Citation Nr: 21029388 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-28 233 DATE: May 13, 2021 ORDER Entitlement to specially adapted housing is denied. Entitlement to a special home adaption grant is denied. FINDINGS OF FACT 1. The Veteran is not totally disabled due to service-connected disabilities. 2. The Veteran's service-connected disabilities do not result in blindness. CONCLUSIONS OF LAW 1. The criteria for specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809. 2. The criteria for a special home adaption grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had recognized service with the Philippine Guerillas from March 1945 to January 1946. SPECIALLY ADAPTED HOUSING 1. Entitlement to specially adapted housing 2. Entitlement to a special home adaption grant 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). Service connection is in effect for sensorineural hearing loss, rated 20 percent; injury to muscle group XIV (right anterior thigh), rated 10 percent; injury to muscle group XI, (right foot and heel), rated 10 percent; degenerative osteoarthritis of the knees and ankles, rated 10 percent; degenerative osteoarthritis of the hips, rated 10 percent; degenerative arthritis of the left hip, rated 10 percent; and scars, rated noncompensable. The combined rating is 60 percent. A total disability rating based on individual employability is not in effect. The Veteran's daughter wrote in October 2017 that the Veteran needed a wheelchair because he was too weak to walk. However, the Veteran cannot qualify for specially adapted housing as a matter of law because his service-connected disabilities are not total. See 38 C.F.R. § 3.809. While the record shows that there may be loss of use of the lower extremities due to service-connected disabilities, specially adapted housing cannot be granted because the Veteran's combined rating is not 100 percent and a TDIU is not in effect. See id. The Veteran does not qualify for a special home adaption grant because the record does not demonstrate a service-connected disability related to vision, and therefore there is not blindness in both eyes due to service-connected disabilities. See 38 C.F.R. § 3.809a(b)(2). He cannot otherwise qualify for a special home adaption grant as a matter of law because he does not have a total disability rating. See 38 C.F.R. § 3.809a(b)(1). While the Board is sympathetic to the Veteran, entitlement to specially adapted housing and a special home adaption grant must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). 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.