cane for assistance. She complained of pain. However, her surgical site was intact and there was no tenderness to palpation over the athrodesis site. Sensation appeared completely intact throughout the superficial and deep peroneal nerve distributions and the Veteran had good motion about the ankle. Her post-surgical status was considered satisfactory despite the Veteran's non-compliance. She was placed into a tall Cam walker boot, non-weightbearing, for an additional three weeks, and crutches were dispensed to assist the Veteran in keeping her weight off her left foot while it healed. In summary, the above evidence suggests that the Veteran's back and/or left foot condition worsened in 2005 and 2006 such that she was temporarily unable to walk without assistance, but her condition improved with surgery; and, as noted below, current treatment records confirm that the Veteran regained her ability to walk without assistance. As noted above, the Court granted a June 2010 JMR and vacated the Board's May 2009 decision. The basis for the JMR was that the May 2009 Board decision considered and discussed several medical records which were not contained in the record on appeal to the Court. The Board subsequently denied the Veteran's claim in an April 2011 decision, and the Veteran once again appealed to the Court. The Court granted a December 2011 JMR and vacated the Board's April 2011 decision. The basis for the December 2011 JMR was that the Board did not provide an adequate statement of reasons and bases for its determination that the Veteran did not have "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" as required under 38 C.F.R. § 3.809(b)(3). The Board again denied the Veteran's claim for specially adapted housing in a September 2012 decision and the Veteran appealed to the Court. The basis of the Board's September 2012 denial was that the more recent evidence of record showed that her condition had improved to the point that she had not lost the use of either one or both lower extremities, and therefore does not meet the criteria for entitlement to specially adapted housing. The Board noted that the evidence arguably showed that the Veteran may have met the criteria for entitlement to specially adapted housing at an earlier period, but also noted that it was more likely that the more recent evidence provided clarity regarding the true nature and extent of the disabilities at issue during the earlier time period. The Board concluded that the Veteran's current disability picture was not sufficient to establish entitlement to specially adapted housing. The Board specifically found that it would not make sense to grant the benefit of adapted housing when the Veteran no longer needs it. In an April 2013 JMR, the parties cite to McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) holding that a disability in existence when the claim was filed "was current [even though] it had resolved by the time the Secretary adjudicated a claim." The April 2013 JMR also noted that the Veteran was receiving special monthly compensation (SMC) for loss of use of one foot effective December 9, 2005. Given this finding, as well as the large amount of evidence from 2004 through 2006, the parties to the JMR concluded that the Board did not provide an adequate statement of reasons and bases for its finding that the Veteran did not "currently" meet the criteria for the award of specially adapted housing. The April 2013 JMR also indicated the need for a current VA examination to address the Veteran's locomotion and whether the Veteran had residuals of an organic disease or injury. In a September 2013 remand, the Board directed the RO to obtain a current VA examination to address how the Veteran's service-connected disabilities affected her locomotion. The Veteran was examined in May 2014, November 2014 and July 2014. The May and November 2014 reports of examination, located in the Veteran's Virtual VA folder, indicate that the Veteran continues to have back pain, and uses a cane and brace for ambulatory assistance, but the spine examiner specifically indicated that her back condition did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran reported, however, that she continues to drag her left foot when walking and has to wear a foot/ankle foot drop splint and use a cane to ambulate. She also reported an inability to stand on her left foot without support. At a corresponding foot examination in May 2014, the Veteran told the examiner that her doctor informed her that "a nerve had been severed" during a surgical foot procedure in 2005. The Veteran has not provided any medical evidence to corroborate this assertion, and this type of finding is not one that is observable to the lay person. As such, the Veteran's assertions are not competent and therefore not probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner opined, however, based on a review of the treatment records, that following the 2005 surgery, the veteran developed left foot drop and sensory loss of the left foot. The following year, she was provided with a cane and a left foot and ankle foot drop splint to stabilize the left foot and ankle and to aid in ambulation. The examiner also opined that the Veteran would most likely require the use of a cane as an ambulatory aid in keeping her balance for life due to the poor outcome of the 2005 procedure. The examiner indicated that the Veteran's incoordination and use deficit were persistent in the left foot as a result of the foot surgery in 2005. In essence, the examiner opined that the Veteran has a permanent loss of use of the left foot. However, these findings are in contrast to findings of a July 2014 examination report which indicates that the Veteran had full range of motion without limitation of the lower extremities. The July 2014 examination noted that the Veteran's ability to stand for prolonged periods was limited due to back pain, but she did not require the use of aids such as canes, braces, crutches or the assistance of another person for locomotion. The July 2014 examination specifically addressed the Veteran's ability to walk unassisted and the examination was conducted specifically for that purpose - to determine whether the Veteran met the criteria for specially adapted housing (VA Form 21-2680). The examiner specifically indicated, by checking the appropriate box, that the Veteran did not require the use of assistive devices for ambulation and that her gait was steady. While the Veteran may have appeared unable to ambulate without assistive devices during the May 2014 examination, this condition must have, at the very least, also been temporary, given her ability to walk without assistance two months later. What is most odd, however, is that the May 2014 foot examination report also notes the Veteran's own reported history to the examiner that due to her foot condition, VA remodeled her home and made it handicapped accessible and remodeled her bathroom for easy access. In essence, the Veteran admitted that her home has already been specially adapted as a result of her service-connected disabilities. The July 2014 examination report confirms that, regardless of the Veteran's condition since she filed her most recent claim in 2004, her service-connected disabilities affecting her back and lower extremities, and foot, are not permanent and total in nature. Because the disabilities on which the Veteran bases her need for specially adapted housing are not permanent and total in nature, the criteria for basic eligibility for specially adapted housing are not met. Moreover, in a November 2014 addendum opinion, the examiner acknowledged that the May 2014 examiner found loss of use of the left lower extremity; however, the November 2014 examiner opined that it was less likely than not that 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. To support this opinion, the examiner pointed to a private medical report from 2006 noting that the left ankle foot drop was expected to be temporary; and, subsequent notes by the specialist did not document continued left foot drop or the need for "AFO." Additionally, the examiner points to evidence in the record showing that the Veteran was indeed weightbearing without support after the surgery even though she was in a non-weightbearing status after the surgery. Further medical evidence indicates that she did not need assistive devices to walk in 2010. Additionally, the records from 2011 which show that the Veteran used a cane indicate that she had limited motion of the left ankle, but no foot drop. The examiner also referred to a July 2010 private treatment record noting that although the Veteran used a cane, she did not require a brace, crutches, corrective shoes, a wheelchair, a prosthesis or a walker. The examiner indicated that her left leg condition was a result of intervertebral disc syndrome involving the left sciatic nerve. The November 2014 examiner also referred to a March 2011 private orthopedic note, a July 2011 private operative report, and a private orthopedic note from August 2011. In particular, the August 2011 private orthopedic note indicates, "She is now 6 weeks out from surgery. She was supposedly nonweightbearing although she comes in today walking without her splint and notes that she went to the emergency department [8 days earlier] having fallen in a hog pen and having pig poop get on her foot." In summary, the evidence suggests that the Veteran had a temporary loss of use of the left foot, but such loss of use was not permanent and total and the service-connected disability upon which such loss of use is based has not been rated as permanent and total. The Board is mindful of the May 2014 examiner's opinion that the Veteran's loss of use of the left foot was permanent; however, this evidence is outweighed by the objective findings from the July 2014 examination report, as well as the November 2014 addendum report, which sufficiently document the Veteran's current, and intermittent, ability to ambulate without assistance in 2006, 2010, 2011, and 2014. According to McLain v. Nicholson, 21 Vet. App. 319 (2007), the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. In other words, a current disability is shown even if that disability resolves prior to the adjudication of the claim. In the present appeal, there is no doubt that the Veteran's service-connected disabilities have been present throughout the period covered by this claim. For example, the record is clear that the Veteran continues to suffer from back pain despite her surgery in 2011; and, that the Veteran suffers a sensory loss in her foot which, at times, has been more severe than at other times. As such, current disability is shown throughout the appeal period. While the holding in McLain refers to a disability as being current if it is shown at any time during the appeal period, this analysis can be distinguished from a finding of "loss of use" at any time during an appeal period because a loss of use refers to the status of the underlying disability at issue, and not whether a disability is current. In other words, the underlying disability in question may result in a temporary or permanent loss of use of an extremity, but that loss of use is not necessarily outcome determinative as to the issue of whether a current disability exists at any time during the appeal period for purposes of establishing element one of service connection. In this case, for example, the Veteran does, in fact, have a current lumbar spine disability and a left foot disability present at all times during the period covered by this claim, and this disability results in a temporary loss of use of the right lower extremity, but the Board finds that that temporary loss of use of the right lower extremity is part and parcel of the lumbar spine disability which the medical evidence clearly shows was caused by a nerve compression due to disc disease and other spinal problems. The evidence also shows that the Veteran's foot drop and sensory deficit occurred in 2005 and, while it got worse temporarily, the condition has gotten better. Thus, the Board finds that this temporary loss of use of the right lower extremity is not a separate disability for purposes of the holding in McClain, because that has already been established as a symptom of the underlying service-connected condition. Moreover, this case turns on whether that "current" disability is permanent and total. Here, the evidence establishes that the Veteran had the equivalent of loss of use one of her lower extremities during the appeal period, which, when combined with her other service-connected disabilities, temporarily precluded locomotion without the use of a brace and/or cane and/or crutches and/or a wheelchair; however, these service-connected disabilities, which resulted in such loss of use, are not described as permanent and total. A permanent and total disability is just that, permanent. Thus, while the Veteran has certainly shown that she has had a "current disability" at all times during the period covered by this claim, the more recent evidence of record establishes that her symptoms of those disabilities which affect the lower extremities are not permanent and total. Moreover, per her own admission, the Veteran's home was adapted previously which would suggest that she is already in receipt of the very benefit she is currently seeking. The record shows that the Veteran is receiving special monthly compensation (SMC) based on loss of use of one lower extremity. The criteria for establishing loss of use are found at 38 C.F.R. § 3.350, and do not specifically require such loss of use of an extremity to be permanent and total. See 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350. While some SMC is based on a permanent loss of use, such as loss of use of a creative organ due to hysterectomy, that permanent nature does not necessarily apply in all cases, including this case. As noted above, 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. Here, because the Veteran's lower extremity condition was aided by surgery, enabling her ability to regain function of the lower extremity such that she could walk again without the use of a wheelchair, brace or can, it cannot be said that no effective function remains other than that which would be equally well-served by an amputation stump. In this case, the Veteran's loss of use was not permanent and total because the service-connected disabilities upon which it is based are not permanent and total, and this is supported by the findings from the most recent VA examination in 2014. Again, there is no question that the Veteran has a current disability, which has been present during the entire period covered by this claim; and, while she is being separately compensated for loss of use of a lower extremity, the Board finds that this "loss of use" in and of itself is not a separate "current" disability separate and apart from the service-connected condition; and, the competent and probative medical evidence of record establishes that the service-connected disabilities which affect her lower extremities are not permanent and total in nature. Based on this analysis, the Board finds that the Veteran's service-connected disabilities temporarily resulted in a 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 or a wheelchair. That disability cannot be considered permanent and total if the symptoms improved to the point that she can ambulate without assistance during various periods covered by this claim, including currently. Similarly, with regard to the left foot disability, the findings from the July 2014 examination report establish that such a disability is not permanent and total, particularly because she was able to walk unassisted. Absent permanent and total disability, the criteria for eligibility for specially adapted housing are not met. The requisite criteria for establishing entitlement to specially adapted housing include the element of a disability that is permanent and total in nature because it would not make sense to adapt ones house now if she no longer qualifies, even if she presumed at the time she filed her claim in 2004 that her temporary loss of use of the right lower extremity was permanent. This claim differs from a claim for direct compensation because it cannot be retroactively applied. Thus, the requirement that the service-connected disabilities on which the award is based must be permanent and total. As noted above, that is not the case here; and, by her own admission in November 2014, she appears to have previously received the benefit she is currently seeking. The Board has also considered the RO Hearing Officer Decision of August 1994, which determined that the Veteran had established basic eligibility to benefits under 38 U.S.C.A. § Chapter 35 effective from January 25, 1994. According to 38 U.S.C.A. § 3501, a qualifying person's eligibility for this education benefit is derived as a result of the death of the Veteran or because the Veteran has a total disability permanent in nature resulting from a service-connected disability. Thus, it appears that by virtue of the August 1994 rating decision, the Veteran had a permanent and total disability at that time. Regardless of this finding, the August 1994 rating decision does not establish that the Veteran had a loss of use of the lower extremity at that time; or, that any of the relevant service-connected disabilities involved in her temporary inability to walk without a brace, cane or wheelchair were permanent and total at that time. Rather, the August 1994 rating decision shows that the Veteran had permanent sterilization as a result of a hysterectomy, which was assigned a 50 percent evaluation effective from January 17, 1994, following a period of convalescence after the surgery. Her permanent loss of use was based on loss of use of a creative organ, not loss of use of a lower extremity, and it does not appear that this award of SMC includes a permanent and total loss of a lower extremity. In sum, the preponderance of the evidence is against a finding that the loss of use of one lower extremity is permanent and total or that the Veteran's service-connected disabilities upon which the claim is based are permanent and total. Absent a permanent and total disability resulting in the loss of use of one or both extremities, specially adapted housing or entitlement to a special home adaptation grant is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant is denied. _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs