Citation Nr: 18140791 Decision Date: 10/09/18 Archive Date: 10/05/18 DOCKET NO. 10-47 191A DATE: REMANDED Eligibility for assistance in acquiring specially adapted housing is remanded. Eligibility for a special home adaptation grant is remanded. REFERRED The issues of entitlement to disability ratings in excess of 20 percent each for service-connected peripheral neuropathy of the left and right lower extremities were raised in a statement submitted by the Veteran which was received by VA on May 7, 2010. The issues of entitlement to disability ratings in excess of 20 percent each for service-connected peripheral neuropathy of the left and right upper extremities were raised in an Appellant’s Brief received by VA on March 25, 2014. These raised claims have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Effective March 24, 2015, a change in regulation requires that claims for VA benefits be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). The Board notes, however, that the aforementioned issues were raised prior to the effective date of the amendment regarding standardized claim forms; and therefore, the informal claims are considered appropriately raised and are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b); see 79 Fed. Reg. 57,696 (Sept. 25, 2014) (codified at 38 C.F.R. §§ 19.23-19.24) (requiring that claims and notices of disagreement be filed on standard forms, effective March 24, 2015). In a February 2017 brief, the Veteran’s representative asserted that the Veteran suffered from broken bones and transient ischemic attacks/mini-strokes related to disorientation and dizziness from his service-connected diabetes and/or heart disease and balance issues related to his diabetic neuropathy. The representative also indicated that there should be a claim open for aid and attendance as the Veteran cannot walk outside without risking collapse and subsequent injury. However, since these assertions were raised after the effective date of the aforementioned regulation, they will not be referred for adjudication at this time because claims for service connection on a secondary basis and/or increased disability ratings for diabetes mellitus and/or coronary artery disease have not been submitted using the standardized VA claims form. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1969. The Veteran was scheduled to present testimony before a Decision Review Officer (DRO) at the VA Regional Office in October 2011, and before the Board at a “Travel Board” hearing in July 2013. However, the Veteran did not report to the DRO hearing and cancelled the Board hearing, requesting that it be rescheduled. Another Travel Board hearing was scheduled in November 2017, and a letter notifying the Veteran of the date, time, and place of the hearing was sent to his address of record on September 2017; there is nothing to suggest that it was not received. The Veteran did not report to the scheduled Board hearing, request that it be postponed, or provide good cause for missing the scheduled hearing. The Board will thus proceed as though the Veteran’s request for a hearing has been withdrawn. The Board remanded the issues for further development in April 2014 and July 2017. The case has since been returned to the Board for further appellate review. 1. Eligibility for assistance in acquiring specially adapted housing is remanded. Specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) 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; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. Specially adapted housing is also available to a veteran with a permanent and total disability that precludes locomotion without the aid of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury so affecting the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity so affecting the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). 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). Because a decision on the referred issues of entitlement to increased disability ratings for peripheral neuropathy of the left and right lower and left and right upper extremities could significantly impact a decision on the issue of eligibility for assistance in acquiring specially adapted housing, the issues are inextricably intertwined; a remand of this claim is therefore needed. In the Board’s April 2014 remand, it directed that the Veteran be provided with an appropriate VA examination pertaining to whether his service-connected disabilities met any of the criteria necessary for eligibility for specially adapted housing or a special home adaptation grant. A VA Medical Center Output Report indicates that the Veteran was scheduled for a compensation and pension examination in June 2014, but was a “no-show” for such examination. In the February 2017 filing, the Veteran’s representative asserted that the Veteran did not fail to report to the June 2014 VA examination, but rather never received notice of it. On remand, the Veteran should be scheduled for an appropriate VA examination, with a copy of the scheduling notice sent to the Veteran associated with the claims file in the event that he does not report. The Veteran should be advised that failure to report for the scheduled examination may lead to a decision based on the current evidence of record or even denial of his claim. Finally, as the Board is remanding this appeal for other development, the AOJ should obtain and associate updated VA treatment records with the Veteran’s VA claims file. The Veteran should additionally be given an opportunity to identify and authorize the release of any relevant outstanding private treatment records which he wants VA to obtain on his behalf. 