Citation Nr: 21061697 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 13-01 641 DATE: October 5, 2021 REMANDED Entitlement to a certificate of eligibility for specialty adapted housing (SAH). REASONS FOR REMAND The Veteran served on active duty from January 1999 to October 2006. This matter comes to the Board on appeal from a March 2010 rating decision. In October 2015, the Veteran testified before the undersigned in a videoconference hearing. A transcript of those proceedings has been associated with the claims file. The Board previously denied this claim in an April 2019 decision. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 order, the Court vacated the prior denial pursuant to a Joint Motion for Partial Remand (JMPR) to the extent that it denied the Veteran entitlement to a certificate of eligibility for SAH, and the case was remanded for readjudication in accordance with the JMPR. The Board subsequently remanded the issue for additional evidentiary development in November 2020. Entitlement to a certificate of eligibility for SAH benefits. The Veteran applied for SAH benefits in November 2009. During this appeal, VA regulations for SAH were revised, effective October 25, 2010. See 75 Fed. Reg. 57861-62 (Sept. 23, 2010). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. Prior to October 25, 2010, under 38 C.F.R.§ 3.809, eligibility for assistance in acquiring SAH under 38 U.S.C.§ 2101(a) may be granted if a Veteran is entitled to compensation for permanent and total disability 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; or, (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or, (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. 38 C.F.R.§ 3.809(b) (2010). Effective October 25, 2010, VA amended its regulations regarding eligibility for SAH. The revised 38 C.F.R.§ 3.809 provides that a veteran must be entitled to compensation under chapter 11 of title 38, United States Code, for a disability rated as permanent and total. The disability 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; or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; or (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; or (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; or (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(b) (2018). 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); see also 75 Fed. Reg. 57860 (Sept. 23, 2010). The Veteran is service connected for: non-obstructive CAD with premature ventricular contractions (PVCs), posttraumatic stress disorder (PTSD) with major depressive disorder, right knee instability status postsurgical removal of the patella as well as limitation of flexion, right knee surgical scar, left knee patellofemoral syndrome, irritable bowel syndrome, fibromyalgia, tinnitus, right ear hearing loss, and residuals of kidney stones with a combined 90 percent rating effective from October 5, 2006, and a combined 100 percent rating effective from February 22, 2008. The points of contention in the present matter are twofold. First, whether the Veteran's service-connected disabilities could be classified as residuals of organic disease or injury. Second, whether, in combination with the loss of use of his right lower extremity, these disabilities would contribute to the impact of or affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. The Board requested that the VA examiner(s) respond directly to these two points of inquiry in the November 2020 remand instructions. Unfortunately, responses from the June and July 2021 medical opinions pertaining to hearing loss, tinnitus, and PTSD, are insufficient. Accordingly, remand is again warranted to resolve these outstanding issues. The matters are REMANDED for the following action: Obtain VA audiological and psychiatric opinions in connection with the Veteran's SAH claim. If an examination is deemed necessary, the Veteran should be scheduled for one. The claims file must be provided to and be reviewed by the examiner, including a copy of this remand. In doing so, the Board notes the Veteran is service-connected for: CAD with PVCs, PTSD with major depressive disorder, right knee instability status postsurgical removal of the patella as well as limitation of flexion, right knee surgical scar, left knee patellofemoral syndrome, irritable bowel syndrome, fibromyalgia, tinnitus, right ear hearing loss, and residuals of kidney stones. Following a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) For the Veteran's diagnoses of bilateral hearing loss, tinnitus, and PTSD, identify whether these diagnoses may be classified as residuals of a chronic organic disease or injury. (b.) Opine as to whether those service-connected disabilities identified as residuals of organic disease or injury, alone or in any combination, when combined with his loss of use of his right lower extremity, would contribute to the impact of or affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. (c.) The examination report must include a complete rationale for all opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.