Citation Nr: 23048331 Decision Date: 09/01/23 Archive Date: 09/01/23 DOCKET NO. 20-00 149 DATE: September 1, 2023 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), due to service-connected right above the knee amputation (right leg amputation) alone, is granted. Entitlement to a certificate of eligibility for specially adapted housing (SAH) is granted. Entitlement to a certificate of eligibility for a special home adaptation (SHA) grant is denied. FINDINGS OF FACT 1. The evidence persuasively weighs in favor of finding that the Veteran's service-connected right leg amputation has rendered him unable to secure or maintain substantially gainful employment. 2. The Veteran's overall disability results in the loss of use of his lower extremities so as to preclude locomotion without the aid of a walker, cane, or wheelchair. 3. An award of eligibility for SAH precludes a separate SHA grant. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2021). 2. The criteria for eligibility for SAH have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809, 3.809A. 3. The criteria for eligibility for an SHA grant have not been met. 38 U.S.C. § 2101, 5107; 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1974 to June 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. In September 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. See September 2021 Board Hearing Transcript. As an initial matter, the Board notes that, though the October 2018 rating decision denied entitlement to certificates of eligibility for both SAH and an SHA grant, the Veteran, through his representative, only appealed the denial of a certificate of eligibility for an SHA grant. See May 2019 Notice of Disagreement (NOD). However, VA is under a duty to liberally construe documents submitted by claimants and this extends to the substantive appeals. See Clemons v. Shinseki, 23 Vet. App. 1,5 (2009); DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). Here, a review of the claims file clearly shows that the Veteran is seeking assistance adapting his home due to his service-connected right leg amputation. See September 2018 VA Form 21-4138; September 2018 Dr. Chaudry Correspondence; September 2021 Board Hearing Transcript. Notably, while the loss of use of a lower extremity is amongst the criteria to establish eligibility for SAH, it is not amongst the criteria to establish eligibility for an SHA grant. See 38 C.F.R. §§ 3.809, 3.809a. As such, the Board will liberally construe the May 2019 NOD to include an appeal as to the denial of entitlement to a certificate of eligibility for SAH. The Board acknowledges that no Statement of the Case (SOC) has been issued with respect to the issue of entitlement to a certificate of eligibility for SAH. However, as this decision constitutes a full grant of the benefit sought on appeal, there is no prejudice to the Veteran in this regard and the Board may proceed with appellate review. Lastly, as indicated above, the Veteran is seeking eligibility for SAH and an SHA grant due to his service-connected right leg amputation. As discussed above, though the loss or loss of use of the lower extremities may satisfy the criteria for eligibility for SAH, the condition from which such loss results must be permanent and total disability. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. As the Veteran seeks eligibility for SAH predicated on his right leg amputation, the Board finds that a decision as to entitlement to a TDIU based on service-connected right leg amputation alone is necessary to a decision with respect to eligibility for SAH. Therefore, the issue of entitlement to a TDIU is properly included in the list of claims before the Board. See Bernard v. Brown, 4 Vet. App. 384, 392 (1993) (holding that, where the Board properly has appellate jurisdiction to review a claim, it follows that the Board is authorized to decide all questions presented on the record before it that are necessary to its decision on that matter). 1. Entitlement to a TDIU, due to service-connected right leg amputation alone, is granted. As discussed above, the issue of entitlement to a TDIU, due to service-connected right leg amputation alone, has been raised by the record. Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more, or, if the veteran has multiple service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. The term "unable to secure or follow a substantially gainful occupation" contains economic and noneconomic components. The economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention is given to: the veteran's history, education, skill, and training; the veteran's physical ability to perform the types of activities required by the occupation at issue; and the veteran's mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, throughout the appeal period, the Veteran has been rated at 100 percent for his service-connected depressive disorder. Therefore, the schedular threshold requirement for establishing entitlement to a TDIU have been met. Based on a review of the evidence of record, the Board finds that the evidence persuasively weighs in