Citation Nr: 20075673 Decision Date: 11/25/20 Archive Date: 11/25/20 DOCKET NO. 17-01 651 DATE: November 25, 2020 ORDER Entitlement to specially adapted housing is granted. The appeal concerning eligibility for a special home adaption grant is dismissed. FINDINGS OF FACT 1. The Veteran’s service-connected low back disability results in loss of use of the legs such as to preclude locomotion without the aid of a cane. 2. The issue of eligibility for a special home adaptation grant is moot, due to the award of a certificate of eligibility for assistance in acquiring specially adapted housing herein. CONCLUSIONS OF LAW 1. The criteria for establishing eligibility for financial assistance for specially adapted housing are met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809. 2. The criteria for dismissal of the appeal concerning eligibility for a special home adaptation grant have been met. 38 U.S.C. §§ 2101(b), 7105(d)(5); 38 C.F.R. §§ 3.809, 3.809a, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1956 to January 1959 and from July 1959 to July 1977. This claim was previously before the Board in June 2018, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. 1. Entitlement to specially adapted housing Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total 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 additionally 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 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 affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. “Loss of use” is not specifically defined under 38 C.F.R. § 3.809 or 3.809a. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. The Court of Appeals for Veterans Claims has found that 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. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). Service connection is in effect for a low back disability (compression fracture L-2 with degenerative changes and demonstrable deformity), rated 60 percent; hearing loss, rated 10 percent; and right leg thrombosis, rated noncompensable. The combined rating is 60 percent, and a total disability rating based on individual unemployability is in effect. VA treatment records beginning in August 2013 note that the Veteran used a cane to walk. It was noted at the August 2014 VA examination that the Veteran used a cane due to low back pain. Private treatment records show that the Veteran underwent an L2-L3 fusion and L5-S1 arthrodesis in December 2015. At May 2016 follow-up treatment the Veteran reported a new onset of acute back pain the previous month. The Veteran wrote in August 2016 that since February 2016 he frequently used a walker in his home due to constant low back, leg, and foot pain. He underwent additional lumbar spine surgery in August 2016. VA treatment records continue to note that the Veteran walks with a cane. At August 2019 VA treatment the Veteran complained of back pain and said that the pain was radiating to his legs. He had a limp and was using a cane to walk. The Veteran had a VA examination in November 2019 at which it was noted that he used a brace for back support and a cane while standing or walking. The examiner opined that it was less likely than not that the low back and right lower extremity thrombosis caused loss of use of one or both lower extremities. However, the examiner also wrote that the low back condition precluded locomotion. The November 2019 VA examiner’s opinion that the low back disability precludes locomotion shows that the service-connected disability is consistent with a disability picture involving loss of use of both lower extremities such as to preclude locomotion without the aid of a braces, crutches, canes, or a wheelchair. While the examiner wrote that the service-connected disabilities less likely than not caused the loss of use of a lower extremity, this is contradicted in the next part of the opinion by the statement that the back disability precludes locomotion. Therefore, giving the benefit of the doubt to the Veteran, specially adapted housing is granted based on a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to the or loss of use, of both lower extremities. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. 2. Entitlement to a special home adaption grant Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may qualify for a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809A. 38 U.S.C. § 2101(b) states that a special home adaptation grant is available to veterans who meet one of the listed criteria, “other than a veteran who is eligible for assistance under subsection (a),” the subsection describing eligibility for assistance in acquiring specially adapted housing. In this case, the Veteran has been found eligible for assistance in acquiring specially adapted housing in the current Board decision. Therefore, any claim for eligibility 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 relating to 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 therefore dismissed as moot. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.