Citation Nr: 1804070	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  16-38 086	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing.


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel


INTRODUCTION

The Veteran had active service from January 1956 to August 1966.

This matter originally arose from a February 2014 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Muskogee, Oklahoma, which denied entitlement to automobile and adaptive equipment or adaptive equipment; entitlement to special home adaptation; and entitlement to specially adapted housing.  

During the course of the appeal, the RO, in a February 2016 rating determination, granted entitlement to special home adaptation and entitlement to automobile or other conveyance and adaptive equipment.  The issue of entitlement to specially adapted housing remained on appeal.

In his February 21016 substantive appeal, the Veteran requested a hearing in conjunction with his appeal.  The requested hearing was scheduled for December 2017.  Prior to the hearing, the Veteran, in a November 2017 statement in support of claim, indicated that he no longer desired a hearing.  The Veteran also requested that the Veterans of Foreign Wars of the United States be removed as his representative.  

Given the procedural history, the issue of entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing remains on appeal and will be addressed below.  

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


FINDINGS OF FACT

1.  Service connection is in effect for bilateral loss of vision, rated as 100 percent disabling; there are no other service-connected disabilities.  

2.  The Veteran does not have a service-connected disability or service-connected disabilities manifested by anatomical loss or loss of use of one or both lower extremities, organic disease or injury which so affects the function of balance or propulsion as to preclude locomotion without an assistive device, the loss or loss of use of one upper extremity which so affects the functions of balance or propulsion as to preclude locomotion without an assistive device, ALS, or full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or at least on extremity and the trunk.


CONCLUSION OF LAW

The criteria for entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing have not been met.  38 U.S.C.A. § 2101(a), 5107 (West 2014); 38 C.F.R. § 3.102, 3.809 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

At the outset, service connection is currently in effect for bilateral loss of vision, which has been assigned a 100 percent disability evaluation.  Service connection is not in effect for any other disabilities.  

Effective October 25, 2010 and 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.  75 Fed. Reg. 57859 (Sept. 23, 2010); 78 Fed. Reg. 72573 (Dec. 3, 2013). 

Under the version which became effective October 25, 2010, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101(a) may be granted if a claimant 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) (2017). 

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 amyotrophic lateral sclerosis (ALS) that is 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).

Reviewing the pertinent evidence in light of all versions of the criteria does not result in a favorable outcome under 38 C.F.R. § 3.809.  As service connection is not currently in effect for a disability of the lower extremities, it cannot be said that the Veteran has a permanent and total service-connected disability that is "due to" the loss, or loss of use, of both lower extremities.  Moreover, even if there were only light perception in both eyes, there are no service-connected disabilities which result in anatomical loss or loss of use of either lower extremity, so the claim would fail on this basis.  38 C.F.R. § 3.809(a)(3)-(4).  Finally, the Veteran does not have a service-connected disability that consists of anatomical loss or loss of use of one or both upper extremities such to preclude the use of the arms at or above the elbow, nor does he have a service-connected disability that consists of 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 38 C.F.R. § 3.809(a)(5)-(6).  Service connection is also not in effect for ALS.  

For these reasons, the Board finds that a certificate of eligibility for assistance in acquiring specially adapted housing is not warranted.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs