Citation Nr: 20037045 Decision Date: 06/01/20 Archive Date: 06/01/20 DOCKET NO. 13-34 861 DATE: June 1, 2020 ORDER Eligibility for assistance in acquiring specially adapted housing is denied. REMANDED Entitlement to service connection for diabetic retinopathy is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for additional left upper extremity disability resulting from VA surgical treatment (left carpal tunnel release) is remanded. Eligibility for a special home adaptation grant is remanded. FINDING OF FACT The Veteran does not have a disability rated as permanent and total due to the loss or loss of use of both upper extremities or loss or loss of use of both of his lower extremities, one lower extremity together with the residuals of organic disease or injury, or one lower extremity together with one upper extremity, any of which preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; nor does he have service-connected amyotrophic lateral sclerosis, 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 loss of use of one lower extremity with blindness in both eyes that results in only having light perception. CONCLUSION OF LAW The criteria for eligibility for assistance in acquiring specially adapted housing are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1969 to September 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters for further development in February 2018. The case has since been returned to the Board for appellate review. 1. Eligibility for assistance in acquiring specially adapted housing is denied. 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). Specially adapted housing may also be available to a veteran who served on or after September 11, 2001, who has a permanent disability that was incurred during such service, and which results in loss or loss of use of one or more extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aids of braces, crutches, canes, or a wheelchair. See 38 U.S.C. § 2101(a)(2)(C). The Veteran’s active service ended before September 11, 2001, so this provision is inapplicable to this case. 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 presently in receipt of service connection benefits for the following disabilities: posttraumatic stress disorder with a 100 percent disability rating; diabetes mellitus, type II with a 20 percent disability rating; coronary artery disease with a noncompensable evaluation; erectile dysfunction with a noncompensable evaluation; and peripheral neuropathy of the left and right lower extremity, both with noncompensable evaluations. The Veteran has a combined 100 percent disability rating. While the Veteran does have service-connected disability rated as totally disabling, the regulatory requirement under 38 C.F.R. § 3.809(b) that the permanent and total disability must be “due to” one of the enumerated criteria has not been met in this case. The Veteran has a 100 percent disability rating for his service-connected PTSD, but this does not result in any of the combinations of functional impairments enumerated under 38 C.F.R. § 3.809. The Veteran has not asserted that his service-connected disabilities include or involve burn injuries or amyotrophic lateral sclerosis. On his application submitted in May 2009, he stated that he was having trouble with his legs such that sometimes he cannot move, and uses a cane. While the record at present does not make it completely clear what disability or disabilities result in the Veteran’s cane use, and whether his ambulation is “precluded” without the use of this device, the Board notes that the Veteran’s lower extremity peripheral neuropathy is evaluated as noncompensable. Therefore, it cannot be said that he has “a disability rated as permanent and total,” “due to” the loss or loss of use of both lower extremities. While the Board acknowledges that claims for service connection for diabetic retinopathy and for compensation under 38 U.S.C. § 1151 for left wrist disability are being remanded for further development, the Veteran has not asserted that he presently suffers from blindness or loss of use of his left upper extremity. The Veteran alleges that his retinopathy seriously and adversely affects his life and that “it is only a matter of time before there is vision loss.” If service connection is later granted, and the Veteran’s condition declines to the extent that any of the combination of functional impairments under 38 C.F.R. § 3.809 result from his service-connected disabilities, he may then qualify for the benefit sought, and can submit a new claim at that time. As the Veteran’s functional limitations from his service-connected disabilities do not meet any of the combination of impairments specified under 38 C.F.R. § 3.809, his situation does not meet this criterion. He is, further, not in receipt of a disability rated as permanent and total due to any combination of physical impairments, but rather is due to his psychiatric symptoms/impairment. He is therefore ineligible for assistance in acquiring specially adapted housing. REASONS FOR REMAND Further development is found needed in order to fulfill VA’s duty to assist and to ensure compliance with prior remand directives. 1. Entitlement to service connection for diabetic retinopathy is remanded. Review of the record indicates that relevant treatment records remain outstanding. Specifically, while a summary of findings from a few annual diabetic eye examinations are included in the printout from the VA Medical Center, the records further direct one to “see imaging tools,” and reference eye examinations for which no records are available in the claims file. A December 2015 VA treatment addendum note indicates that the Veteran had dilated retinal examination by an ophthalmologist in November 2015, with normal results. The examination report itself is not of record. Further, a January 2014 eye examination report is of record, but an addendum directs the reader to “see imaging tools… hazy view with lens haze noted.” This indicates that records related to the Veteran’s eye examinations and pertinent to his claim have likely been scanned by VA, but have not been added to the record, therefore making them inaccessible for review by the Board. On remand, the AOJ should take all necessary action to ensure all relevant VA and scanned treatment records relating to the Veteran’s eyes and/or diabetes mellitus, type II are associated with the record. In the February 2018 remand, the Board directed that the Veteran be provided with a VA examination regarding his claim for service connection for diabetic retinopathy. The record reflects that the Veteran failed to respond to attempts by QTC to contact him to schedule the examination. The AOJ attempted to telephone the Veteran in reference to his failure to RSVP for an eye examination, but there was no answer and no option to leave a voicemail. There is also a notation that a non-contact letter sent by QTC to the Veteran’s address of record was refused by the Veteran. As such, an examination was not conducted. However, the Board notes that an appropriate medical professional may be able to provide a medical opinion concerning whether the Veteran has had diabetic retinopathy at any time during the relevant appeal period from review of the relevant treatment records, alone. While an examination could not be conducted in the Veteran’s absence, the provision of a medical opinion was still a possibility. Therefore, the Board finds that there has not been substantial compliance with the prior remand directive. On remand, such a medical opinion should be obtained. 