Citation Nr: 1800063 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-30 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a certificate of eligibility for specially adapted housing or a special home adaptation. 2. Entitlement to service connection for a respiratory disability, to include asthma. (The issues of service connection for left ankle and right great toe are addressed in a separate decision). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from June 1977 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2012 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2017, the Veteran presented testimony in videoconference hearing before the undersigned. The claim of service connection for a respiratory disability, to include asthma, was originally adjudicated as a claim of service connection for asthma. To ensure that any diagnosis of a respiratory disability is considered, the Board has recharacterized the issue as a claim of entitlement for a respiratory disability, to include asthma. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the issue of entitlement to service connection for a respiratory disability, to include asthma, has been developed and adjudicated as a claim for whether new and material evidence has been received to reopen the claim. The Veteran's first claim of entitlement to service connection for asthma was denied in a May 1985 rating decision. The Veteran did not appeal the decision, and it became final. Subsequent attempts to reopen his asthma claim were denied in a July 1997 unappealed Board decision and a May 2009 unappealed rating decision-both issued on grounds that the Veteran had not submitted new and material evidence to reopen the claim. In October 2010, the Veteran again sought to reopen his previously denied asthma claim. Normally, the Veteran would be required to submit new and material evidence to reopen his claim for service connection. See 38 C.F.R. § 3.156 (a) (2017). However, additional service department records received during the course of the present appeal include findings that may be relevant to the Veteran's claim. In such an instance, where VA receives relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156 (c) (2017). This regulation contemplates official service department records that were presumably misplaced but later located and forwarded to VA. Therefore, the submission of new and material evidence is not required for VA to consider the instant claim of entitlement to service connection for a respiratory disability on the merits. The issue of entitlement to service connection for a respiratory disability, to include asthma, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) for further development. FINDINGS OF FACT 1. The Veteran has permanent and total service-connected disabilities that at least as likely as not result in the loss of use of the bilateral lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. 2. As entitlement to specially adapted housing is granted, the Veteran is not entitled to a special home adaptation grant. CONCLUSIONS OF LAW 1. The criteria for specially adapted housing are met. 38 U.S.C. §§ 2101, 5107 (2012); 38 C.F.R. §§ 3.102, 3.809 (2009, 2011). 2. The criteria for entitlement to a special home adaptation grant are not met. 38 U.S.C. § 2101 (2012); 38 C.F.R. § 3.809a (2009, 2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As the Board's decision to grant the Veteran's claim of entitlement to specially adapted housing is favorable, no discussion of VA's duty to notify and assist is necessary. The Board has also considered whether the duties to notify and assist are applicable to the claim for special home adaptation. As explained below, the Veteran is not entitled to the benefit as the Board is granting the higher benefit for specially adapted housing. Because there is no legal entitlement to the benefit sought, the VCAA is inapplicable to this claim. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004); 38 C.F.R. § 3.159 (d). II. Legal Analysis A 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. § 2101; 38 C.F.R. § 3.809 (a), (b). 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. § 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. 38 U.S.C. § 2101 (b); 38 C.F.R.§ 3.809a . The Board observes that, 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)), and December 3, 2013 (see 78 Fed. Reg. 75276 (December 3, 2013)). As the claim may be granted under the older provisions, the Board need not discuss the revised criteria. 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 (c). A certificate of eligibility for assistance in acquiring special home adaptations, or a home adaptation grant, may be provided under 38 U.S.C. § 2101 (b) where a veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101 (a). In this case, the Veteran is seeking special adaptive housing and/or special home adaptations to assist with his locomotion. He is service connected for the following disabilities: posttraumatic stress disorder (PTSD) (rated 70 percent disabling); degenerative disc disease of the lumbar spine at L5-S1 (60 percent disabling); chronic left hip strain, limitation of abduction associated with degenerative disc disease of the lumbar spine (20 percent disabling); tinnitus (10 percent disabling); chronic left hip strain, limitation of extension associated with degenerative disc disease of the lumbar spine (10 percent disabling); chronic left hip strain, limitation of flexion associated with degenerative disc disease of the lumbar spine (10 percent disabling); radiculopathy of the left lower extremity associated with degenerative disc disease of the lumbar spine (10 percent disabling); and bilateral hearing loss (noncompensable rating). The Veteran's service-connected disabilities were determined to prevent gainful employment to such an extent that the Veteran was awarded a TDIU effective March 26, 2011. A veteran's receipt of a total disability rating based on individual unemployability (TDIU) satisfies the prerequisite of a permanent and total rating for purposes of receipt of Chapter 11 compensation benefits, including as to eligibility for financial assistance in the acquisition of specially adapted housing. See VAOPGCPREC 94-90 (September 25, 1990). Therefore, even though the Veteran in this case does not have a single disability that is rated as 100 percent disabling, he satisfies the requirement of a permanent and total service-connected disability based on his receipt of a TDIU. Upon review of the evidence of record, the Board finds that entitlement to specially adapted housing is warranted under the provisions of 38 U.S.C. § 2101 (a) and 38 C.F.R. § 3.809 (b). In particular, the Veteran's service-connected left lower-extremity disabilities, associated with his service-connected degenerative disc disease of the lumbar spine, meet the criteria of 38 C.F.R. § 3.809 (b)(3). That is, the Board finds that the evidence of record is at least in equipoise with respect to whether the service-connected lumbar spine and associated left lower extremity disabilities result in functional loss of use of the left lower extremity so as to preclude locomotion without the aid of assistive devices. In particular, the following evidence of records supports entitlement to specially adapted housing based upon meeting the above criteria: During his June 2017 Board Hearing, the Veteran testified that his service-connected lower left extremity disabilities have rendered him at risk of frequent falls. For this reason, he is in the process of obtaining a wheelchair to replace the walker he regularly uses to ambulate. The Veteran's wife testified that the Veteran frequently must lean on her while she assists him during activities of daily living (ADLs) because of instability related to his left leg disabilities. VA treatment records from 2017 indicate that the Veteran has been deemed at high risk for falls. Records also show that the Veteran requires use of a wheeled walker for ambulation. In June 2017, the Veteran requested a wheelchair due to his back pain and left leg problems. During a January 2017 DRO Hearing, the Veteran testified that he falls at least two or three times a week, requiring regular use of a walker to assist with ambulating. He testified that his instability necessitated special adaptations to the bathroom in his home. In his February 2016 substantive appeal, the Veteran reported that he has to use a roller walker to ambulate. During an October 2015 VA examination, the examiner determined that the Veteran's service-connected chronic left hip strain resulted in difficulty standing and walking for prolonged periods of time. In a February 2015 statement in support of the instant claim, the Veteran reported that his left hip strain has worsened to the point that he's considered a "fall risk" and requires the use of a walker to get around. In a November 2014 statement in support of claim, the Veteran stated that his back and hip conditions cause him problems with ambulation that require adaptations to his home. The Veteran's wife reported that the Veteran's balance issues necessitate use of a roller walker. She also reported that the Veteran stays in bed due to his risk of falling. During a February 2013 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the examiner reported that the Veteran experiences restricted range of motion in the lower extremities due to back and left hip pain. The examiner noted dizziness, a history of falls, impaired ambulation, and shortness of breath. The examiner also noted that the Veteran uses a back brace and a cane to assist with ambulation, and that he requires his wife's assistance with dressing his lower body. After considering all of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities result in 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. The evidence shows that the Veteran falls frequently and requires assistive devices (walker, cane, and wheelchair) to ambulate due to his service-connected disabilities. Accordingly, the Board resolves doubt in favor of the Veteran and finds that the statutory and regulatory criteria for a certificate of eligibility for specially adapted housing are met and the benefit should be granted. 38 U.S.C. § 2101; 38 C.F.R. § 3.809. As discussed above, assistance under 38 U.S.C. § 2101 (b) for a special home adaptation grant is warranted only where a veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101 (a). As the Board is granting the Veteran's claim for entitlement to specially adapted housing under section 2101(a)-the higher benefit-the claim for a special home adaptation under section 2101(b) must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to specially adapted housing is granted. Entitlement to a special home adaptation grant is denied. REMAND Although the Board regrets the additional delay, a remand of the Veteran's claim of entitlement to service connection for a respiratory disability, to include asthma, is necessary to ensure that due process is followed and that there is a complete record upon which to decide the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board first notes that there may be potentially relevant service treatment records (STRs) that are still outstanding. Specifically, the Veteran's enlistment examination is not currently associated with the claims file. Therefore, remand is necessary to attempt to obtain additional STRs. Additionally, the evidence of record suggests that the Veteran's currently diagnosed respiratory disability, asthma, is etiologically related to service, or pre-existed service and was aggravated therein. Consequently, remand for an additional VA examination is warranted to determine the nature of the Veteran's disability and its relation to active service. A Veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Service connection can be established for a disability which preexisted service, but was permanently aggravated thereby. A pre-existing disease or injury will be found to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Here, the Veteran has contended in hearing testimony that his currently diagnosed asthma did not manifest until his time in active service. However, treatment notes in his STRs suggest that his asthma may have predated service. Also of record is a 2011 statement from the Veteran in which he asserts that exposure to dust and swamp conditions permanently aggravated his asthma. The Veteran was afforded a VA examination concerning his asthma in August 2012, but the examiner offered no nexus opinion and did not remark on whether the condition predated active military service. Therefore, on remand, the Veteran must be afforded a VA examination to analyze the nature and etiology of his currently diagnosed respiratory disability under the clear and unmistakable evidence standard discussed previously. Accordingly, the case is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. The RO must specifically contact the appropriate locations (e.g., National Personnel Records Center (NPRC), the Army Reserve Personnel Center, the Records Management Center (RMC)), to request the Veteran's complete service personnel and treatment records, to include his enlistment examination. If complete STRs cannot be located or are otherwise unavailable, the Veteran should be notified, and a Formal Finding of Unavailability must be included in the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his respiratory disability. The examiner must review the claims file and must note that review in the report. The examiner must provide a rationale for all opinions expressed. Based on the examination and a review of the record, the examiner is asked to accomplish the following: (a) Identify all of the Veteran's respiratory disabilities present. (c) For each diagnosed respiratory disability, state whether such disability clearly and unmistakably pre-existed the Veteran's entrance into service. (i) If there is clear and unmistakable evidence that the disorder(s) pre-existed service, opine as to whether or not there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. (ii) If there was an increase in the severity of the Veteran's disorder(s), offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (d) For all identified respiratory disabilities that did not clearly and unmistakably pre-exist the Veteran's service, opine as to whether it is at least as likely as not (probability of 50 percent or greater) that the disability first manifested during service, or is otherwise is directly related to service. The examiner is reminded that "clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. The phrase "as likely as not" means that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Thereafter, readjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112. ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs