Citation Nr: 21015606 Decision Date: 03/15/21 Archive Date: 03/17/21 DOCKET NO. 10-26 742 DATE: March 15, 2021 REMANDED Entitlement to a compensable evaluation prior to January 24, 2019, and in excess of 10 percent from that date, for bilateral hearing loss is remanded. Entitlement to specially adapted housing is remanded. REASONS FOR REMAND The Veteran had active service from January 1969 to July 1970. The Veteran and his spouse testified at a March 2018 hearing before Veterans Law Judge Doan and at a September 2020 hearings before Veterans Law Judge Kilcoyne. Transcripts of the hearings have been associated with the claims file. This issue of entitlement to specially adapted housing was before the Board in December 2012, at which time the Board remanded it for additional development. The claims were then remanded for additional development in May 2018. Additional development is needed before the claims can be decided on the merits. 1. Entitlement to a compensable evaluation prior to January 24, 2019, and in excess of 10 percent from that date, for bilateral hearing loss is remanded. VA audiology treatment record show that the Veteran underwent audiology testing on January 31, 2014, April 13, 2016, May 19, 2017, August 21, 2017, and February 27, 2019. Although the treatment records discuss the audiological testing results generally, the specific results are not of record. These audiogram results are relevant to the Veteran’s claim, and must be obtained before it can be decided on the merits. VA treatment records to August 2019 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from August 2019 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to specially adapted housing is remanded. 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, such as to preclude locomotion; (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 as to preclude unaided locomotion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. “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). Service connection is in effect for posttraumatic stress disorder, rated 50 percent; shrapnel wounds to the left thigh and leg, muscle group XV, rated 30 percent; shrapnel wounds to the left arm and elbow, muscle group VI, rated 20 percent; right knee degenerative joint disease, rated 10 percent; tinnitus, rated 10 percent; and hearing loss, rated noncompensable prior to January 24, 2019 and 10 percent from that date. The combined rating is 80 percent. A total disability rating based on individual unemployability is in effect. At a January 2019 examination arranged through VA, the Veteran was noted to be able to walk 15 feet without needing to use a rolling walker. The examiner opined that the service-connected disabilities do not permanently preclude locomotion without the aid of knee braces or a rolling walker. The Veteran was able to get around the house without the rolling walker or knee braces, but felt more comfortable with their use. The examiner also opined that the Veteran was able to use all four extremities satisfactorily. The main limitations were prolonged standing or walking without the use of an assistive device, such as a rolling walker. The Veteran had an examination arranged through VA for his knees in August 2019 at which it was noted that he regularly used a walker. January 2020 VA treatment records state that the Veteran could walk less than 200 feet with a rolling walker. An estimate of how far the Veteran could actually walk was not given. The Veteran’s wife testified at the September 2020 hearing that the Veteran sometimes fell while walking if he did not hold onto something. His left leg locked, and he needed a cane or walker when moving around the house. The Veteran testified that the left leg made it difficult for him to walk and that he used a specially designed wheelchair. He did not have a ramp or handrails at his house. Since the hearing testimony shows that the Veteran’s ability to ambulate may have worsened since the January 2019 examination, he should be afforded a contemporaneous VA examination regarding whether there is loss of use of extremities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain VA treatment records from August 2019 to the present. 2. Obtain the audiogram results from January 31, 2014, April 13, 2016, May 19, 2017, August 21, 2017, and February 27, 2019 VA treatment. If any of these records cannot be obtained, a memorandum of unavailability should be associated with the claims file. 3. Thereafter, arrange for the Veteran to undergo a VA examination to ascertain the current nature and severity of his shrapnel wounds to the left thigh and leg and the left arm and elbow, as well as the right knee disability, as they relate to his eligibility to specially adapted housing. The examiner should determine whether the Veteran’s service-connected disabilities cause: a) The loss of use of both lower extremities so as to permanently preclude locomotion without the aid of braces, crutches, canes or a wheelchair. As used here, the term “preclude locomotion” means 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. b) 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. c) 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. Examination results should be clearly reported and should fully describe objective findings to support any conclusions (e.g., with respect to range of motion, instability, weakness, atrophy, tone, callosities, etc.). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Jennifer White 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.