Citation Nr: 1736578	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-28 681	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to specially adapted housing benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. J. Anthony, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1983 to January 1988.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In March 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.

The Board remanded this case in February 2014.  Thereafter, in a June 2015 decision, the Board denied the Veteran's claim for entitlement to specially adapted housing benefits.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2016, the Court issued a Memorandum Decision vacating the decision and remanding the matter to the Board for further consideration.  The Board remanded the case in December 2016 and June 2017 for further development consistent with the May 2016 Memorandum Decision.  The matter is now before the Board for further appellate consideration.

In the June 2015 decision, the Board also denied the Veteran's claims for entitlement to an increased evaluation for scoliosis with low back pain and degenerative changes, entitlement to a special home adaptation grant, and entitlement to special monthly compensation based on the need for aid and attendance of another person.  The Veteran appealed those issues to the Court.  However, the May 2016 Memorandum Decision did not vacate those portions of the Board's June 2015 decision or remand those issues to the Board.  Rather, the Court explained that the Veteran raised no arguments concerning those claims.  Therefore, the Court considered those claims to be abandoned and did not address them.  See May 2016 Memorandum Decision, footnote 1.  As such, the Board's June 2015 decision as to those issues remains in effect, and those issues are not before the Board at this time.

However, in correspondence received in June 2017, the Veteran again asserts that he is entitled to an increased evaluation for low back pain and leg pain with weakness, and to special monthly compensation based on the need for aid and attendance of another person or persons.  Accordingly, those issues have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are REFERRED to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).


FINDING OF FACT

The probative evidence of record does not show that the Veteran's service-connected disabilities have resulted in permanent and total disability that is due to the loss or loss of use of one or both lower extremities so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.


CONCLUSION OF LAW

The criteria for entitlement to specially adapted housing have not been met.  38 U.S.C.A. §§ 2101, 5107(b) (West 2014); 38 C.F.R. § 3.809 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VA's duty to notify was satisfied by a letter dated in June 2011.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA has also satisfied its duty to assist the Veteran.  The Veteran's VA treatment records have been associated with the record, as have statements from the Veteran.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran has indicated that all of his treatment has been with the Durham VA Medical Center.  See VA Form 21-4142, Authorization and Consent to Release Information to VA, received in July 2012.  He has not identified any pertinent private treatment records.

The duty to assist also includes the provision of a VA examination when necessary to decide a claim.  38 C.F.R. § 3.159(c)(4).  In this case, the Veteran was provided a VA examination in May 2014 and a VA addendum opinion in February 2017 relevant to the present claim.  The examiner who conducted the May 2014 VA examination and provided the February 2017 VA addendum opinion reviewed the record, considered the Veteran's reported symptomatology and medical history, and addressed the medical principles relevant to the issue of entitlement to specially adapted housing benefits, providing supporting explanation and rationale for all conclusions reached.  The examination and addendum opinion were thorough, and reflect consideration of all relevant evidence and testing.  Therefore, the Board finds the examination and addendum opinion to be adequate for decision-making purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

There is no indication in the record that any additional evidence, relevant to the claim adjudicated in this decision, is available and not part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 


Compliance with Court and Board Remands

As noted in the Introduction, the Board remanded this case in February 2014, December 2016, and June 2017.  Relevant to the claim decided herein, the February 2014 Board remand directed the AOJ to obtain and associate with the record any outstanding VA medical records, afford the Veteran a VA examination to address the medical principles relevant to the issue of entitlement to specially adapted housing benefits, and then readjudicate the claim and issue a supplemental statement of the case, if warranted.  Pursuant to the February 2014 Board remand, the AOJ obtained updated VA treatment records, provided the Veteran a VA examination in May 2014, and readjudicated the issue in an August 2014 supplemental statement of the case.

In its May 2016 Memorandum Decision, the Court determined that the May 2014 VA examination report contained inconsistencies that render it inadequate for decision-making purposes.  Therefore, the Court remanded the issue to the Board with instructions either to return the examination report for clarification or to explain why such clarification is not necessary.

Consistent with the Court's Memorandum Decision, in its December 2016 remand, the Board directed the AOJ to obtain an addendum opinion to clarify the inconsistent statements made in the May 2014 VA examination report, and then readjudicate the claim and issue a supplemental statement of the case, if warranted.  Pursuant to the December 2016 Board remand, the AOJ obtained the February 2017 VA addendum opinion, which is consistent with and responsive to the December 2016 Board remand directives, and readjudicated the claim in a March 2017 supplemental statement of the case.  In the June 2017 remand, the Board directed the AOJ to obtain VA treatment records from March 4, 2014, through the present and then readjudicate the claim.  On remand, the AOJ obtained the requested VA treatment records and readjudicated the claim in a June 2017 supplemental statement of the case.  Accordingly, the Board finds that VA at least substantially complied with the May 2014, December 2016, and June 2017 Board remands.  See 38 U.S.C.A. § 5103A(b); Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105.

Other Due Process Considerations

Also as noted in the Introduction, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in March 2013.  At the hearing, the VLJ asked the Veteran specific questions concerning his reported need for and entitlement to specially adapted housing benefits.  In addition, the VLJ solicited information as to the existence of any outstanding evidence.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  See Scott, 789 F.3d 1375; Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

Legal Criteria

Relevant to the present claim, assistance in acquiring specially adapted housing may be granted under 38 U.S.C.A. § 2101(a) or 2101A(a) (West 2014) when a veteran is entitled to VA compensation for permanent and total disability due to the loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or the loss or loss of use of one lower extremity together with residuals of organic disease or injury that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.  38 C.F.R. § 3.809 (2016).

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.  38 C.F.R. § 3.809(c).

The term "loss of use" of a hand or foot means that there is 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 the use of a suitable prosthetic appliance.  38 C.F.R. § 3.350(a)(2).  The determination will be made on the basis of the actual remaining function, whether balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis.  See also 38 C.F.R. § 4.63.

Analysis

The Veteran seeks entitlement to specially adapted housing benefits.  He asserts that his service-connected disabilities limit his mobility and cause imbalance such that he requires the use of a back brace, cane, walker, wheelchair, and power chair.  See e.g., March 2013 Board hearing transcript.

Initially, the Board notes that the Veteran is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities.  In addition, the VA treatment records support the Veteran's assertion that he uses a back brace, cane, walker, wheelchair, and power chair.  Specifically, a May 2011 treatment note shows that the Veteran reported that he needed a cane due to left leg weakness and claudication.  A cane was ordered as a result of that visit.  In June 2011, he attended an occupational therapy consultation to evaluate his need for power mobility.  At the consultation, the Veteran reported difficulty with community-distance mobility.  He endorsed being able to stand and wash himself except for the lower extremities, and being able to walk in the house without assistive devices, though at times he uses a cane.  He spends most of the day sitting and does not work, but helps at a farm at times.  He is able to drive as needed.  He had static balance while sitting and standing, and was able to come from sitting to standing using his hands to push up.  He was also able to walk with a cane for 20 feet with a mild decline in floor clearance, walk 50 feet with a walker, and propel a manual wheelchair for 100 feet.  The attending physician felt that the Veteran may need to start with a rollator walker or manual wheelchair for community distance prior to using a power chair.  An order was placed for a rollator walker and a manual wheelchair.

At a July 2011 VA examination as to the Veteran's service-connected low back disability and service-connected diabetes mellitus, the Veteran endorsed numbness, weakness, and paresthesias.  He reported that he uses a cane and brace and is "unable to walk more than a few yards."  On examination, the Veteran had normal sensory examinations of the bilateral lower extremities and bilateral upper extremities, and 5 out of 5 motor strength on all strength tests.  He had normal muscle tone and no muscle atrophy.  He had an antalgic gait and declined to perform heel-toe walk testing without his cane, but was observed by the examiner walking one-quarter mile with his cane.

At the May 2014 VA examination, the Veteran reported stiffness and decreased motion of his lumbar spine.  On examination, he did not have localized tenderness or pain to palpation in the joints or soft tissue, muscle spasm resulting in abnormal gait or abnormal spinal contour, or guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour.  Muscle strength testing showed normal results of 5 out of 5 strength on all tests.  He had no muscle atrophy.  Reflex and sensory testing also showed normal results.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.  He also did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition.  The Veteran reported regular use of a cane, walker, and brace.

The examiner noted that the Veteran's service-connected low back disability impacts his functioning in that he can only walk for a few feet at a time before stopping to rest, he cannot climb a flight of stairs or a ladder, and he cannot perform tasks that require frequent and repetitive bending of the lumbar spine.  The examiner noted that the Veteran requires the use of a back brace that requires frequent adjustment and uses a walker or a cane regularly.  However, the examiner opined that there is no functional impairment of an extremity due to the thoracolumbar spine condition such that no effective function remains other than that which would be equally well served by an amputation with prosthesis.  In support of this opinion, the examiner noted that the Veteran had normal strength and function in his lower extremities, such that locomotion without the aid of braces or cane is not precluded, although he uses a walker or cane regularly to balance himself and prevent falls.

