Citation Nr: 1753401 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-13 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a specially adapted housing grant. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from April 1966 to May 1973, which service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was initially before the Board in June 2015, at which time the Board denied entitlement to a special housing adaptation grant; the Board also remanded the above issue for additional development. That development having been completed, the case has been returned to the Board for further appellate review at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND This case was remanded in June 2015, at which time the Board requested that the AOJ obtain a medical opinion regarding whether it was as least as likely as not that the Veteran's service-connected disabilities result in the loss of or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The AOJ requested an opinion in April 2016. However, such request was in conjunction with the VA examination for the Veteran's claimed lumbar spine disorder. The examiner answered the opinion request respecting the likelihood that the Veteran's lumbar spine disorder was related to service, although the examiner did not respond to the question as to whether the Veteran's service-connected disabilities resulted in loss of use of his bilateral lower extremities. Consequently, the Board must remand this case at this time in order for the AOJ to comply with the Board's previous remand instructions in this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Furthermore, the Board reflects that it does not appear that the AOJ attempted to assist the Veteran in obtaining a statement from the VA physician's assistant (PA), M.J.L., identified by the Veteran in his April 2013 substantive appeal, VA Form 9, as having prescribed his use of a walker, wheelchair, scooter and/or a cane. Accordingly, the Board finds that on remand, the AOJ must attempt to obtain a statement from M.J.L., PA-who is/was VA's employee-regarding whether he has prescribed the Veteran 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, and if so, for what disorders/disabilities such were prescribed for. See Id. Finally, on remand, any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Battle Creek and Ann Arbor VA Medical Centers, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Attempt to obtain a statement from M.J.L., PA, at the Battle Creek VA Medical Center (or any other medical VA medical facility that he may be assigned to at this time) indicating whether the Veteran's use of a walker, scooter, wheelchair or a cane is necessary for the Veteran's locomotion due to his service-connected disabilities. The AOJ must document the steps taken to comply with this request in a memorandum associated with the file. If a statement cannot be obtained for any reason and further attempts to comply with this remand instruction would be futile, an explanation of such must be documented in that memorandum and the Veteran should be so notified. 3. Regardless of the above, send this case to an appropriate examiner for an addendum opinion regarding whether the Veteran's service-connected disabilities (which at this time, include: posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), degenerative joint disease of the cervical spine with bilateral upper extremity radiculitis, tinnitus, bilateral hearing loss, and facial scars related to surgery for suppurative lymph node) at least as likely as not (50 percent or greater probability) result in loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The claims file must be made available to and reviewed by the examiner. The examiner should specifically address the Veteran's statements of record, including in his April 2013 substantive appeal, that VA has prescribed usage of a wheelchair, scooter, walker, or cane. The examiner should address the other medical evidence of record, as appropriate. Finally, if the examiner determines that s/he cannot opine as to the above without examination of the Veteran, such an examination should be so scheduled and all tests deemed necessary should be conducted and the results reported in detail. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Following any additional indicated development, readjudicate the Veteran's claim for a specially adapted housing grant. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). _________________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).