Citation Nr: 21025420 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-04 435 DATE: April 28, 2021 ORDER 1. Entitlement to specially adapted housing is denied. 2. Entitlement to special home adaptation is denied. 3. Eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is denied. 4. Special monthly compensation (SMC) based on the need for aid and attendance is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a disability rated as permanent and total which includes or is due to: amyotrophic lateral sclerosis, blindness in both eyes, the anatomical loss or loss of use of both hands or upper extremities; the loss or loss of use of both lower extremities; the loss of use of one lower extremity with residuals of organic disease or injury or loss or loss of use of one upper extremity which so affect balance and propulsion as to preclude unaided locomotion; burns of any depth or thickness; or residuals of an inhalation injury. See April 2020 Rating Decision Codesheet (listing Veteran’s service-connected disabilities and their evaluations). 2. Although the Veteran served in the Army on or after September 11, 2001, the preponderance of the evidence is against a finding that he has a permanent service-connected disability due to the loss or loss of use of one or more lower extremities which so affects the functions of balance or propulsion as to preclude ambulating without assistance. 3. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities result in loss or loss of use of a hand or foot, permanent impairment of both eyes, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of a knee or hip. 4. The preponderance of the evidence is against a finding that the Veteran is in need of regular aid and attendance due to his service-connected disabilities. The evidence also shows that he does not have anatomical loss or loss of use of both feet, anatomical loss or loss of use of one hand and one foot, or blindness of both eyes, and he is not permanently bedridden. CONCLUSIONS OF LAW 1. The criteria for entitlement to specially adapted housing are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.809. 2. The criteria for entitlement to a special home adaptation are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.809a. 3. The criteria for eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only are not met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.808. 4. The criteria for SMC based on the need for aid and attendance are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 2007 to June 2012. This case is before the Board of Veterans’ Appeals (Board) on appeal from June 11, 2018, June 26, 2018, and July 11, 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran and his wife provided testimony before the undersigned Veterans Law Judge. The Board remanded these claims in July 2020 to obtain additional evidence, which evidence has been added to the file and reviewed by the agency of original jurisdiction. The case has been returned to the Board for further appellate review. 1. Specially Adapted Housing and Special Home Adaptation Legal Background Specially adapted housing is available to veterans who have a service-connected disability rated as permanent and total due to amyotrophic lateral sclerosis or one of the following: (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, (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 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 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). Preclusion of 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. Id. 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 lower 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). If entitlement to specially adapted housing is not established, a veteran can qualify for a grant for necessary special 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. Additionally, a special home adaptation grant is available for a veteran that has 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). Generally, an eligible veteran will be provided one-time only assistance with a special home adaptation grant or specially adapted housing. However, issuance of a special home adaptation grant before a veteran becomes eligible for specially adapted housing under 38 C.F.R. § 3.809 does not preclude a later grant for specially adapted housing. 38 C.F.R. § 3.809a(a). Analysis The Veteran is service connected for posttraumatic stress disorder (PTSD), rated as 100 percent disabling, as well as for migraine headaches (30 percent), lumbar degenerative disc disease with intervertebral disc disease (20 percent), lumbosacral strain (10 percent), left lower extremity radiculopathy (20 percent), right wrist strain (10 percent), and right and left knee patellofemoral pain syndrome (0 percent each). Turning first to the issue of entitlement to specially adapted housing, the Board notes that the Veteran’s only disability rated as total is PTSD, a psychiatric disorder and not a physical disability. Therefore, because the Veteran has no disability rated as permanent and total due to or including any of the physical disabilities enumerated above, the Board considers the Veteran’s claim only under 38 U.S.C. § 2101(a)(2)(C), which provides entitlement to specially adapted housing for veterans who served on or after September 11, 2001 and who have a permanent disability that was incurred during such service, and which results in loss or loss of use of one or more lower extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aids of braces, crutches, canes, or a wheelchair. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities result in such loss of use of one or more lower extremities. In short, although there is a certain amount of evidence indicating that due to the Veteran’s service-connected lumbar spine, leg, and knee disabilities he is mostly unable to walk and requires the assistance of a motorized scooter and cane to ambulate safely, this evidence consists almost exclusively of the Veteran’s own reports, and is inconsistent with the objective medical evidence of record, as explained below. For instance, the Veteran’s wife and caregiver reported in December 2014 that the Veteran required assistance bathing, dressing, and toileting due to difficulty moving from the waist down and bad knees. At a January 2017 VA examination, the Veteran reported that he used a cane and brace to walk and walked only if he had to. On SSA function reports dated April 2018 and January 2019, the Veteran reported that he ambulated using a cane and scooter, that he could not walk or stand alone due to poor balance and the risk of falls, and that he could walk only a “few feet” before needing to rest. However, almost all the objective medical evidence of record, as well as some of the Veteran’s own testimony, contradicts this picture of his disability. First and foremost, a June 2018 SSA neurology examination returned findings of normal muscle strength, normal coordination, normal gait, and normal passive range of motion. The neurologist observed that the Veteran was able to ambulate without an assistive device. In contrast with these findings and findings of normal dexterity of the hands, the neurologist noted that the Veteran arrived at the appointment on a scooter, “wearing braces of the wrist on the right, knees, and low back, and a left shoulder sling” and that muscle testing was “characterized by poor voluntary effort.” The neurologist concluded that there was “no relation between the reported extreme pain and mobility limitations with the lack of signs at the physical exam; greatly raising the possibility of a functional disorder such as factitious or malingering disorder.” Other medical evidence also reflects similarly mild objective findings. A March 2012 Private Treatment Record (PTR) noted normal lumbosacral spine. A July 2016 PTR noted normal strength. A January 2017 VA lumbar spine examination noted normal strength and reflexes, as well as no muscle atrophy (as might be expected if the Veteran did not walk or otherwise use his lower extremities). The examination noted decreased sensation to light touch and moderate symptoms of radiculopathy of the left lower extremity. On the other hand, a March 2018 VA housebound examination noted that the Veteran was unable to “completely stand upright due to back pain” and that assistive devices, including a scooter, were required for locomotion of “less than one block.” The examiner stated that the Veteran needed the assistance of a caregiver due to low back and knee pain and migraine headaches. (The examination also noted “no major restrictions physically” of the spine, trunk, and neck.) Nevertheless, the Veteran himself has made statements, both in testimony to the Board and to medical care providers, that tend to contradict findings or reports that his ability to walk is severely limited. At a February 2020 VA neurology appointment, the Veteran reported that he “stays active by taking walks at the mall.” At his March 2020 Board hearing, he testified that he had “some” impairment of the lower extremities, but “not total.” He also testified that he had asked his VA doctors to write a note for him stating that he has loss of use of the lower extremities and they had refused. Finally, the Veteran reported during a May 2020 VA outpatient video call that physical therapy “helped his gait” and that he used a cane “occasionally.” Considering the entirety of the evidence, the Board finds that the objective medical evidence indicating relatively mild impairment of the lumbar spine and lower extremities coupled with the Veteran’s own reports and testimony reflecting the ability to walk with only mild impairment or occasional use of assistive devices substantially outweighs the Veteran’s reports of severe impairment of walking, as well as the findings of the March 2018 VA housebound examination, which are not corroborated by other objective medical examinations and which were refuted by the subsequent June 2018 SSA neurological examination findings. The Board notes that the Veteran’s reports of severe impairment were generally made in a context in which he was seeking benefits, either from SSA or from VA, whereas his reports indicating only mild impairment were generally made to medical care providers while seeking treatment. Statements made for the purpose of medical diagnosis or treatment are considered exceptionally trustworthy, because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 355-56 (1991); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Therefore, the Board affords more weight to the Veteran’s statements indicating only mild impairment and finds that the preponderance of the evidence is against a finding that the Veteran has permanent service-connected disability or disabilities due to the loss or loss of use of one or more lower extremities which so affects the functions of balance or propulsion as to preclude ambulating without assistance. Accordingly, entitlement to specially adapted housing is not warranted. Finally, turning to the issue of entitlement to special home adaptation, the Board finds that the preponderance of the evidence throughout the claim period is against any of the Veteran’s service-connected disabilities including blindness in both eyes, anatomical loss or loss of use of both hands, burns of any thickness, or residuals of an inhalation injury, nor has the Veteran asserted as much. Therefore, entitlement to special home adaptation is not warranted. 2. Auto allowance Legal Background Veterans or service members with certain service-connected disabilities may be found eligible to receive financial assistance in acquiring one automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3901. Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. VA regulations provide that permanent loss of use of a hand or foot exists 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 the use of a suitable prosthetic appliance.” See 38 C.F.R. §§ 3.350 (a)(2). Analysis As noted above, the Board finds that the preponderance of the evidence is against the Veteran having a service-connected disability or disabilities resulting in the loss or loss of use of one or more lower extremities, nor blindness of both eyes, nor burns of any thickness. The preponderance of the evidence is also against a finding of amyotrophic lateral sclerosis or ankylosis of one or both knees or both hips. Therefore, the Board restricts its analysis here to the issue of loss or permanent loss of use of one or both hands. The Veteran is service connected for right (dominant) wrist strain, rated as 10 percent disabling. In short, the preponderance of the evidence is against a finding that throughout the claim period that this disability results in loss of use of the right hand. Rather, the Veteran has reported that he is able to feed himself, use assistive devises such as a cane and toilet grab bars, and dress and wash himself at least from the waist up. See January 2019 SSA Function Report; March 2020 Board Hearing. Moreover, a June 2018 SSA neurology examination noted normal dexterity of both hands. Therefore, the Board finds that the preponderance of the evidence is against the Veteran having a service-connected disability resulting in the permanent loss or loss of use of one or both hands. Accordingly, eligibility for payment or reimbursement for an automobile or other conveyance and adaptive equipment or adaptive equipment only is not warranted. 3. SMC Based on the Need for Aid and Attendance Legal Background SMC is warranted based on the need for regular aid and attendance when, as the result of a service-connected disability, one of the following criteria are met: (1) Anatomical loss or loss of use of both feet; (2) Anatomical loss or loss of use of one hand and one foot; (3) Blindness in both eyes with visual acuity of 5/200 or less; (4) The Veteran is permanently bedridden; or (5) The Veteran is so helpless as to be in need of regular aid and attendance, based on factors including inability to feed himself, dress, undress, attend to the wants of nature, bathe or keep ordinarily clean and presentable, frequent need of adjustment of any special prosthetic or orthopedic appliances, and incapacity, physical or mental, which requires care or assistance on a regular basis to protect from hazards or dangers incident to one’s daily environment. See 38 C.F.R. §§ 3.350(b), 3.352(a). Where entitlement to SMC based on a need for aid and attendance is based on the factual need for regular aid and attendance (criterion (5)), not all of the factors listed above need be present to warrant entitlement, nor must the Veteran require constant, but only “regular,” aid and attendance. Id. Analysis As noted above, the Board finds that the Veteran does not have a service-connected disability or disabilities that result in loss or loss of use of the feet or hands or blindness in both eyes. Moreover, the evidence shows that the Veteran is not bedridden. See, e.g., February 2020 VA treatment record (Veteran reported staying active by taking walks at the mall.). The only remaining question is whether the Veteran has a factual need for regular aid and attendance, based on the factors enumerated in criterion (5), above. The Board finds that the preponderance of the evidence is against such a finding. As with the issue of entitlement to specially adapted housing, there is a certain amount of evidence that supports entitlement, namely that the Veteran requires assistance with dressing, bathing, and toileting, and that he requires care to protect him from dangers incident to his daily environment, in particular falls. However, almost all of this evidence consists of the Veteran’s own reports, mostly made for the purposes of seeking benefits, either from SSA or from VA, and the disability picture it reflects is contradicted by the weight of the objective medical evidence of record as well as some of the Veteran’s own testimony. The Veteran’s claim to require regular aid and attendance is grounded in his assertion of severe disability resulting from his service-connected lumbar spine disability, associated left lower extremity radiculopathy, and bilateral knee disabilities. See, e.g., March 2020 Board Hearing (Veteran testified that he needed the help of a regular caregiver due to lower extremity pain.). The Veteran has reported that, due to these disabilities, he requires assistance with dressing (putting on underwear, socks, shoes), bathing (getting in and out of a bath, cleaning from the waist down), and toileting (getting onto and off of the toilet). See December 2014 VA treatment record; January 2019 SSA Function Report. He has also reported that these disabilities prevent him from going out, walking, or standing without assistance because he is in danger of falling. See March 2020 Board Hearing. However, as discussed above in detail, the Board finds that the entirety of the evidence of record reflects only mild impairment associated with the Veteran’s service-connected lumbar spine disability, left lower extremity radiculopathy, and bilateral knee disabilities. (Notably, none of these conditions are rated higher than 20 percent disabling, reflecting less-than-severe levels of disability.) The Board incorporates the above discussion here by reference. This finding of relatively mild impairment is at odds with the Veteran’s reported need for regular aid and assistance based on this impairment. In particular, the Board calls attention to the fact that the Veteran’s reported need for regular aid and assistance based on his disabilities is not support by his own reports to medical care providers regarding those disabilities. See, e.g., February 2020 VA treatment record (reporting walks at the mall); May 2020 VA treatment record (reporting improved gait with physical therapy, “occasional” cane use). The Veteran even testified to the Board that he had only “some” impairment of the lower extremities and was able to regularly operate a motor vehicle. See March 2020 Board Hearing. In light of the Veteran’s own reports, corroborated by the preponderance of the objective medical findings of record, the Board finds that the disabilities on the basis of which the Veteran asserts the need for regular aid and attendance do not prevent him from walking and driving, and that he retains normal hand dexterity, muscle strength, balance, and range of motion of the back and legs. See January 2017 VA lumbar spine examination; March 2018 VA Housebound Examination (noting Veteran is able to use hands to feed himself); June 2018 SSA Neurology Examination; March 2020 Board Hearing Transcript. Therefore, because the Veteran’s disabilities do not show severe impairment, the Board finds that the Veteran’s reports that they result in the need for regular assistance with dressing, bathing, and toileting, as well as assistance in order to protect him from the danger of falling when ambulating, are not credible. As noted above, insofar as the March 2018 VA housebound examination may reflect objective findings of the need for assistance with dressing, bathing, and ambulation, these findings are not corroborated in the remainder of the medical record and the Board finds that the preponderance of the objective evidence outweighs them, to include the June 2018 SSA neurological examination report, performed after the March 2018 examination, wherein a neurologist documented detailed findings that would not support a finding of a severe impairment related to the service-connected disabilities. Therefore, the Board finds that the preponderance of the evidence is against a finding that the Veteran is so helpless as to be in need of regular aid and assistance. Accordingly, entitlement SMC based on the need for regular aid and assistance is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.