Given the inconsistencies in the May 2014 VA examination report, in which the examiner states both that the Veteran's normal strength and function in his lower extremities does not preclude locomotion without the aid of braces or canes and that the Veteran uses a walker or a cane regularly to balance himself and to prevent falls, the May 2014 VA examiner was asked to provide an addendum opinion.  In February 2017, the examiner opined that it is less likely than not that that the Veteran has the loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or the loss or loss of use of one lower extremity together with residuals of organic disease or injury that so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.  As a rationale for the opinion, the examiner explained that the Veteran had normal muscle strength and normal neurological examination of the bilateral lower extremities on examination in May 2014.  In addition, although the Veteran brought a cane and walker, wore a back brace, and requested to be pushed in a wheelchair at the May 2014 VA examination, a review of the Veteran's VA treatment records shows that the back brace was prescribed for back support rather than for locomotion.  In addition, he has never been prescribed a cane or walker by his primary care provider or any provider to assist with locomotion.  In regard to his previous inconsistent statements, the examiner explained that the May 2014 finding of normal muscle strength and function of the lower extremities indicated that there is no medical necessity for a cane or walker to aid in locomotion.  Although the Veteran reported that he uses a cane or a walker for balance, his VA treatment records do not show a balance problem.  In addition, the Veteran declined to walk with the walker or the cane during the examination so that the examiner could assess the distance he was able to go.

The Board finds that the VA examiner's February 2017 opinion is entitled to probative weight because the examiner had a full understanding of the Veteran's medical history, discussed the medical aspects of the conditions the Veteran contends prevent locomotion, and provided appropriate rationale to support the opinion given.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000).  The Board notes also that the opinion is consistent with the evidence of record.  The VA treatment records show that the Veteran was provided a cane, a walker, and a power chair in response to his own assertions and subjective beliefs that he needed such assistive devices.  Consistent with the examiner's statement, the Board has found no evidence of record showing that the Veteran's care providers have indicated that the Veteran needs such assistive devices to ambulate.  The medical evidence of record also shows that the Veteran has had full strength and intact sensation in the lower extremities when tested, to include on occasions when he reported weakness and diminished sensation, such as at the July 2011 VA back conditions and diabetes examinations.  The records show that as recently as June 2017 the Veteran reported using a power chair; however, that treatment note reflects no opinion from the care provider that such an assistive device is necessary.  Rather, at that visit, the care provider referred the Veteran for physical therapy and instructed him to continue using a TENS unit, exercising as tolerated, and using his home exercise programs from previous physical therapy sessions.

The Board further notes that the February 2017 addendum opinion clarifies that the apparent inconsistencies in the May 2014 VA examination report.  Specifically, in the February 2017 opinion the examiner explains that although the Veteran has stated that he requires assistive devices for balance and ambulation, the medical evidence of record, to include the normal findings on strength and sensory testing, do not support such contentions.  Accordingly, the Board accepts the VA examiner's February 2017 opinion as evidence that it is less likely than not that the Veteran has had a loss of use of one or both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.

The Board has considered the Veteran's contentions.  The Board does not doubt that the Veteran benefits from the use of assistive devices or that he believes that he requires such assistive devices for balance and/or ambulation.  Furthermore, the Board notes that he is competent to report such benefits and such beliefs.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, he is not considered to be competent to state whether such devices are medically necessary, as he has not been shown to possess the medical knowledge and expertise necessary to render such opinions.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, his assertions in that regard are inconsistent with the record, which is absent for evidence showing that his care providers have ever deemed such devices medically necessary.  The evidence also shows that he has full strength and sensation in the lower extremities, and the VA examiner opined that such findings reflect that the Veteran does not require a cane, walker, or power chair to ambulate.  Accordingly, the Veteran's statements are not considered probative, and do not weigh against the probative value of the VA examiner's February 2017 opinion.

In summary, the probative evidence of record does not show that the Veteran's service-connected disabilities have resulted in permanent and total disability that is due to the loss or loss of use of one or both lower extremities so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.  In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to specially adapted housing benefits.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to specially adapted housing benefits is denied.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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