Citation Nr: 0002202 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-21 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to a certificate of eligibility for assistance in acquiring special home adaptations. 2. Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran had active military duty from August 1955 to July 1958, and from July 1959 to August 1975. This appeal arises from a February 1995 rating action of the Winston-Salem, North Carolina, regional office (RO). In that decision, the RO denied the veteran's claims of entitlement to a certificate of eligibility for assistance in acquiring special home adaptations and entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing. REMAND In the substantive appeal which was received at the RO in May 1996, the veteran requested a personal hearing at the RO before a member of the Board of Veterans' Appeals (Board). Thereafter, in a June 1997 statement, the veteran asked that the RO "cancel" his scheduled appearance before a travel Board. However, he specifically indicated that, if his claim remained denied after a review of the records by the RO, he still wanted "a hearing before a Board at the local Regional Office." Following an April 1998 hearing before a hearing officer at the RO, the RO confirmed the denial of the veteran's applications for certificates of eligibility for assistance in acquiring special home adaptations and for assistance in acquiring specially adapted housing. A hearing before the Board was not thereafter scheduled. Given the veteran's June 1997 statement, clarification of his desire for a hearing before a member of the Board should be obtained, and, if he continues to want such a hearing, one should be scheduled. With regard to the veteran's application for a certificate of eligibility for assistance in acquiring specially adapted housing, the Board notes that the law indicates that the Secretary is authorized to assist any veteran who is entitled to compensation under chapter 11 of title 38 of the United States Code for permanent and total service-connected disability in acquiring a suitable housing unit with special fixtures or movable facilities made necessary by the nature of the veteran's disability, and necessary land therefor. 38 U.S.C.A. § 2101(a) (West 1991); 38 C.F.R. § 3.809(a), (b). The veteran must be entitled to compensation for permanent and total disability (1) 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 (2) which includes (A) blindness in both eyes, having only light perception, plus (B) loss or loss of use of one lower extremity, or (3) due to the loss or loss of use of one lower extremity together with (A) residuals of organic disease or injury, or (B) 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 U.S.C.A. § 2101(a) (West 1991). 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. See 38 C.F.R. § 3.809(d) (1999). In the veteran's case, service connection has been established for status-post lumbosacral laminectomy with degenerative joint disease and radiculopathy of the lower extremities (60 percent disabling), and for hypertension (10 percent disabling). The veteran has been found to be unemployable, effective from October 1991. At an April 1998 personal hearing, the veteran testified that, as a result of his service-connected low back disability, he consistently uses a back brace and crutches when he is out of bed. T. at 3-4. Additionally, he claimed that he is "numb from the waist down," that he has also experienced tingling sensations in this legs, and that his legs are "almost useless." T. at 3-5. The veteran testified that he has not received treatment for his back disability for a number of years and that the only thing that may be done for him is medication. T. at 2, 4. Recently prepared medical records which have been obtained and associated with the claims folder during the current appeal tend to corroborate this testimony. In particular, these reports reflect no recent outpatient or inpatient treatment for the veteran's service-connected low back disability. In September and October 1996, the veteran was given a change in medication for his degenerative joint disease and traumatic arthritis, but these medical records do not specifically refer to his low back disability. At a December 1994 spine examination, the veteran asserted that he could not walk without the aid of crutches, that he took medication for constant pain, and that he had a sensory loss from the waist down. The examiner observed that the veteran was obese, walked with a slow shuffling gait, and leaned heavily on crutches with an associated limp favoring his left lower extremity. Physical examination demonstrated a six-inch well-healed surgical scar in the midline, objective tenderness extending from L4 to S1, moderate paraspinal muscle spasm, straight leg raising which was positive at 30 degrees, deep tendon reflexes which were absent bilaterally in the lower extremities with a negative Babinski test, and complaints of pain on any motion of the back or lower extremities. Although the veteran claimed that he was unable to stand or to bear weight on either extremity without the help of crutches and that he was unable to get his legs from the sitting position to the examination table without assistance, the examiner saw no evidence of muscular atrophy bilaterally. Furthermore, although the veteran claimed to be unable to dorsiflex or plantar flex either ankle, and while 90 percent weakness of both lower extremities was apparently present, the examiner noted that "it was difficult to tell the degree of effort exerted." Additionally, the examiner explained that the range of motion of the veteran's spine was impossible to assess because of his inability to stand. The examiner concluded that, in view of the examination findings as well as those of an October 1991 neurological evaluation, bilateral loss of use of the veteran's lower extremities appeared to be primarily secondary to the fine pathology. The examiner also explained that he "could not rule out a degree of hysteria and/or malingering as contributing factors to his symptomatology and clinical findings" and that re-evaluation by neurological and psychiatric specialists may be indicated. The Board acknowledges the veteran's complaints of an inability to stand without the aid of crutches and constant low back pain as well as the December 1994 examination findings of objective tenderness extending from L4 to S1, and moderate paraspinal muscle spasm. However, the examiner found no evidence of muscular atrophy to support the veteran's complaints of an inability to stand without the aid of crutches and was unable to discern the degree of effort exerted with regard to the range of motion of the veteran's ankles and the degree of weakness in both of his lower extremities. Given that the record as described above does not clearly indicate whether or not the veteran experiences loss of use of both lower extremities solely due to service-connected disability, the Board concludes that further evidentiary development is necessary. In particular, on remand, the veteran should be afforded an examination to determine the extent of problems due solely to his service-connected low back disability. For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The veteran should be given an opportunity to supplement the record on appeal. The Board is particularly interested in any records of treatment for his service-connected low back disability in recent years. The RO should assist the veteran as necessary in accordance with 38 C.F.R. § 3.159 (1999). 2. Thereafter, the veteran should be afforded a VA examination. After reviewing the file, obtaining a detailed history from the veteran, and conducting the examination, the examiner should provide an opinion as to whether the veteran's service-connected disability has resulted in the permanent loss of use of both of his lower extremities such as to require the regular and constant use of a wheelchair, braces, crutches, or canes as a normal mode of locomotion. A complete rationale should be provided for all opinions reached. Any additional evaluation necessary to forming such an opinion should be conducted. 3. The RO should thereafter re-adjudicate the issues of entitlement to a certificate of eligibility for assistance in acquiring special home adaptations and entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing. If any benefit sought is not granted, the veteran and his representative should be provided with a supplemental statement of the case. 4. The RO should clarify whether the veteran still wants a hearing at the RO before a member of the Board. If so, the RO should schedule such a hearing. After the veteran has been given opportunity to respond to the supplemental statement of the case, and appear at any requested hearing, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is informed, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); and Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to comply with governing adjudicative procedures and to obtain clarifying evidence. These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).