Citation Nr: 18161006 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-11 463 DATE: December 28, 2018 ORDER Eligibility for assistance in acquiring specially adapted housing is granted. Eligibility for a special home adaptation grant is dismissed. FINDINGS OF FACT 1. The Veteran has permanent and total service-connected disability resulting in permanent loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, a cane, or a walker. 2. The issue of eligibility for a special home adaptation grant is moot, due to the award of specially adapted housing in the present Board decision. CONCLUSIONS OF LAW 1. The criteria for eligibility for assistance in acquiring specially adapted housing are met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 2. The claim for entitlement to a special home adaptation grant is dismissed as moot. 38 U.S.C. §§ 2101(b), 7105; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1985 to October 1995. 1. Eligibility for assistance in acquiring specially adapted housing. 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). 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). The Veteran is in receipt of service-connection benefits for a number of disabilities including but not limited to major depressive disorder, left knee osteoarthritis and patellofemoral pain syndrome, right knee meniscal/ACL tear with osteoarthritis and patellofemoral pain syndrome, GI conditions including GERD and small bowel resection, tension headaches, cervical spine degenerative disc disease, bilateral upper extremity weakness, fibromyalgia, and right ankle osteoarthritis. While the Veteran does not have a single service-connected disability which has been rated as 100 percent disabling, the Veteran has been granted a total disability rating based upon individual unemployability due to service-connected disability (TDIU). In considering the evidence of record, the Board finds that the Veteran’s service-connected disabilities affecting his lower extremities are severe enough, alone, to render him unable to secure or follow substantially gainful employment. The Veteran’s VA treatment records document that he has been unable to walk without a cane, knee braces, or walker for some time. A June 2016 statement submitted by a VA Chief of Rehabilitation indicated that the Veteran’s fibromyalgia limits the repetitive use of all limbs, and that several of his pain medications prescribed for service-connected disabilities cause additional weakness in the lower limbs, reduce balance, and increase falling risk. The Veteran further submitted a knee and lower leg conditions disability benefits questionnaire from August 2018 documenting severe knee symptoms with minimal retained flexion and extension. The examiner observed an obviously antalgic limp and noted that the Veteran walked with the support of a cane, but had pain with locomotion, standing, and sitting. It was remarked that the Veteran demonstrated severe pain with minimal flexion and extension of the bilateral knees to the point that he became diaphoretic and dizzy during the range of motion, strength, and orthopedic examination. The examiner indicated that the Veteran constantly used a cane and regularly used a walker for gait dysfunction secondary to his knee disabilities, which were subsequently granted service connection in a November 2018 rating decision. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that manifestations of his service-connected bilateral knee disabilities are sufficient to warrant a TDIU, have been noted to be static/permanent, and result in the effective loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, a cane, or a walker. The Veteran thus meets the criteria for eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809. 2. Eligibility for a special home adaptation grant. Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809A. In this case, however, the Veteran is being granted a certificate of eligibility for specially adapted housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel