Citation Nr: 18110012 Decision Date: 06/11/18 Archive Date: 06/11/18 DOCKET NO. 06-28 058A DATE: June 11, 2018 ORDER Entitlement to specially adapted housing is granted. REMANDED Entitlement to a compensable evaluation for cirrhosis of the liver is remanded. Entitlement to a compensable evaluation for hepatitis C is remanded. FINDING OF FACT The Veteran has a permanent and total service-connected disability that results in loss of use of his right upper and right lower extremities which so affect the functions of balance or propulsion that he is precluded from locomotion without the aids of braces, crutches, canes, or a wheelchair. CONCLUSION OF LAW The criteria for specially adapted housing are met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1966 to December 1968; he was awarded the Combat Infantryman Badge (CIB) as a result of his service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2011 as to the specially adapted housing issue resolved favorably in this decision. The Veterans Law Judge who held that hearing has retired and is no longer available to participate in this decision; in a February 2018 letter the Veteran was apprised of that fact and of his right to another hearing before another Veterans Law Judge. As of the date of this decision, the Board has not heard from the Veteran with regards to a hearing as to the specially adapted housing issue and therefore will presume that he does not desire another hearing. The Veteran will proceed with adjudication of that issue at this time. Also, the Board acknowledges that the Veteran has completed an appeal of the issues for earlier effective dates for the awards of service connection for dysarthria, upper extremity weakness, and dizziness and vertigo, an earlier effective date for an award of a 20 percent evaluation for peripheral neuropathy and weakness of the right lower extremity, and an increased initial evaluation for dysarthria by submitting a timely July 2017 substantive appeal, VA Form 9, as to those issues. The Veteran, however, requested a hearing before the Board as to those issues in that substantive appeal. As that hearing request is still pending and does not appear to have been withdrawn at this time, the Board will address those issues in a later decision following completion of the Veteran’s requested hearing. 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). On appeal, the Veteran contends that he should be awarded specially adapted housing as a result of his service-connected disabilities. In short, the Veteran’s posttraumatic stress disorder (PTSD) has been service connected at a 100 percent rate since February 28, 2003. However, in September 2008, service connection was also established for residuals of a stroke secondary to his PTSD; the residuals of his stroke include: dizziness and vertigo, right upper extremity weakness, peripheral neuropathy and weakness of the right lower extremity, and dysarthria. The stroke residuals are derivative of his permanent and total rated PTSD. In this case, the Veteran has a permanent and total service-connected disability that results in loss of use of his right upper and right lower extremities which so affect the functions of balance or propulsion that he is precluded from locomotion without the aids of braces, crutches, canes, or a wheelchair. In a June 2017 VA examination respecting the Veteran’s peripheral neuropathy of his right upper and lower extremities, that examiner indicated that the Veteran had some difficulty with fine motor skills, although he was able to slowly but independently perform them; it was also noted that he had difficulty walking and that he always had to use a walker in the home and a wheelchair or a scooter outside of the home. The examiner noted that he was not able to walk steadily or safely without assistive devices, and that he had a ramp installed from the outside to the entrance of his home and that he had an electric lift chair in the home to allow him to get up and down stairs. In a separate September 2017 VA examination addendum by second VA examiner, several issues with navigating stairs in the home without the aid of electric lift chairs, getting into the home via a ramp, and the need to use a cane, walker or scooter to aid in walking/standing were noted, particularly following his stroke. Finally, in an October 2017 VA examination addendum opinion by a third examiner, it was noted that the Veteran did not have “complete loss of use of any of his extremities,” although he had some residual weakness of the right upper and lower extremities, “but not loss of use.” It was noted that he arrived at the examination at that time ambulating with a cane independently. That examiner again concluded that the Veteran did not demonstrate loss of use of any of his extremities at that time. Based on the foregoing evidence, the Board finds that entitlement to specially adapted housing is warranted in this case. As the United States Court of Appeals for Veterans Claims (Court) recently indicated in Jensen v. Shulkin, 29 Vet. App. 66 (2017), the loss of use provisions respecting the lower extremities under 38 C.F.R. § 3.350(a)(2)(i) were too narrow as it only addressed loss of use of the foot rather than lower extremity. The Court in Jensen further indicated that the operative sections of 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 would be the qualifying phrases following the phrase “loss of use” and “such as.” Id., at 77-78. In other words, if a veteran was deprived of the use of his or her lower extremities to such a degree that locomotion was precluded the criteria for specially adapted housing as to that issue would be met. Id., at 78. In this case, it is clear that the Veteran’s residuals of his stroke to right upper and lower extremity conditions and dizziness/vertigo “so affect the functions of balance and propulsion such as to preclude locomotion” without the aid of assistive devices in this case. Indeed, the record shows that he has needed both outside and inside the home modifications to function as a result of these two upper and lower extremity stroke residuals. Consequently, the criteria for entitlement to specially adapted housing has been met in this case and the claim is therefore granted at this time. See 38 C.F.R. §§ 3.102, 3.809. REASONS FOR REMAND The Veteran was denied compensable evaluations for his service-connected hepatitis C and cirrhosis of the liver disabilities in a March 2017 rating decision. He timely submitted an April 2017 Notice of Disagreement, VA Form 21-0958, as to those issues, and a Statement of the Case as to those issues has not yet been issued. Accordingly, those issues are remanded in order for the Agency of (CONTINUED ON NEXT PAGE)   Original Jurisdiction (AOJ) to issue a Statement of the Case as to those issues. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9(c). The matters are REMANDED for the following action: Furnish to the Veteran and his representative a statement of the case with regard to the claims for increased evaluation for the Veteran’s service-connected hepatitis C and cirrhosis of the liver disabilities. The issues should be returned to the Board only if a timely substantive appeal is received. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel