Citation Nr: 21003391 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 20-14 254 DATE: January 21, 2021 ORDER Entitlement to a certificate of eligibility for specially adapted housing (SAH) is granted. Entitlement to a certificate of eligibility for a special home adaptation (SHA) grant is denied. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another person is granted. REMANDED Entitlement to financial assistance for automobile and adaptive equipment, or for adaptive equipment only, is remanded. FINDINGS OF FACT 1. The Veteran is permanently and totally disabled, and his service-connected disabilities result in loss of use of both lower extremities for specially adapted housing purposes. 2. As the Veteran meets the criteria for an award of specially adapted housing, he is precluded from receiving a special home adaptation grant. 3. The Veteran’s service-connected disabilities are reasonably shown to result in the need for the aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to a certificate of eligibility for specially adapted housing (SAH) have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809. 2. The criteria for entitlement to a certificate of eligibility for a special home adaptation (SHA) grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809, 3.809a. 3. The criteria for entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another person have been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to September 1969, including combat service in Vietnam. This matter is on appeal before the Board of Veterans Appeals (Board) from a November 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO). Specially Adapted Housing and Special Home Adaptation Grant 1-2. Entitlement to a certificate of eligibility for specially adapted housing (SAH) and special home adaptation grant (SHA). The Veteran seeks entitlement to specially adapted housing and/or special home adaptation grant. In pertinent part, specially adapted housing is available to a veteran who is entitled to service-connected compensation for permanent and total disability due to the loss, or loss of use, of both lower extremities. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). In claims for specially adapted housing based on loss of use of a lower extremity, consideration is to be given to whether the Veteran’s loss of use precludes locomotion without the aid of assistive devices. 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). The Court of Appeals for Veterans Claims 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). The Veteran’s service-connected disabilities include ischemic heart disease, rated 100 percent; peripheral vascular disease, rated 100 percent; PTSD, rated 70 percent; bilateral inflammatory arthritis of the feet, 40 percent; peripheral neuropathy of the left lower extremity, rated 40 percent; peripheral neuropathy of the right lower extremity, rated 40 percent; peripheral neuropathy of the right upper extremity, rated 30 percent; peripheral neuropathy of the left upper extremity, rated 20 percent; diabetes, rated 20 percent; pseudophakia, rated 10 percent; irritable bowel syndrome, rated 10 percent; hypertension, rated noncompensable; and erectile dysfunction, rated noncompensable. The Veteran’s combined rating is 100 percent and he has been awarded special monthly compensation at the housebound rate and special monthly compensation based on the loss of use of a creative organ. 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 and will not be provided both benefits. 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). At a December 2017 VA examination, the Veteran was diagnosed with left and right lower extremity peripheral neuropathy. He was found to have moderate intermittent pain, moderate paresthesias and moderate numbness bilaterally. The bilateral lower legs were swollen with venous insufficiency along with some smooth shiny skin and decreased hair growth. The Veteran was noted to walk with a significant limp, using a walker with wheels. The Veteran’s bilateral lower extremity peripheral neuropathy was characterized as causing moderately severe incomplete paralysis of the sciatic nerves. Regarding assistive devices, the examiner noted that the Veteran used a walker with wheels and a wheelchair for traveling longer distances. Similarly, at a November 2018 VA peripheral neuropathy examination, the Veteran was noted to require constant use of a walker and occasional use of a cane and wheelchair due to his service-connected lower extremity peripheral neuropathy. As noted above, the Veteran is entitled to compensation for permanent and total disability (i.e. permanent and total 100 percent rating), including as due to peripheral vascular disease and bilateral lower extremity peripheral neuropathy. The December 2017 and November 2018 VA examinations reasonably show that the Veteran requires the regular and constant use of an assistive device (i.e. a walker) as a normal mode of ambulation as a result of these lower extremity disabilities. Thus, these service-connected disabilities preclude locomotion without the use of this assistive device. Consequently, the Veteran’s permanent and total service-connected disabilities result in loss of use of both lower extremities under the controlling legal criteria. Accordingly, an award of a certificate of eligibility for specially adapted housing is warranted. The Board notes that this award recognizes that the Veteran meets the disability criteria for specially adapted housing. The level of actual assistance, if any, the Veteran could potentially receive with remodeling, purchasing or building an adapted home is determined through consultation with a specially adapting housing agent. See e.g. Handbook for Design: A Guide for Specially Adapted Housing and Special Housing Adaptation Projects, page 6, found online at https://www.benefits.va.gov/HOMELOANS/documents/docs/sah_handbook_for_design.pdf. Given that the Veteran is being awarded a certificate of eligibility for specially adapted housing, he is ineligible for the lesser benefit of a certificate of eligibility for special home adaptation grant. Accordingly, this latter appeal must be denied. 38 C.F.R. § 3.809(a). SMC 3. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another person. The Veteran seeks entitlement to special monthly compensation based on the need for aid and attendance. Special monthly compensation can be paid pursuant to 38 U.S.C. § 1114(l) if as a result of service-connected disability or disabilities a veteran is permanently bedridden or with such significant disabilities as to need regular aid and attendance. 38 C.F.R. § 3.350(b). The criteria for determining that a veteran is so helpless as to need regular aid and attendance are contained in § 3.352(a). Under that regulation, the following factors will be accorded consideration in determining whether a veteran is in need of regular aid and attendance of another person: (1) inability of the veteran to dress or undress himself or herself, or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; (3) inability of the veteran to feed himself or herself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions above be found to exist before a favorable rating may be made. The personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran was so helpless as to need regular aid and attendance, not that there was a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in § 3.352(a) must be present to grant special monthly compensation based on the need for aid and attendance). Once again, the Veteran’s combined rating is 100 percent and he has been awarded special monthly compensation at the housebound rate and special monthly compensation based on the loss of use of a creative organ. At an August 2018 VA special monthly compensation examination, the Veteran reported that he was able to get up in the morning and get dressed and was generally able to prepare simple foods or to order take out. He indicated that he required a walker for ambulating shorter distances and a wheelchair for longer distances. Concerning the Veteran’s ability to protect himself from the hazards of his environment, it was noted that imbalance affected his ability to ambulate approximately one or more times per week. It was also noted that the Veteran had severe stasis dermatitis of both lower extremities (due to peripheral vascular disease) and had to prevent any trauma to the lower extremity that could cause bleeding and infection. Physical examination showed that the Veteran had a frail build and stooped posture. The examiner commented that the Veteran’s daughter and ex-wife helped him at times, as he needed help with cleaning the house, daily upkeep of the house, and daily cooking of meals. At a December 2018 VA primary care visit, the Veteran was noted to have chronic venous insufficiency. He was receiving home nursing and physical therapy services with a combination of Profore dressings and a lymphatic pump. An August 2019 nursing admission assessment shows that the Veteran was admitted to the hospital for swollen legs from his peripheral vascular disease. It was noted that upon discharge from the hospital, it was anticipated that he would not be independent and would need assistance with care from family and friends. A September 2019 VA emergency room note shows that the Veteran was seen for a non-healing foot ulcer. The Veteran was noted to have admitted that he was not maintaining proper wound care. An October 2019 long term care admission note shows that the Veteran was admitted to longer term care for right heel osteomyelitis. An April 2020 VA activities of daily living note indicates that the Veteran was still being housed at a long-term care facility due to his plantar heel wound with chronic osteomyelitis. A December 2020 VA procedure note shows that the Veteran underwent debridement of his wound of the plantar aspect of the right heel with application of stravix graft. The above summarized evidence reasonably indicates that the Veteran requires assistance in protecting himself from specific hazards of his environment; prevention of trauma to the lower extremity that causes infection and implementing home wound care to prevent such trauma resulting in infection. This is shown by the initial assessment by the August 2018 VA examiner; the subsequent VA treatment records documenting development of a severe heel infection (which was reasonably shown to be related to service-connected deep vein thrombosis and diabetes/diabetic neuropathy); the Veteran experiencing difficulty adequately taking care of the infection at home; and the infection becoming severe, resulting in the need for in-home nursing care followed by long term inpatient care and a surgical procedure. Accordingly, resolving all reasonable doubt in the Veteran’s favor, his service-connected disabilities result in him requiring the regular assistance of another person (whether it be a friend, family member, or in home health care provider) to help protect him from the hazards of his environment. Accordingly, the criteria for an award of special monthly compensation based on the need for the aid and attendance of another person have been met. 38 C.F.R. § 3.350(b). REASONS FOR REMAND 4. Entitlement to financial assistance for automobile or other conveyance and adaptive equipment or for adaptive equipment only is remanded. The Veteran has filed an appeal seeking entitlement to a certificate of eligibility for financial assistance for automobile and adaptive equipment or for adaptive equipment only. Pertinent to his case, such a certificate may be awarded to an eligible person where service-connected disability results in loss or permanent loss of use of one or both feet. Although loss of use of the hand or foot is not defined under 38 C.F.R. § 3.808, for purposes of special monthly compensation under 38 C.F.R. § 4.63, loss of use of a hand or foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation with prosthetic. The determination should be made based on the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel the self forward. See 38 C.F.R. § 4.63. As discussed in the analysis of the claims addressed in the decision above, the Veteran’s service-connected disabilities, including peripheral neuropathy of the lower extremities and bilateral peripheral vascular disease, result in significant impairment of the lower extremities. However, it is unclear from the record whether these disabilities result in loss of use of one or both feet such that no effective function remains other than that which would be equally well served by an amputation with prosthetic. Accordingly, a VA examination to assess whether such loss of use is present is necessary prior to final adjudication of the instant appeal. The Board also notes that at a January 2020 VA physical medicine rehabilitation consultation, it was noted that the Veteran does not drive an automobile. Thus, on remand, prior to arranging for the VA examination, the agency of original jurisdiction should contact the Veteran to determine whether he is still seeking financial assistance with automobile and adaptive equipment or adaptive equipment only or whether he is no longer driving and does not plan to drive, even if he were granted such financial assistance. The matter is REMANDED for the following action: 1. Contact the Veteran and his representative to determine whether the Veteran is still driving or whether he would plan to drive if he was awarded VA financial assistance with automobile and adaptive equipment or adaptive equipment only. Clarify with him and his representative whether he wishes to continue the appeal for this benefit. 2. If the Veteran does wish to continue his appeal, obtain updated VA treatment records. 3. If the Veteran does wish to continue his appeal, schedule the Veteran for a VA examination to determine the current function of his lower extremities. The examiner must review the Veteran’s claims file in conjunction with the examination. The examiner should provide opinions in answer to the following question: Do the Veteran’s service-connected disabilities (including bilateral inflammatory arthritis of the feet, peripheral vascular disease and diabetic peripheral neuropathy of the lower extremities) result in loss of use of one or both feet. The examiner is advised that loss of use of the foot has generally been defined by VA regulations as the lack of any remaining foot function other than that which would be equally well served by an amputation with prosthetic. The examiner must provide a rationale for all opinions provided. If the examiner cannot provide any requested opinion without resorting to speculation, then it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.