Citation Nr: 21013033 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-32 886 DATE: March 8, 2021 ORDER Entitlement to a specially adapted housing award of $10,100 is granted. Entitlement to a special home adaption grant is dismissed. FINDINGS OF FACT 1. The Veteran’s service-connected right lower extremity amputation resulted in loss of use of the right lower extremity, and combined with the left lower extremity peripheral neuropathy, left lower extremity peripheral artery disease, and Parkinson’s disease with impairment of the left lower extremity and balance impairment, affected the functions of balance and propulsion. 2. The Veteran made modifications to his home costing $10,100 in order to make it handicapped assessible. 3. The issue of eligibility for a special home adaptation grant is moot, due to the award of a certificate of eligibility for assistance in acquiring specially adapted housing in the present decision. CONCLUSIONS OF LAW 1. The criteria for specially adapted housing award of $10,100 have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809. 2. The criteria for dismissal of a special home adaption grant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1962 to December 1975. He died in April 2018. The appellate is the Veteran’s surviving spouse. In May 2018, she was substituted to be the appellant in furtherance of the VA benefits sought by the Veteran at the time of his death. In January 2020, the appellant and the Veteran’s daughter-in-law testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. This claim was previously before the Board in September 2020, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Specially Adapted Housing 1. Entitlement to specially adapted housing Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total 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. Specially adapted housing is additionally 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 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 affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special home adaptations if the veteran 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 his or her 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 service-connected 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 (COPD)). 38 C.F.R. § 3.809a. “Loss of use” is not specifically defined under 38 C.F.R. § 3.809 or 3.809a. Regulations pertaining to special monthly compensation for loss of use of a hand or foot state that loss of use is held to exist when no effective function remains other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance. The determination should be made on the basis of the actual remaining function, such as the ability to grasp, manipulate objects, balance, or propel oneself forward. See 38 C.F.R. §§ 3.350(a)(2), 4.63. The Court of Appeals for Veterans Claims has found that a “loss of use” exists when there is “deprivation of the ability to avail oneself” of that extremity, and functional impairment caused by pain, weakness, or incoordination should be taken into account when making that determination. See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The appellant and Veteran’s daughter-in-law testified at the January 2020 Board hearing that the appellant and the Veteran got modifications to their home due to his disabilities after being told by a VA official that they could get reimbursed. The work was completed prior to the Veteran passing away. In March 2020 the appellant wrote a statement in which she named a Veterans Benefit Administration (VBA) employee who did paperwork for her and the Veteran related to a specially adapted housing and a special home adaption grant. The VBA employee then “disappeared,” and she and the Veteran had to pay themselves for the home modifications. She submitted a September 2013 change order for the home they were building with modifications to make it handicapped assessible. While there is no documentation regarding the Veteran or appellant having been told by a VA official that they could get reimbursed for home modifications, it has been credibly asserted that modifications to the Veteran’s home to make it handicapped assessible were done with the expectation that there would be reimbursement by VA based on what they were told by VA officials. There is also no evidence of record that reflects that the Veteran and/or appellant could not have been so informed, and the United States Court of Appeals for Veterans Claims (Court) has consistently found that the absence of documentary evidence cannot by itself constitute sufficient evidence to impeach the credibility of a lay person’s statements to the contrary. Therefore, given the fact that the Board finds the appellant’s statements to be credible and plausible, the Board finds that this claim can continue even though it is for a one-time payment rather than a periodic benefit. This is also because the obligation occurred prior to the Veteran’s death and was therefore pending, but unpaid, at the time of his death. In March 2020 the appellant submitted a September 2013 change order for the home of the Veteran and her. It included the following items related items to adapting the house due to the Veteran’s physical disabilities: • $2,000, Reconfigure master bath with a large walk-in shower • 400, Handicapped doors and bars in the master bath • 200, Handicapped commodes • 4,000, Tile throughout the house • 2,000, Extension of covered patio • 1,500, Handicapped ramp and access for outside doors • 10,100 - TOTAL The above items are related to making the home handicapped assessible. The Board notes that the Veteran used a wheelchair, and therefore a hard surface for the floors, such as tile, was beneficial. Furthermore, the extension of the covered patio likely made it easier for him to maneuver his wheelchair. Giving the benefit of the doubt to the appellant, the Board finds that there were $10,100 worth of modifications to the Veteran’s house to make it handicapped assessible. At the time of the April 2014 claim and the Veteran’s death in April 2018, service connection was in effect for coronary artery disease, rated 100 percent; kidney disease, rated 80 percent; right knee amputation, rated 60 percent; hearing loss, rated 50 percent; Parkinson’s disease with impairment of the left lower extremity and balance, rated 40 percent; right upper extremity motor peripheral neuropathy, rated 30 percent; type II diabetes mellitus, rated 20 percent; left lower extremity peripheral neuropathy (femoral nerve), rated 20 percent; left lower extremity peripheral artery disease, rated 20 percent; Parkinson’s disease with loss of smell, rated 10 percent; Parkinson’s disease with constipation, rated 10 percent; loss of visual acuity and field due to retinopathy, rated 10 percent; and left lower extremity scars, rated noncompensable. The combined rating was 100 percent. The Veteran had a VA examination for aid and attendance in February 2015 at which it was noted that he had poor balance due to the lower extremities. He used a wheelchair to get around. At June 2015 VA treatment it was noted that the Veteran used a standard wheelchair and an electric wheelchair. The Veteran had an examination arranged by VA for diabetes in September 2015. The left lower extremity had decreased muscle strength and deep tendon reflexes in the left lower extremity. The examiner wrote that the peripheral neuropathy accounted for the decreased muscle strength and reflexes. It was noted at October 2015 VA occupational therapy treatment that the Veteran used a manual wheelchair in his home, and he also had a power chair and a scooter. A home evaluation was recommended to address the Veteran’s bathrooms and wheelchairs. Subsequent VA treatment records indicate that the Veteran ambulated with a wheelchair. At an August 2016 diabetic sensory examination, it was noted that the Veteran was wheelchair bound and had problems with balance. It was noted at an August 2016 Parkinson’s disease examination that the Veteran was wheelchair bound and had body weakness and tremors. The Veteran also had an artery and veins condition examination in August 2016. The examiner noted that peripheral vascular disease impacted the Veteran’s ability to work due to a loss of balance and coordination, muscle weakness, and difficulty walking. It was noted at an October 2017 VA artery and veins examination that the Veteran used a wheelchair due to his right leg above the knee amputation. The treatment records and opinions from examiners show the loss or loss of use of the right lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion. The Veteran used a wheelchair to ambulate due to the right lower extremity amputation, and had further difficulty with balance and propulsion due to other service-connected disabilities. Therefore, giving the benefit of the doubt to the appellant, specially adapted housing is granted in the amount of $10,100. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. 2. Entitlement to a special home adaption grant Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may qualify for a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809A. 38 U.S.C. § 2101(b) states that a special home adaptation grant is available to veterans who meet one of the listed criteria, “other than a veteran who is eligible for assistance under subsection (a),” the subsection describing eligibility for assistance in acquiring specially adapted housing. In this case, the Veteran was found eligible for assistance in acquiring specially adapted housing in the present decision. Therefore, any claim for eligibility for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit relating to specially adapted housing under 38 U.S.C. § 2101(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.