Citation Nr: 1736573	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-01 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an effective date earlier than September 20, 2005, for the grant of special monthly compensation (SMC) at the housebound rate, and an extension of those benefits from September 22, 2011 to June 23, 2014.  

2.  Entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only. 

3.  Entitlement to a certificate of eligibility for assistance in acquiring a special home adaptation grant.  

4.  Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing.  


REPRESENTATION

Appellant represented by:	Daniel F. Smith, Attorney at Law




ATTORNEY FOR THE BOARD

S. Keyvan, Counsel


INTRODUCTION

The Veteran had active service from December 1970 to May 1973, which included service in the Republic of Vietnam during the Vietnam Era.  

This comes before the Board of Veterans' Appeals (Board) on appeal from multiple decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that awarded service connection for coronary artery disease and assigned ratings for that disability, as well as awarded SMC at the housebound rate for a set period.  This also comes before the Board on appeal from the April 2015 rating decision which denied entitlement to financial assistance in the purchase of an automobile or other conveyance and adaptive equipment; entitlement to a special home adaptation grant, and entitlement to specially adapted housing.  

In a June 2015 decision, the Board denied the Veteran's increased rating claim for coronary artery disease, denied an earlier effective date for the grant of service connection for coronary artery disease, and denied an earlier effective date for SMC due to being housebound, to include an extension of SMC past September 21,  2011.  

The Veteran appealed the Board's June 2015 decision to the U.S. Court of Appeals for Veterans Claims (Court).  In March 2016, the Court granted a Joint Motion for Partial Remand (Joint Motion) which vacated the portion of the June 2015 Board decision to the extent that it denied an earlier effective date for the grant of service connection for coronary artery disease, and further denied an earlier effective date for SMC due to being housebound, to include the grant of an extension of SMC benefits past September 21, 2011.  The parties reasoned that the Board decision did not consider the Veteran's claim in light of 38 C.F.R. § 3.816(c)(2) (2016) and that any earlier award would have an impact on the earlier effective date claim for SMC.  The appeal of the denial of an increased rating for CAD was abandoned by the Veteran, and is therefore not before the Board.  

As indicated, the RO awarded SMC benefits based on housebound status from September 20, 2005 to September 22, 2011, and the Veteran appealed for an earlier effective date and an extension of those benefits past September 22, 2011.  However, during the pendency of this appeal, by way of an October 2015 rating decision, the RO awarded SMC based on housebound status from June 23, 2014.  Therefore, the focus of the issue of an extension of SMC benefits will be for the period from September 22, 2011, to June 23, 2014.  

In an October 2016 decision, the Board granted the Veteran's claim for an effective date earlier than August 29, 2005, for the grant of service connection for coronary artery disease.  Specifically, the Board granted an earlier effective date of June 8, 1995 for the grant of service connection for this disorder.  The issue of entitlement to an effective date earlier than September 20, 2005 and an extension of SMC benefits from September 22, 2011 to June 23, 2014 was remanded to determine whether the RO's implementation of the newly assigned effective date might impact this issue.  In the February 2017 rating decision, the RO effectuated the Board's October 2016 decision, and service connection for coronary artery disease was granted effective June 8, 1995.  The RO also assigned an initial 10 percent disability rating for this disorder from June 8, 1995 to August 29, 2005.  Based on the February 2017 rating decision, and specifically the 10 percent disability rating assigned for the grant of entitlement to service connection for coronary artery disease, in the February 2017 Supplemental Statement of the Case (SSOC), the RO denied entitlement to an effective date earlier than September 20, 2005 for the grant of SMC benefits at the housebound rate, and further denied entitlement to an extensions of SMC benefits at the housebound rate from September 22, 2011 to June 23, 2014.  



FINDINGS OF FACT

1.  For the period prior to September 20, 2005, the Veteran was not substantially confined to his house because of his service-connected disabilities, and while he was shown to have a single service-connected disability ratable at 100 percent, his service-connected coronary artery disease was not shown to be ratable at 60 percent disabling or higher.

2.  For the period from September 22, 2011 to June 23, 2014, the Veteran has not been substantially confined to his house because of his service-connected disabilities, and while he does have a single service-connected disability ratable at 100 percent, he did not have unrelated service-connected disabilities that either alone, or when combined together, were least 60 percent disabling or higher.

3. The evidence does not show that due to service-connected disabilities the Veteran has loss, or permanent loss of use, of one or both feet, or one or both hands; permanent impairment of vision of both eyes; severe burn injury precluding effective operation of an automobile; or ankylosis of one or both knees or one or both hips.

4.  The Veteran does not have a service-connected disability or service-connected disabilities manifested by anatomical loss or loss of use of one or both lower extremities, organic disease or injury which so affects the function of balance or propulsion as to preclude locomotion without an assistive device, the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without an assistive device, blindness in both eyes having only light perception, or blindness in both eyes having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens,  ALS, or full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or at least on extremity and the trunk. 



CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to September 20, 2005, of SMC benefits based on housebound status have not been met.  38 U.S.C.A. §§ 5101(a), 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.350, 3.351, 3.352, 3.400 (2016).

2.  The criteria for an extension of SMC benefits based on housebound status from September 22, 2011 to June 23, 2014 have not been met.  38 U.S.C.A. §§ 5101(a), 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.350, 3.352(a) (2016).

3. The criteria for a certificate of eligibility for financial assistance for the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only, are not met. 38 U.S.C.A. §§ 3901, 3902, 5107 (West 2014); 38 C.F.R. §§ 3.350, 3.808 (2016).

4. The criteria for entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing have not been met. 38 U.S.C.A. § 2101 (a), 5107 (West 2014); 38 C.F.R. § 3.102, 3.809 (2016).

5. The criteria for entitlement to a certificate for assistance in acquiring a special home adaptation grant have been met. 38 U.S.C.A. §§ 2101 (b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.809a (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).


