Citation Nr: 1804051 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 16-20 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to a special home adaptation grant. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Wilson, Counsel INTRODUCTION The Veteran served in the United States Army from August 1944 to October 1946 and from February 1952 to March 1971, which includes service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 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) (2012). FINDING OF FACT The Veteran does not have ALS and the evidence does not show that the Veteran is entitled to compensation for a service-connected disability due to the loss or loss of use of both lower extremities; blindness; the loss or loss of use of one lower extremity together with residuals of organic disease or injury; the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity; the loss or loss of use of both upper extremities; the anatomical loss or loss of use of both hands; deep partial thickness burns; full thickness or subdermal burns; or residuals of an inhalation injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to assistance in acquiring specially adapted housing have not been met. 38 U.S.C. §§ 1154(a), 2101, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.809 (2017). 2. The criteria for entitlement to assistance in acquiring a special home adaptation grant have not been met. 38 U.S.C. §§ 1154(a), 2101, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.809a (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran contends in his June 2011 claim that he seeks a grant under 38 U.S.C. § 2101 for adaptations to housing and that he uses a walker, is on dialysis, and has bouts with infection. In a statement dated in October 2015, the Veteran's daughter reported that she attends to most of his needs, to include preparing meals, administering medication, and driving him to appointments. She also reported that the Veteran is forgetful, legally blind, and sometimes needs support to walk, as he refuses to become dependent on a wheelchair. Additionally, in October 2015, a VA clinician reported that the Veteran's blindness and severe back pain restrict his activities and functions. See VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, received December 2015. In April 2016, another VA clinician reported that the Veteran's renal failure, hypertension, instability with gait, dialysis, and memory deficit restrict his activities and functions. See VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, received April 2016. The Veteran's claims of entitlement to specially adapted housing have been pending since June 2011. Effective December 3, 2013, VA revised the criteria (under 38 C.F.R. § 3.809) for establishing entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing. 78 Fed. Reg. 72573 (Dec. 3, 2013). Effective September 12, 2014, VA revised the criteria (under 38 C.F.R. § 3.809a) for establishing entitlement to a special home adaptation grant. 79 Fed. Reg. 54608 (Sept. 12, 2014). Under the version of 38 C.F.R. § 3.809 in effect prior to December 3, 2013, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) 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; (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; (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. 38 C.F.R. § 3.809(b) (2011). Under the version of 38 C.F.R. § 3.809(d), which became effective on December 3, 2013, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) may also be granted if the 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) (2017). 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). Under the version of 38 C.F.R. § 3.809a in effect prior to 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 a 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 COPD). 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 service connected for a disability that (1) VA has rated as permanently and totally disabling, and 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). Additionally, a Veteran can qualify for a grant for necessary special home adaptations if he is entitled to compensation for 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) (2017). In Jensen v. Shulkin, 29 Vet. App. 66 (2017), the United States Court of Appeals for Veterans Claims clarified that, under 38 U.S.C. § 2101(a)(2)(B), a "loss of use" exists if a veteran has suffered a deprivation of his or her ability to use their lower extremity so severe that he or she is precluded from perambulating without one of the required assistive devices. This definition indicates that locomotion is precluded even if a veteran is capable on occasion of moving about unaided. Id. at 78. Here, the Veteran is in receipt of service connection for: (1) coronary artery disease; (2) bilateral hearing loss; (3) a lumbar spine disability; (4) diabetes mellitus; (5) peripheral neuropathy and sciatic radiculopathy of the right lower extremity; (6) peripheral neuropathy and sciatic radiculopathy of the left lower extremity; and (7) tinnitus. Specially adapted housing under 38 C.F.R. § 3.809 is not warranted by the evidence of record. First, the Veteran is not in receipt of service connection for ALS. Additionally, although he has a total rating for coronary artery disease, the record does not show that this disability is due to the loss or loss of use of both lower extremities; blindness in both eyes; 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; the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity; the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or full thickness or subdermal burns. A special home adaptation grant under 38 C.F.R. § 3.809a is also not warranted by the evidence of record. Specifically, the Veteran's total service-connected disability-coronary artery disease-does not include the anatomical loss or loss of use of both hands nor is it due to blindness in both eyes, deep partial thickness burns, full thickness or subdermal burns, or residuals of an inhalation injury. Although the Board is sympathetic to the Veteran's claim, the preponderance of the evidence is against a finding that the Veteran is permanently and totally disabled due to any of the disabilities enumerated in 38 C.F.R. §§ 3.809(b) or 3.809a(b) and does not show that he is in receipt of compensation for a service-connected disability that is due to blindness in both eyes. Thus, the Board finds that he is not entitled to the home adaptation benefits sought, and as such, his claims must be denied. ORDER Entitlement to assistance in acquiring specially adapted housing is denied. Entitlement to a special home adaptation grant is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs