Citation Nr: 21042483 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-05 645 DATE: July 13, 2021 ORDER Entitlement to specially adapted housing is denied. Entitlement to special home adaptation grant is denied. REMANDED Entitlement to a compensable rating for prostate cancer, post-radical prostatectomy as of January 29, 2014, is remanded. Entitlement to special monthly compensation under 38 U.S.C. § 1114(s), as of January 29, 2014, is remanded. FINDINGS OF FACT 1. The Veteran does not have a disability rated as permanent and total due to the loss or loss of use of both upper extremities or loss or loss of use of both of his lower extremities, one lower extremity together with the residuals of organic disease or injury, or one lower extremity together with one upper extremity, any of which preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; nor does he have service-connected amyotrophic lateral sclerosis, 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 loss of use of one lower extremity with blindness in both eyes that results in only having light perception. 2. The Veteran does not have a permanent and total service-connected disability which includes the anatomical loss or loss of use of both hands, or that is due to burn injuries or residuals of an inhalational injury, nor does he have a service-connected disability due to blindness in both eyes, with corrected central visual acuity of 20/200 or less in the better eye. CONCLUSIONS OF LAW 1. The criteria for eligibility for assistance in acquiring specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 2. The criteria for eligibility for a special home adaption grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the bilateral lower extremities, and hypertension were originally on appeal as well. However, after the Board remanded these matters in October 2019, the RO granted service connection for these claims in a July 2020 rating decision, representing a full grant of benefits. Accordingly, these issues are no longer before the Board. The only remaining issues on appeal are listed on the title page. As will be described below, in a January 2021 joint motion for partial remand (JMPR), the parties agreed that when assessing the issue of special monthly compensation (SMC) under 38 U.S.C. § 1114(s), the Board erred in not addressing whether the reduction of prostate cancer from 100 percent to noncompensable was proper and stated that the Board needs to address whether prostate cancer should be rated under voiding, and if so, assign a rating. As such, the Board finds that in order to comply with the terms of the JMPR, the increased rating claim for prostate cancer is part and parcel of the SMC claim. Therefore, the Board has taken jurisdiction of the prostate cancer claim and it is listed on the title page accordingly. The Veteran served on active duty in the United States Army from April 1969 to April 1971. Special Adapted Housing Specially adapted housing under is available to a veteran who has a permanent and total service-connected disability. This permanent and total service-connected disability must either be amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017 or must be due to: (1) the loss or loss of use of both lower extremities, such as to preclude locomotion without the use of 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 use of the aid of braces, crutches, canes, or a wheelchair; (4) the loss or loss of use 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 use of 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). 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 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). As the Veteran's active service concluded prior to September 11, 2001, this provision is inapplicable. 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). By way of the November 2013 claim, the Veteran contends that his service-connected disabilities warrant specially adapted housing (SAH) or a special home adaptation (SHA) grant. In his August 2014 notice of disagreement, he stated that SAH or SHA should be granted as he is a recipient of the purple heart for a wound to his right thigh, has been granted a TDIU, and is rated at 70 percent for posttraumatic stress disorder (PTSD). The Veteran is service connected for the following disabilities: posttraumatic stress disorder (PTSD) rated at 70 percent, diabetic peripheral neuropathy of the left upper extremity rated at 30 percent, diabetic peripheral neuropathy of the right upper extremity rated at 20 percent, diabetic peripheral neuropathy of the left lower extremity (external popliteal) rated at 20 percent, diabetic peripheral neuropathy of the right lower extremity (external popliteal) rated at 20 percent, diabetic peripheral neuropathy of the left lower extremity (anterior crural) rated at 10 percent, diabetic peripheral neuropathy of the right lower extremity (anterior crural) rated at 10 percent, diabetes mellitus type II rated at 20 percent, shrapnel injury of the right thigh rated at 10 percent, erectile dysfunction rated at 0 percent, prostate cancer rated at 0 percent, hypertension rated at 0 percent, diabetic peripheral neuropathy of the left lower extremity (external cutaneous) rated at 0 percent, and diabetic peripheral neuropathy of the right lower extremity (external cutaneous) rated at 0 percent. He is also in receipt of special monthly compensation (SMC) for loss of use of a creative organ. His combined evaluation is 100 percent. The Board recognizes that there is evidence of record dated two months prior to the commencement of the appeal