II.  Analysis

Entitlement to SMC based at the Housebound Rate

The Veteran contends that an effective date earlier than September 20, 2005, and an extension of his SMC benefits from September 22, 2011 to June 23, 2014 at the housebound rate is warranted. 

SMC is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability for service-connected disability.  See 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. § 3.350 (2016). 

SMC may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound.  38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350 (i) (2016).  A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime.  Id. 

Generally, the effective date of an award of compensation for an increased rating is the later of the date of receipt of the claim or the date entitlement arose.  38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (o)(1) (2016).  Prior to March 24, 2015, VA recognized formal and informal claims.  [Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO.] A claim is "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1 (p) (2016).  An informal claim is a "communication or action indicating intent to apply for one or more benefits."  38 C.F.R. § 3.155 (a) (2014).  VA must look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155 (a); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits).

Under the applicable regulation, the effective date of an award of SMC based on aid and attendance and housebound benefits is generally the date of receipt of the claim or date entitlement arose, whichever is later (except as provided in 3.400(o)(2)).  See 38 C.F.R. § 3.401 (a)(1).  However, this regulation also provides that when an award of pension or disability compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, additional pension or disability compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established.  

A.  Entitlement to effective date prior to September 20, 2005 
for grant of SMC at the  Housebound Rate

A historical overview of the claim reflects that in the July 1992 rating decision, the RO granted service connection for the Veteran's PTSD, and evaluated it as 100 percent disabling, effective from October 5, 1990.  An August 1993 rating decision continued the 100 percent disability rating for the service-connected PTSD.  The Veteran filed a claim seeking service connection for rheumatic heart disease in June 1995, which was denied by way of the July 1995 rating decision.  He subsequently filed a claim seeking service connection for his heart failure in August 1996, which was also denied in the December 1996 rating decision.  In an April 2010 Report of General Information slip, the Veteran filed a petition to reopen his claim seeking service connection for ischemic heart disease due to Agent Orange exposure.  In the September 2011 rating decision, the RO reopened and granted the claim for coronary artery disease associated with herbicide exposure, evaluating it as 30 percent disabling from August 29, 2005, 60 percent disabling from September 20, 2005, and 10 percent disabling from September 21, 2011.  In this decision, the RO also granted SMC based on the housebound rate criteria being met from December 1, 2007 to September 21, 2011.  The Board notes that the December 1, 2007 effective date was assigned based on the April 2010 rating decision coding sheet which mistakenly reflected that the service-connected PTSD was assigned from December 1, 2007.  In the October 2011 notice of disagreement (NOD), the Veteran disagreed with the effective date assigned for the grant of service connection for coronary artery disease as well as the disability ratings assigned for this disorder, both prior to September 20, 2005, and subsequent to September 21, 2011.  The Veteran also disagreed with the effective date assigned for the grant of SMC at the housebound rate, and the denial of SMC benefits from September 21, 2011.  

In the June 2012 rating decision, the RO granted service connection for the Veteran's claimed diabetes mellitus, type II, and assigned a 20 percent evaluation for this disorder effective May 19, 2011.  In the December 2012 rating decision, the RO increased the disability rating for the service-connected coronary artery disease to 30 percent, effective December 25, 2011.  The RO also determined that the grant of SMC at the housebound rate was effective from September 20, 2005, not December 1, 2007.  In the June 2015 Board decision, the Board denied entitlement to an increased evaluation for coronary artery disease, which was evaluated as 30 percent disabling prior to September 20, 2005; 60 percent disabling from September 20, 2005 to September 21, 2011; 10 percent disabling from September 21, 2011 to December 25, 2011 and 30 percent disabling from December 25, 2011.  The Board also determined that the criteria for an effective date earlier than September 20, 2005 for the grant of SMC at the housebound rate, and the criteria for extension of the SMC benefits from September 21, 2011, had not been met.  The Board also determined that the criteria for an earlier effective date for the grant of service connection for coronary artery disease had not been met.  

As discussed in the Introduction above, the Veteran appealed the Board's June 2015 decision to the Court.  Before a decision was issued by the Court, by way of the October 2015 rating decision, the RO granted entitlement to SMC at the housebound rate from June 23, 2014.  In March 2016, the Court granted the Joint Motion which vacated the portion of the June 2015 Board decision that denied an earlier effective date for the grant of service connection for coronary artery disease, and further denied an earlier effective date for SMC at the housebound rate, to include the grant of an extension of SMC benefits past September 21, 2011.  In the October 2016 decision, the Board granted the Veteran's claim and awarded an effective date no earlier than June 8, 1995 for the grant of service connection for coronary artery disease.  The issue of entitlement to an effective date earlier than September 20, 2005 and an extension of SMC benefits from September 22, 2011 to June 23, 2014 was thereafter remanded to determine whether the RO's implementation of the newly assigned effective date might impact this issue.  In the February 2017 rating decision, the RO implemented the Board's October 2016 decision, and the Veteran's claim for service connection for coronary artery disease was granted effective June 8, 1995.  The RO also assigned an initial 10 percent disability rating for this disorder from June 8, 1995 to August 29, 2005.  Based on the February 2017 rating decision, and specifically the 10 percent disability rating assigned for the service-connected coronary artery disease from June 8, 1995 to August 29, 2005, in the February 2017 Supplemental Statement of the Case (SSOC), the RO denied entitlement to an effective date earlier than September 20, 2005 for the grant of SMC at the housebound rate, and further denied entitlement to an extension of such SMC benefits from September 22, 2011 to June 23, 2014.  

In this case, given that the Veteran was in receipt of a 100 percent scheduled rating for his PTSD from October 5, 1990, and he was granted a 60 percent evaluation for coronary artery disease on September 20, 2005, he met the regulatory criteria for entitlement to a scheduler housebound rating from September 20, 2005 to September 21, 2011.  Although the Veteran's service-connected coronary artery disease was granted an earlier effective date of June 8, 1995, it was evaluated as 10 percent disabling for the period from June 8, 1995 to August 29, 2005, and 30 percent disabling from August 29, 2005 to September 20, 2005.  His diabetes mellitus was evaluated as 20 percent disabling from May 19, 2011, and as such, cannot be taken into consideration for the period prior to September 20, 2005.  As such, the Veteran does not meet the regulatory criteria pursuant to 38 C.F.R. § 3.350(i)(1) for the period prior to September 20, 2005.  

In addition, for the period prior to September 20, 2005, the record is absent evidence reflecting that the Veteran was actually housebound during this period due to his service-connected disabilities.  VA treatment records and examination reports dated from the 1990s until 2005 reflect that the Veteran was seen on a routine basis for his various medical appointments.  During a March 1991 VA psychiatric examination, the Veteran stated that he spent his days doing things around the house, including yard work, hauling trash, and bringing in firewood from the outdoors. During his November 1991 Hearing at the Mississippi RO, the Veteran testified that his current work consisted of picking up aluminum cans.  He also reported that he continued to drive his truck around even though it was not in very good condition.  See November 1991 Hearing Transcript, p. 12.  Treatment records dated from 1992 to 1993 reflect that the Veteran was seen on a regular basis for treatment for his back.  These records reflect that the Veteran fell approximately five feet from a 50 gallon drum while he was working.  Although the Veteran injured, and was receiving treatment for, the back condition, the report reflects that the Veteran was not permanently housebound as a result of his PTSD given that he was still moving around, working and trying to maintain an active lifestyle.  During his August 1993 VA examination, the Veteran stated that he had been attending the Jackson VA Hospital Mental Hygiene Clinic Trauma Recovery program for the past three years.  The Veteran also reported that he was last employed as a subcontractor through Savannah River Plant in September 1987 but he left the job because of his back problems.  

A February 1995 Occupational Therapy report reflects that the Veteran had undergone a cardiac rehabilitation program through the VA occupational therapy division at the VA medical center (VAMC) for one week and he attended the clinic six times during this week.  It was noted that during the course of this program, the Veteran's endurance increased from 15 minutes of exercise to 26 minutes of exercise with no complaints.  In addition, his standing tolerance increased from three minutes of standing to 26 minutes of standing with no complaints of fatigue.  It was determined that the Veteran made good progress over the course of this week.  Although the record reflects that the Veteran was hospitalized a few times due to his PTSD and his heart condition, he always showed improvement with treatment throughout his hospitalizations, and he was always discharged within a few weeks, or at most, one month following admission.  Indeed, the record reflects that he was hospitalized at the VA due to his PTSD symptoms from July 1995 to August 1995.  By the time of his discharge, it was noted that he showed marked improvements with decreased headaches and signs and symptoms of anxiety.  The Board acknowledges a May 1995 treatment note issued by the Veteran's physician at the Vicksburg Clinic, wherein he (his physician) indicated that the Veteran should not drive to his VA appointments due to his psychiatric problems.  Even if his physician recommended that he refrain from driving, the evidence still does not show that the Veteran was substantially confined as a direct result of his service-connected disabilities to his home given that subsequent treatment records reflect that he did continue to drive on his own to his medical appointments.  The Veteran also attended his September 1997 Hearing at the Jackson RO without the assistance of his family members.  Based on the available medical evidence, the Board finds that the evidence does not show that the Veteran was permanently housebound by reason of his service-connected disabilities for the period prior to September 20, 2005.  The medical records reflect that he was seen at VA clinics and VAMCs on a regular basis for treatment of his various service and non-service-connected disabilities.  Moreover, the majority of these records reflect that the Veteran drove himself to his appointments and was not accompanied by anyone at his appointments.  Furthermore, even if the Veteran had heeded the psychiatrist's advice, it would not follow that he was housebound; i.e., not being able to drive is not the same as being housebound under the criteria.  

Therefore, while the Veteran does have a single service-connected disability rated as total, he does not have an additional service-connected disability or disabilities independently ratable at 60 percent or more, and he has not been shown to be permanently housebound by reason of a service-connected disability or disabilities for the period prior to September 20, 2005.  Based on the evidence of record, an effective date earlier than September 20, 2005 for the grant of SMC benefits at the housebound rate is not warranted.  


B.  Extension of SMC benefits at the Housebound Rate from September 22, 2011 to June 23, 2014

The Board finds that the Veteran does not meet the eligibility requirements for SMC benefits at the housebound rate from September 22, 2011 to June 23, 2014.  In this regard, throughout this period, the Veteran's service-connected PTSD was evaluated as 100 percent disabling from October 5, 1990; his service-connected coronary artery disease was evaluated as 10 percent disabling from September 21, 2011, and 30 percent disabling from December 25, 2011 to June 23, 2014; and his service-connected diabetes mellitus type II was rated as 20 percent disabling, from May 19, 2011.  Therefore, although the Veteran does have a single service-connected disability rated as total during this period, he does not have an additional service-connected disability or disabilities independently ratable at 60 percent or more from September 21, 2011 to June 23, 2014.  When combined together, his service-connected coronary artery disease and diabetes mellitus amounts to a combined 30 percent rating from September 21, 2011 to December 25, 2011; and a combined 40 percent rating from December 25, 2011 to June 23, 2014 (see 38 C.F.R. § 4.25).  Thus, the general requirements for housebound status are not met.

Moreover, the evidence of record does not reflect actual housebound status.  There is no evidence to indicate that the Veteran was housebound from September 21, 2011 to June 23, 2014, due to his service-connected disabilities alone.  In this regard, the Veteran was not shown to have been substantially confined, as a result of his service-connected PTSD, coronary artery disease and/or diabetes mellitus, to his dwelling and the immediate premises; nor was he shown to have been institutionalized due to these service-connected disabilities during this period.  

At the July 2011 VA examination for housebound status or permanent need for regular aid and attendance, the examiner noted that the Veteran's complete diagnoses included diabetes mellitus, hypertension, chronic obstructive pulmonary disease (COPD), gastroesophageal reflux disease (GERD), PTSD, dementia, osteoarthritis, pulmonary embolism, long-term use of anticoagulant medication and obesity.  It was noted that the Veteran could feed himself, and did not require assistance in bathing and tending to his hygienic needs. With regard to any restrictions associated with the lower extremities, spine, trunk and neck, the examiner noted that the Veteran was home-bound except when he left his home for his medical appointments.  

At the December 2011 VA examination, when asked whether the Veteran uses any form of orthopedic or prosthetic appliance/device, it was noted that he used a cane when moving around in his home, and a wheelchair whenever he left his house.  It was noted that he could walk without the assistance of another person while he was within the home, and circumstances in which he could leave the home were unrestricted.  Although the Veteran reported to experience pain with flexion and extension of the lumbar spine, the function of the upper extremities was shown to be normal.  The examiner observed that while the Veteran experienced limitation of joint motion in the right lower extremity, he was still able to move his leg and participate in the joint motion exercises.  In the comments section, the examiner acknowledged that the Veteran was chronically ill with numerous medical problems, but added that his most "limiting" health problem, was his COPD which was moderately severe and required home oxygen therapy.  The examiner also noted that the Veteran has osteoarthritis in his back and right hip which causes pain with movement.  The examiner noted that although the Veteran could move short distances with a cane, he becomes short-of-breath easily after ten to twenty feet due to his COPD, and uses wheelchair if he has to go any distances.  According to the Veteran, whenever he leaves his house, he leaves with his wife who accompanies him most of the time.  The Veteran further added that he continues to drive and sometimes go out on his own.  He further added that he performs most of his activities of daily living, with the exception of putting on his shoes and getting in and out of the bathtub - activities his wife helps him with.  According to the examiner, the Veteran is able to recognize the hazards of daily living but because of his limitations in getting around "secondary to COPD and osteoarthritis of the hip," he would have difficulty removing himself quickly in an emergency type situation.  

VA treatment records dated from 2011 to 2014 reflect that the Veteran left his house on a number of occasions for treatment for his COPD, coronary artery disease, hypertension, angina, chest pain, and paroxysmal atrial fibrillation.  

At the March 2014 VA examination for housebound status or permanent need for regular aid and attendance (which was scanned into the electronic system in April 2014), the examiner noted that the Veteran had diagnoses of COPD, coronary artery disease, hypertension, diabetes, atrial fibrillation and degenerative joint disease. When asked whether the Veteran was confined to a bed, the examiner indicated that he was not bed confined.  On physical examination, the examiner described the Veteran as alert, cooperative, well-groomed and appropriately dressed, and capable of sitting in an erect position.  With respect to the restrictions associated with his upper extremities, the examiner noted that the Veteran is able to dress and feed himself, and attend to the needs of nature.  With respect to any restrictions associated with the lower extremities, the examiner noted that the Veteran had chronic degenerative joint disease pain in his right hip, which limited and impaired his mobilities.  The examiner noted that the Veteran exhibited weakness in both lower extremities that was worse in the right leg than the left, and he was not able to lift his extremity higher than six inches due to his pain.  As for restrictions associated with the spine, trunk and neck, the examiner again noted that the Veteran exhibited weakness in both the lower extremities that was worse in the right leg, and while he used a walker on an as-needed basis, he generally used his motor chair for transfer purposes.  When asked how often per day or week, and under what circumstances, the Veteran is able to leave the home or immediate premises, the examiner explained that the Veteran has chronic right hip pain which impairs his ability to drive secondary to symptoms of weakness.  According to the examiner, the Veteran leaves his home only with the assistance of his family members.  The examiner further commented that the Veteran had very limited ambulation secondary to his right hip pain, and assistive devices and/or the assistance of another person were required for locomotion.   

In light of these findings, the record reflects that the Veteran is able to leave his home to attend his medical appointments.  The Board acknowledges the July 2011 and March 2014 VA examination reports which reflect that the Veteran rarely leaves his home, and can only leave his home with the assistance of a family member.  However, the record predominantly reflects that the Veteran's limitations (from a medical perspective), are due to his COPD and his ongoing right hip pain - both of which are disabilities he is not service-connected for.  Indeed, at the March 2014 VA examination, when asked to set forth all pathology that affects the Veteran's ability to perform self-care, ambulate or travel beyond the premises of his home, the examiner noted that the Veteran experienced accidents due to urinary urgency, had memory impairment, and his balance was poor due to his DJD which impaired his gait and increased his risk of falling.  The examiner acknowledged that the Veteran required assistance from his wife with his activities of daily living, transportation and taking his medication, and he only left his home for his medical appointments.  Although the examination reports reflect that the Veteran experienced difficulty moving around, and did not leave the premises of his home much except to attend his medical appointments, the restrictions and limitations he experiences when it comes to getting around, leaving his home, and moving/ambulating most distances, appears to be related to his non-service-connected COPD and osteoarthritis.  The December 2011 VA examiner specifically indicated that the Veteran's most limiting medical problems were his moderately severe COPD which required home oxygen therapy, and his osteoarthritis of his back and right hip, which caused pain with movement.  The examiner explained that the Veteran became short-of-breath after 10 to 20 feet due to his COPD, and as such, he used a wheelchair to move around.  The March 2014 VA examiner also attributed the Veteran's limitations when it comes to leaving his home and moving around to his degenerative joint disease in the right hip.  Despite these limitations, he still leaves his home to attend his medical appointments.  Even assuming, arguendo, that the Veteran was permanently housebound, he has not been shown to be permanently housebound as a result of his service-connected disabilities.     

Therefore, while the Veteran does have a single service-connected disability rated as total, he does not have an additional service-connected disability or disabilities independently ratable at 60 percent for more, and he has not been shown to be permanently housebound by reason of a service-connected disability or disabilities.  As such, for the period from September 21, 2011 to June 23, 2014, an extension of SMC benefits at the housebound rate from September 21, 2011 to June 23, 2014 is not warranted. 

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Financial Assistance in the Purchase of an Automobile or Other Conveyance and Adaptive Equipment, or Adaptive Equipment only

A certification of eligibility for financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only.  38 U.S.C.A. §§ 3901, 3902(a), (b).  Eligibility for financial assistance to purchase one automobile or other conveyance and necessary adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; or, (5) for adaptive equipment only, ankylosis of one or both knees or one or both hips.  38 C.F.R. § 3.808. 

The term "loss of use" of a hand or foot is defined at 38 C.F.R. § 3.350 (a)(2) as that condition where "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.  The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of 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. 

Examples under 38 C.F.R. § 3.350 (a)(2), which constitute loss of use of a foot, include extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve.  See also 38 C.F.R. § 4.63.  An example under 38 C.F.R. § 3.350 (a)(2) and § 4.63 which constitutes loss of use of a hand is complete ankylosis of two major joints of an extremity.  These examples provided in the regulations are not an exhaustive list of manifestations of loss of use of a foot or hand. 

The relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance; and that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision.  Tucker v. West, 11 Vet. App. 369, 373 (1999). 

Where there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

In his August 2014 (VA form 21-4502) Application for Automobile or other Conveyance and Adaptive Equipment, the Veteran requested a van and noted that he was entitled to this benefit due to the fact that he suffered a permanent loss of use of his feet.  In another more detailed copy of this application that is dated in October 2014, the Veteran again requested a van, and indicated that he was eligible for the van due to the loss of use and permanent loss of use of his right foot.  In his October 2014 (VA Form 10-1394) Application for Adaptive Equipment Motor Vehicle, when asked to mark the extremity and level of his disability, the Veteran indicated that he had loss of use of the right leg (hip), and he indicated that there had been an amputation at this site.  It was further noted that an additional disability that affected his driving included his COPD, as he experienced respiratory difficulties when walking any distances.   In an April 2015 statement, the Veteran attributed the worsening of his lower extremities to his diabetes mellitus.  According to the Veteran, his condition had resulted in the loss of use of his right lower extremity, and his physician warned him that he may soon lose the use of his left lower extremity as well.  

In an August 2014 Mississippi Disabled Parking Application, the Veteran indicated that he cannot walk 200 feet without stopping to rest, and he cannot walk without the use of an assistive device.  It was noted that the Veteran uses portable oxygen and is severely limited in his ability to walk due to an arthritic, neurological, or orthopedic condition.  This form was signed by his pulmonologist.  

As noted above, the Veteran's current service-connected disabilities are: PTSD evaluated as 100 percent disabling since October, 5 1990; coronary artery disease, which is evaluated as 60 percent disabling since August 1, 2014; and diabetes mellitus, type II, which is evaluated as 20 percent disabling since May 19, 2011.  

Over the period of the appeal, the Veteran has undergone numerous VA examinations to assess the nature and severity of his service-connected disabilities, and to assess the need for SMC at the housebound rate and/or the need for regular aid and attendance.  He has also been treated at the VA on an outpatient basis for various ailments, and the evidence does not show that one or more of his service-connected disabilities causes vision impairment or includes a severe burn injury.  Nor is there evidence that such disabilities involve or cause ankylosis of a knee or hip.  Further, objective evidence shows that the Veteran did not have actual loss of a hand or foot.  As to the question of whether there was permanent loss of use of one or both hands or one or both feet, the evidence indicates that while there is a requirement for assistance for locomotion, there is no loss of use of a hand or foot as defined for VA rating purposes.

The December 2011 VA examination findings have been recounted above, and the results of this examination reflect that the Veteran used a cane to help him ambulate, and he could walk within his home without the assistance of another person.  The Veteran's ability to leave his home was unrestricted and there was no limitation of motion in the cervical spine.  Although he complained of pain with flexion and extension of the lumbar spine, and he exhibited limitation of joint motion in the right lower extremity, the examiner determined that the Veteran's main limitations were attributed to his COPD and his osteoarthritis of his back and right hip which causes pain with movement.  As noted above, the Veteran is able to ambulate and move short distances with a cane, but he has to use a wheelchair for longer distances because he becomes short-of-breath easily after ten to twenty feet due to his COPD.  

At the March 2014 VA examination for Housebound Status or Permanent Need for Regular Aid and Attendance (which was date-stamped as received in April 2014),  the Veteran's complete diagnoses include COPD, coronary artery disease, hypertension, diabetes, atrial fibrillation and degenerative joint disease.  The Veteran's gait was described as weak and it was noted that he used a walker to assist him ambulate.  It was also noted that the Veteran was able to feed himself, and did not require assistance when bathing and tending to various hygiene needs.  The examiner further noted that the Veteran was not legally blind, and did not require nursing home care.  During the evaluation, the examiner was described as alert, cooperative, well-groomed and appropriately dressed and the examiner further noted that he was capable of sitting erect.  A discussion of the physical examination portion of the examination, and specifically, the restrictions associated with the upper and lower extremities, has been provided above, and it was noted during this portion of the evaluation, that the Veteran's limited and restricted movement in the lower extremities was due to his DJD pain.  The examiner acknowledged that the Veteran exhibited weakness in his lower extremities that was greater in the right leg, and he used a walker on an as needed basis, as well as a motor chair to help him move around.  The examiner described the Veteran's balance as poor, and attributed this to his degenerative joint disease which impaired his gait and increased his risk of falling.  It was noted that the Veteran required the assistance of his wife with respect to certain activities such as preparing his meals, and transportation.  The examiner acknowledged that the Veteran only leaves his home with the assistance of his family due to chronic right hip pain which impairs his ability to drive secondary to weakness.  

A May 2014 Discharge report issued from River Region Medical Center reflects that the Veteran was admitted to this facility with a one day history of shortness of breath and wheezing which progressively worsened as time passed.  He was admitted to this facility for several weeks duration during which time he was treated with bedrest, careful monitoring of his vital signs, nebulized updraft, intravenous Solu-Medrol and low-flow oxygen.  He was discharged with a diagnosis of severe COPD with acute exacerbation.  

Treatment records issued through Camelia Homecare database, and dated from March 2015 to May 2015, reflect that the Veteran was homebound due to symptoms attributed to his right hip and back pain that left him chair bound, as well as the shortness of breath related to his COPD, which required frequent rest periods whenever he was performing his activities of daily living.  

Report of the May 2015 examination for Housebound Status or Permanent Need for Regular Aid and Attendance, which appears to have been completed by the Veteran's spouse, J.P., and not signed by a physician, she (J.P.) noted that the Veteran's complete diagnoses included COPD, dementia/memory loss, PTSD, osteoporosis, degenerative arthritis, diabetes mellitus, coronary artery disease, and what appears to be noted as severe bronchitis.  When asked which disabilities restricted the Veteran's activities and functions, the Veteran's spouse noted that his osteoporosis of the right hip, which caused him to experience chronic pain, and his COPD which limited his ability to walk long distances, restricted his activities and functions.  With respect to restrictions associated with his upper extremities, she noted that the Veteran is unable to use his lower back and shoulders, and he requires assistance with activities such as eating and buttoning up his clothes.  With respect to the restrictions in the lower extremities, she noted that the Veteran's right hip bone had deteriorated to such an extent that he can no longer place pressure on the right leg without automatically falling to the ground.  It was further noted that the Veteran reported that his left hip is now starting to react the same way.  With respect to any restrictions of the spine, trunk and neck, J.P. noted that the Veteran's hip and low back injury restricted his ability to operate his motor scooter.  When asked how often per day or week, and under what circumstances the Veteran is able to leave the home or immediate premises, J.P. responded that when going to church the Veteran drives himself in his minivan because she was not comfortable enough to ride with him.  She noted that the last time he drove, he had a difficult time coming out of the vehicle, and each time, he has to be seen at the hospital for his COPD and congestive heart failure.  J.P. further wrote that the Veteran does require assistive devices and the assistance of another person for locomotion, and can travel for about one block given that his COPD limits his ability to walk most distances.  

At the June 2015 VA examination in connection to the Veteran's diabetes mellitus, the examiner noted that his diabetes mellitus was managed through a restricted diet, and daily insulin injections.  The examiner also noted that the Veteran did not have to regulate his activities as part of medical management of his diabetes mellitus.  In addition, the examiner found that the Veteran did not have any recognized complications associated with his diabetes mellitus, nor did he have any disorders/conditions that were at least as likely as not due to his diabetes mellitus.  When asked whether the Veteran had any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his diabetes mellitus, the examiner indicated that he was overweight as a result of this disorder.  He (the examiner) did not observe any other physical findings, complications or symptoms associated with the Veteran's diabetes mellitus.  The examiner did note that the Veteran's diabetes mellitus impacts his ability to work, and explained that his (the Veteran's) use of insulin would likely prevent his ability to obtain a commercial driver's license.  In the remarks section, the examiner noted that the Veteran suffers from chronic pain secondary to osteoarthritis and avascular necrosis of the hip due to steroid use, which is indicated for severe COPD, and for which he is prescribed opioid analgesics.  The examiner did not identify any evidence or signs of diabetic neuropathy during this evaluation.  

At the June 2015 VA examination in connection to the Veteran's claimed heart disorder, when asked whether the Veteran had any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his coronary artery disease, the examiner indicated that he did, and noted, again, that the Veteran was overweight as a result of his heart disability.  It was noted that the Veteran's inability to participate in the exercise stress test was not due to his heart condition, but rather due to his avascular necrosis of the hip, and due to the fact that he was scooter bound, and suffered from COPD thereby requiring supplemental oxygen therapy.  According to the examiner, while the Veteran's heart condition might hinder strenuous labor or that requiring physical stamina, the heart condition by itself, would not preclude gainful sedentary employment.  In the remarks section, the examiner noted that the Veteran's deep vein thrombosis, pulmonary thromboembolism (PTE), paroxysmal atrial fibrillation, and history of atrial septal defect (ASD) status/post repair were not incurred in service and were not due to, or the result of, his military service, his exposure to herbicides in service, his service-connected heart disorder, or any of his service-connected disabilities.  

At the June 2015 VA examination in connection to the Veteran's claim for Aid and Attendance or Housebound benefits, the examiner noted that the Veteran required a wheelchair to help him move around, and that the circumstances in which he could leave his home were unrestricted.  When asked whether the best corrected vision was 5/200 or worse in both eyes, the examiner marked that it was not.  The examiner observed that the Veteran did exhibit limited range of motion in the thoracolumbar and cervical spine as a result of his degenerative joint disease.  With respect to any functional impairment in the upper extremities, the examiner observed that the Veteran had mild or moderate impairment in these extremities depending on the activity he was doing.  The examiner also observed that the Veteran had limitation of motion and muscle weakness in his lower extremities, and attributed his limited movement to his DJD.   When asked to describe the Veteran's impairments, the examiner noted that the Veteran had severe COPD, which limits his exercise capacity, and he has DJD/chronic pain, which limits his mobility.  In the comments section, the examiner noted that the Veteran was cognitively intact, and did not manifest a significant behavioral issue.  The examiner also noted that the Veteran suffered from severe COPD which limited his exertional capacity, and he was further hindered by his osteoarthritis and avascular necrosis of his hips caused by steroid use for his obstructive lung disease.  In addition, the examiner noted that the Veteran was mobile in a motorized scooter, and he used a cane for transfer, which required monitoring to prevent falls.  

