Citation Nr: 18900008
Decision Date: 08/15/18	Archive Date: 08/15/18

DOCKET NO. 180627-42
DATE:	August 15, 2018
ORDER
Entitlement to assistance in acquiring specially adapted housing is denied.
FINDING OF FACT
The Veteran does not have amyotrophic lateral sclerosis (ALS) and the evidence does not show that he has a permanent and total service-connected disability due to the loss or loss of use of both lower extremities; blindness; the loss or loss of use of one lower extremity together with residuals of organic disease or injury; the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity; the loss or loss of use of both upper extremities; or full thickness or subdermal burns.
CONCLUSION OF LAW
The criteria for entitlement to assistance in acquiring specially adapted housing have not been met.  38 U.S.C. §§ 1154(a), 2101, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.809 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty service from August 1963 to August 1967.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2018 by a Department of Veterans Affairs (VA) Regional Office (RO).
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in BEAAM, the Board Early Applicability of Appeals Modernization research program.  This decision has been written consistent with the new AMA framework.
The Board notes that on his June 2018 claim, the Veteran requested consideration of entitlement to a special home adaption grant.  This aspect of the claim has not been adjudicated by the RO and is referred for appropriate action.
The Veteran contends  that his service connected left lower extremity (LLE) radiculopathy with drop foot precludes locomotion without the aid of an ankle foot orthosis and that he is therefore entitled to assistance in acquiring specially adapted housing.
Under 38 C.F.R. § 3.809, eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. § 2101(a) may be granted if a veteran 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; (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; (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; (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; or (7) for ALS. 38 C.F.R. § 3.809(b).
In Jensen v. Shulkin, 29 Vet. App. 66 (2017), the United States Court of Appeals for Veterans Claims clarified that, under 38 U.S.C. § 2101(a)(2)(B), a “loss of use” exists if a veteran has suffered a deprivation of his or her ability to use their lower extremity so severe that he or she is precluded from perambulating without one of the required assistive devices.  This definition indicates that locomotion is precluded even if a veteran is capable on occasion of moving about unaided.  Id. at 78.
Here, the Veteran is in receipt of service connection for: (1) prostate cancer; (2) LLE radiculopathy with drop foot; (3) right lower extremity (RLE) radiculopathy; (4) herniated nucleus pulposis, status post laminectomy (herniated nucleus pulposis); and (5) a lumbar spine scar.
Specially adapted housing under 38 C.F.R. § 3.809 is not warranted by the evidence of record.  First, the Veteran is not in receipt of service connection for ALS.  Additionally, although he has a total rating for prostate cancer, the record does not show that this disability is due to the loss or loss of use of both lower extremities; blindness in both eyes; 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; the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity; the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or full thickness or subdermal burns. 
The Board acknowledges the Veteran’s representative’s arguments regarding the severity of his LLE radiculopathy and the fact that such disability necessitates the use of an assistive device for proper ambulation.  Indeed, the Veteran has been awarded special monthly compensation for the loss of use of this extremity.  Nevertheless, the Veteran’s LLE radiculopathy has not been assigned a permanent and total disability rating.  The Board has even considered the provisions of 38 C.F.R. § 4.16(a)(2) and combined the ratings related to the spine (LLE radiculopathy, RLE radiculopathy, herniated nucleus pulposis, and lumbar scar), but even combined, such ratings do not amount to a permanent and total rating under 38 C.F.R. § 4.25.  In short, the ratings assigned for the Veteran’s spine related disabilities, whether viewed singularly or in combination, do not equate to a permanent and total rating to allow for the grant of specially adapted housing under 38 C.F.R. § 3.809.  
Although the Board is sympathetic to the Veteran’s claim, the preponderance of the evidence is against a finding that the Veteran is permanently and totally disabled due to any of the disabilities enumerated in 38 C.F.R. § 3.809 and does not show that he is in receipt of compensation for a service-connected disability that is due to blindness in both eyes.  Thus, the Board finds that he is not entitled to the home adaptation benefit sought, and as such, his claim must be denied.
 
DELYVONNE M. WHITEHEAD
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Kate Sosna

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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