favor of finding that the Veteran's service-connected right leg amputation precludes substantially gainful employment. Specifically, the evidence shows that, due to his right leg amputation, the Veteran is wheelchair dependent. See West Los Angeles VA Medical Center (VAMC) records, received October 2018, December 2019, and May 2022 in CAPRI. Additionally, the evidence indicates that the Veteran's prior work experience was as a maintenance mechanic and assembly technician, both of which involve heavy lifting, long periods of standing, and working on ladders. See January 2010 VA Form 21-8940; May 2010 VA Form 21-4192; Social Security Administration (SSA) records, received October 2016; Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook: Assemblers and Fabricators, https://www.bls.gov/ooh/production/assemblers-and-fabricators.htm#tab-3 (last visited August 15, 2023); Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook: General Maintenance and Repair Workers, https://www.bls.gov/ooh/installation-maintenance-and-repair/general-maintenance-and-repair-workers.htm#tab-3 (last visited August 15, 2023). Further, the evidence indicates that, due to his service-connected leg amputation, the Veteran would be unable to obtain and maintain even sedentary employment. See October 2016 VA Medical Opinion Disability Benefits Questionnaire (DBQ). Based on the above, the Board finds the evidence of record persuasively weighs in favor of a finding that the Veteran's service-connected right leg amputation has rendered him unable to secure or follow a substantially gainful occupation. Accordingly, the Board resolves all reasonable doubt in the Veteran's favor and finds entitlement to a TDIU, based on the Veteran's service-connected left leg amputation alone, to be warranted, and the claim is granted. 2. Entitlement to a certificate of eligibility for SAH is granted. The Veteran contends that the severity of his service-connected right leg amputation warrants a certificate of eligibility for SAH. Financial assistance in acquiring specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) amyotrophic lateral sclerosis (ALS) rated as 100 percent under 38 C.F.R. § 4.123a, diagnostic code (DC) 8017; (2) blindness in both eyes; (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. SAH is also available to a veteran with a permanent and total disability that precludes locomotion due to: (a) the loss or loss of use of both lower extremities; (b) 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 as to preclude locomotion; or (c) 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 as to preclude locomotion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. The phrase "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches, or cane as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). Here, the Veteran is not service-connected for ALS, blindness, or burn injuries, nor is the Veteran service-connected for a condition involving the upper extremities. Therefore, eligibility on these bases is not warranted. As such, this matter turns on whether the Veteran has a permanent and total disability that precludes locomotion due to the loss or loss of use of both lower extremities, one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion as to preclude locomotion, or 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. As discussed above, the Veteran is service-connected for, inter alia, a right leg amputation, for which the Veteran has been granted a TDIU herein. As such, the Veteran's right leg amputation constitutes a permanent and total disability. Additionally, the record indicates that the Veteran is wheelchair dependent due to his right leg amputation. See West Los Angeles VAMC records. Considering the foregoing, the Board finds that the evidence of record persuasively supports the finding that the Veteran's service-connected right leg amputation manifests with the loss of use of both lower extremities such as to preclude locomotion without the regular and constant use of an assistive device. Therefore, giving the benefit of the doubt to the Veteran, entitlement to a certificate of eligibility for SAH is granted. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. 3. Entitlement to a certificate of eligibility for an SHA grant is denied. The Veteran contends that the severity of his service-connected conditions warrants a certificate of eligibility for an SHA grant. Where entitlement to SAH is not established, an applicant may nevertheless qualify for a SHA grant. This benefit requires that the evidence show permanent and total service-connected disability that either results in blindness in both eyes with 5/200 visual acuity, or less or involves the anatomical loss or loss of use of both hands. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a. (Continued on the next page) ? Here, however, the Board is granting eligibility for SAH, and the law precludes a separate award of SHA grant under 38 U.S.C. § 2101(b). As such, the claim of entitlement to a certificate of eligibility for an SHA grant must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.