Citation Nr: A21020090 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 211022-193849 DATE: December 16, 2021 ORDER Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing is denied. Entitlement to a certificate of eligibility for a special home adaptation grant is denied. FINDINGS OF FACT 1. The Veteran does not have a disability rated permanent and total that causes loss or loss of use of both upper extremities or loss or loss of use of both of his lower extremities, one lower extremity together with the residuals of organic disease or injury, or one lower extremity together with one upper extremity, any of which preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; nor does he have service-connected amyotrophic lateral sclerosis, 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 loss of use of one lower extremity with blindness in both eyes resulting in only light perception. 2. The Veteran does not have a permanent and total service-connected disability which includes the anatomical loss or loss of use of both hands, or that is due to burn injuries or residuals of an inhalational injury, nor does he have a service-connected disability due to blindness in both eyes, with corrected central visual acuity of 20/200 or less in the better eye. CONCLUSIONS OF LAW 1. The criteria for eligibility for assistance in acquiring specially adapted housing have not been satisfied. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 2. The criteria for eligibility for a special home adaption grant have not been satisfied. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to November 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an October 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The October 2020 rating decision was a Higher-Level Review decision that considered the evidence of record at the time of a previous decision by the RO in May 2020. 38 C.F.R. §§ 3.2500(a), 3.2601. In an October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested direct review of the evidence considered by the RO. 38 C.F.R. § 20.202. The Veteran has asserted that he meets the criteria for the award of specially adapted housing or a special home adaptation grant. His service-connected disabilities throughout the appeal include posttraumatic stress disorder (PTSD) (70 percent), bilateral hearing loss (50 percent), right upper extremity carpal tunnel syndrome (CTS) (30 percent), diabetes mellitus, type II (20 percent), residuals of a second metacarpal fracture (10 percent), tinnitus (10 percent) peripheral neuropathy of the bilateral lower extremities (10 percent each) and residuals of a fractured proximal third left tibia (noncompensable). A total disability rating based on individual unemployability has been in effect since February 2004, and he has also received special monthly compensation for the loss of use of a creative organ from July 2009. Statute provides for two different "housing" benefits by way of separate subsections. Assistance in the acquisition of housing with special features is provided for by 38 U.S.C. § 2101(a) and implemented by the regulation 38 C.F.R. § 3.809 in which it is referred to as specially adapted housing. Assistance in adaptations to the residence of a veteran is provided for by 38 U.S.C. § 2101(b) and implemented by the regulation 38 C.F.R. § 3.809a in which it is referred to as special home adaptation grant. 1. Specially adapted housing. Specially adapted housing is available to a veteran who has a permanent and total service-connected disability. This permanent and total service-connected disability must either be amyotrophic lateral sclerosis (ALS) rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017, or must be due to: (1) the loss or loss of use of both lower extremities, such as to preclude locomotion without the use of 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 use of the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use 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 use of 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). As the Veteran's active service concluded prior to September 11, 2001, this provision is inapplicable. 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). The United States Court of Appeals for Veterans Claims (Court) has determined that the term "loss of use" in the context of specially adapted housing claims means "a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances. Adjacent modifiers and, in the case of [special monthly compensation], regulatory efforts create that specificity." Jensen v. Shulkin, 29 Vet. App. 66 (2017). The Court in Jensen dismissed the concern that "every time an individual is prescribed an assistive device in conjunction with a lower extremity disability, he or she would then automatically be eligible to receive [specially adapted housing]." Jensen, supra, at 15. Rather, it lays out four elements that must be satisfied to establish entitlement to such benefit: "That 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. There are plenty of limitations built into that standard." Jensen, supra, at 15-16. Turning to the evidence, medical examinations, including VA examinations, show that the Veteran does not have, ALS, full thickness or subdermal burns, amputations of any extremity, or blindness in either eye. The Veteran argues that the residuals of his in service "crushing injury" to the right hand make it difficult to grasp objects and perform daily activities such as cooking meals and buttoning a shirt, which is also noted in an October 2020 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Aid and Attendance completed by his private physician, Dr. S.E. In an October 2021 affidavit, the Veteran's wife noted that his lower extremity peripheral neuropathy impairs his balance, explaining that she often helps him in and out of bed and the shower and up and down the stairs. However, neither the Veteran's VA nor his private treatment records indicate that he has been prescribed or uses assistive device for ambulation. In fact, Dr. S.E., the Veteran's private clinician, specifically indicated that the Veteran's "crushing injury" of the right hand is the only service-connected disability resulting in limitations relevant to this claim. While it has resulted in difficulty grasping and gripping, there is no suggestion that there is any loss of use in this extremity which so affect the functions of balance or propulsion as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair. He was also noted to not have any restrictions involving the lower extremities. Thus, having fulling considered statements from the Veteran and his spouse regarding the impact of his lower extremity impairment on balance and ability to ambulate, the Board finds that the evidence does not establish that functions of balance or propulsion are so severe as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair. The remaining medical record is not in significant conflict with the above, to include VA examinations specific to the Veteran's service-connected disabilities. Based on the foregoing, eligibility for specially adapted housing has not been met. To the extent the Veteran may use an assistive device to better ambulate, the probative evidence does not illustrate that the Veteran's service-connected disabilities preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair. The Veteran has not more than some restricted use to his right upper extremity. The Board is bound by the law and regulations when determining whether the Veteran is eligible for specially adapted housing. As such, eligibility for specially adapted housing must be denied. 2. A special home adaptation grant. If entitlement to specially adapted housing is not established, a veteran may qualify for a grant for necessary 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); 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). 38 C.F.R. § 3.809a(b). As discussed in greater detail above, the Board finds that the weight of the evidence demonstrates that although the Veteran's service-connected disabilities, including his residuals of a "crushing injury" to the right hand, have some impact on his daily living, there is no probative evidence of record to show that he has paralysis of an upper extremity. As such, there is not the anatomical loss or loss of use of both hands. Additionally, his service-connected disabilities do not include burn injuries, an inhalation injury, or loss of vision. He is therefore also ineligible for a special home adaptation grant, and the claim must be denied. Although the Veteran does not qualify for specially adapted housing of for a special home adaptation grant, the Board advises that he may apply for a grant from the Home Improvements and Structural Alterations (HISA) program through the Veterans Health Administration, which provides for structural improvements and alterations to a veteran's residence such as those needed to allow entrance to or exit from the residence, use of essential lavatory and sanitary facilities, accessibility to kitchen or bathroom sinks or counters, and others specified under the regulation. See 38 U.S.C. §§ 1710 (a), 1717(a)(2); 38 C.F.R. § 17.3100. (Continued on the next page) The requirements for specially adapted housing/special home adaptation grant and the HISA grant differ greatly. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.