Citation Nr: 21077469 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-29 229A DATE: December 29, 2021 ORDER Entitlement to specially adapted housing is denied. Entitlement to special home adaptation grant is denied. Entitlement to SMC based on aid and attendance/housebound status is denied. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only is denied. FINDINGS OF FACT 1. The Veteran's service-connected disability does not include or result in loss or loss of use of the lower extremities, blindness in both eyes, loss or loss of use of one lower extremity with residual organic disease or injury affecting balance or propulsion, loss or loss of use of one lower extremity with loss or loss of use of one upper extremity affecting balance and propulsion, loss or loss of use of both upper extremities to preclude use of arms at or above the elbow, or full thickness or subdermal burns. 2. The Veteran's service-connected disability does not result in blindness in both eyes with 5/200 visual acuity or less, involve the anatomical loss or loss of use of both hands, certain deep partial and full thickness or subdermal burns, or residuals of an inhalation injury. 3. The Veteran's service-connected disabilities do not result in the anatomical loss or loss of use of both feet or one hand and one foot, or blindness in both eyes, or renders him permanently bedridden or so helpless as to be in need of regular aid and attendance. The Veteran's service-connected disabilities do not render him permanently housebound. 4. The Veteran's service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes with corrected central visual acuity of 20/200 or less in the better eye or central visual acuity of more than 20/200 with a visual field defect of a degree specified by regulation, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of one or both knees or hips. CONCLUSIONS OF LAW 1. The criteria for entitlement to specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.809, 3.809a. 2. The criteria for entitlement to special home adaptation grant have not been met. 38 U.S.C. §§ 2101(b), 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.809a. 3. The criteria for entitlement to SMC based on aid and attendance/housebound have not been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.350, 3.351, 3.352. 4. The criteria for entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only have not been met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.808. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1975 to July 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual Board hearing before the undersigned. A transcript of the hearing is associated with the electronic claims file. In August 2021, the issues were before the Board and remanded for further development. The matters have been returned for appellate review. 1. Entitlement to specially adapted housing is denied. 2. Entitlement to special home adaptation grant is denied. 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). 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 major depressive disorder with other specified anxiety disorder, spondylolisthesis of lumbar spine, bilateral hearing loss, tinnitus, pinguecula, residuals of tonsillectomy, post-operative right inguinal abscess, post-operative peri-anal cyst, and erectile dysfunction. None of these conditions qualify for specially adapted housing. Although the Veteran has a service-connected eye condition, the condition has not resulted in blindness in both eyes. The Board notes that the Veteran is legally blind. However, the condition has been found to be caused by proliferative diabetic retinopathy (PDR), epiretinal membrane (ERM), and posterior capsular opacification (PCO). The Board finds that the evidence of record is against a finding of entitlement to specially adapted housing or a special home adaptation grant under 38 C.F.R. § 3.809 or 3.809a, and the claims are denied. 3. Entitlement to SMC based on aid and attendance/housebound status is denied. Under 38 U.S.C. § 1114(s), SMC housebound benefits are not available to a veteran who has a combined 100 percent disability rating unless at least one of the service-connected disabilities is singly rated at 100 percent (and there are additional service-connected disabilities independently ratable at 60 percent or higher). Alternatively, where a veteran does not have additional disabilities independently ratable at or above 60 percent, SMC at the housebound rate is warranted when a veteran has a single service-connected disability rated as 100 percent disabling and is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout the veteran's lifetime. Id. Increased compensation at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless as the result of service-connected disability that he requires the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish a need for regular aid and attendance, a veteran must, as a result of service-connected disability, (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. Id. Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: the inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed, but must be based on the actual requirement of personal assistance from others. See id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). In this case, the Veteran was awarded total disability rating based on individual unemployability (TDIU) in a September 1999. He currently has a 100 percent combined disability rating; and his service-connected major depressive disorder is rated as 70 percent disabling and his spondylolisthesis is rated as 60 percent disabling. See Rating Decision-Codesheet, June 2020. However, the conditions which create a need for special monthly compensation based on Aid and Attendance/Housebound status have not been shown to be due to his service-connected disabilities. See VA 21-2680, February 2013; VA 21-2680, February 2020. Additionally, the record does not show anatomical loss or loss of use of one hand and one foot; blindness in both eyes, with 5/200 visual acuity or less; or to be permanently bedridden due to service-connected disabilities. Therefore, after a review of all the evidence, the Board finds that the criteria for SMC based on the need for aid and attendance/housebound status have not been met. As such, the claim is denied. 4. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only is denied. Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or automotive adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for financial assistance in the purchase of a vehicle or other conveyance and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees. 38 C.F.R. §§ 3.808. As previously noted, the Veteran's service-connected disabilities neither include nor involve visual impairment, burn injuries, amyotrophic lateral sclerosis, or disability of the extremities, hands, or feet. Eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment is therefore unavailable on these bases. (Continued on the next page) Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet, ankylosis of his knees or hips, or any of the other physical disabilities listed among the relevant criteria, he does not qualify for eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment under 38 C.F.R. § 3.808. As such, the claim must be denied. KELLI A. KORDICH 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.