period. Nevertheless, the Board will consider the September 2013 VA examination as it is substantive and pertinent to the claims on appeal. In September 2013, the Veteran was afforded a VA examination in connection with his claims. The complete diagnosis that restricts the below listed activities was stated as dementia of Alzheimer type. It was noted that the Veteran requires assistance in bathing and tending to other hygiene needs. He lacked the ability to manage his own financial affairs and was not able to prepare his own meals. Although he was capable to feed himself, it happens after set-up and with consistent reminders. He had poor recent memory for all events and poor communication skills. He required constant supervision for personal safety due to confusion. The examiner concluded that there was no limitation regarding the Veteran's lower extremities to include limitation of motion or atrophy. The examiner also concluded that aids such as canes, braces, crutches, or the assistance of another person was not required for locomotion. A December 2014 VA orthotics prosthetics note shows that the Veteran was fitted for a right knee brace and that the brace was ordered. The plan was described as the knee brace is to be worn daily to reduce right patella knee pain. A March 2015 VA orthotics prosthetics note illustrates that the Veteran was measured and fitted with a back brace. This back brace was issued, and the plan was stated as he is to wear the back brace daily to reduce low back pain while ambulating. A January 2020 VA Peripheral Nerves Conditions Disability Benefits Questionnaire illustrates that the Veteran did not use assistive devices as a normal mode of locomotion. Considering the service-connected disabilities, to include those that effect the Veteran's bilateral upper extremities and bilateral lower extremities, the Board finds that the first prerequisite is not met. Neither his diabetic peripheral neuropathy of the bilateral upper or lower extremities, or shrapnel injury of the right thigh, or other service-connected disabilities are rated at 100 percent. Therefore, none of these disabilities qualify as total and permanent. Even if any of these disabilities were rated at 100 percent and or if the Veteran was in receipt of a TDIU for the entire period on appeal, the record does not substantiate the regulatory requirement that there be a disability rated as permanent and total as due to one of the combinations of functional impairments enumerated under §3.809(b) or (d). The Board recognizes that the Veteran's combined evaluation of service-connected disorders is 100 percent, but this is not equivalent to a total disability rating based on individual unemployability (TDIU). The Board also recognizes that the Veteran was in receipt of a TDIU during the appeal period. However, as will be explained below the Veteran does not have a disability rated as permanent and total as due to one of the combinations of functional impairments enumerated under §3.809(b) or (d). There is no dispute that the Veteran's psychiatric disorder, to include his service-connected PTSD, as well as his Alzheimer disorder has a significant impact on his ability to engage in activities of daily living. However, as will be explained below, a psychiatric disorder is not a qualifying disorder for specially adapted housing. Additionally, there is no dispute that the Veteran's service-connected disabilities have impact on his lower and upper extremities. Nevertheless, as will be explained below, the Board is bound by the law and regulations when determining whether the Veteran is eligible for assistance in acquiring specially adapted housing. Regarding the Veteran's psychiatric disorder, the record shows that this disorder has the most severe impact on his daily life. Specifically, the September 2013 VA examination clearly illustrates that the Veteran requires assistance with hygienic care, meal preparation and needs constant supervision for his own personal safety. However, the September 2013 VA examiner clearly stated that the Veteran has these needs due to his psychiatric disorder. Additionally, a psychiatric disorder to include PTSD and Alzheimer disease, is not an enumerated disability under 38 C.F.R. § 3.809(b) or (d). As such, when considering his service-connected PTSD, specially adapted housing is not warranted. Regarding the Veteran's service-connected disabilities impacting his lower extremities, there is nothing in the record to illustrate his locomotion is precluded without the use of the aid of braces, crutches, canes, or a wheelchair. In fact, the only indication of any assistive devices being worn is that of a right knee brace and a low back brace, and none of these uses indicate that the Veteran would be precluded from locomotion without them. Additionally, the September 2013 VA examiner concluded that there was no limitation regarding the Veteran's lower extremities and that aids such as canes, braces, crutches, or the assistance of another person is not required for locomotion. The January 2020 VA examiner also concluded that the Veteran does not use assistive devices as a normal mode of locomotion. Also, of note, the Veteran has not made any specific contention that his service-connected disabilities require him to use an assistive device in order to ambulate. The Board acknowledges the Veteran's contentions that SAH is warranted as he was awarded the purple heart due to his service-connected shrapnel injury of the right thigh. However, there is no probative evidence of record to reflect that without the use of mechanical aids the Veteran would be precluded from movement due his right thigh disability or any of his service-connected disabilities impacting his lower extremities. With respect to the upper extremities, the Veteran is service connected for diabetic neuropathy of the bilateral upper extremities. The probative evidence does not illustrate the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow. Moreover, even if his service-connected diabetes mellitus and hypertension were organic diseases which affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, he would still be ineligible as there is no loss or loss of use of one lower extremity. It is neither shown, nor has the Veteran asserted, that his service-connected disabilities involve blindness, burn injuries, or amyotrophic lateral sclerosis. The Board acknowledges the Briefs submitted in May 2021 and June 2021. However, there is no specific detail or argument provided for the SAH and SHA claims. Even though the Veteran has service-connected disabilities affecting his bilateral lower extremities and bilateral upper extremities, the evidence does not otherwise demonstrate that either the shrapnel injury of the right thigh, diabetic peripheral neuropathy of the bilateral lower extremities, or diabetic peripheral neuropathy of the bilateral upper extremities rise to the level of loss of use of both upper extremities; the loss of use of both lower extremities; such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or loss of use of one upper extremity together with loss of use of one lower extremity which so affect the functions of balance or propulsion. Additionally, the probative evidence does not show loss of use of one lower extremity together with the residuals of an organic disease or injury. Although the Board is sympathetic to the Veteran's concerns and how much his PTSD has impacted his daily activities and overall quality of life, it is bound by applicable law and regulations when determining a claim for VA benefits. The Veteran has not experienced the loss of use of both upper extremities, both lower extremities, or one lower extremity along with one upper extremity. He does not have a permanent and total disability due to the any of the enumerated conditions required under 38 C.F.R. §§ 3.809. He is therefore ineligible for specially adapted housing. The preponderance of the evidence is against the claim and the appeal is denied. Special Home Adaptation If entitlement to specially adapted housing is not established, a veteran may 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); 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 (COPD)). 38 C.F.R. § 3.809a(b). As discussed in greater detail above, the Board finds that the weight of the evidence demonstrates that although the Veteran is service connected for peripheral neuropathy of the bilateral upper extremities, he does not have complete paralysis of either the left hand or right hand. As such, there is not the anatomical loss or loss of use of both hands. Additionally, his service-connected disabilities do not include burn injuries, an inhalation injury, or loss of vision. Ultimately, the Veteran does not have a permanent and total disability causing any of the enumerated conditions under 38 C.F.R. §§ 3.809a. As such, he ineligible for a special home adaptation. The appeal is therefore denied. REASONS FOR REMAND In October 2019, the Board denied the issue of special monthly compensation under 38 U.S.C. § 1114(s), as of January 29, 2014. In January 2021, the United States Court of Appeals for Veterans Claims (Court) granted the January 2021 joint motion for partial remand (JMPR) and vacated the October 2019 Board decision to the extent that it denied the SMC claim. The case has been returned to the Board for compliance with the terms of the JMPR. In the JMPR, the parties agreed that the Board erred in denying the claim as it failed to consider whether the reduction of prostate cancer from 100 percent to noncompensable was proper. The parties also agreed that the Board should address whether a compensable rating for prostate cancer is warranted under voiding, and if so, should assign a rating. As mentioned above, this finding clearly indicates that the increased rating claim for prostate cancer is inextricably intertwined with the SMC claim. The last VA examination performed regarding the Veteran's prostate cancer was in April 2015. As this examination is over six years old the Board finds that an additional examination will be helpful in assessing the current level of severity of the Veteran's prostate cancer. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his prostate cancer residuals. The examiner is asked to perform an examination to assess the current level of severity of the Veteran's prostate cancer residuals. The examiner should provide a full description of the prostate cancer to include any and all residuals of prostate cancer and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is requested to note in his/her report that a full review of the Veteran's electronic claims file, to include this remand, was completed. To the extent possible, the examiner should opine as to the level of severity of the Veteran's prostate cancer residuals throughout the appeal period, specifically as of January 29, 2014 to present. The examiner should also indicate whether the Veteran has or had any voiding dysfunction as of January 29, 2014, and if so the levels of severity of the voiding dysfunction. (Continued on the next page) All opinions and conclusions must be supported by a complete rationale. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.