Citation Nr: 0001124 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-17 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to special adaptive housing or special housing adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from January 1942 to February 1946. This appeal arises from a May 1998 rating decision from the Department of Veterans Appeals (VA) Regional Office (RO), located in Montgomery, Alabama. By letter dated in June 1998, the veteran's representative submitted additional evidence in support of his claim to reopen the veteran's claim for entitlement to aid and attendance benefits. The Board points out that this benefit was granted by the RO as shown by its rating action dated in June 1994. REMAND Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not alleged that any records of probative value that may be associated with his claims folder and which have not already been sought are available. It is accordingly found that all relevant facts have been properly developed, and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The veteran's service-connected disabilities consist of the following: rheumatoid arthritis, multiple, evaluated as 100 percent; wound, severe, Muscle Group XIV, right; evaluated as 30 percent disabling; and arthritis, traumatic, right ankle, evaluated as 10 percent disabling. In addition, the following service-connected disabilities have been assigned noncompensable, ratings: scars, shell fragment wounds, face and neck; scars, shell fragment wounds, right foot and left trunk; appendectomy; and defective hearing. The veteran has been found to be entitled to special monthly compensation under 38 C.F.R. § 3.350(b) on account of being so helpless as to require aid and attendance. Additionally, the veteran has also been determined, as shown as part of a March 1997 decision of the Board, to be entitled to financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment for an automobile. The Board also found that service-connected disability had resulted in the "loss of use" of the right lower extremity. Nonservice connected disabilities include the residuals of a cerebral thrombosis, varicose veins and thrombophlebitis of the right thigh, residuals of a fracture of the right femur, and heart block with a pacemaker. In order to establish entitlement to eligibility for financial assistance in acquiring specially adapted housing, it must be shown that the veteran has permanent and total service-connected 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; or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; or (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 U.S.C.A. § 2101(a) West 1991); 38 C.F.R. § 3.809 (1999). The term "preclude locomotion" is defined in pertinent regulations as meaning 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(d). In order to establish entitlement to a certificate of eligibility for a special home adaptation grant, it must be shown that the veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under 38 C.F.R. § 3.809, and that she is entitled to compensation for permanent and total service-connected 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. The term "loss of use" of a hand or 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 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 balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 which constitute loss of use of a foot or hand are extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 31/2 inches or more. Also considered as loss of use of the foot under 38 C.F.R. § 3.350(a)(2) is complete paralysis of the external popliteal nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Of record is a May 1998 letter from R. W. L., M.D., the veteran's private treating physician. The physician indicated that the veteran was permanently and totally disabled. It was added that the veteran's arthritis was mainly in the area of his right hip but that he was developing contractures of other joints. The physician further stated that the veteran is bedridden and can only be gotten up with the assistance of two strong people or with a body hoist. The representative, in March 1999, raised the issue of entitlement to special monthly compensation for the loss of use of both lower extremities, pursuant to 38 C.F.R. § 3.350(c)(1)(ii). The Board finds that this issue is intertwined with the issue in appellate status and must be adjudicated by the RO. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) The Board also points out that the veteran was unable to appear for a recently scheduled VA compensation and pension examination due to the fact that he could not travel by automobile to the location of the examination due to his health. The Board has reviewed the latest medical evidence and finds that, more detailed medical information is required. Accordingly, this case is REMANDED for the following development: 1. The RO should contact the veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. The RO should assist the veteran in obtaining identified information as necessary. 2. In view of the veteran's inability to appear for a VA examination due to his health, it is requested that the RO, after obtaining the veteran's consent, contact Dr. L. and ask his assistance in evaluating the severity of the veteran's service connected disorders. The RO should inform Dr. L of the veteran's service-connected disabilities and what benefits are being claimed. He should be furnished the pertinent information as set forth above. He should be asked to render an opinion regarding the following: a) Whether it is as likely as not that service-connected rheumatoid arthritis results in "loss of use" of either, or both, lower extremity so as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair? b) If no, whether it is as likely as not that service-connected disabilities result in the loss or loss of use of one lower extremity together with residuals of a service connected organic disease or injury that precludes locomotion or the loss? c) If no, whether it is as likely as not that service-connected disabilities result in loss of use of one lower extremity together with the loss or loss of use of one upper extremity so as to preclude locomotion? d) If no, whether it is as likely as not that service-connected disabilities result in the loss or loss of use of both hands. The rational for any opinion furnished should be requested. 3. The RO should review the private medical opinion (and other completed development) and determine if it is adequate for rating purposes and in compliance with this remand. If not, the RO should take appropriate action. 4. The RO should adjudicate the issue of entitlement to special monthly compensation benefits on account of the loss of use of the lower extremities. If the benefit sought is not granted, the appellant should be notified of that decision and of his appellate rights. 5. After all of the development action has been completed to the extent possible the RO should again review the record and re-adjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue the veteran and his representative a Supplemental Statement of the Case, and an opportunity to respond. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. ROBERT P. REGAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals 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).