Citation Nr: 18161001 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-41 041 DATE: December 28, 2018 ORDER Eligibility for assistance in acquiring specially adapted housing is denied. Eligibility for a special home adaptation grant is denied. FINDINGS OF FACT 1. The Veteran does not have permanent and total service-connected disability due to the loss or loss of use of both lower extremities, one lower extremity together with the residuals of organic disease or injury, or one lower extremity together with one upper extremity, any of which preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or due to the loss or loss of use of both upper extremities; blindness in both eyes with loss or loss of use of one lower extremity; full thickness or subdermal burns; or amyotrophic lateral sclerosis. 2. The Veteran’s service-connected disabilities do not include the loss or loss of use of both hands, burn injuries, blindness in both eyes, or residuals of an inhalational injury. CONCLUSIONS OF LAW 1. The criteria for eligibility for financial assistance in acquiring specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 2. The criteria for eligibility for a special home adaptation grant are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to August 1971. Specially Adapted Housing/Special Home Adaptation Grant 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 aids 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 which so affect 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 which so affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). Specially adapted housing may also be available to a veteran who served on or after September 11, 2001, who has a permanent disability that was incurred during such service, and which results in loss or loss of use of one or more lower extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aid of braces, crutches, canes, or a wheelchair. See 38 U.S.C. § 2101(a)(2)(C). The phrase “preclude locomotion” is defined as the necessity for regular and constant use of a wheelchair, brace(s), crutches or cane as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). If entitlement to specially adapted housing is not established, 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 correcting 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 that 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 truck; 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). Generally, a veteran will be provided one-time only assistance with a special home adaptation grant or specially adapted housing. However, issuance of a special home adaptation grant before a veteran becomes eligible for specially adapted housing under 38 C.F.R. § 3.809 does not preclude a later grant for specially adapted housing. 38 C.F.R. § 3.809a(a). The Veteran is currently in receipt of a total disability rating based on individual unemployability due to service-connected disability (TDIU) and has been awarded service connection benefits for the following disabilities: ischemic heart disease, status post myocardial infarction, with a 100 percent evaluation; renal manifestations of diabetes mellitus, with a 60 percent evaluation; diabetes mellitus type II, with erectile dysfunction, diabetic retinopathy, macular edema, and bilateral cataracts, with a 20 percent evaluation; diabetic peripheral neuropathy of the left and right lower extremity, each with a 20 percent evaluation; acne vulgaris, with a 10 percent evaluation; peripheral neuritis of the left and right upper extremity, each with a 10 percent evaluation; and left ear hearing loss, with a noncompensable evaluation. 1. Eligibility for assistance in acquiring specially adapted housing The Veteran asserts that his 100 percent evaluation and severe difficulty walking render him eligible for specially adapted housing, and specifically seeks renovations to his bathroom including but not limited to installation of an easy-access walk-in shower, grab bars, and a solar hot water heater. A February 2014 “Report of General Information” from February 2014 is of record which documents a phone call between the Veteran and VA. The Veteran reported that he has to do most of his movement with a wheelchair and motorized stair chair, and indicated that his primary care physician could confirm his eligibility. The record then documents the conversation between the author and the VHA physician, who stated that although the Veteran has difficulty moving around without aid, he had not lost permanent use of his legs and she would not endorse such a statement. She further reported that in the recent past, she specifically advised the Veteran that he was not eligible for the specially adapted housing/special housing adaptation benefit, and would not expect VA to fund his home improvements. On his February 2014 notice of disagreement, the Veteran asserted that he was rated at 100 percent, and needed replacement of his dishwasher, washing machine, and deteriorated water-damaged particle board in his kitchen, and needed installation of an easy-access shower stall, all for sanitation and health purposes. On his October 2014 VA Form 9, the Veteran stated that if he lost his balance and fell, he would be unable to get back on his feet, and related that earlier that month, because of his chronic diabetic neuropathy, he experienced a serious fall inside his residence and was on his kitchen floor for hours until an ambulance was called. He continued that following hospitalization for approximately one week, he required assistance to get into his car and continued to need assistance from others even when using a walker, and that he needs extensive assistance with mobility. As an initial matter, the Veteran has not asserted and the evidence does not otherwise demonstrate that he suffers from blindness in both eyes, loss of use of both upper extremities, burn injuries, or amyotrophic lateral sclerosis. He solely contends that he has service-connected disability evaluated at 100 percent, and that his service-connected disabilities results in the loss of use of both lower extremities, such as to preclude locomotion without the use of a walker, wheelchair, or other ambulatory aid. When considering the evidence of record under the relevant law and regulation, the Board finds that a preponderance of the competent and credible evidence of record does not demonstrate eligibility for assistance in acquiring specially adapted housing. While the Veteran is competent to report that he is unable to walk without an ambulatory aid, and such report is found to be credible, the evidence demonstrates that he suffers from other nonservice-connected disabilities that impair his ability to ambulate, and he does not have the requisite medical education or training to distinguish between these maladies to identify which is responsible for his functional impairment. Regardless of whether or not the Veteran’s service-connected diabetic peripheral neuropathy of the left and right lower extremities require the Veteran to use a wheelchair or other ambulatory aid for locomotion, such disability has not been rated as “permanent and total.” Read as a whole, 38 C.F.R. § 3.809 specifies that eligibility for specially adapted housing requires a service-connected disability which is rated as permanent and total, where such