Citation Nr: 22017398 Decision Date: 03/25/22 Archive Date: 03/24/22 DOCKET NO. 10-47 191A DATE: March 25, 2022 ORDER Entitlement to eligibility for specially adapted housing is granted. Entitlement to eligibility for special home adaptation grant is dismissed as moot. FINDINGS OF FACT 1. The Veteran's service-connected heart disability, diabetes mellitus with right and left upper extremity peripheral neuropathy and right and left lower extremity peripheral neuropathy, causes a loss of use of both lower and upper extremities so severe that it precludes locomotion without the regular and constant use of assistive devices. 2. By virtue of this decision, the Board is granting the Veteran's claim for entitlement to specially adapted housing. Therefore, the issue of eligibility for a special home adaptation grant is moot, due to the award of eligibility for assistance in acquiring specially adapted housing. CONCLUSIONS OF LAW 1. The criteria for eligibility for specially adapted housing have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 2. The claim for entitlement to a special home adaptation grant is dismissed as moot. 38 U.S.C. §§ 2101 (b), 7105; 38C.F.R. §3.809A. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues for further development four timesin April 2014, July 2017, October 2018, and July 2020. It has since returned to the Board for adjudication. Specially Adapted Housing Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) ALS rated as 100 percent disabling; (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, such as to preclude locomotion; (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 as to preclude unaided locomotion. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. The term "preclude 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. See 38 C.F.R. § 3.809(c). The term "permanent loss of use" is not defined under 38 C.F.R. § 3.808. However, under other relevant VA regulations, "loss of use of a hand or foot" is defined as no effective function remaining 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. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. See 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. Further, in Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well-served by an amputation with use of a suitable prosthetic appliance. The Board must also consider the impact of pain. Id. In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court further clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b) (see below). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities." Id. The Jensen Court did note, however, that "loss of use" in a general sense was the "deprivation of the ability to avail oneself" of that extremity. Id. The Veteran is currently service connected for a heart disability at 100 percent, PTSD at 70 percent, diabetes mellitus at 20 percent, right upper extremity peripheral neuropathy at 40 percent, left upper extremity peripheral neuropathy at 30 percent, left lower extremity peripheral neuropathy at 20 percent, right lower extremity peripheral neuropathy at 20 percent, right lower femoral nerve at 20 percent, left lower femoral nerve at 20 percent, a duodenal ulcer at 10 percent, and a noncompensable scar from his heart surgery. He has been in receipt of 100 percent total disability rating since October 1996 and receives special monthly compensation, in part, on account of being so helpless as to be in need of regular aid and attendance. Following the 2021 Board remand, a September 2021 VA examination was scheduled. The examiner noted that the Veteran is restricted to his home or immediate vicinity but is not permanently bedridden. It was noted he is unable to prepare food or clean the home, and he has a caregiver who prepares meals and cleans. It was noted that his bilateral hands have numbness with tingling/burning and weakness, and that he drops things, and he has decreased strength. It was noted that he has decreased strength, weakness, burning feet that make it hard to walk, and dizziness that affects his balance in his bilateral lower extremities. The examiner stated that the Veteran is not able to walk without assistance and that he must ambulate with a wheeled walker or cane. The examiner further stated that the Veteran's weakness and decreased strength causes it to be unsafe to ambulate without a device. It was noted he only leaves his home for doctors' appointments. Following the physical examination, the examiner opined that while the Veteran is not "impaired to the equivalence of an amputation," "he has difficulty with the use of his hands, gripping and grasping objects. He often drops things." The examiner also again reiterated that the Veteran "must use a walker or cane with ambulation. He has a very unsteady gait on exam and would be unsafe to ambulate without an assistive device and He is unable to step more than [one] step without a device." The examiner also noted that the Veteran "has significant cardiac disease that causes him to have shortness of breath, chest pain, and dizziness with even light activity. The dizziness severely impacts his ability to balance, and the symptoms make it hard for him to ambulate." Finally, the examiner noted that "while he has some low back condition [which is not service connected], this does not appear to be the cause of his difficulty ambulating. The numbness/ burning of the feet and the decreased activity tolerance due to shortness of breath, chest pain, and dizziness are the predominant cause of his disability." The Board finds that the above findings by the VA examiner are competent, credible, and entitled to significant weight. The Board again points out that the relevant standard is not total loss of use, but only such loss of use that amputation and use of a prosthesis would serve the Veteran equally well. See C.F.R. §§ 3.350(a)(2). Although the VA examiners opined that an amputation would not help this Veteran, the examiners explained that the Veteran has weakness of his legs and upper extremities, disturbance of gait, and constant pain, and that he requires constant use for assistive devices. Again, the Board notes that "the Board is required to consider the impact of pain... and articulate how pain on use was factored into its decision." Tucker, 11 Vet. App. 369, 373. To the extent the medical evidence suggests the Veteran does not have loss of use of his feet or hands, reasonable doubt must be resolved in his favor. VA examiners have noted his gait disturbance, inability to walk, and trouble gripping and using his bilateral upper and lower extremities, and that he requires assistance to walk. As such, based on the evidence discussed in greater detail above, the Board finds that the Veteran has loss of use of his bilateral lower extremities and bilateral upper extremities due to diabetes and peripheral neuropathy and his balance disorder associated with his heart disorder. Indeed, he has been service connected for peripheral neuropathy of the lower extremities since 2007 the upper extremities since 2009; with his condition deteriorating with additional disabilities and higher ratings granted beginning in September 2021, and as noted above, has been in receipt of a 100 percent total disability rating since October 1996. He also receives special monthly compensation, in part, on account of being so helpless as to be in need of regular aid and attendance. Thus, the evidence shows that the Veteran has loss of use of both lower extremities and upper extremities. Therefore, specially adapted housing is granted. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. Special Home Adaptation Grant Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. See 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). As discussed above, the Veteran is being granted a certificate of eligibility for specially adapted housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot. MICHELLE L. KANE 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.