Citation Nr: 20007874 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-42 154 DATE: January 30, 2020 REMANDED Eligibility for financial assistance for specially adapted housing or a special home adaptation is remanded. (The Board notes that there is a separate appeal concerning the issues of entitlement to increased staged ratings for right knee disabilities, increased staged ratings for a lumbar spine disability, and entitlement to a total disability rating based on individual unemployability. Those issues were remanded by the Board in August 2018 and are still under development.) REASONS FOR REMAND The Veteran served on active duty from October 1961 to October 1963. The Veteran has applied for a grant for specially adapted housing. He wrote in June 2017 that he has had trouble going up and down stairs since his total left knee replacement. The Veteran is service connected for lumbar strain with degenerative disc disease, facet degenerative joint disease and right sacroiliac degenerative joint disease; residuals of a left knee replacement; residuals of a comminuted right second toe fracture; a right knee chronic ligamentous strain; hearing loss; tinnitus; and a left knee scar. He has a current combined evaluation of 70 percent. At the outset, the Board notes that the Veteran does not meet the schedular criteria for a grant for specially adapted housing based on loss of use of an extremity. See 38 C.F.R. § 3.809(a). The Veteran does, however, have separate appeals pending regarding entitlement to increased ratings for his right knee disability, separate appeals pending for increased ratings for his lumbar spine disability, and a separate pending claim of entitlement to a total disability rating based on individual unemployability. In a separate August 2018 Board decision, the Board requested that new VA examinations be held for these disorders. These issues are currently being developed, and they have not yet been readjudicated in a supplemental statement of the case. The claim of entitlement to a grant for specially adapted housing or special home adaptation is inextricably intertwined with the claims that were remanded in August 2018. That is, the outcome of that remand could have a direct impact on whether the Veteran meets the criteria under 38 C.F.R. § 3.809 or 3.809a. These issues must therefore be developed and adjudicated before this claim is decided. Additionally, as part of the development for this separate appeal, in December 2018, after the issuance of the July 2018 statement of the case but before this claim was certified to the Board, the Veteran was afforded new VA examinations of his back and knee disabilities, and an opinion was obtained on the impact of these disabilities on his occupational functioning, including his ability to walk. When new, relevant evidence is received prior to transfer of records to the Board, a supplemental statement of the case should be furnished to the appellant and his representative. 38 C.F.R. § 19.37(a). A supplemental statement of the case has not been issued considering this new evidence which directly relates to the Veteran’s ability to ambulate. In November 2019, the Veteran was sent a letter informing him that new medical evidence had been obtained that was relevant to the issue on appeal. He was requested to respond whether he waived review by the agency of jurisdiction over this evidence prior to Board adjudication. The Veteran did not respond to this request, and the Board therefore assumes that he does desire agency of original jurisdiction review of this evidence prior to Board adjudication, and the case must be remanded. The matters are REMANDED for the following action: 1. After all of the development ordered in August 2018 has been completed concerning the Veteran’s separate appeal pertaining to claims of entitlement to increased staged ratings for right knee limitation of extension, a right knee disability due to other than limitation of extension, and a total disability rating based on individual unemployability, issue a supplemental statement of the case for these issues. 2. If the Veteran is found to have met the criteria for a 100 percent total evaluation or a total disability rating based on individual unemployability, arrange for the Veteran to undergo a VA examination with a physician to determine the impact of his lumbar strain with degenerative disc disease, facet degenerative joint disease and right sacroiliac degenerative joint disease; residuals of a left knee replacement; residuals of a comminuted right second toe fracture; and right knee chronic ligamentous strain, on his ability to independently ambulate. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. All indicated evaluations, studies, and tests should be conducted. a) The examiner must specifically address whether the Veteran suffers from the loss of use of either leg due to his service-connected disorders.   By VA regulation, a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. b) The examiner must discuss whether the Veteran’s service-connected disabilities alone so affect the functions of balance and propulsion as to preclude locomotion, including during flare ups. “Preclude locomotion” means the necessity for regular, constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Review all additional evidence, including the December 2018 VA examination results and all other   evidence received since the July 2018 statement of the case, and readjudicate the Veteran’s claim. If the benefit sought remains denied, the Veteran and his attorney should be furnished with a supplemental statement of the case and be provided an opportunity to respond. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.