Citation Nr: 21072731 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-63 503 DATE: December 6, 2021 ORDER Eligibility to entitlement to specially adapted housing is granted. Eligibility to entitlement to special home adaptation is moot and therefore dismissed. FINDINGS OF FACT 1. The Veteran's overall disability result in the loss or loss of use of his lower extremities, which affects the functions of balance and propulsion as to preclude locomotion without the aid of a walker, canes, or a wheelchair. 2. The issue of entitlement to special home adaptation is moot, due to the award of specially adapted housing. CONCLUSIONS OF LAW 1. The criteria for entitlement to specially adapted housing have been met. 38 U.S.C. § 2101; 38 C.F.R. §§ 3.809, 3.809a. 2. The claim for a special home adaptation is dismissed. 38 U.S.C. § 2101; 38 C.F.R. §§ 3.809, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1990 to March 1996. This matter is on appeal from a February 2017 rating decision. Eligibility for assistance in acquiring specially adapted housing and special home adaptation Financial assistance in acquiring 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 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 as to preclude locomotion; 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 as to preclude locomotion. 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 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). If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if he/she 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 vision fields 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 (COPD)). 38 C.F.R. § 3.809a (b). In the case of Jensen v. Shulkin, 29 Vet. App. 66 (2017), the Court of Appeals for Veterans Claims clarified that, under 38 U.S.C. § 2101 (a)(2)(B), a "loss of use" exists if a veteran has suffered a deprivation of his or her ability to use their lower extremity so severe that he or she is precluded from perambulating without one of the required assistive devices. This definition indicates that locomotion is precluded even if a veteran is capable on occasion of moving about unaided. Id. at 78. In addition, functional impairment caused by pain, weakness, or incoordination should be considered when making this determination. Id. at 78-79. However, this does not mean that every time an individual is prescribed an assistive device in conjunction with a lower extremity disability that he or she would automatically be eligible to receive specially adaptive housing. Id. at 79. In this regard, to receive specially adaptive housing based on "loss of use," an individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. Id. The Board notes that effective November 8, 2021, amendments have been made to 38 C.F.R. § 3.809, 3.809a, and 36.4404, which apply to all applications for benefits that were or are received by VA on or after August 8, 2020, or that were pending before VA, including the Board of Veterans Appeals, the United States Court of Appeals for Veterans claim or the United States Court of Appeals for the Federal Circuit on August 8, 2020. Section 2 of the Act, which became effective upon enactment, amended 38 U.S.C. § 2101(a) and (b) to change SAH eligibility for individuals with blindness in both eyes. Previously, the Secretary could provide such an individual with assistance under section 2101(a) if the individual had a permanent and total service-connected disability due to blindness in both eyes having only light perception, plus loss or loss of use of one lower extremity. Alternatively, the Secretary could provide a lesser amount of assistance under section 2101(b) if the individual had a service-connected disability due to blindness in both eyes with a central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens. For the purposes of that clause, the Secretary was to have considered an eye with a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees as having a central visual acuity of 20/200 or less. With the enactment of the Act, the loss or loss of use of one lower extremity is no longer an eligibility criterion under section 2101(a) for individuals with blindness in both of the eyes. Further, the criterion that the service-connected disability for blindness be "permanent and total'' has been changed to "permanent.'' Eligibility for blindness in both eyes under section 2101(a) is no longer described as having only light perception but is instead described as it had been under the eligibility criteria found in section 2101(b): Having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens. For the purposes of this clause, an eye with a limitation in the fields of vision such that the widest diameter of visual field subtends an angle no greater than 20 degrees shall be considered as having a central visual acuity of 20/200 or less. In effect, an individual who was eligible for SAH assistance under prior section 2101(b)(2)(A) is now eligible to receive SAH assistance under section 2101(a)(2)(B)(ii) instead and can receive as much as $100,896 for fiscal year 2021. See 85 FR 71139. The Act removed eligibility for SAH assistance under section 2101(b) for service-connected disability due to blindness in both eyes. In this case, the Veteran's service-connected disabilities do not include blindness or impairment of his vision. Therefore, the amendments are not applicable in this case. As an initial matter, the Veteran has not asserted that his service-connected disabilities include or involve burn injuries, inhalational injuries, blindness, or amyotrophic lateral sclerosis. The Veteran's service-connected disabilities have not been shown to have effectively deprived him of the functional use of one, let alone both, hands. Eligibility on these bases is therefore not warranted. Currently, the Veteran is service connected for PTSD at 70 percent, degenerative disc disease of the lumbar spine at 40 percent, radiculopathy of the right lower extremity at 20 percent, radiculopathy of the left lower extremity at 20 percent, right lower extremity radiculopathy of the femoral nerve at 20 percent, left lower extremity radiculopathy at 20 percent, limitation of extension of the right thigh associated with right ankle sprain at 10 percent, a right knee strain at 10 percent, and a right ankle sprain at 10 percent. he is also service connected for a right hip disability and limitation of flexion of the right thigh associated with the right ankle sprain, both at a noncompensable rating. At his August 2021 Board hearing, the Veteran testified that he relies heavily on a walker and uses a wheelchair because of his back condition. He indicated that he had not been able to receive surgery for his spine because of his weight. Instead, he has been receiving injections in his spine to relieve pain. However, despite the number of treatments and physical therapy he has attended, he has seen very little improvement in his symptoms. He now requires a walker daily and uses a wheelchair for longer trips such as trips to the grocery stores. Currently, his home is not friendly to his walker or wheelchair. The entrance of his house is too narrow and the paved walkway to the entrance of the house was not made correctly. It is easily covered with debris and mud when it rains, making it difficulty to go between the car and the house. It is also difficult for him to use the shower as it only allows the use of a cane. Therefore, he would benefit from an expanded doorway and entry in into the shower. In describing his service-connected disabilities, the Veteran indicated that his lumbar spine disability causes radiating pain into his legs. The pain has now radiated down into his feet, which has caused daily numbness. When asked if he could walk without using a walker, the Veteran stated that he still requires a cane to move around. He heavily requires on his wife for day-to-day chores such as cooking. She often buys microwavable food for him so that he may be able to heat it himself. With his condition, the Veteran indicated that he could walk to the kitchen with a cane or a walker to use the microwave. He can only walk or stand around 30 seconds before having to sit back down. He is unable to drive anymore due to the numbness in his feet. It also causes instability and makes it difficulty for him to step when he walks. He has fallen on occasional, thus, requiring a cane or walker for stability. Finally, in attempts to improve his health, the Veteran uses a pool to exercise. However, it has since been damaged by a storm and is currently being repaired. Based on his September 2017 Disability Benefits Questionnaire for his lumbar spine disorder, the Veteran reported using crutches on occasion but that he requires a cane and a walker on a constant basis due to back pain. The Veteran underwent an examination in April 2019 for his low back condition. There, he reported constant use of walker because of his back pain. He indicated that he requires the walker for stability and support. He further reported needing help from his wife or her uncle for daily chores. He is unable to care for his livestock or use his tractor like he used to. He has difficulty driving and has to rely on others. VA treatment records in September 2019 reported that the Veteran was seen by emergency services for pain in his lumbar spine due to compressed discs. It was noted that the Veteran was able to transfer himself without assistance from the vehicle to the wheelchair, but with great difficulty. He also complained of worsening radicular pain that radiates into his legs. Based on his October 2021 Disability Benefits Questionnaire for his lumbar spine condition, the Veteran complained of pain that requires medication and spinal injections. He requires help with eating, dressing, and showering. The examiner noted that the Veteran admitted to shower only weekly rather than daily due to the lack of facility to accommodate his wheelchair or walker. The condition affects his intimacy and his sleep. He sleeps in his chair and is often exhausted. In an October 2021 medical opinion addendum concerning the Veteran's radiculopathy of the lower extremities, the examiner clarified that the Veteran has radiculopathy affecting the femoral and sciatic nerves of both legs. He has pain radiating down the lateral legs to the toes along with muscle weakness which requires complete assistance from his wife to shower, dress or even tie his shoes. He also exhibited decreased reflex response in his lower extremities. In reviewing the pertinent evidence of record, the Board finds that the weight of the evidence supports the Veteran's eligibility for specially adapted housing due to his overall service-connected disabilities. The evidence shows that the Veteran's disabilities at the least equate to the loss of use of his lower extremity as his lumbar disability and radiculopathy of his lower extremities affects the functions of balance and propulsion as to preclude locomotion. It is clear from the record that the Veteran's moderately severe radiculopathy of the lower extremities has caused significant problems with mobility. His lay statements indicate that the numbness and tingling sensations in his legs, combined with the chronic sharp pain caused by his lumbar spine condition significantly limits his ability to move independently with without a cane, walker, or a wheelchair. He reported enduring several falls with attempts to walk. His balance, gait, and propulsion have all been made significantly worse by his weight, which he attributed to his significant back pain. Because of the constant pain in his lumbar spine and legs, he is unable to exercise to reduce his weight. Furthermore, it is clear from the record that the Veteran requires the use of a walker, cane, wheelchair and a motorized scooter on occasion. He additionally relies heavily on his wife to assist with activities of daily living. By his own statements, the Veteran requires her help with basic activities such as bathing, dressing, eating, and moving around indoors. Because of the numbness in his feet, it causes significant instability, making it difficult to walk, and he is also unable to drive since he can no longer feel the pedals beneath his feet. In summation, the Board notes that the relevant standard is not total loss of use, but only such loss of use that amputation and use of a prosthesis would serve equally. See C.F.R. §§ 3.350(a)(2). Although the medical evidence does not show that amputation would help this Veteran, the overall record indicates that physical weakness due to his lumbar spine disability, disturbance of gait, constant pain and numbness in lower extremities caused him to become wheelchair dependent. He has not been able to sustain an ability to walk independently even at very short distances without the risk of falling and further injury. As such, the VA examinations and evidence discussed above show that the service-connected lumbar spine disability and lower extremity disabilities are consistent with a disability picture involving loss of use of both lower extremities such as to preclude locomotion without the aid of a walker, canes, or a wheelchair. Therefore, giving the benefit of the doubt to the Veteran, specially adapted housing is granted based on a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to the loss of use of both lower extremities. See 38 U.S.C. § 2101 (a); 38 C.F.R. § 3.809. Because the Board has determined that the Veteran is eligible for assistance under 38 U.S.C. § 2101 (a) for specially adapted housing, the law precludes an award of special home adaptation grant under 38 U.S.C. § 2101 (b). In this regard, VA regulation 38 C.F.R. § 3.809a specifically indicates that a special home adaptation grant is only available if a veteran is deemed not entitled to the more substantial benefit of a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809. The Board may dismiss any appeal which fails to allege error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). Here, in light of the Board's award of the greater benefit of specially adapted housing reached above, the Veteran is legally ineligible to a separate special home adaptation grant. Accordingly, the special home adaptation claim is moot and therefore dismissed. Michael Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.