At the May 2017 VA examination for housebound status or permanent need for regular aid and attendance, the examiner noted that the Veteran was not legally blind, but did use a wheelchair as he has not ambulated in years.  On physical examination, the Veteran's range of motion in the right and left upper extremity was shown to be within functional limits (WFL) during both active and passive range of motion.  His strength was plus 3 in both arms, and while his coordination was decreased in both arms, the tone was within normal limits in both extremities.  With respect to the lower extremities, the examiner noted that the Veteran could safely perform standing pivot transfers from the wheelchair to the bed/toilet with moderate independence.  Although he could sit erect with assistance for 30 seconds, his standing was described as poor.  His range of motion in the ankles was within normal limits, and his knee range of motion was limited by 25 percent.  The Veteran did not exhibit any restrictions when it came to his neck, spine or trunk

The Veteran's more recent VA treatment records dated in June 2017 reflect that he was admitted to the VA hospital with a diagnosis, and ongoing treatment for, COPD and sepsis.  

The issue to be addressed by the Board is whether the Veteran's service-connected disabilities meet the requirements for financial assistance for the purchase of an automobile or other conveyance and/or adaptive equipment. 

As noted previously, there is no evidence to suggest ankylosis of either knee or hip (service-connected or otherwise).  Although the Veteran has been diagnosed with osteoarthritis and avascular necrosis of the right hip, neither of these disorders were incurred in, or related to his military service, nor have they been attributed to any of the Veteran's service-connected disorders.  Indeed, both the June 2015 VA examiners attributed the Veteran's avascular necrosis of the right hip to his use of steroid medication for this COPD.  Further, medical evaluations and testing repeatedly indicate capacity for motion and strength in these joints. The Veteran does not contend, and the evidence does not suggest, that there has been any pertinent (service-connected or otherwise) severe burn injury precluding effective operation of an automobile. The Veteran does not have service-connected vision impairment, and he has not lost either of his hands or feet. There is also no suggestion that he has lost the use of either hand such that no effective function remained other than that which would be equally well served by an amputation stump with suitable prosthetic appliance.

The Board has also carefully considered whether the Veteran has permanent loss of use of one or both feet, qualifying for the sought financial assistance to purchase one automobile or other conveyance and necessary adaptive equipment. The Board acknowledges that the Veteran requires the regular aid of assistive devices, including a scooters, walker and wheelchair for locomotion.  However, for the purposes of this analysis, the term "loss of use" of a foot is defined by 38 C.F.R. § 3.350 (a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance.  The Board is unable to find that the Veteran has lost the use of either of his feet. His lower extremities are shown to retain function with adequate strength and range of motion. Assistive devices are needed for his risk of falling due to unsteady gait. The majority of the treatment records reflect that the veteran could ambulate with a cane for short distances, but that aids were used to prevent falls and for longer distances.  The Board acknowledges that the Veteran's standing was described as poor at the May 2017 VA examination.  However, he still exhibited normal range of motion in the ankles and limited range of motion in the knees.  

Although the Veteran contends that his right lower extremity has worsened as a result of his diabetes mellitus, report of the June 2015 VA examination in connection to the Veteran's diabetes mellitus reflected that the only complication associated with his diabetes mellitus was his weight problem, and the examiner did not detect or observe any findings of diabetic neuropathy.  The Board observes that the examples, noted above, that are provided by 38 C.F.R. § 3.350 (a)(2) with regard to defining "loss of use" of a foot, while not exhaustive, are nevertheless instructive. The deficits involving the Veteran's foot functions do not match these examples, nor do they otherwise reflect functional loss equivalent to the examples or the other language of the regulatory definition.  It is therefore the Board's judgment that the disability picture presented by the medical record does not support a finding that the Veteran's feet retain no more functional value than would be provided by amputation with suitable prosthetic appliance. 

As detailed above, at least one out of several legal criteria must be satisfied to establish eligibility for financial assistance to purchase one automobile or other conveyance and necessary adaptive equipment; as the Veteran has not met any of them, his claim must be denied and the benefit of the doubt doctrine does not apply.

Specially Adapted Housing/Special Home Adaptation

The Veteran's claims of entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant have been pending since 2014.  Effective October 25, 2010 and December 3, 2013, VA revised the criteria (under 38 C.F.R. § 3.809) for establishing entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing.  75 Fed. Reg. 57859 (Sept. 23, 2010); 78 Fed. Reg. 72573 (Dec. 3, 2013).  Effective October 25, 2010 and September 12, 2014, VA revised the criteria (under 38 C.F.R. § 3.809a) for establishing entitlement to a special home adaptation grant.  75 Fed. Reg. 57859 (Sept. 23, 2010); 79 Fed. Reg. 54608 (Sept. 12, 2014). 

Under the version of 38 C.F.R. § 3.809 in effect prior to October 25, 2010, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101 (a) may be granted if a claimant is entitled to compensation for permanent and total disability due to: (1) 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; (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 aid of braces, crutches, canes, or a wheelchair; or (4) 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 without the aid of braces, crutches, canes, or a wheelchair.  38 C.F.R. § 3.809 (b) (2009). 

Under the version of 38 C.F.R. § 3.809 which became effective on October 25, 2010, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101 (a) may also be granted if a Veteran is entitled to compensation for permanent and total disability due to: (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 C.F.R. § 3.809 (b) (2016). 

Under the version of 38 C.F.R. § 3.809 (d), which became effective on December 3, 2013, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C.A. § 2101 (a) may also be granted if the Veteran has service-connected amyotrophic lateral sclerosis (ALS) that is rated 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017.  38 C.F.R. § 3.809 (d) (2016).

Under all applicable versions of 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 canes as a normal mode of locomotion although occasional locomotion by other methods may be possible.  38 C.F.R. § 3.809 (c). 

