Citation Nr: 1815574 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-39 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge in a July 2017 video conference hearing. A transcript of the hearing is associated with the claims file. FINDING OF FACT The Veteran's service-connected anatomical loss of the left foot together with residuals of his service-connected diabetes mellitus, type II, so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. CONCLUSION OF LAW The criteria for specially adapted housing are met. 38 U.S.C. §§ 2101, 5107 (2012); 38 C.F.R. §§ 3.102, 3.809 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that his service-connected disabilities meet the loss of use eligibility criteria for entitlement to specially adaptive housing under 38 C.F.R. 3.809. He states that he can only stand for a very limited amount of time, has instability when he does stand, and that his mobility is dependent upon a walker or cane. A certificate of eligibility for assistance in acquiring specially adapted housing may be awarded to a veteran who is receiving compensation for permanent and total service-connected 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, or (2) blindness in both eyes, having only light perception, plus, the anatomical loss or loss of use of one lower extremity, or (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, or (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. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. To "preclude locomotion" means that the disability in question requires the need 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). Where entitlement to specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. This benefit requires that the evidence show permanent and total service-connected disability that either results in blindness in both eyes with 5/200 visual acuity or less, or involves the anatomical loss or loss of use of both hands. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a. Here, the Veteran is currently assigned a 100 percent rating for his diabetes mellitus, type II, and its residual disabilities, namely peripheral neuropathy of the right lower extremity and bilateral upper extremities; diabetic nephropathy; and hypertension. Thus, he is receiving compensation for a permanent and total service-connected disability. The evidence reflects that such disability results in the loss of use of his right lower extremity, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. Additionally, the Veteran has been in receipt of special monthly compensation for the anatomical loss of his left foot since April 1968. He has a mid-calf amputation of the left leg due to injuries sustained in the Republic of Vietnam. See February 2017 Dr. R.J. medical report; July 2017 Hearing Transcript; October 2014 Dr. M.T. progress notes. In May 2017, the Veteran underwent VA examination for diabetes mellitus, diabetic sensory-motor peripheral neuropathy, and nephrology. The Veteran reported the inability to steadily stand for more than five minutes. He also stated that even while using a cane for ambulation, he was unable to walk for a distance of more than one-half of a block. Upon examination, moderate peripheral neuropathy of the right leg was diagnosed with symptoms of moderate intermittent pain, numbness, and paresthesias or dysesthesias. The examination report noted that numbness in the right foot caused the Veteran to feel unstable while walking with a cane. Additionally, throughout the appeal period, the Veteran has submitted evidence from his private health providers. An October 2014 progress note from Dr. M.T. reported an abnormal gait due to the Veteran's amputation. A February 2017 medical report by Dr. R.J. diagnosed severe painful arthritis of the right knee and prescribed a knee sleeve for support, as well as physical therapy. During the July 2017 hearing, the Veteran reported the ability to walk short distances with the use of a cane to control his balance. He stated that he was unable to safely walk any distance without the use of a cane or walker, and that he believed he would soon have to start using a wheelchair for mobility. The Veteran reported that his diabetic peripheral neuropathy of the right lower extremity and the residual numbness of his right foot made balance control difficult. Weakness and pain in his right calf from metal fragments retained in the bone and muscle from his Vietnam War injury also contributed to his mobility issues. He reported that upon use, his entire right leg swelled which made controlling balance even more difficult. In the past, the Veteran reported that he was able to ambulate at home using walls and furniture for support; however, during the hearing he stated that his balance problems had increased, and he now required the use of a cane or walker. His wife, P.C., stated that the Veteran fell "a couple of times per month" due to balance problems. During the July 2017 hearing, the Veteran also reported that the muscle at the site of his left leg amputation had deteriorated and that he would be unable to wear his prosthesis without additional surgery. He stated that he would not undergo the additional surgery at the amputation site as he was concerned with possible complications caused by diabetes mellitus, type II. He also reported occasional friction sores that caused extreme pain, as well as phantom pain, at the amputation site. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds the Veteran's account of instability and other mobility issues to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The above summarized evidence reasonably indicates that a certificate of eligibility for specially adapted housing is warranted as the Veteran's service-connected anatomical loss of the left foot together with residuals of his service-connected diabetes mellitus, type II, so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. Thus, the Board finds that the criteria for an award of specially adapted housing are met. 38 C.F.R. § 3.809. As noted above, 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 has been granted a certificate of eligibility for specially adaptive 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). ORDER Specially adapted housing is granted. A special home adaptation grant is denied as moot. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs