Citation Nr: 1751928	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  14-35 802	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to specially adapted housing.

2.  Entitlement to a special home adaptation grant.


REPRESENTATION

The Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1956 to March 1959 and June 1959 to July 1976.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing held in June 2017.  A transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2014).


FINDING OF FACT

The Veteran's service-connected disabilities do not include a disability rated as permanent and total.


CONCLUSIONS OF LAW

1.  The legal criteria for entitlement to a certificate of eligibility for financial assistance in acquiring specially adapted housing are not met. 38 U.S.C. §§ 5103, 5107, 2101(a) (2012); 38 C.F.R. §§ 3.809 (2017).

2.  The legal criteria for a certificate of eligibility for a special home adaptation grant have not been met.  38 U.S.C. §§ 5103, 5107, 2101(b) (2012); 38 C.F.R. § 3.809a (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and to Assist

With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Legal Criteria

The Veteran seeks a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaption grant.  His application was received by VA in April 2013.

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.

VA's General Counsel, in a precedential opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Specially adapted housing

The law in this area has changed over time.  Prior to October 25, 2010, eligibility for assistance in acquiring specially adapted housing under may be granted if a veteran is entitled to compensation for permanent and total 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; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (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 C.F.R. § 3.809 (b) (2009).

Revisions to 38 C.F.R. § 3.809, which became effective on October 25, 2010, added that eligibility for assistance in acquiring specially adapted housing may also be granted if a veteran is entitled to compensation for permanent and total disability due to: (1) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (2) 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.  38 C.F.R. § 3.809 (b) (2011).

Further revisions, which became effective on December 3, 2013, added that eligibility may also be granted if a veteran has service-connected ALS rated 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017.  38 C.F.R. § 3.809 (d). 

Under all applicable versions of 38 C.F.R. § 3.809, the phrase "preclude locomotion" is defined as 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 (c).

Special home adaptation grant

The laws regarding eligibility for a special home adaptation grant have also changed over time.  Under the version of 38 C.F.R. § 3.809a, which became effective on October 25, 2010, if entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations, if he is entitled to compensation for permanent and total service-connected disability which 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 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. § 2101 (b); 38 C.F.R. § 3.809a (b) (2011).

Under the version of 38 C.F.R. § 3.809a which became effective on September 12, 2014, if entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations, if he is entitled to compensation for (1) permanent and total service-connected disability, which (i) includes the anatomical loss or loss of use of both hands, (ii) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk, (iii) is due to 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) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease); or (2) a service-connected disability [which need not be rated as permanently and totally disabling] which is due to blindness in both eyes, having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens.  38 U.S.C. § 2101 (b); 38 C.F.R. § 3.809a (b).

Analysis

In the present case, service connection is in effect for multiple disabilities resulting in a 100 percent combined schedular evaluation.  Specifically, the Veteran is service-connected for the following: coronary artery disease status post angioplasty with stent associated with diabetes mellitus (60 percent); peripheral vascular disease of the left lower extremity associated with diabetes mellitus (60 percent); peripheral vascular disease of the right lower extremity associated with diabetes mellitus (60 percent); diabetes mellitus (20 percent); tinnitus (10 percent); conjunctivitis, left eye (0 percent); bilateral hearing loss (0 percent); otitis media (0 percent); otitis externa (0 percent); healed perforation, right tympanic membrane (0 percent); healed laceration scar, left forehead (0 percent); herpes simplex, lower lip (0 percent); erectile dysfunction associated with diabetes mellitus (0 percent); diabetic neuropathy of the lower left extremity - ilio-inguinal nerve associated with diabetes mellitus (0 percent); diabetic neuropathy of the lower right extremity - ilio-inguinal nerve associated with diabetes mellitus (0 percent); diabetic neuropathy of the lower left extremity - external cutaneous nerve of thigh (previously noted as the sciatic nerve) associated with diabetes mellitus (0 percent); diabetic neuropathy of the lower right extremity - external cutaneous nerve of thigh (previously noted as the sciatic nerve) associated with diabetes mellitus (0 percent).  

As a threshold matter, the law requires, under any of the above outlined iterations of 38 C.F.R. § 3.809 (b) or 38 C.F.R. § 3.809a (b), that the Veteran be entitled to compensation for a disability rated as permanent and total.  The Veteran does not meet this threshold requirement, as all of his disabilities are rated below 100 percent.  Because the Veteran does not meet this threshold requirement, under either 3.809 or 3.809a, his claim must be denied. 

The Board acknowledges that the Veteran has been assigned a combined 100 percent disability rating.  Significantly, however, the combination of disabilities does not satisfy the requirements for eligibility for assistance in acquiring specially adapted housing.  By way of analogy, in Bradley v. Peake, 22 Vet. App. 280 (2008) the Court explained that

[C]ongress did not intend that a 100 (percent) combined rating suffices for 'a service-connected disability rated as total.... Indeed, 38 C.F.R. § 4.25 (b) ... requires that, except as otherwise provided, all disabilities are to be rated separately, confirming the understanding that the direction in [38 C.F.R.] § 4.16(a) to treat disabilities as one is an exception to the general rule, and limited to [ratings based on a total disability evaluation based on individual unemployability due to service connected disorders].

Here, as noted, the pertinent statutory language addresses permanent and total disability "due to" specific enumerated disabilities, and never explicitly refers to a combined 100 percent rating.  As such, the Board interprets the regulation as addressing the need for a singular disability rating that is permanently and totally disabling, and finds that there is no such qualifying disability.

Because the undisputed facts show that the Veteran is not entitled to compensation for a permanent and total disability for any of the disabilities enumerated in 38 C.F.R. § 3.809 (b) or 38 C.F.R. § 3.809a (b), there is no entitlement under the law to the benefit sought.  Accordingly, his claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to special adapted housing and/or special home adaption is denied.




____________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs