Citation Nr: 21041157 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-49 328 DATE: July 8, 2021 ORDER Eligibility for assistance in acquiring specially adapted housing is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected compartment syndrome with degenerative arthritis, left knee is remanded. Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is remanded. FINDING OF FACT The Veteran has service-connected disability, rated as permanent and total, due to the loss of use of both lower extremities such as to preclude locomotion without the use of an ambulatory aid. CONCLUSION OF LAW The criteria for eligibility for assistance in acquiring specially adapted housing are met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1978 to January 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) regional office (RO). The Board previously remanded this case for further development in August 2020. It has since been returned to the Board for further appellate consideration. Eligibility for assistance in acquiring specially adapted housing is granted. 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. Specially adapted housing 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). It is noted that the phrase "loss of use" is used in several places in the rating schedule. In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), loss of use of a hand or a foot will be held to exist 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 use of a suitable prosthetic appliance. A less restrictive definition is written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing; that regulation specifies that "loss of use" is to be defined by the adjacent modifier, "such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). 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 Veteran asserts that the severity of his service-connected disabilities prevents him from getting around without the use of an ambulatory device. Over the course of the appeal, the Veteran has been noted at various times to require knee braces and use of a cane, and has had it recommended that he use a walker to prevent falls. The Veteran is presently in receipt of service connection benefits for a number of disabilities with a combined disability rating of 100 percent, and has additionally been awarded a total disability rating based upon individual unemployability due to service-connected disability. Regarding disabilities affecting use of his lower extremities, the Veteran is service-connected for the following disabilities: right total knee arthroplasty with a 30 percent disability rating; compartment syndrome with degenerative arthritis, left knee with a 20 percent disability rating; right heel fissure with a 10 percent disability rating, and keloid scar, status post right knee replacement with a 10 percent disability rating. At the October 2020 VA examination, it was noted that the Veteran is unable to stand for longer than 10 minutes, and regularly makes use of a cane due to both of his service-connected knee conditions. The examiner stated an opinion that it is at least as likely as not that the Veteran's service-connected knee disabilities, alone, are of such severity as to preclude him from walking without the use of an ambulatory device. He reasoned that the Veteran's diagnoses may result in persistent pain, limited range of motion, and abnormal gait putting him at risk for fall injury. He noted that the Veteran uses a cane as an assistive device which helps support his gait by reducing weight-bearing and pain. The Veteran reported using his cane both when walking and standing for longer than 10 minutes and within his home. Therefore, the evidence is found to at least be evenly balanced as to whether the Veteran's service-connected disabilities, alone, are sufficient to essentially prevent him from walking without use of an ambulatory device. Resolving all reasonable doubt in the Veteran's favor, considering his education and occupational history, the level of functional impairment in his ability to make use of his lower extremities is of sufficient severity as to warrant a TDIU. The Veteran thus has permanent and total service-connected disability due to the loss of use of both lower extremities, such as to preclude locomotion without the aid of a cane, walker, or wheelchair. He is therefore eligible for assistance in acquiring specially adapted housing per 38 U.S.C. § 2101 and 38 C.F.R. § 3.809, and award of the benefit sought is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for compartment syndrome with degenerative arthritis, left knee is remanded. Pursuant to the Board's remand instructions, the Veteran was provided with an additional knee examination in October 2020. In the Remand, it was specifically noted that the prior examination report did not comply with the requirements in Sharp v. Shulkin, and it was directed that an examination must gather information regarding the severity, frequency, and duration of any flare-ups and an estimate of the additional degree of limited motion expected during such flare-ups. The October 2020 examination report notes that the Veteran reported flare-ups involving increasing throbbing pain and swelling with walking, standing, and getting up from a standing position, and includes an opinion that pain significantly limits functional ability with flare-ups. Despite this, it indicates that the Veteran's range of motion during flare-ups would be the same as it was measured at the examination, which was not conducted during a flare-up. No details concerning the frequency, duration, or severity of the flare-ups were included on the examination report. Remand is therefore found needed for an additional examination to be conducted and for the examiner to provide sufficient details concerning the Veteran's symptoms and expected functional limitation during flare-ups. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). It is also noted that while the Veteran has reported at prior examinations and to his healthcare providers that his knees give out/buckle, causing him to fall, the October 2020 examination report indicates that there is no history of recurrent subluxation or lateral instability for either knee. There is no indication that the examiner considered the Veteran's prior lay statements concerning his experiences with his knees "giving out" or "buckling." In more recent VA treatment records, the Veteran reported falling twelve times over the course of approximately one month between January and February 2021, because his "legs just give out." On remand, the examiner should question the Veteran about these symptoms and provide an opinion as to the nature and severity of the Veteran's described knee instability. Finally, the Veteran submitted an additional VA Form 21-4142 identifying private physical therapy and rehabilitation and family care treatment records that are not yet of record. On remand, the AOJ should take appropriate action to request such records and associate them with the claims file. 2. Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is remanded. In October 2020, a VA examiner stated an opinion that it is less likely than not the Veteran's service-connected knee disabilities limit his ability to use one or both feet to such an extent that he would be equally well-served by amputation with use of an appropriate prosthetic. Since that examination, the Veteran's daughter submitted a statement in June 2021 noting that the Veteran had been falling on a regular basis and that she had been working to get him a motorized wheelchair, for which his doctor sees an urgent need. To the extent this appears to suggest a worsening of the Veteran's condition, further medical examination and opinion is found warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2021 to the Present. 2. Obtain records of the private treatment identified on the VA Form 21-4142 submitted by the Veteran in June 2021, after requesting any additional information or authorization needed from the Veteran. Make two requests for the authorized records, including from Coosa Valley Home Health, Floyd Physical Therapy and Rehab, and Family Care of Cartersville, unless it is clear after the first request that a second request would be futile. 3. After associating all records responsive to remand directives # 1 and 2 with the claims file, schedule the Veteran for an examination by an appropriate clinician other than the individual who conducted the October 2020 examination to determine the current severity of his service-connected compartment syndrome with degenerative arthritis, left knee. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria (both pre- and post-February 7, 2021 amendments). *The examiner is asked to specifically address lay statements made by the Veteran and his daughter concerning his knees giving out/buckling, as it relates to the likelihood that the Veteran has lateral instability and/or patellar subluxation now or at any point during the appeal period. The examiner is asked to opine on the severity of any such instability (slight, moderate, or severe). The examiner must elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide an estimated range of motion measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also obtain information from the Veteran concerning his ability to make use of his feet, and state whether it is at least as likely as not that the Veteran's service-connected disabilities, alone, limit his ability to use one or both feet to such an extent that he would be equally well-served by amputation with use of appropriate prosthetic. If answered in the negative, the examiner should state in what way(s) the Veteran's remaining functional capacity to use his feet is superior to his expected functioning were he instead using a prosthetic. A clear rationale must be provided for any and all conclusions and opinions expressed. 5. After completing the above, and any additional development deemed necessary in light of the expanded record, readjudicate the claims of entitlement to a disability rating in excess of 20 percent for compartment syndrome with degenerative arthritis, left knee and eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment. If any of the appeals are not granted to the Veteran's satisfaction, issue the Veteran and his representative a supplemental statement of the case and provide an adequate opportunity to respond before returning the appeal(s) to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.