Citation Nr: 23012011 Decision Date: 02/27/23 Archive Date: 02/27/23 DOCKET NO. 18-18 717 DATE: February 27, 2023 ORDER Entitlement to service connection for bilateral foot disabilities is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 6, 2020 is denied. Eligibility for financial assistance in acquiring specially adapted housing is denied. Eligibility for a special home adaptation grant is denied. FINDINGS OF FACT 1. The Veteran failed to report for the examination scheduled in conjunction with his claim for service connection for bilateral foot disabilities without good cause. 2. Prior to February 6, 2020, the Veteran's service-connected left knee osteoarthritis did not preclude him from obtaining or maintaining gainful employment. 3. The Veteran does not have a disability rated as permanent and total that causes 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. 4. The Veteran does not have a disability rated as permanent and total that causes 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 service connection for bilateral foot disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a TDIU prior to February 6, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 3. The criteria for eligibility for assistance in acquiring specially adapted housing are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809. 4. The criteria for eligibility for a special home adaption grant are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1996 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). It was most recently before the Board in October 2022, where it was remanded to obtain outstanding records from the Social Security Administration (SSA). These records have now been associated with the claims file, and the matter returns for further appellate review. The Veteran opted for a hearing before a Veterans Law Judge of the Board in a March 2018 VA Form 9 (Appeal to the Board of Veterans' Appeals). The record indicates that the Veteran, through his representative, cancelled that hearing in an October 2021 correspondence. Thus, the request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e). The Board also notes that, in the same October 2021 correspondence, the Veteran's representative seemed to suggest that the Veteran also wished to withdraw the appeal in its entirety, rather than simply withdraw his hearing request. In February 2021, the Board sent a letter to the Veteran and his representative requesting clarification as to whether the Veteran wished to merely cancel his hearing or withdrawal his claims. As no response was received, the Board will adjudicate the claims on the merit 1. Entitlement to service connection for bilateral foot disabilities Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The Veteran's claim for service connection for foot disabilities was denied by the RO in the rating decision on appeal based, in part, on a lack of medical evidence of current disabilities for service connection purposes. Further, the RO found no in-service injury for service connection purposes. Indeed, the Veteran's STRs are negative for any complaints, diagnosis, or treatment related to a foot disability. The record since this decision, however, indicates diagnoses of bilateral foot pain, swelling, plantar calcaneal spurs, plantar fasciitis, hallux valgus, and degenerative arthritis. Further, since the Veteran's initial denial, service connection has been granted for a number of disabilities, including left knee osteoarthritis and diabetes mellitus. Notably, in awarding the Veteran service connection for diabetes mellitus with diabetic neuropathy, the RO relied on the positive opinion of a VA examiner that the Veteran's service-connected left knee disability led to obesity, which in turn led to his diabetes mellitus and its complications. While obesity cannot be service-connected on a direct basis, and obesity cannot qualify as an in-service injury or disease for service connection purposes, obesity may serve as an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also VAOGCPREC 1-2017. As such, the Board remanded the claim in March 2022 to afford the Veteran a VA examination to determine the nature and etiology of any foot disability present during the appeal. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The record reflects, however, that the Veteran cancelled the examination. While VA has a duty to assist the Veteran in developing evidence pertinent to his claim, the Veteran also has a duty to assist and cooperate with VA in developing this evidence. 38 C.F.R. § 3.159(c). The duty to assist is not a one-way street. See Wood v. Derwinski,1 Vet. App. 190 (1991). When a veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655(b). When a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of "good cause" for failure to report for a VA examination include illness or hospitalization of the claimant and death of an immediate family member. See 38 C.F.R. § 3.655(a). In this case, the Veteran failed to report for the VA examination scheduled in May 2022. The examination was requested to determine the nature of the Veteran's current foot disability(ies) and whether it was related to his service or a service-connected disability, and was thus necessary to establish entitlement to the benefit being sought. The Veteran did not provide good cause for the cancellation at the time or request that the examination be rescheduled. The Board notes again that, in an October 2021 statement, the Veteran's representative suggested that he did not want to further pursue his claims following the January 2021 grant of entitlement to a TDIU. Absent a medical examination of the Veteran's foot disabilities and a medical examiner's opinion, the Board cannot grant the Veteran's claim. There is no competent and credible evidence of record showing that the Veteran's current foot disability(ies) had its onset during service or is related to any incident of service, or was caused or aggravated by a service-connected disability. Any statements made by the Veteran in this regard are not competent, as he does not have the medical expertise to provide a competent opinion on these issues, as these are not relationships that can be readily observed through the senses alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The appeal is therefore denied. 