disability is “due to” one of the enumerated limitations under 38 C.F.R. §3.809(b), which includes the loss or permanent loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. While a veteran may have a single service-connected disability rated as permanent and total, the fact that such veteran has a separate service-connected disability affecting the legs which precludes locomotion without an assistive device does not automatically render the veteran eligible under 38 C.F.R. §3.309, unless the latter disability is also permanent and total. Were the opposite true, the phrase “the disability must be due to” in 3.309(b) would be unnecessary. By way of contrast, eligibility for assistance in the purchase of an automobile and/or necessary adaptive equipment under 38 C.F.R. §3.308 requires a service-connected disability where one of an enumerated set of functional limitations “must exist.” The Board must assume that the meaning of the words utilized in this regulation was intended. The Veteran does have a disability rated as permanent and total, ischemic heart disease, status post myocardial infarction, but this particular disability is not the source of the relevant functional limitations at issue. While the Veteran was not provided with VA examination specifically focused on his claim of eligibility for specially adapted housing, he did undergo examinations in March 2014 and January 2016 relating to his claim for entitlement to special monthly compensation, which are found to provide sufficient evidence regarding which of his service-connected or nonservice-connected disabilities are responsible for his functional limitations. At the March 2014 examination, the Veteran was noted to use a walker and wheelchair and to experience dizziness on a less than weekly basis, with imbalance affecting his ability to ambulate occasionally (less than weekly). Impairments that were noted to affect the Veteran’s ability to protect himself from his daily environment included “massive obesity, diabetes mellitus, neuropathy, [and] urinary frequency.” The examiner wrote that the functional impairments were not permanent, and that function of the lower extremities was limited by muscle weakness and severe bilateral stasis dermatitis. The Veteran submitted another examination report in January 2016, where it was noted that his function was limited by chest pain and shortness of breath. The Veteran was found to have bilateral lower extremity numbness/neuropathy affecting balance, as well as left foot strength of 3/5 plantar flexion and foot drop. An additional VA medical opinion was sought in March 2016, as the examination form submitted by the Veteran did not identify a diagnosis which led to his asserted need for regular aid and attendance. In particular, it was noted that VA treatment records contain a finding that the primary diagnosis of nonservice-connected cerebral artery occlusion (unspecific) with cerebral infarction is responsible for the Veteran’s need for home health aide services. The reviewing physician indicated that he had reviewed the conflicting medical evidence, and stated that it showed that the Veteran’s need was multifactorial. Of particular note, the Veteran’s need for assistance with bathing was attributed to the Veteran’s obesity causing difficulty with balance, described as the Veteran being unable to step into his tub/shower without losing his balance. Based on a review of the medical records, the physician concluded that all of the Veteran’s needs for assistance are due to conditions that are unrelated to his service-connected ischemic heart disease, except possibly for fatigue. The physician noted that review of the Veteran’s current treatment records does not show any significant limitations from the Veteran’s heart condition, with testing showing a normal ejection fraction by echocardiography in an August 2015 VA treatment record, and that based on a normal ejection fraction, it is unlikely that the Veteran’s fatigue is a result of his heart condition. The Board finds this opinion to be highly probative, as the physician considered the evidence of record and clearly explained the rationale underlying each of his conclusions. Thus, even assuming without deciding that the Veteran has loss of use of both lower extremities such as to preclude locomotion without the aid of a wheelchair or walker due to his service-connected peripheral neuropathy of the bilateral lower extremities, the Veteran is only in receipt of a 20 percent evaluation for each lower extremity, and they have not been rated permanently and totally disabling. While the Veteran was previously awarded a total disability rating based upon individual unemployability due to service-connected disability (TDIU), such was based on the combined effect of his service-connected disabilities, rather than just his lower extremity peripheral neuropathies. The Board has considered whether the severity of the lower extremity neuropathies would be sufficient, alone, to render the Veteran unable to secure and follow substantially gainful employment; but considering the Veteran’s masters level college education, this is not found to be the case. The Veteran does not have a service-connected disability rated as permanent and total due to the loss of use of both lower extremities such as to preclude locomotion without an ambulatory aid, and the most probative evidence of record weighs against a finding that the Veteran’s service-connected heart disability affects his functions of balance or propulsion. He therefore does not meet the criteria for eligibility for assistance in acquiring specially adapted housing. 2. Eligibility for a special home adaptation grant If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he/she 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 correcting 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 that 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 truck; 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). As noted above, the Veteran has been granted service connection for ischemic heart disease, status post myocardial infarction, which has been rated as permanently and totally disabling. However, the Veteran has not asserted, and the evidence of record does not otherwise demonstrate, that his heart disability involves the anatomical loss or loss of use of both hands, burn injuries, or an inhalational injury; he further does not have service-connected disability that results in blindness of both eyes. Eligibility for a special home adaptation grant has therefore not been established, and the claim must be denied. See 38 C.F.R. §3.809a. Conclusion The Board acknowledges the Veteran’s statements that the requested modifications would make his home safer and help him to maintain good hygiene. While the Veteran does not qualify for specially adapted housing or a special home adaptation grant under 38 C.F.R. §§ 3.809 or 3.809a, the Board advises that he may apply for a grant from the Home Improvements and Structural Alterations (HISA) program, which provides for improvements and alterations determined to be needed due to a service-connected disability, including those needed to provide access to essential lavatory and sanitary facilities. See 38 U.S.C. §§ 1710(a), 1717(a)(2). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel