Citation Nr: 22015779 Decision Date: 03/19/22 Archive Date: 03/19/22 DOCKET NO. 18-28 482A DATE: March 19, 2022 REMANDED Entitlement to eligibility for Specially Adapted Housing is remanded. Entitlement to eligibility for a Special Home Adaption Grant is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to February 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his June 2018 VA Form-9. However, the Veteran explicitly withdrew this request in November 2021 correspondence. The Board finds the Veteran properly withdrew his request for a hearing. Although the Board regrets the delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. First, the Board notes that a May 2018 statement of the case (SOC) was issued, and the appeal was certified to the Board in May 2020. The Board notes that additional evidence has been received that has not yet been considered by the Agency of Original Jurisdiction (AOJ). Specifically, prior to the appeal being transferred to the Board, additional VA medical records were uploaded to the file. Therefore, the matter must be remanded for AOJ review and issuance of an SSOC. See 38 C.F.R. §§ 19.31, 19.37, 20.904(a). Further, the Veteran has not been afforded recent VA examinations to determine the level of pain, weakness, and his ability to ambulate based on his service-connected disabilities and the last examinations for his service-connected disabilities were in 2012 over 10 years ago. Although the Board recognizes that the Veteran contends that he requires the use of a walker due to his service-connected disabilities, the record is insufficient for a determination that functional impairment from the Veteran's service-connected disabilities, alone, meet the necessary criteria for eligibility for assistance in acquiring specially adapted housing or special home adaptation grant. In providing an opinion, the examiner is asked to consider VA regulations which state 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. Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). The Board will therefore remand these issues to afford the Veteran an opportunity to attend a VA examination that will assess the full severity and symptomatology associated with his service-connected disabilities. Additionally, the examination(s) and medical opinion(s) should also include the combined effect of the Veteran's service-connected disabilities on his ability to use his lower extremities/feet. As such, remand is necessary to adequately develop the Veteran's claims for specially adapted housing or a special home adaption grant. The matters are REMANDED for the following action: 1. Obtain VA medical records from March 2020 to the present and associate them with the claims file. 2. Then, schedule the Veteran an examination to ascertain the current severity of his service-connected disabilities. The claims file must be made available to the examining clinician in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following: (a.) whether, due to the service-connected disabilities, to include the bilateral lower extremity radiculopathy; bilateral knees; right leg fracture residuals; and the back disability, the Veteran has loss of use of either foot. (b.) loss of use of both lower extremities so as to make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be briefly possible; (c.) 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 make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible; or, (d.) 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 make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible. By VA regulation, 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. 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. see 38 C.F.R. § 3.809(c). The examiner is also asked to answer: (e.) Whether the Veteran has such diminished ability to use his lower extremities that he would be equally or better served by an amputation with prosthesis? (f.) If answered in the negative, the examiner should state in what way(s) the Veteran's remaining functional capacity (e.g., with respect to balance, propulsion, etc.) is superior. (g.) If answered in the positive, the examiner must provide an opinion as to whether any service-connected disability alone is sufficient to result in this level of diminished function (i.e., better served by amputation with use of suitable prosthesis). The examiner should note that the Veteran is service connected for significant right knee instability; degenerative joint disease of the right knee; left and right lower extremity radiculopathy; back disability; right tibia and fibula fracture with malunion and one inch shortening of leg; degenerative joint disease of the left knee; and several noncompensable ratings. Rationale must be provided for opinions proffered. If the examiner determines a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 3. After completing the above actions, and any other further development deemed necessary, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. ARIF SYED Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Hoy, 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.