2. Entitlement to a TDIU prior to February 6, 2020. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran is already in receipt of a TDIU from February 6, 2020. Prior to that date, and as the Board has denied the Veteran's bilateral foot disability claim above, service connection is only in effect for left knee osteoarthritis rated as 10 percent disabling under Diagnostic Code (DC) 5260 and 0 percent under DC 5261, with a combined rating of 10 percent. However, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; however, such decision must first be addressed by VA's Director of Compensation Service (Director). 38 C.F.R. § 4.16(b). If the Board determines that a referral is not appropriate, a different analysis must be made. In particular, the Court in Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021), held that if the Board denies a referral, it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable. Here, in light of Snider, the Board finds that referral is not appropriate, and the claim must be denied. In his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran asserted that he was prevented from securing or following any substantially gainful occupation due to several disabilities, including bilateral foot and knee disabilities, sleep apnea, posttraumatic stress disorder, a hernia, and hypertension. His VA Form 21-8940 notes that the Veteran last worked full-time in August 2010, and his education includes college courses in Criminal Justice and a career as a correction's officer and security guard. As noted above, however, no disability other than left knee osteoarthritis was service-connected until February 20, 2020. Again, in determining whether a veteran is entitled to a TDIU, nonservice-connected disabilities cannot be considered. Moreover, the left knee disability that was service-connected prior to that date was rated as only 10 percent disabling pursuant 38 C.F.R. § 4.71a, Diagnostic Code 5260, and 0 percent under DC 5261. Under Diagnostic Code 5260, a 10 percent rating is assigned where flexion is limited to 60 degrees. Under Diagnostic Code 5261, a 0 percent rating is assigned where extension is limited to 5 degrees. During a June 2019 VA knee examination, flexion in the left knee was indeed limited to 60 degrees and extension limited to 5 degrees. The examiner opined that the Veteran's left knee disability, from an occupational standpoint, impacts standing, walking, lifting, and sitting, and noted that the Veteran's use of crutches and a cane was only occasional. The Board also notes that, in June 2018, SSA determined that disability benefits were not warranted, as the Veteran at the time was capable of performing at least sedentary employment that did not require prolonged standing, walking, or bending. A vocational expert at the time opined that the Veteran, for an individual with his age, education, work experience, and functional capacity, could perform the requirements of employment in various fields, such as a Surveillance Systems Monitor, Call Out Operator, or Document Preparer. SSA also noted, importantly, the Veteran's report that, while he previously worked as hospital security officer, he stopped working due to "false allegations" and an inability to afford an attorney, rather than a disability, resulting in a loss of his security license. He further stated that he would be able to reobtain his license starting in June 2018 by making a particular payment, and that he had been looking for work in various occupations since his previous employment ended, including physically laborious occupations in general construction or warehouse work. While SSA determinations are not binding on the Board, they are nevertheless relevant. Moreover, in its negative determination, SSA even took into consideration nonservice-connected disabilities that the Board cannot. While the Board can only use service-connected disabilities as a basis for TDIU, SSA is not so limited. The fact that they found against the claim does not support the Veteran's contention of TDIU caused by service-connected disability(ies) and provides limited evidence against a finding that this Veteran's service-connected disability(ies) are somehow out of the "norm," suggesting at least that they are not by SSA's belief that he was able to work. The Board also notes that the Veteran was sent a blank VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, and two completed forms that have been returned indicating that the Veteran resigned from his previous employment due to injuries and "allegations." Upon closer inspection of these forms, however, it appears that they were completed by the Veteran rather than his previous employers as instructed. Based on the foregoing, the Board finds that the evidence is against a finding that the Veteran there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable because of service-connected left knee disability prior to February 6, 2020. The Board sympathizes with the Veteran and recognizes that his service-connected left knee disability may have had a notable effect on his employment capabilities prior to February 2020. To the extent that the Veteran's disability hindered his ability to obtain or maintain gainful employment, the Veteran's disability rating prior to February 2020 itself is recognition that the impairments made it difficult to obtain and keep employment. See Van Hoose v. Brown, 4 Vet. App. at 363; 38 C.F.R. § 4.1. If the Board were to accept the argument that evidence of occupational limitations due to a service-connected disability or disabilities necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised and warranted in every case where a Veteran challenged the assigned evaluation. Accordingly, the Board finds that referral for extraschedular TDIU consideration prior to February 6, 2020, is not warranted. 