Citation Nr: A25035881 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240508-437573 DATE: April 18, 2025 ORDER Eligibility for a special home adaptation is denied. FINDINGS OF FACT 1. Rating decisions issued in July 2013 found that the appellant was entitled to both a total disability rating based on individual unemployability (TDIU) and Special Monthly Compensation (SMC) based on the Housebound criteria as (1) the appellant's TDIU award was based solely on his major depressive disorder effective February 12, 2010, (2) other service-connected disabilities were independently ratable at 60 percent or more effective February 12, 2010, and (3) the appellant was permanently housebound from February 12, 2010. 2. A December 2022 rating decision found that the appellant's service-connected disabilities are considered permanently and totally disabling from February 12, 2009, and awarded the appellant entitlement to TDIU and Dependents' Educational Assistance (DEA) as of that date. 3. Apart from the TDIU and DEA awards, the evidence is otherwise persuasively against a finding that the appellant has a single disability rated as permanently and totally disabling. 4. A October 2023 rating decision found that while the appellant's service-connected multiple myeloma is rated as totally disabling effective September 12, 2022, it is not rated as permanently disabling as there is a likelihood of improvement, and the evaluation is subject to a future review examination. 5. The evidence is persuasively against a finding that the appellant has service-connected disabilities that include the anatomical loss or loss of use of both hands. 6. The evidence is persuasively against a finding that the appellant has service-connected disabilities that are 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. 7. The evidence is persuasively against a finding that the appellant has service-connected disabilities that are due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk. 8. The evidence is persuasively against a finding that the appellant has service-connected disabilities that are due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). CONCLUSION OF LAW The criteria for eligibility for a special home adaptation are not met. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant served honorably in the United States Army on active duty and active duty for training, to include from October 1966 to October 1968 and November 2001 to February 2004. The appellant received many decorations, medals, badges, citations, and campaign ribbons include (but not limited to): the (1) Army Achievements Medal, the (2) Army Reserve Components Achievements Medal, the (3) National Defense Service Medal with two Bronze Service Stars, the (4) Armed Forces Reserve Medal with Gold Hourglass and M Device, the (5) Non-Commissioned Officer Professional Development Ribbon, the (6) Army Service Ribbon, and the (7) Marksmanship Badge (Rifle). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2024 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration (the agency of original jurisdiction (AOJ)) in the modernized review system. See 38 C.F.R. § 3.2400. The appellant submitted a notice of disagreement (NOD) with the rating decision in May 2024 requesting an appeal to the Board under the Direct Review Docket. The appellant specified on the NOD that he intended to appeal the AOJ's denial of a claim for a special home adaptation and did not elect to appeal the AOJ's denial of a claim for specially adapted housing. The appellant also reaffirmed his intent to appeal for earlier effective dates for SMC awards granted in a separate rating decision, which has been docketed separately in association with an earlier notice of disagreement filed in January 2024. The appellant's representative subsequently confirmed that the only issue on appeal for the appeal on this docket number is the issue of eligibility for a special home adaptation. See Appellant's Brief, June 24, 2024. Applicable Evidentiary Windows As the appellant has selected the Direct Review Docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal. See 38 C.F.R. §§ 20.300(a), 20.301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD (VA Form 10182). 38 C.F.R. § 20.301. The appellant has not filed such a request. If additional evidence was submitted after the AOJ decision, the Board will not consider it. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023). Applicable Legal Criteria Pursuant to 38 C.F.R. § 3.809a and under 38 U.S.C. § 2101(b), a certificate of eligibility for assistance in acquiring necessary special home adaptations, or, on or after October 28, 1986, for assistance in acquiring a residence already adapted with necessary special features, under 38 U.S.C. 2101(b) or 2101A(a) may be issued to a veteran who served after April 20, 1898, or to a member of the Armed Forces serving on active duty who is eligible for the benefit under this section on or after December 16, 2003, if the following requirements are met: (a) The member of the Armed Forces serving on active duty or veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under § 3.809 nor had the member of the Armed Forces serving on active duty or veteran previously received assistance in acquiring specially adapted housing under 38 U.S.C. 2101(a). A member of the Armed Forces serving on active duty or veteran who first establishes entitlement under this section and who later becomes eligible for a certificate of eligibility under § 3.809 may be issued a certificate of eligibility under § 3.809. (b) A member of the Armed Forces serving on active duty must have a disability that was incurred or aggravated in line of duty in active military, naval, air, or space service and meets the requirements described in paragraph (c) of this section. A veteran must be entitled to compensation under chapter 11 of title 38, United States Code, for a disability that meets the requirements described in paragraph (c) of this section. (c) VA has rated the disability as permanently and totally disabling and it: (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) with limitation of motion of one or more extremities or the trunk; or (4) Is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). "[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Analysis Rating decisions issued in July 2013 found that the appellant was entitled to both a total disability rating based on individual unemployability (TDIU) and Special Monthly Compensation (SMC) based on the Housebound criteria as (1) the appellant's TDIU award was based solely on his major depressive disorder effective February 12, 2010, (2) other service-connected disabilities were independently ratable at 60 percent or more effective February 12, 2010, and (3) the appellant was permanently housebound from February 12, 2010. See 38 U.S.C. § 1114(s). See also Decision Review Officer Rating Decision Codesheet, July 31, 2013 (further clarifying the basis for the TDIU and SMC awards). In a December 2022 rating decision, the AOJ found that the service-connected disabilities of the appellant are considered permanently and totally disabling from February 12, 2009, and awarded the appellant entitlement to TDIU and DEA as of that date. Apart from the TDIU and DEA awards, the evidence is otherwise persuasively against a finding that the appellant has a single disability rated as permanently and totally disabling. In a October 2023 rating decision, the AOJ found that while the appellant's service-connected multiple myeloma is rated as totally disabling effective September 12, 2022, it is not rated as permanently disabling as there is a likelihood of improvement and is subject to a future review examination. However, while the appellant does have a permanent and total disability according to the TDIU and DEA awards, the evidence is persuasively against a finding that the appellant has a disability that includes the anatomical loss or loss of use of both hands. The evidence relating to the period on appeal in the record on appeal (e.g. the appellant's VA treatment records) documents that although the appellant's use of the hands is impaired by service-connected disabilities (e.g. neuropathy), the appellant retains use of his hands. For example, a neuromusculoskeletal and movement related function assessment in the appellant's VA treatment records shows that while the appellant had diminished upper extremity strength, his upper extremities remained functional with 60 pounds of right-hand grip and 65 pounds of left-hand grip. See Occupational Therapy Note, August 24, 2023. Another functional assessment in the appellant's VA treatment records indicates that the appellant required only partial or moderate assistance with carrying something in both hands, which is defined as the ability to carry something in both hands while walking indoors (i.e., several dishes, light laundry basket, tray with food). See Caregiver Certificate, July 25, 2023. The most recent treatment records in the record in appeal indicate that the appellant was able to use his hands to hold assistive devices to assist him with ambulation, walked at home briefly, and remained independent for self-care. See, e.g., Nutrition Outpatient and Cardiology Notes, March 21, 2024. This is the most probative evidence in the record for assessing the appellant's functional abilities at the time of the rating decision on appeal. It indicates that the appellant retained use of his hands and lower extremities. The appellant has not submitted more probative evidence relating to his current functioning or presented compelling contentions indicating that additional evidentiary development would establish that he has loss of use of his hands for the purpose of eligibility for a special home adaptation. See, e.g., Appellant's Brief, June 24, 2024. The evidence is also persuasively against a finding that the appellant has service-connected disabilities that are 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. It is persuasively against a finding that the appellant has a service-connected disabilities that are due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk. It is persuasively against a finding that the appellant has a service-connected disabilities that are due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). The appellant is not service connected for burns or inhalation injuries. Neither the appellant nor his representative have identified evidence contrary to these findings, and they have not presented compelling contentions indicating that additional development of the record would support a different conclusion. See, e.g., Appellant's Brief, June 24, 2024. Accordingly, as the evidence in the record on appeal is persuasively against the claim, eligibility for a special home adaptation is denied. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy, Counsel The 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.