Citation Nr: 21072992 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-15 636 DATE: December 7, 2021 ORDER Entitlement to a certificate of eligibility for specially adapted housing is denied. Entitlement to a certificate of eligibility for a special home adaptation grant is denied. FINDING OF FACT The Veteran does not have a single disability rated as permanently and totally disabling, that is 100 percent disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to a certificate of eligibility for specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.809. 2. The criteria for entitlement to a certificate of eligibility for a special home adaptation grant have not been 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 FINDING AND CONCLUSIONS The Veteran had active service from December 1987 to August 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran filed a substantive appeal (VA Form 9) and requested a Board hearing before a Veterans Law Judge. In May 2021, the Veteran's representative submitted a written withdrawal of the Veteran's request for a Board hearing. 1. Entitlement to a certificate of eligibility for specially adapted housing 2. Entitlement to a certificate of eligibility for a special home adaptation grant Specially adapted housing is available to veterans who have a service-connected disability rated as permanent and total due to amyotrophic lateral sclerosis or one of the following: (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 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). Preclusion of locomotion means the necessity for regular and constant use of a wheelchair, braces, crutches, or cane as a normal mode of locomotion although occasional locomotion by other methods may be possible. Id. The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.350 (a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 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 trunk; 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). In this case, the Veteran is service connected for dysthymic disorder with secondary anxiety disorder NOS (50 percent), lumbar spine degenerative arthritis (40 percent), marginal gastrojejunal ulcer (40 percent), left knee lateral instability (20 percent), left knee scars associated with residuals of ACL repair (20 percent), left lower extremity radiculopathy (20 percent), right lower extremity radiculopathy (20 percent), left knee traumatic arthrosis (10 percent), residuals of excised right knee tendon (10 percent), right knee surgical scar (10 percent), left knee limitation of flexion (10 percent), right elbow epicondylitis (10 percent), right elbow ulnar neuropathy (10 percent), left knee limitation of extension (10 percent), residuals of patellar tendon excised right knee tendon with limitation of extension and arthritis (10 percent), right elbow epicondylitis with limitation of flexion, right elbow epicondylitis with limitation of extension (10 percent), hemorrhoids (zero percent), and left knee scar associated with ACL reconstruction (zero percent). The disabilities have a combined rating of 100 percent. As a threshold matter, the law requires that the Veteran be entitled to compensation for a disability rated as permanent and total, under either 38 C.F.R. § 3.809 (b) or 38 C.F.R. § 3.809a (b). The Veteran does not meet the initial threshold requirement, as all of his disabilities are rated below 100 percent. Since the Veteran does not meet this threshold requirement, under either 3.809(b) or 3.809a(b), there is no entitlement under the law to the benefit sought. Accordingly, while the Board is sympathetic to the Veteran, his claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching this conclusion, the Board has considered whether the requirement for "a disability rated and permanent and total" means that a single disability rated at 100 percent is required, or whether a combination of disabilities could combine to reach the total disability requirement. In a September 1990 precedential opinion, the VA Office of the General Counsel (OGC) held that the statutory requirement that a veteran must be entitled to compensation under chapter 11 for total service-connected disability is satisfied if the veteran is entitled to a total rating based on individual unemployability due to service-connected disability pursuant to 38 C.F.R. § 4.16. VAOPGCPREC 94-90 (September 25, 1990). The opinion notes the statutory language and legislative history do not indicate "that veterans who are otherwise entitled to chapter 11 compensation at the total rate are to be excluded from assistance in acquiring specially adapted housing merely because their disability evaluation is based on individual unemployability, rather than other rating schedule criteria." However, the opinion does not distinguish between TDIU based on a single disability and TDIU based on multiple disabilities. Although current case law does not appear to address the exact scenario in this case, in Buie v. Shinseki, 24 Vet. App. 242, 250 (2011), the United States Court of Appeals for Veterans Claims (Court) held that a total disability rating based on individual unemployability that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court reasoned in part that Congress used the article "a" and singular "disability" when establishing the requirements of section 1114(s). Furthermore, in Youngblood v. Wilkie, 31 Vet. App. 412, 417 (2019), the Court held that a TDIU based on multiple service-connected disabilities that are considered as "one disability" under 38 C.F.R. § 4.16 (a) (for example, disabilities affecting a single body system) may not be used to establish "a service-connected disability rated as total" for special monthly compensation (SMC) eligibility pursuant to § 1114(s). In this case, the Board notes that the Veteran was awarded a TDIU in a July 2017 decision, but that the award was based on multiple service-connected disabilities. (CONTINUED ON NEXT PAGE) The Board is bound by the laws and regulations that apply to claims for veterans benefits and it has no discretion in this regard. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.105. Those laws and regulations on their face say, "a disability", and they do not say "multiple disabilities rated as total." The current state of the law suggests that to qualify for specially adapted housing requires a single disability rated as total. Although the Board is required to "render a decision which grants every benefit that can be supported in law," it regrets that there is no basis in law to grant a certificate of eligibility for specially adapted housing a special home adaptation grant. As such, the Board concludes that the Veteran does not meet the basic criteria to be found eligible. Accordingly, entitlement to a certificate of eligibility for specially adapted housing or a special home adaptation grant is not warranted. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.