Under the version of 38 C.F.R. § 3.809a in effect prior to October 25, 2010, if entitlement to specially adapted housing is not established, a Veteran can qualify for a grant for necessary special home adaptations if he is entitled to compensation for permanent and total disability which (1) is due to blindness in both eyes with 5/200 visual acuity or less; or (2) includes the anatomical loss or loss of use of both hands.  38 U.S.C.A. § 2101 (b); 38 C.F.R. § 3.809a (b) (2009). 

Under the version of 38 C.F.R. § 3.809a, which became effective on October 25, 2010, if entitlement to specially adapted housing is not established, a Veteran can qualify for a grant for necessary special home adaptations if he is entitled to compensation for a permanent and total service-connected disability which must (1) include the anatomical loss or loss of use of both hands; or (2) be due to (i) blindness in both eyes with 5/200 visual acuity or less, or (ii) deep partial thickness 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 (iii) full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or (iv) residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and COPD).  38 U.S.C.A. § 2101 (b); 38 C.F.R. § 3.809a (b) (2011).

Under the version of 38 C.F.R. § 3.809a that became effective on September 12, 2014, if entitlement to specially adapted housing is not established, a Veteran can qualify for a grant for necessary special home adaptations if he is service connected for a disability that (1) VA has rated as permanently and totally disabling, and which (i) includes the anatomical loss or loss of use of both hands; (ii) 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; (iii) 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 (iv) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease).  Additionally, a Veteran can qualify for a grant for necessary special home adaptations if he is entitled to compensation for a service-connected disability, which need not be rated as permanently and totally disabling, due to blindness in both eyes, having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens.  For the purposes of this paragraph, an eye with a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees shall be considered as having a central visual acuity of 20/200 or less.  38 U.S.C.A. § 2101 (b); 38 C.F.R. § 3.809a (b) (2016).

As noted above, the Veteran's current service-connected disabilities are: PTSD evaluated as 100 percent disabling since October , 5 1990, coronary artery disease, which is evaluated as 60 percent disabling since August 1, 2014; and diabetes mellitus which is evaluated as 20 percent disabling since May 19, 2011.  The combined rating of the service-connected disabilities is 100 percent, effective from October 5, 1990.  See 38 C.F.R. § 4.16.  The record reflects that the Veteran was considered eligible for educational assistance benefits pursuant to 38 U.S.C.A. Chapter 35 from July 8, 1995.  For the purposes of educational assistance under 38 U.S.C.A Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.  38 U.S.C.A. § 3510; 38 C.F.R. § 3.807 (a).  In light of the fact that the Veteran was discharged from service under honorable conditions, and the educational assistance benefits were awarded during his lifetime, the award of eligibility to educational assistance benefits pursuant to Chapter 35 was made based on the Veteran having a permanent and total rating under criterion (2) above (in conjunction with the first criterion).

Reviewing the pertinent evidence in light of all versions of the criteria does not result in a favorable outcome under 38 C.F.R. § 3.3809.  As service-connection has never been established for disability of either of his lower extremities, it cannot be said that the Veteran has a permanent and total service-connected disability that is "due to" the loss, or loss of use, of both lower extremities, notwithstanding the fact that he occasionally requires the use of a wheelchair to move around.  In addition, service-connection has not been established for his visual impairment, and even if he was service-connected for an eye disorder, he has not been diagnosed as legally blind in both eyes, having only light perception.  As such, these criteria have not been met.  38 C.F.R. § 3.809 (a)(1)-(4).  Finally, he does not have a service-connected disability that consists of anatomical loss or loss of use of one or both upper extremities such to preclude the use of the arms at or above the elbow, nor does he have a service-connected disability that consists of 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.  See 38 C.F.R. § 3.809 (a)(5)-(6).

Under the three versions of the regulation governing special home adaptation grants under 38 U.S.C.A. § 2101 (b), a Veteran may qualify for certificate of eligibility if entitlement to specially adapted housing is not established. The decision above denied specially adapted housing, so 38 C.F.R. § 3.809a may be considered.

While the Veteran has compensation based on permanent and total service-connected disability, there is no dispute of fact regarding the pertinent criteria here. The Veteran's permanent and total service-connected disability is not due to the anatomical loss or loss of use of both hands, is not due to blindness in both eyes with 5/200 visual acuity or less, is not due to deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, is not 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, and is not 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).  The Board acknowledges that the record reflects that a majority of the Veteran's limitations are due to his COPD.  However, he has not been service-connected for this disorder, and this disorder was not shown to be attributed to his heart disorder.  As such, the Veteran is not entitled to a grant for special home adaptation under the version of 38 C.F.R. § 3.809a effective prior to October 25, 2010, as well as the version of 38 C.F.R. § 3.809a effective prior to September 12, 2014.

With regard to the version of 38 C.F.R. § 3.809a that became effective on September 12, 2014, although the record does not indicate that the Veteran previously received assistance in acquiring specially adapted housing under 38 U.S.C.A. §2101 (b), the Veteran does not meet the requirements set forth under 38 C.F.R. § 3809a(b)(2).  In this regard, the Veteran is not entitled to compensation for a service-connected disability that has caused blindness in both eyes, having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens.  38 U.S.C.A. § 2101 (b); 38 C.F.R. § 3.809a (b) (2016).

As such, the Board finds that the Veteran is not entitled to a grant for special home adaptation under the version of 38 C.F.R. § 3.809a that became effective from September 12, 2014.  


ORDER

Entitlement to an effective date earlier than September 20, 2005 for the grant of SMC benefits at the housebound rate, is denied

Entitlement to an extension of SMC benefits at the housebound rate, from September 11, 2011 to June 23, 2014, is denied.

The appeal seeking financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or adaptive equipment only, is denied.

Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing is denied.

Entitlement to a certificate of eligibility for assistance in acquiring a special home adaption grant is denied



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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