Citation Nr: 21010034 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-11 964 DATE: February 23, 2021 ORDER Entitlement to a certificate of eligibility for specially adapted housing is denied. FINDING OF FACT The Veteran does not have service-connected amyotrophic lateral sclerosis, blindness in both eyes, disability from full thickness burns, subdermal burns or deep partial thickness burns, loss of use of any upper extremity, the loss or loss of use of both lower extremities, 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, or the anatomical loss or loss of use of both hands. CONCLUSION OF LAW The criteria for entitlement to a certificate of eligibility for specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107 (2012); 38 C.F.R. § 3.809 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 to November 1992 and from November 1995 to December 1996. This matter is on appeal before the Board of Veterans Appeals (Board) from an April 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) at a September 2015 DRO hearing. A transcript is of record. In his February 2016 substantive appeal, the Veteran requested a Board hearing. See February 2016 VA Form-9. He was scheduled for a March 2019 Board hearing, but he did not appear for the Board hearing and good cause has not been received. The Board therefore deems his request for a hearing to be withdrawn and will proceed with adjudication of the claim at this time. Entitlement to a certificate of eligibility for specially adapted housing The Veteran is regularly using cane(s) and occasionally using a wheelchair as normal modes of locomotion. See October 2017 VA examination report. He seeks specially adapted housing to make it easier for him to get in and out of the bathtub and use the toilet. See September 2015 DRO Hearing Transcript. The Veteran’s service-connected disabilities include bipolar disorder, rated 100 percent disabling; lumbosacral strain, rated 40 percent disabling; reflex sympathetic dystrophy of the left lower extremity, rated 40 percent disabling; and muscle strain of the rib cage, rated noncompensable. See January 2017 rating code sheet. His combined disability rating is 100 percent. A certificate of eligibility for 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. The certificate of eligibility is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair 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; 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. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). 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 U.S. Court of Appeals for Veterans claims (Court) has found that the term “loss of use” in the context of specially adapted housing claims generally means “a deprivation of the ability to avail oneself of the anatomical region in question.” Jensen v. Shulkin, 29 Vet. App. 66 (2017). The Court also identified four elements that must be satisfied to establish entitlement to specially adapted housing based on loss of use of the lower extremities: “That the individual must (1) have a permanent and total service-connected 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. Jensen, 29 Vet. App. 66. Regarding the specially adapted housing claim, it is neither shown nor alleged that the Veteran has amyotrophic lateral sclerosis, blindness in both eyes or service-connected disability due to full thickness or subdermal burns. Similarly, service-connected disability is not shown or alleged to result in loss of use of either upper extremity that precludes use of the arms at or above the elbows. Also, a service-connected disability is not shown to result in loss of use of both lower extremities. Notably, the Veteran is service connected for reflex sympathetic dystrophy of the left lower extremity, but he is not service connected for any right lower extremity disability. Rather, the Veteran contends that he meets the criteria for specially adapted housing because he has 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. See September 2015 DRO Hearing Transcript. In this regard, the Board notes the Veteran is service connected for reflex sympathetic dystrophy of the left lower extremity, lumbosacral strain, muscle strain of the rib cage, and bipolar disorder and he is documented as using cane(s) and a wheelchair. However, the Veteran’s bipolar disorder, lumbosacral strain, nor his muscle strain of the rib cage is a residual of organic disease or injury which so affect the functions of balance and propulsion. Instead, the Veteran believes his reflex sympathetic dystrophy of the left lower extremity should satisfy the criteria for residuals of organic disease or injury. See September 2015 DRO Hearing Transcript. The Board notes that even if evaluating his reflex sympathetic dystrophy of the left lower extremity as a residual of organic disease or injury, he does not meet the criteria for specially adapted housing because he would not have an additional loss of one lower extremity as his only service-connected lower extremity disability is the reflex sympathetic dystrophy of the left lower extremity and his only other service-connected disabilities are bipolar disorder, lumbosacral strain, and muscle strain of the rib cage. Thus, the Veteran does not meet the criteria based on 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. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). Therefore, specially adapted housing may not be awarded based on such loss of use, to include the combination of such loss with loss of use of a lower extremity or residuals of organic disease or injury. 38 C.F.R. § 3.809(b)(1, 3-4). Accordingly, considering all pertinent criteria, the Board does not have a basis for granting entitlement to a certificate of eligibility for specially adapted housing. 38 C.F.R. § 3.809(b)(1-6), (d). The Board emphasizes with the Veteran’s claim for specially adapted housing as it is evident that he wants to improve his quality of life by better adapting his home environment to meet his needs. However, the Board is bound to follow the controlling regulations. Because these regulations do not allow for an award of specially adapted housing based on the disabilities for which the Veteran is service connected, the claim must be denied. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.