Citation Nr: 21077497 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-46 021 DATE: December 29, 2021 ORDER Entitlement to specially adapted housing is denied. Entitlement to a special home adaptation grant is denied. REMANDED Entitlement to service connection for a left tibia disability is remanded. FINDINGS OF FACT 1. The Veteran does not have service-connected disabilities that have resulted in the loss, or loss of use, of both lower extremities, or blindness in both eyes, or the loss of one lower extremity together with residuals of organic disease or injury that affects the functions of balance or propulsion, or loss of one lower extremity together with the loss or loss of use of one upper extremity that affects the functions of balance or propulsion. 2. The Veteran is not in receipt of service connected benefits for any eye, deep partial burns, full thickness or subdermal burns, or residuals of any inhalation injury disabilities and does not have anatomical loss or loss of use of both hands. CONCLUSIONS OF LAW 1. The criteria for specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. § 3.809. 2. The criteria for a special home adaptation grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1979 to May 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, August 2020, and March 2021, the Board remanded the issues for additional development and it now returns for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Specially Adapted Housing/Special Home Adaptation Eligibility for assistance in acquiring specially adapted housing may be issued to a Veteran who has a permanent and total service-connected 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; or (2) blindness in both eyes, having only light perception, plus the loss of use of one lower extremity; or (3) the loss, or loss of use, of one lower extremity together with the 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 uses of both upper extremities such as to preclude use of 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. The term "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(d). VA also considers § 3.809(b) satisfied if the veteran has service-connected amyotrophic lateral sclerosis (ALS) rated 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017. 38 C.F.R. § 3.809. Loss of use of a hand or a foot will be held to exist when 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 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 of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. See 38 C.F.R. §§ 3.350(a)(2); 4.63. Alternatively, a certificate of eligibility for assistance in acquiring necessary special home adaptations or for assistance in acquiring a residence already adapted with necessary special features is available to a Veteran with the requisite service who does not qualify for specially adapted housing under the criteria cited above, but (1) is entitled to compensation for permanent and total disability and it: (i) includes the anatomical loss or loss of use of both hands; (ii) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or at least one extremity and the trunk; (iii) is due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or (iv) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease); or (2) is due to blindness in both eyes, having central visual acuity of 20/200 or less in the better eye with use of a standard correcting lens. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a. 1. Entitlement to specially adapted housing 2. Entitlement to a special home adaptation grant The Veteran contends, without specificity, that he is entitled to a special home adaptation grant or specially adapted housing due to his service-connected disabilities. See June 2016 VA Form 26-4555. For the reasons explained below, the Board finds that entitlement to either is not warranted. The Veteran is currently service connected for several disabilities, to include bilateral total knee replacement, right knee degenerative joint disease, degenerative arthritis of the lumbar spine, bilateral hip strain, bilateral ankle osteoarthritis, bilateral lower extremity radiculopathy, right tibia trauma, limitation of right knee, left hip limitation of motion, left hip limitation of adduction, and right hip limitation of adduction. The Board notes that the Veteran has been granted entitlement to a total disability rating based on his service-connected disabilities. In response to the March 2021 remand directives, a medical opinion was obtained in July 2021. The examiner noted that there is no medical evidence of record showing loss of use of one lower extremity together with the loss or loss of use of one upper extremity. The examiner explained that the Veteran's non-service connected diabetes with neuropathy in combination with his weight, is a far more likely cause of his balance problems than his service-connected disabilities. The examiner noted that there is no objective evidence of record that show that the Veteran's service-connected disabilities cause loss of use of both lower extremities so as to make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be briefly possible. The Veteran is competent to report such symptoms and the challenges he has in performing many of his activities of daily living. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, the Board finds that record does not demonstrate that the Veteran experienced loss of use of at least one lower extremity. There is also no indication from the record that the Veteran is blind in both eyes, with only light perception. In addition, the evidence does not reflect that his service-connected disabilities resulted in loss of use of both upper extremities, or full-thickness or subdermal burns with contractures that could satisfy the alternative criteria for specially adapted housing. The Board notes that the Veteran is service-connected for various musculoskeletal conditions. Although the Board is remanding the issue of entitlement to service connection for a left tibia disability, there is no evidence that this remaining disability, even if later determined to be service-connected results in the non use of a lower extremity. As the evidence does not establish that the Veteran's service-connected disabilities have resulted in the requisite level of impairment to warrant entitlement to specially adapted housing, entitlement to this benefit is not warranted. In addition, the Board finds that the Veteran is not eligible for assistance in acquiring a special home adaptation grant under 38 U.S.C. § 2101(b) as he does not meet the criteria set forth in 38 C.F.R. § 3.809a. Review of the claims file does not reveal that the Veteran is in receipt of service-connected benefits for any eye disability, deep partial burns, full thickness or subdermal burns, or residuals of any inhalation injury. The record does not reveal that the Veteran has anatomical loss of both hands or loss of use of both hands, and his symptoms are not so severe as to be equivalent to loss of use. Therefore, entitlement to a special home adaptation grant is not established. In conclusion, the weight of the competent and probative medical evidence is against finding that the Veteran's service-connected disabilities meet any of the criteria under 38 C.F.R. § 3.809 or 3.809a. Therefore, the claims for entitlement to a special home adaptation grant and entitlement to specially adapted housing are denied. REASONS FOR REMAND Entitlement to service connection for a left tibia disability is remanded. The Veteran has asserted that his left tibia disability is caused or worsened by his service-connected musculoskeletal disabilities, to include altered gait and/or body mechanics and weight gain. In accordance with the March 2021 Board remand, the Veteran's records were reviewed by a VA examiner in June 2021 and July 2021. The June 2021 examiner did not provide a medical opinion because he was unable to locate a copy of the remand. The July 2021 opined that it is less likely than not that the Veteran's left tibia disability is proximately due to or the result of his service-connected conditions. The examiner concluded, after review of the Veteran's medical records and based on his experience with weight management programs as an endocrinologist, that age, genetics, and caloric intake contribute to gaining weight. The examiner explained that if a person eats too much and exercise to little, they are likely to gain excess pounds, including belly fat. The examiner noted that neither of the Veteran's jobs (truck driver and management) involved much energy output. The examiner further explained that regardless of any musculoskeletal disability limitations, as activity decreases, decreasing caloric intake can prevent weight gain. Although the July 2021 opinion addresses the etiology of the Veteran's weight gain, the examiner failed to provide reasons and bases for the negative secondary service connection nexus opinion. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the examiner did not address the Veteran's assertion that his altered gait and body mechanics associated with his service-connected disabilities contributes to his left tibia disability as directed by the March 2021 remand. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: Schedule the Veteran a VA examination with the appropriate VA examiner in order to provide an opinion regarding the etiology of the Veteran's left tibia disability. The claims file and this Remand must be reviewed. The examiner is asked to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left tibia disability was caused or aggravated by any service-connected disability or condition associated with any service-connected disability. The term "aggravation" means "any incremental increase in disability or any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." The Board is returning the matter because the July 2021 VA examiner did not adequately address the theory of secondary service connection. Specifically, secondary service connection is available for a non-service connected disability which is caused or aggravated by a service-connected disability. The July 2021 opinion only address whether the left tibia was proximately caused by a service-connected disability. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. L. Baskerville 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.