2. Entitlement to compensation under 38 U.S.C. § 1151 for additional left upper extremity disability resulting from VA surgical treatment (left carpal tunnel release) is remanded. In the February 2018 remand, the Board directed that the AOJ obtain any outstanding VA treatment records, to include the complete records of 2002 left hand carpal tunnel syndrome release surgery. A request was made, and the Phoenix VA Health Care System responded that a thorough search of their records revealed that there were no records responsive to the request. Upon further review of the record, the Board notes that the Veteran’s treatment records variously indicate that he underwent carpal tunnel syndrome release syndrome either in 2002, 2006 or 2008. Closer review of the treatment records shows a November 2008 informed consent note indicating that informed consent for left wrist carpal tunnel release was obtained, and that the full document can be found in Vista Imaging. A December 2008 hand surgery note indicates that the Veteran is status post left carpal tunnel release. Therefore, while the Phoenix VAHCS was unable to find records relating to a 2002 carpal tunnel release surgery, records of the November 2008 surgery still remain outstanding. On remand, the AOJ should take all necessary additional action to ensure that any relevant records are associated with the claims file. Once that is done, a medical opinion should be obtained addressing the Veteran’s 38 U.S.C. § 1151 claim. 3. Eligibility for a special home adaptation grant is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for diabetic retinopathy and entitlement to compensation under 38 U.S.C. § 1151 for additional left upper extremity disability resulting from VA surgical treatment (left carpal tunnel release) could significantly impact a decision on the issue of eligibility for a special home adaptation grant, the issues are inextricably intertwined. A remand of the latter claim is therefore needed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2019 to the Present. 2. Obtain a copy of any scanned reports from Vista Imaging or any other appropriate electronic records system concerning the Veteran’s eye examinations and/or diabetes from March 2008 to the present (including but not limited to those related to a March 2008 eye exam, September 2011 eye exam, January 2014 eye consult, and November 2015 dilated retinal exam) and associate them with the claims file. 3. Obtain a copy of any scanned records from Vista Imaging or any other appropriate electronic records system concerning the Veteran’s left carpal tunnel release surgery in November 2008, to include the full informed consent document, and associate them with the claims file. 4. After associating all responsive records with the claims file, forward the file to an appropriate medical professional (“clinician”) for an opinion regarding VA surgical and hospital care relating to the Veteran’s November 2008 left wrist carpal tunnel release surgery. The clinician is asked to address the following: a. Whether it is at least as likely as not that the Veteran’s November 2008 left wrist carpal tunnel release surgery and/or postoperative treatment resulted in any additional disability (caused the additional disability or permanently aggravated the pre-surgical disability). In responding to this inquiry, the clinician should address the Veteran’s contention that the left wrist surgery caused residual gnarled scarring and nerve damage on and around his left wrist, hand, and arm. b. For any additional disability affecting the left upper extremity identified above, whether it is at least as likely as not that the additional disability, or any part thereof, was due to carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of the VA in its provision of hospital and surgical care; is it as likely as not that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In responding to this inquiry, the clinician should address the Veteran’s contention that the left wrist surgery was unneeded. c. If the clinician finds that additional left upper extremity disability was caused or permanently aggravated by VA treatment or care, was such additional disability proximately caused by an event not reasonably foreseeable? Was the risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures prior to surgery? The clinician should set forth a clear rationale for any opinion expressed. 5. After associating all records responsive to remand directives #1 & #2 with the claims file, forward the file to an appropriate medical professional (“clinician”) for a medical opinion concerning the Veteran’s claim for service connection for diabetic retinopathy. After reviewing the file, the clinician should address the following: a. Identify a diagnosis for any eye disability present at any time during the relevant appeal period (March 2009 to the present). The clinician should specifically confirm or rule out a diagnosis of diabetic retinopathy. b. For any diagnosis rendered, state whether it at least as likely as not was proximately due to or the result of service-connected diabetes. c. For any diagnosis rendered, also state whether it is at least as likely as not that it was aggravated by the service-connected diabetes. The clinician is advised that aggravation in this context is defined as any worsening of a nonservice-connected disability by a service-connected disability. Permanent worsening need not be shown. (Continued on the next page)   A complete rationale must accompany any opinion provided. 6. After completing the above, conduct any additional development deemed necessary in light of the expanded record, then readjudicate the claims of entitlement to compensation under 38 U.S.C. § 1151 for additional left upper extremity disability resulting from VA carpal tunnel release surgery, entitlement to service connection for diabetic retinopathy, and eligibility for a special home adaptation grant. If any benefit sought is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board for further appellate consideration, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.