Citation Nr: 21002960 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-36 839 DATE: January 19, 2021 ORDER Eligibility for specially adapted housing is denied. Eligibility for a special home adaptation grant is denied. FINDING OF FACT The Veteran does not have either permanent and total service-connected disability or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. CONCLUSIONS OF LAW 1. The criteria for eligibility for specially adapted housing are not met. 38 U.S.C. §§ 2101(a), 5107; 38 C.F.R. § 3.809. 2. The criteria for eligibility for a special home adaptation grant are not met. 38 U.S.C. §§ 2101(b), 5107; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1998 to October 1998, September 2007 to November 2007, and July 2009 to November 2011. This appeal is before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office. Requirements for a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a) include a service-connected disability rated as permanent and total, which must be due to: (1) The loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) 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 or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (4) 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 as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; (5) The loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or (6) 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. 38 C.F.R. § 3.809. Requirements for a certificate of eligibility for assistance in acquiring necessary special home adaptations or assistance in acquiring a residence already adapted with necessary special features, under 38 U.S.C. § 2101(b) or 2101A(a), include having a service-connected disability rated as permanently and totally disabling that (i) Includes the anatomical loss or loss of use of both hands; (ii) 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; (iii) Is due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or (iv) 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. § 3.309a. The term “preclude locomotion” means 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). 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). For purposes of 38 C.F.R. § 3.809, “locomotion [may be] precluded even if a veteran is capable on occasion of moving about unaided.” Id. at 78. Reasonable doubt regarding any point is resolved in favor of the claimant. 38 U.S.C. § 5107. The Veteran’s service-connected disabilities are as follows: reactive airway disease, rated 30 percent; chronic renal disease with hypertension, rated 30 percent; left hip osteoarthritis, rated 20 percent; left knee instability, rated 20 percent; right and left foot plantar fasciitis, rated 10 percent each; lumbar spine degenerative disc disease, rated 10 percent; left and right hip degenerative osteoarthritis, rated 10 percent each; right and left knee degenerative osteoarthritis, rated 10 percent each; right and left ankle sprain, rated 10 percent each; tinnitus, rated 10 percent; gastroesophageal reflux disease with fatty liver disease, rated 10 percent; and right and left foot and hip degenerative osteoarthritis, left knee degenerative joint disease, and right ear hearing loss, each rated noncompensable (0 percent). The Veteran’s combined rating for compensation is 90 percent. 1. Eligibility for specially adapted housing is denied. 2. Eligibility for a special home adaptation grant is denied. In his October 2011 application for benefits, the Veteran asserted that his primary residence required accessibility and structural modifications to allow him unrestricted access to all bathrooms including changing of floor surfaces, modifications to bathrooms, and modification to his HVAC system to include additional filters for his reactive airway disease. The Veteran filed a notice of disagreement in May 2012—which he resubmitted multiple times, including in July 2012, December 2012, January 2014, March 2015, and April 2019—in which he asserted that, due to his service-connected disabilities, it was necessary for him to use a cane, and that he was evaluated for a power scooter due to his inability to walk even short distances unassisted. In a June 2012 statement, he likewise asserted that, due to his service-connected mobility and breathing issues, he was a “cane ambulator,” and required a grant to make modifications to his eating areas and bathrooms and air filtration system in his home to accommodate his disabilities. In a September 2014 statement, he reiterated that he was a “cane ambulator” from orthopedic conditions with reactive airway disease, was about to have another anterior cruciate ligament reconstruction, and needed mobility modifications to his home. However, initially, the record does not reflect—and the Veteran has not asserted—that he has service-connected disability rated as permanent and total. In this regard, the Veteran has not filed a claim for a total disability rating for individual unemployability due to service-connected disabilities, or otherwise asserted that his disabilities preclude substantially gainful employment or are totally disabling, and the record does not otherwise reflect this. Such total disability is a prerequisite for housing or adaption benefits under 38 C.F.R. §§ 3.309 and 3.309a. Moreover, despite the Veteran’s assertions in his 2012 and 2014 statements, the record does not reflect loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. VA treatment records do reflect that the Veteran underwent left knee surgery, including arthroscopic-assisted medial meniscus transplant, anterior cruciate ligament reconstruction with allograft, and arthroscopic chondroplasty with microfracture of the trochlea, in October 2014. However, in January 2015, he returned for reevaluation, noting continued progress and improved flexion. It was noted that he was not using a cane or crutch, continued to be very satisfied with his progress, felt better than pre-operation, and was planning to take the LSAT the next month. It was further noted that he walked with a trace antalgic gait with startup. On May 2015 evaluation, it was noted that the Veteran had been doing well in rehab, and that he had a diagnosis of reactive airway disease/asthma, but no longer had shortness of breath or dyspnea on exertion. The Veteran was noted to ambulate with a normal gait with no antalgia, limp or shuffle to his gait. Peripheral nerves/sensory of feet was intact, motor strength was normal and full in all the extremities, and he moved all extremities with full range of motion. Such 2015 records show the Veteran recovering from knee surgery with normal gait and use of his legs and no assistive devices for ambulation. The Veteran has submitted no evidence, such as medical records, in support of his earlier assertions of requiring assistance to walk. In short, the eligibility criteria under 38 U.S.C. § 2101 and 38 C.F.R. §§ 3.309 and 3.309a for specially adapted housing or a special home adaptation grant have not been shown to be met in this case. Accordingly, the Veteran’s claims for such are denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.