Citation Nr: 24001071 Decision Date: 01/08/24 Archive Date: 01/08/24 DOCKET NO. 20-06 973 DATE: January 8, 2024 ORDER Entitlement to financial assistance in acquiring specially adapted housing is denied. Entitlement to a special home adaptation grant is denied. FINDINGS OF FACT 1. The Veteran does not have a disability rated 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 resulting in only 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 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 adaptation grant have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.309a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to September 1981 and December 1990 to July 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in February 2023, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board directed the AOJ to obtain VA opinions with regard to the Veteran's claims. On remand, the AOJ obtained such opinions. Thus, the AOJ substantially complied with the February 2023 Board remand directives. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The case has now been returned to the Board for appellate action. Specially Adapted Housing and/or Special Home Adaptation Grant The Veteran seeks entitlement to specially adapted housing and/or special home adaptation grant. Specifically, the Veteran, indicates that the use of braces and impairments with his bilateral lower extremities warrant entitlement to specially adapted housing and/or special home adaptation grant. See e.g., Statement in Support of Claim (VA Form 21-4138), December 31, 2020; see also, Substantive Appeal (VA Form 9), January 25, 2020. 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). 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. As an initial matter, the medical record, including VA examinations, show that the Veteran does not have ALS, amputation of an upper extremity, or blindness in either eye. The Veteran has an above the knee amputation on the left side that is unrelated to his active service and is not service connected. The record does not suggest, nor has the Veteran asserted, that he had any organic disease or injury that would preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair if coupled with his left lower extremity disorder. Turning to the evidence, at a November 2018 VA examination for peripheral neuropathy conditions, the Veteran was shown to have an unsteady gait and used a brace for his left inguinal neuropathy. A July 2019 private treatment record for the Veteran's knee indicates the Veteran had variable imping gait with joint stiffness, infrequent locking, intermittent buckling, and wore a knee brace. A July 2019 VA treatment record indicates the Veteran was ambulatory with mild right-side limping; did not use an assistive device or cane. The Veteran wore a knee brace. At a November 2020 VA examination, the VA examiner opined it was less likely than not that the service-connected disability caused the bilateral lower extremity disability and did not cause loss of use of one lower extremity to make necessary the use of a wheelchair, brace, crutches, or cane as a normal mode of locomotion. The Veteran had limited ability to walk, and his mode of locomotion was affected during the times of intense pain, making the need for a brace, crutch, or cane both necessary and safe during these times. The Veteran did not use an assistive device as a normal mode of locomotion. Functioning was not so diminished that the Veteran was equally well served by amputation with prosthesis. The Board notes that if found this November 2020 opinion to be inadequate as it is internally inconsistent in its February 2023 remand. This opinion is therefore being afforded little, if any, probative weight. A January 2020 VA treatment record indicated the Veteran was ambulatory with a steady gait. Pursuant to the February 2023 Board remand, the Veteran was afforded a VA examination in March 2023. At that time, the VA examiner noted the Veteran's reports of requiring a brace on his bilateral lower extremities and a cane when ambulating at all times. The Veteran denied the loss of use of his lower extremities but reported limitations. The VA examiner opined the Veteran did not have loss of use of the lower extremities that was due to his service-connected hypertension. The VA examiner noted common symptoms of hypertension, to include poor circulation, but did not locate any medical or scientific evidence linking the Veteran's service-connected disabilities to limited use of the lower extremities. The VA examiner again noted that the Veteran denied loss of use of the lower extremities but rather reported decreased and limited bilateral lower extremity use, and was affected in his functions of balance and propulsion, to preclude locomotion, without the use of the aid of braces and cane. The examiner noted that the Veteran was unable to ambulate without the use of braces to his bilateral lower extremity, he also had an inability to stand for long periods of time due to decreased and limited range of motion. The examiner noted that the Veteran reported that he felt unsteady when going from sitting to standing and while ambulating. The examiner noted that the Veteran ambulated at a slow pace with an unsteady gait. Based on the foregoing, the Board finds that the Veteran has consistently been shown to remain mobile and that he can independently ambulate with the use of braces. The Veteran has consistently denied the loss of use of his lower extremities but rather reported limitations and impairments related to his bilateral lower extremities. In addition, related to the question of whether the Veteran's disabilities amount to the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity such as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair, the Board finds that it does not. Additionally, the Veteran may be able to demonstrate that his service-connected disabilities result in the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow. For the reason that follow, however, the Board finds the evidence to be against the claim. Here, the medical evidence consistently demonstrates that, although the Veteran did use braces as a means of locomotion, he was able to independently stand and ambulate. Thus, to the extent the Veteran may use an assistive device to better ambulate, the probative evidence does not illustrate that the Veteran's service-connected disabilities result in the loss or loss of use of both lower extremities, the loss or loss of use of one lower extremity together with residuals of organic disease or injury, or the loss or loss of use one lower extremity together with the loss or loss of use of one upper extremity such as to preclude locomotion without the use of the aid of braces, crutches, canes, or a wheelchair. Notably, at his March 2023 VA examination, the Veteran consistently denied loss of use of his bilateral lower extremities, and presented as ambulatory, albeit with an unsteady gait and with the use of braces for his bilateral lower extremities. Further, the evidence also does not illustrate that the Veteran's service-connected disabilities result in the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow. Based on the foregoing, eligibility for specially adapted housing must be denied. The Board, while not unsympathetic, is bound by the law and regulations when determining whether the Veteran is eligible for specially adapted housing. However, if entitlement to specially adapted housing is not established, a veteran may 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); 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). Here, however, and for the reasons outlined in the Veteran's above claim for specially adapted housing, there is no probative evidence of record to show that he has paralysis of an upper extremity. 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 this claim must also be denied. 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.