3. Entitlement to specially adapted housing/a special home adaptation grant. The Veteran has asserts that he meets the criteria for the award of specially adapted housing or a special home adaptation grant. His service-connected disabilities throughout the appeal include an acquire psychiatric disorder rated as 50 percent disabling, diabetes mellitus with bilateral diabetic peripheral neuropathy rated as 20 percent disabling each, left knee osteoarthritis rated as 10 percent disabling, and hypertension rated as 10 percent disabling. The Veteran is also in receipt of a TDIU from February 6, 2020. Statute provides for two different "housing" benefits by way of separate subsections. Assistance in the acquisition of housing with special features is provided for by 38 U.S.C. § 2101(a) and implemented by the regulation 38 C.F.R. § 3.809 in which it is referred to as specially adapted housing. Assistance in adaptations to the residence of a veteran is provided for by 38 U.S.C. § 2101(b) and implemented by the regulation 38 C.F.R. § 3.809a in which it is referred to as special home adaptation grant. Specially adapted housing 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 (ALS) 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). The United States Court of Appeals for Veterans Claims (Court) has determined that the term "loss of use" in the context of specially adapted housing claims means "a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances. Adjacent modifiers and, in the case of [special monthly compensation], regulatory efforts create that specificity." Jensen v. Shulkin, 29 Vet. App. 66 (2017). The Court in Jensen dismissed the concern that "every time an individual is prescribed an assistive device in conjunction with a lower extremity disability, he or she would then automatically be eligible to receive [specially adapted housing]." Jensen, supra, at 15. Rather, it lays out four elements that must be satisfied to establish entitlement to such benefit: "That individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. There are plenty of limitations built into that standard." Jensen, supra, at 15-16. Turning to the evidence, VA knee and peripheral nerve examinations were afforded to the Veteran during the period on appeal. While the Veteran was noted to use assistive devices for bilateral knee pain, the Veteran's right knee is not service-connected. Additionally, while the Veteran has reported bilateral foot pain, as noted above in this decision, service connection for bilateral foot disabilities is also not in effect. While the Veteran does suffer from moderate incomplete paralysis of the sciatic nerve in both lower extremities due to diabetic neuropathy, the examination report notes the Veteran reporting only mild numbness and tingling in the extremities, with normal upper extremities. Physical examination indicted normal strength and reflexes in the lower extremities, with sensation decreased at the feet/toes on light touch/monofilament testing. All other sensory testing was normal, and there is no indication form this report that any assistive device was used specifically due to the Veteran's neuropathy. The peripheral nerves examiner ultimately opined that the Veteran's diabetic neuropathy did not, by itself, impact his ability to work. The Veteran's remining medical treatment records are not in significant conflict with the findings upon VA examination. Based on the foregoing, eligibility for specially adapted housing have not been met. While the Veteran uses assistive devices in order to better ambulate, the probative evidence does not illustrate that the Veteran's service-connected disabilities preclude locomotion of both extremities without the use of such, nor does the evidence suggest 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 an assistive device, or the loss or loss of use one lower extremity together with the loss or loss of use of one upper extremity. The Board is bound by the law and regulations when determining whether the Veteran is eligible for specially adapted housing. As such, the Veteran is ineligible for specially adapted housing and the claim must be denied. However, if entitlement to specially adapted housing is not established, a veteran may nevertheless qualify for a grant for necessary 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); or 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). 38 C.F.R. § 3.809a(b). Based on the foregoing, the Board finds that the weight of the evidence demonstrates that although the Veteran's service-connected disabilities impact his ability to ambulate, there is no probative evidence of record to show that he has loss or loss of use of a hand. Additionally, his service-connected disabilities do not include burn injuries, an inhalation injury, or loss of vision. He is therefore also ineligible for a special home adaptation grant, and the claim must be denied. (Continued on the next page) Although the Veteran does not qualify for specially adapted housing of for a special home adaptation grant, the Board advises that he may apply for a grant from the Home Improvements and Structural Alterations (HISA) program through the Veterans Health Administration, which provides for structural improvements and alterations to a veteran's residence such as those needed to allow entrance to or exit from the residence, use of essential lavatory and sanitary facilities, accessibility to kitchen or bathroom sinks or counters, and others specified under the regulation. See 38 U.S.C. §§ 1710(a), 1717(a)(2); 38 C.F.R. § 17.3100. The requirements for specially adapted housing/special home adaptation grant and the HISA grant differ greatly. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.