Citation Nr: 21001289 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-01 937 DATE: January 7, 2021 ORDER Service connection for intervertebral disc disease (IVDS) is denied. Service connection for left lower extremity peripheral neuropathy is denied. Entitlement to specially adapted housing is denied. Entitlement to a special home adaptation is denied. FINDINGS OF FACT 1. The Veteran’s IVDS and left lower extremity peripheral neuropathy were neither caused nor aggravated by his service-connected left foot pes cavus. See VA Examinations dated December 2014; but see July 2015 VA Treatment Record (including positive medical nexus opinion). 2. The Veteran served in the Army before September 11, 2001 and had no disability rated as permanent and total which included or was due to the anatomical loss or loss of use of both hands, was due to burns of any depth or thickness, residuals of an inhalation injury, loss or loss of use of both lower extremities, or the loss of use of one lower extremity with residuals of organic disease or injury or loss or loss of use of one upper extremity which so affect balance and propulsion as to preclude unaided locomotion. The Veteran also had no disability of any rating due to blindness in both eyes. See September 2016 Rating Decision Codesheet. CONCLUSIONS OF LAW 1. The criteria for service connection for IVDS are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). 2. The criteria for service connection for left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). 3. The criteria for entitlement to specially adapted housing are not met. 38 U.S.C. §§ 2101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.809. 4. The criteria for entitlement to a special home adaptation are not met. 38 U.S.C. §§ 2101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1985 to December 1987. This case is before the Board of Veterans’ Appeals (Board) on appeal from June 2015 and September 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran passed away in July 2019. The appellant is the Veteran’s surviving wife, who has been substituted for the Veteran. See September 2020 Grant of Substitution. Service Connection 1. IVDS and Left Lower Extremity Peripheral Neuropathy Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that 1) a current disability exists, and 2) the current disability was either a) caused by or b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Here, the Veteran contended that his IVDS and left lower extremity peripheral neuropathy were secondary to his service-connected left foot pes cavus. He stated that the pes cavus had worsened over time, causing an abnormal gait, which led to his claimed secondary disabilities. See July 2015 Notice of Disagreement. The Veteran was afforded two VA examinations and medical opinions in support of these claims, one for each disability, in December 2014. The examiner opined that neither the Veteran’s IVDS nor his left lower extremity peripheral neuropathy was related to his service-connected left foot pes cavus. The examiner noted that more than twenty years passed between the onset of the Veteran’s pes cavus in service and the onset of his current back complaints around 2011. Moreover, the examiner noted that during that 20-year period the Veteran injured his low back in a work-related accident. The examiner stated that the Veteran’s disability could be due to degenerative disc disease secondary to the intervening injury. The work-related low back injury in combination with the number of years in between the development of pes cavus and the later development of IVDS, suggested that it was less likely than not that the back disability was related to pes cavus. Finally, the examiner stated that the Veteran’s left lower extremity peripheral neuropathy was secondary to his IVDS, per a September 2012 nerve conduction study. The opinions of the VA examiner are competent, credible, and entitled to significant weight. The only evidence to the contrary is a positive nexus opinion rendered during a VA pain management appointment in July 2015. VA clinicians stated that the Veteran’s lower back and ankle pain appeared to be “due to significant favoritism of his left leg.” However, the clinicians provided no supporting rationale for this opinion, nor any indication that they had thoroughly reviewed the Veteran’s medical history. Therefore, because the opinion of the December 2014 VA examiner included a fully articulated medical rationale and was based on a full review of the Veteran’s medical files, the Board finds that it is substantially more probative. Accordingly, the Board finds that the Veteran’s IVDS and left lower extremity peripheral neuropathy were not secondary to his service-connected left foot pes cavus, and service connection for these conditions is not warranted. Specially Adapted Housing and Special Home Adaptation The Veteran contended that he was entitled to specially adapted housing or special home adaptation due to his service-connected left foot pes cavus and major depressive disorder. See September 2016 Notice of Disagreement. The Board notes that the purpose of a grant of a special home adaptation or specially adapted housing is to assist a disabled veteran in “acquiring a suitable housing unit with special fixtures or movable facilities made necessary by the nature of the Veteran’s disability,” and the Veteran in this case is deceased. See 38 U.S.C. § 2101(a)(1). However: “If a claimant dies while a claim for any benefit under a law administered by the Secretary . . . is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.” 38 U.S.C. § 5121A(a)(1) (emphasis added). Therefore, the Board finds that the Veteran’s claim for specially adapted housing or a special home adaptation remains on appeal and is not mooted by his death. 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 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 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(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). If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature. Additionally, a special home adaptation grant is available for a veteran that has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b). Generally, an eligible veteran will be provided one-time only assistance with a special home adaptation grant or specially adapted housing. However, issuance of a special home adaptation grant before a veteran becomes eligible for specially adapted housing under 38 C.F.R. § 3.809 does not preclude a later grant for specially adapted housing. 38 C.F.R. § 3.809a(a). The Veteran is service connected for major depressive disorder rated as 100 percent, left foot pes cavus rated as 30 percent, left ankle peroneal tendonitis rated as 10 percent, and right inguinal hernia rated as 0 percent, with a total rating of 100 percent. As noted in the above findings of fact, the Veteran served before September 11, 2001 and there is no evidence of any disability rated as permanent and total which included the anatomical loss or loss of use of both hands, was due to burns of any depth or thickness, residuals of an inhalation injury, loss or loss of use of one lower extremity with loss or loss of use of one upper extremity which so affects balance and propulsion as to preclude unaided locomotion, or loss or loss of use of both lower extremities. There is also no evidence of any disability (of any rating) due to blindness in both eyes. Nor did the Veteran make any such contentions. Rather, the Veteran asserted that he was entitled to specially adapted housing by reason of his service-connected left foot pes cavus, which he stated constituted the loss of use of the left foot, and his major depressive disorder, which he stated constituted “residuals of organic disease or injury,” since this psychiatric disorder affected his brain, an organ of his body. See September 2016 Notice of Disagreement. However, specially adapted housing is only warranted for a disability due to the loss or loss of use of one lower extremity which is rated as permanent and total, together with residuals of organic disease or injury which so affect balance and propulsion as to preclude unaided locomotion. Because the Veteran’s left foot pes cavus, which he asserted constituted loss of use of the left foot, is not rated as permanent and total it does not warrant specially adapted housing, regardless of his major depressive disorder. Therefore, in light of all the above, the Board finds that the criteria for entitlement to specially adapted housing or special home adaptation are not met. Accordingly, entitlement to specially adapted housing or special home adaptation is not warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, Associate 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.