2. Eligibility for a special home adaptation grant is remanded. A veteran can qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard corrective lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature. Additionally, a special home adaptation grant is available for a veteran who has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) 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; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the trunk; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease (COPD)). 38 C.F.R. § 3.809a(b). Because a decision on the referred issues of entitlement to increased disability ratings for peripheral neuropathy of the left and right upper extremities could significantly impact a decision on the issue of eligibility for a special home adaptation grant, the issues are inextricably intertwined; a remand of this claim is therefore needed. As the Veteran is being scheduled for a VA examination to address the extent his service-connected disabilities result in functional limitations of his upper and lower extremities, the examiner should also be asked to comment upon whether the Veteran’s diabetic neuropathy of the bilateral upper extremities results in the effective loss of use of both hands. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2016 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant updated and/or outstanding private treatment records (i.e., those not presently associated with the claims file). Thereafter, make two requests for the identified and authorized records unless it is clear after the first request that a second request would be futile. 3. After completing the above and associating all responsive records with the claims file, schedule the Veteran for a VA examination to determine the current severity of his service-connected disabilities as they relate to his ability to use his hands, upper extremities, and lower extremities. Prior to any such examination, the Veteran should be informed of the date, time, and location of the exam, and a copy of the notification letter should be included in the claims file. The Veteran should be advised of the potential consequences of failing to report for an examination without good cause, in accordance with 38 C.F.R. § 3.655, to include denial of the claim. The examiner should be provided with a list of the Veteran’s service-connected disabilities. The Veteran's claims file should be made available to the examiner, and any essential tests and studies should be accomplished. After reviewing the evidence of record, the Veteran’s lay statements, and the results of any testing performed at the examination, the examiner should provide opinions as to the following: a. Whether it is at least as likely as not that the Veteran’s diabetic peripheral neuropathy of the upper extremities limits his ability to use his hands to such an extent that he would be equally well-served by amputation with use of appropriate prosthetic. In responding to this question, the examiner is asked to provide a detailed description of the type and extent of functional limitations due to the upper extremity diabetic neuropathy as it affects the Veteran’s ability to perform various activities of daily living/functions. b. Whether it is at least as likely as not that the Veteran’s service-connected disabilities, alone, are of such severity as to preclude the Veteran from walking without the use of an ambulatory device. i. In responding to this question, the examiner should address whether and how frequently the Veteran must use an ambulatory device (cane, wheelchair, crutches, brace, etc.) in order to walk and get around (both within and outside his home). Answers to questions such as the following may prove helpful: What ambulatory aids does the Veteran use for locomotion, and with what frequency? How far, if at all, is the Veteran able to walk independently? Does the Veteran use ambulatory devices inside the home, and if so, what type and how frequently? The examiner should only consider the severity of the Veteran’s service-connected disabilities in addressing these questions, rather than any impairment from a nonservice-connected disability. The examiner is advised that the Veteran asserts that he has suffered falls due to his lower extremity diabetic peripheral neuropathy, as well as dizziness and disorientation potentially related to his coronary artery disease and/or diabetes mellitus. The record also includes a VA emergency department record from September 2013 documenting a fall related to chronic problems with a disc in his low back and a September 2015 primary care follow-up note stating that the Veteran had undergone low back surgery six weeks prior which also decreased numbness in his leg. ii. The examiner should indicate whether and to what extent any symptoms/functional impairment can more likely than not be attributed to the Veteran’s nonservice-connected low back disability rather than to a service-connected disability or disabilities. The examiner should provide a well-supported rationale for any conclusions and opinions expressed. The examiner should consider all medical and lay evidence of record when making his or her determinations. 4. Conduct any indicated development then adjudicate the referred issues of entitlement to disability ratings in excess of 20 percent each for service-connected diabetic peripheral neuropathy of the left lower extremity, right lower extremity, left upper extremity, and right upper extremity. Provide the Veteran appropriate notice concerning his appeal options. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues of eligibility for assistance in acquiring specially adapted housing and a special home adaptation grant in light of the expanded record. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel