Case 22026671

B. G. LEMOINE · 2022 · Case ID: 22026671

GRANTED

Summary

The veteran, who served from June 1978 to May 1981, appeals the denial of entitlement to Total Disability based on Individual Unemployability (TDIU) and Special Monthly Compensation (SMC) for housebound status and need for aid and attendance for the period prior to September 28, 2009. The veteran also appealed eligibility for an automobile/adaptive equipment and specially adapted housing (SAH). The Board granted entitlement to TDIU and SMC housebound status prior to September 28, 2009, based on the Veteran's psychiatric disorder, heart disability, hypertension, GERD, and associated peripheral neuropathies. The Board found that the Veteran's combined disabilities, particularly the psychiatric disorder, rendered him unable to secure substantially gainful employment, and that his service-connected conditions, including bilateral upper and lower extremity neuropathy, necessitated regular aid and attendance. The Board also granted entitlement to an automobile and adaptive equipment, and specially adapted housing, finding that the Veteran had a loss of use of both lower and upper extremities due to his service-connected conditions, precluding locomotion without assistive devices. The claim for a special home adaptation grant was dismissed as moot due to the SAH award. The Board resolved doubt in the Veteran's favor for these grants.

Rationale

Psychiatric disorder rated 70% meets criteria for TDIU consideration.; Other disabilities combined to 90%, meeting criteria for statutory housebound SMC.; Benefit of doubt resolved in Veteran's favor.

Special Benefit

SMC - AID & ATTENDANCE; SMC - HOUSEBOUND; TDIU; AUTO / ADAPTIVE EQUIPMENT

Docket No.

07-39 723

Full Decision Text

Citation Nr: 22026671
Decision Date: 05/05/22 Archive Date: 05/05/22

DOCKET NO. 07-39 723
DATE: May 5, 2022

ORDER

Entitlement to a total disability based on individual unemployability (TDIU) prior to September 28, 2009 is granted.

Entitlement to special monthly compensation for housebound status prior to September 28, 2009 is granted.

Entitlement to special monthly compensation based on the need for regular aid and attendance is granted.

Entitlement to a certificate of eligibility for an automobile and adaptive equipment, or for adaptive equipment only, is granted.

Entitlement to specially adapted housing (SAH) is granted.

Entitlement to a special home adaptation grant is dismissed.

FINDINGS OF FACT

1. Prior to September 28, 2009, the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected acquired psychiatric disorder and in considering his educational and employment background.

2. Prior to September 28, 2009, the Veteran was separately and distinctly connected with disabilities that met the criteria for statutory housebound SMC.

3. The Veteran's diabetes mellitus with resulting neuropathy of the bilateral lower extremities and bilateral upper extremities, and back disorder rendered the Veteran so significantly disabled as to be in need of regular aid and attendance and these conditions are separate and distinct from his heart disability, GERD, and hypertension for which he was granted statutory housebound SMC.

4. The Veteran's service-connected bilateral lower and upper extremity neuropathy associated with his diabetes mellitus has resulted in the effective loss or permanent loss of use of both feet and hands.

5. The Veteran's service-connected heart disability, diabetes mellitus with right and left upper extremity peripheral neuropathy and right and left lower extremity peripheral neuropathy, and back disorder causes a loss of use of both lower and upper extremities so severe that it precludes locomotion without the regular and constant use of assistive devices.

6. By virtue of this decision, the Board is granting the Veteran's claim for entitlement to specially adapted housing. Therefore, the issue of eligibility for a special home adaptation grant is moot, due to the award of eligibility for assistance in acquiring specially adapted housing.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a TDIU due to his psych disorder prior to September 28, 2009 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16.

2. The criteria for an award of SMC based on statutory housebound status prior to September 28, 2009 have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350

3. The criteria for entitlement to SMC for aid and attendance have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352.

4. The criteria for eligibility to financial assistance for an automobile or other conveyance and adaptive equipment or adaptive equipment only are met. 38 U.S.C. §§ 3901, 3902, 5103, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.808.

5. The criteria for eligibility for specially adapted housing have been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.809.

6. The claim for entitlement to a special home adaptation grant is dismissed as moot. 38 U.S.C. §§ 2101 (b), 7105; 38C.F.R. §3.809A.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1978 to May 1981.

The Veteran testified before a Veterans Law Judge in February 2020; a transcript is of record. The Veterans Law Judge who conducted this 2020 hearing has since retired. In February 2022, the Veteran was sent a letter informing him that the Veterans Law Judge who conducted his hearing was no longer employed by the Board and he was offered the opportunity for a new hearing. The letter informed the Veteran that if a response was not received within 30 days, it will be assumed that he did not want another hearing. The Veteran did not respond to this letter.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO)

First, a
before a Veterans Law Judge in February 2020; a transcript is of record. The Veterans Law Judge who conducted this 2020 hearing has since retired. In February 2022, the Veteran was sent a letter informing him that the Veterans Law Judge who conducted his hearing was no longer employed by the Board and he was offered the opportunity for a new hearing. The letter informed the Veteran that if a response was not received within 30 days, it will be assumed that he did not want another hearing. The Veteran did not respond to this letter.

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO)

First, a September 2007 rating decision denied the claims of entitlement to an automobile or automotive adaptive equipment, specially adapted housing, a special home adaptation grant, and a TDIU. These issues were remanded by the Board for further development of the record in November 2012. Then, a May 2013 rating decision denied, in part, SMC based on aid and attendance/housebound status.

Thereafter, in addition to granting a 100 percent rating (from September 28, 2009) for the Veteran's cardiovascular heart disease, a June 2017 rating decision also granted SMC pursuant to 38 U.S.C. § 1114 (s)(housebound), effective September 28, 2009. The RO therefore mooted the issue of entitlement to TDIU from September 28, 2009. However, the claims for entitlement to TDIU and SMC for the period prior to September 28, 2009 remained on appeal.

In a May 2020 Board decision, the Board, in part, remanded service connection for GERD, diabetes mellitus type II, low back disability, and claims for automobile, housing, SMC aid and attendance, and SMC housebound and TDIU prior to September 28, 2009.

Subsequent to the 2020 Board remand development, in a February 2021 rating decision, the Veteran's claim for service connection for GERD was granted, effective March 28, 2003; diabetes mellitus granted with associated left lower and right lower extremity and left and right upper extremity peripheral neuropathy effective April 13, 2011; and a back disability with right and left lower extremity radiculopathy effective May 5, 2011. As such, these issues are no longer on appeal before the Board.

In addition, in an April 2021 rating decision, the Veteran was then granted service connection for bowel incontinence, urinary incontinence, and hemorrhoids as related to the back disability, effective May 5, 2011 and December 21, 2020, respectfully. These issues are also not on appeal before the Board.

1. TDIU and SMC Housebound prior to September 28, 2009

First, the Board notes that the Veteran is in receipt of a 100 percent combined schedular rating as of November 2003 with the grant of GERD in the 2021 rating decision. A TDIU rating is contingent on the schedular rating being less than total. See 38 C.F.R. § 4.16 (a). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011).

In Bradley, the Veteran had been in receipt of TDIU until the time at which he was awarded a 100 percent combined schedular rating. See Bradley, 22 Vet. App. at 293. The Court determined, however, that "the Secretary should have assessed whether [the Veteran's] TDIU rating was warranted based on his [posttraumatic stress disorder (PTSD)] alone before substituting a combined total rating for his TDIU rating." Id. at 294. The Court reasoned that "a TDIU rating for PTSD alone would entitle [the Veteran] to SMC benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating." Id. Accordingly, under Bradley, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for other
22 Vet. App. at 293. The Court determined, however, that "the Secretary should have assessed whether [the Veteran's] TDIU rating was warranted based on his [posttraumatic stress disorder (PTSD)] alone before substituting a combined total rating for his TDIU rating." Id. at 294. The Court reasoned that "a TDIU rating for PTSD alone would entitle [the Veteran] to SMC benefits as an additional benefit not otherwise provided to persons with a 100 [percent] combined rating." Id. Accordingly, under Bradley, VA should potentially consider whether TDIU is warranted for a particular service-connected disability even when a schedular 100-percent rating is already in effect for other service-connected disabilities in order to determine the veteran's eligibility for SMC under section 1114(s). Id. A TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of 38 U.S.C. § 1114(s). Buie, 24 Vet. App. 242.

In this case, the Board notes that the scope of the TDIU begins with consideration of the impairment associated with the Veteran's service-connected psychiatric disorder; his psychiatric disability has a rating of 70 percent effective throughout the rating period, meeting the criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.25. Additionally, prior to September 2009, he is also service connected for a heart disability at 60 percent, hypertension at 40 percent, GERD at 30 percent, appendectomy scar at 10 percent, and noncompensable ratings for a hernia, headaches, syncope, and erectile dysfunction. (The Board notes that the GERD rating was awarded in the February 2021 rating decision and was not considered in prior TDIU/SMC decisions).

Accordingly, under Bradley, VA should consider whether a TDIU is warranted for a particular service-connected disability even when a schedular 100 percent rating is already in effect for other service-connected disabilities because it affects the veteran's eligibility for SMC under section 1114(s). As is potentially relevant here, VA's duty to maximize a claimant's benefits includes consideration of TDIU as well as whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. Buie, 24 Vet. App. 242, 250; Bradley, 22 Vet. App. at 294.

Housebound SMC is available either statutorily or based in fact. Statutory housebound compensation requires the veteran to have a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Housebound-in-fact SMC requires the veteran to have a single service-connected disability rated as 100 percent and be permanently housebound by reason of service-connected disability or disabilities. See 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i).

With this legal precedent in mind, the Board finds the Veteran qualifies for statutory housebound status prior to September 2009 as for SMC purposes, a single service-connected disability will be considered to be rated at 100 percent when a single service-connected disability rated as less than 100 percent nevertheless supports TDIU. Bradley, 22 Vet. App. 280, 293 (holding that a TDIU rating could qualify for compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU was based on a single disability). Importantly, separate from the Veteran's 70 percent psychiatric disorder, the Veteran's other disabilities combined to 90 percent. The Board notes that his disorders are all associated with his hypertension; however, the fact that the total disability and the independent 90 percent disabilities result from a common etiological agent will not preclude entitlement. As such, under VA's duty to maximize benefits, VA must consider whether either the psych disorder or heart disorder alone warrants the assignment of a TDIU rating. If the criteria for TDIU are met, based on either disability singly, the statutory requirements for payment of SMC at the housebound rate are met, because the other service-connected disability is rated as at least 60 percent disabling.

Here, the Board finds that the Veteran meets the statutory requirements for a TDIU and a payment of SMC at the housebound rate because he has a single service-connected disability warranting a TDIU, as the Board finds he does here based on his psych disorder alone and has other service-connected
agent will not preclude entitlement. As such, under VA's duty to maximize benefits, VA must consider whether either the psych disorder or heart disorder alone warrants the assignment of a TDIU rating. If the criteria for TDIU are met, based on either disability singly, the statutory requirements for payment of SMC at the housebound rate are met, because the other service-connected disability is rated as at least 60 percent disabling.

Here, the Board finds that the Veteran meets the statutory requirements for a TDIU and a payment of SMC at the housebound rate because he has a single service-connected disability warranting a TDIU, as the Board finds he does here based on his psych disorder alone and has other service-connected disabilities rated at a combined disability rating of 60 percent or higher. See 38 U.S.C. § 1114(s); 38 C.F.R. §§ 3.350(i). As noted above, prior to September 2009, his combined rating for his heart disability, hypertension, and GERD is 90 percent.

Turning to the relevant evidence of the record, regarding the Veteran's occupational and educational background, he completed up to four years of high school and had some VR&E training. Almost all of the Veteran's work has been as a laborer, particularly as a stocker or security guard. See 2007 Application for Increased Compensation Based on Unemployability (VA Form 21-8940).

In 2007, VA doctor, Dr. D.M., stated that while the Veteran's main limitations are non-service-connected neuropathy, he is limited to sedentary activity due to heart and hypertension. He stated that the Veteran has persistently elevated blood pressure despite treatment and subjective lethargy from his medications. As such, the examiner opined that he would not be capable of working in roles he was previously capable of based upon service-connected issues alone.

In October 2007, Dr. V.S. stated that the Veteran's disabilities of depression, peripheral neuropathy, muscle weakness, low back pain, hypertension, and chest pains would cause him to "not be able to hold any reasonable employment." This included due to side effects from his medication causing fatigue and drowsiness.

In July 2008, Dr. V.S. provided another opinion that based on the Veteran's hypertension, depression, and chest pains, as well as the nonservice-connected back and neuropathy pain, he would not be able to have any meaningful employment.

His medical records also show that in 2003, he reported daily headaches and episodes of blacking out associated with his hypertension, and that he has chest pain both at rest and with activity several times a day. He reported that due to his anxiety medication, he sleeps a lot and is not able to do a lot of activities. The examiner opined that the Veteran is unemployable in more hazardous jobs and that while hypertension would not cause him to be unemployable in a more sedentary job, his stress tests did reveal his blood pressure increased.

In a December 2003 examination for GERD (which he is now service connected), it was noted that he had problems with nausea and vomiting and abdominal soreness. It was noted this was daily and he sometimes has diarrhea up to three times a week.

In a December 2003 examination for depression, it was noted the Veteran was tearful, suicidal, and had auditory hallucinations. In 2006, it was noted he had been treated and hospitalized for both his heart disability and depression, and that his depression is severe with auditory hallucinations.

Per his Social Security Administration records, since February 6, 2001, SSA found the Veteran to be disabled based primarily on his psychiatric disorder. It was also noted that the Veteran's hypertension was difficult to control at times, with symptoms of headaches, fatigue, and some episodes of atypical chest pain. It was found that the Veteran's mental and emotional impairments caused reduced concentration, poor attention span, low frustration tolerance, abnormalities of behavior, difficulty with establishing and maintaining personal relationships so he is severely restricted in his ability to understand and respond to simple instructions, respond and communicate with co-workers and supervisors, exercise judgment, and deal with the stresses associated with an ordinary work environment. The SSA determination found that the Veteran would not be able to sustain work-related mental activities in a work setting on a regular and continuing basis, to include based on moderate restrictions of mental activities of daily living and in terms of overall mental functioning, the Veteran "has severe limitation in his ability to do basic work activities."

After a thorough consideration of the evidence, including the Veteran's limitations due to his service-connected disabilities, and his educational background and work experience, and in resolving reasonable doubt in the Veteran's favor, the Board can conclude that the Veteran has been impaired
severely restricted in his ability to understand and respond to simple instructions, respond and communicate with co-workers and supervisors, exercise judgment, and deal with the stresses associated with an ordinary work environment. The SSA determination found that the Veteran would not be able to sustain work-related mental activities in a work setting on a regular and continuing basis, to include based on moderate restrictions of mental activities of daily living and in terms of overall mental functioning, the Veteran "has severe limitation in his ability to do basic work activities."

After a thorough consideration of the evidence, including the Veteran's limitations due to his service-connected disabilities, and his educational background and work experience, and in resolving reasonable doubt in the Veteran's favor, the Board can conclude that the Veteran has been impaired by his service-connected psychiatric disorder to a degree that has caused him to be unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience during this period. The Board finds that the evidence reasonably shows entitlement to a TDIU throughout the rating period on appeal; this TDIU can be awarded on the basis of the Veteran's mental health / psychiatric disorder alone.

In addition, it is evident that the Veteran is precluded from performing physical labor and mentally performing basic job specific tasks. The Board also determines that due to his disabilities, the Veteran is precluded from performing work duties that require light physical labor, such as sitting for a normal workday or being able to stand as he has been wheelchair confined since early 2000's. While the Veteran's back was not service connected prior to 2009 and this was listed as one of the disabilities causing his unemployability, as noted above, the Veteran has reported being distracted and experiencing poor concentration due to his psychiatric disorder and his medical records indicate that his heart disability and hypertension also cause him to be dizzy and have trouble concentrating. The evidence shows that the severity of the Veteran's service-connected psychiatric disorder greatly impacted his ability to perform not only physical duties, but also the mental acts required by employment prior to September 28, 2009. The Board also notes that the Veteran's psychiatric disorder has been evaluated by VA at the same disability rating throughout the entire rating period on appeal, and the Board finds no persuasive indication of record that the Veteran's impairment was significantly lesser in 2003 than it was in 2009.

In addition, as shown above, because of his heart disability, GERD, and hypertension rated separate and distinct at 60 percent or more, the Veteran is also entitled to SMC at the statutory housebound rate.

Accordingly, the Board finds that entitlement to TDIU based on the Veteran's psychiatric disorder separately rated at 70 percent disabling and entitlement to SMC at the housebound rate for his heart disability rated at 60 percent, his hypertension rated at 40 percent, and GERD rated at 30 percent is warranted prior to September 28, 2009.

2. SMC based on the need for regular aid and attendance

Special monthly compensation (SMC) under 38 U.S.C. § 1114(l) is payable if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden, or so helpless as to be in need of regular aid and attendance of another person.

Here, the Veteran is currently service connected at 100 percent for his heart disability since September 28, 2009, with additional service-connected disabilities of depression rated at 70 percent since March 2003; bowel incontinence rated at 60 percent since May 2011; right upper extremity peripheral neuropathy and right lower extremity peripheral and left lower extremity peripheral all separately rated as 40 percent since April 2011; left upper extremity peripheral neuropathy rated at 30 percent since April 2011; back disability rated at 40 percent since May 2011; urinary incontinence rated at 40 percent since May 2011; GERD rated at 30 percent since March 2003; hemorrhoids at 20 percent since December 2020; appendectomy scar rated 10 percent since November 2008; diabetes mellitus type II rated at 10 percent since April 2011; hypertension rated at 10 percent since October 2016; and noncompensable ratings for hernia, headaches, syncope, and erectile dysfunction.

He has been in receipt of a total, 100 percent rating since November 2003 with SMC under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ and SMC under 38 U.S.C.
percent since March 2003; hemorrhoids at 20 percent since December 2020; appendectomy scar rated 10 percent since November 2008; diabetes mellitus type II rated at 10 percent since April 2011; hypertension rated at 10 percent since October 2016; and noncompensable ratings for hernia, headaches, syncope, and erectile dysfunction.

He has been in receipt of a total, 100 percent rating since November 2003 with SMC under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ and SMC under 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) on account of cardiovascular heart disease rated 100 percent and additional service-connected disabilities independently ratable at 60 percent or more from September 28, 2009 (and with the grant above, earlier than September 2009).

As such, it has already been established that the Veteran is already in receipt of SMC based on being housebound based on his heart disability and hypertension; but he also requests an award of SMC based on the need for regular aid and attendance. The Board notes that a Veteran who is already in receipt of SMC(l) cannot establish entitlement to a second award of SMC(l) based on the need for aid and attendance unless the Veteran's need for aid and attendance arises from a disability other than that for which the Veteran is already in receipt of SMC(l). Breniser v. Shinseki, 25 Vet. App. 64, 77-78 (2011). In this case, this would entail consideration for aid and attendance purposes for his issues associated with his diabetic condition and associated peripheral neuropathies, which are separate and distinct from his heart disability and hypertension.

In determining the need for regular aid and attendance of another person, the following will be accorded consideration: being so helpless (due to service-connected disabilities) as to be permanently bedridden or in need of regular aid and attendance. Aid and attendance is defined as: inability to dress or undress, or to keep ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed oneself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or physical or mental incapacity which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to the daily environment. See 38 C.F.R. § 3.352(a). "Bedridden" means that condition which actually requires that the claimant remain in bed. Voluntarily taking to bed or the fact that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id.

It is only necessary that the evidence shows that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222, 224 (1996). Determination as to the need for regular aid and attendance will not be based solely upon an opinion that their condition is such as would require them to be in bed. They must be based on the actual requirement of personal assistance from others. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. See 38 C.F.R. § 3.352(c).

A review of the Veteran's VA treatment records and VA examinations corroborate that the Veteran's medical condition deteriorated over time to the point of requiring regular aid and attendance so that SMC for regular aid and attendance is warranted. See 38 U.S.C. § 1114(l), 38 C.F.R. §§ 3.350(b), 3.352(a). This award is based on the collective impact of the Veteran's service-connected disabilities to include the sequelae of his diabetic condition specifically with consideration of his bilateral lower and bilateral upper extremity disabilities. As such, the Veteran meets the criteria for the need of the aid and attendance of another person due to his service-connected disabilities. See 38 C.F.R. § 3.352(a).

For example, currently, the Veteran is 66 years old.

In January 2010, it was noted that the Veteran has significant orthopedic problems and is confined to a wheelchair due to his peripheral neuropathy. He reported pain, weakness, and decreased
. §§ 3.350(b), 3.352(a). This award is based on the collective impact of the Veteran's service-connected disabilities to include the sequelae of his diabetic condition specifically with consideration of his bilateral lower and bilateral upper extremity disabilities. As such, the Veteran meets the criteria for the need of the aid and attendance of another person due to his service-connected disabilities. See 38 C.F.R. § 3.352(a).

For example, currently, the Veteran is 66 years old.

In January 2010, it was noted that the Veteran has significant orthopedic problems and is confined to a wheelchair due to his peripheral neuropathy. He reported pain, weakness, and decreased sensations and that the condition affects his mobility such that he "can hardly walk and he uses a scooter for ambulation." In a May 2010 VA examination, it was noted that he had left hand weakness and that he was wheelchair bound and he reported he does not walk due to the pain and numbness in his legs. He also reported that he falls all of the time.

In the July 2013 examination for housebound status or need for aid and attendance, it was noted by the Veteran's doctor, Dr. V.S., who attends to him that he was confined to bed everyday, or he sits in his chair to watch television. He was not able to prepare his own meals, he needed assistance in bathing and tending to hygiene need, requires medication managements as "he won't take his pills if I don't come to give them to him" and his home care person comes to cook, clean, wash, and dress him. Dr. V.S. stated that the Veteran takes too many pills to be able to do anything, and that Dr. V.S. shaves him, puts on his depends and pants, and that he washes him. Dr. V.S. further noted that the Veteran's legs are weak and he cannot stand due to pain in his legs. It was noted he only leaves the house to go to the doctor, and that he used to go to the store with Dr. V.S., but he now goes alone as the Veteran is wheelchair bound. Finally, Dr. V.S. noted that the Veteran requires aid all the time for locomotion.

In an April 2016 examination, the Veteran's spouse reported that he is wheel chair bound and it was noted that he has peripheral neuropathy and does not have feeling in his feet, with numbness in both feet that goes up to mid-calf. It was also noted that he has carpel tunnel syndrome in his hands. It was noted that he cannot do activities of daily living because of feet/legs neuropathy and pain, and that he uses a wheelchair. He reported that he is getting worse and now he feels it in his hands. Specifically, he reported that his grip is diminished, and hands feel numb, needs to move them to get feeling back, and he was told he had peripheral neuropathy in hands and feet (as noted above, he was granted service connection in the 2021 rating decision for bilateral peripheral neuropathy in his upper and lower extremities, effective May 2011).

In the December 2020 examination for diabetes mellitus, it was reported that the Veteran's low blood sugar causes fatigue and general lack of focus, and the examiner opined that his shakiness or unsteadiness from hypoglycemia makes work tasks or ADLS difficult. In the examination for associated peripheral neuropathy, the examiner opined that the impact of the diabetic peripheral neuropathy on the Veteran was difficulty with gripping objects, reaching, pulling, lifting, and grasping, and that objects are often dropped because of grip strength. The examiner further stated that numbness and tingling make it difficult to complete tasks and noted he is unable to stand or walk for long periods (more than 2-3 minutes) without rest because of increased tingling and numbness. The examiner also opined that the Veteran has an increased fall risk because of numbness of feet and that typing or writing is difficult due to numbness in hands.

In the 2020 back examination, the examiner opined that the Veteran has pain with radiation, weakness and loss of motion and he is unable to stand/walk for long and requires a constant use for a wheelchair and regular use for a walker. The examiner also noted that the back flare-ups are severe and daily, and that the walker was noted as used regularly inside house for very short distances for back condition and his neuropathy. It was also opined that the Veteran has a hard time sitting for long periods of time, getting up after sitting, fast-paced walking after being sedentary. He also has a hard time standing for long periods of time, walking too long, climbing
writing is difficult due to numbness in hands.

Finally, the Veteran is also service connected for urinary and bowel incontinence, and the 2020 examiners opined that these conditions prevent him from leaving the house as he has difficulty with staying dry or having loose bowels. As noted in the 2013 housebound examination, Dr. V.S. also stated that he needs to help the Veteran with changing his pads and helping him clean himself.

The Board finds that with the grant of service connection for diabetes mellitus, back disorder, and associated bilateral upper and lower extremity neuropathy, the Veteran has ambulatory issues and a need for a wheelchair or walker; as such, he clearly has shown functional impairment to his bilateral lower extremities. In addition, the Veteran's bilateral upper extremity neuropathy quite clearly is severe and has caused him to require assistance from another. Therefore, the Board resolves any doubt in favor of the Veteran and finds that SMC based on the need for regular aid and attendance is warranted. See 38 C.F.R. §§ 3.102, 3.303(a).

In sum, the above evidence reflects the necessity of the regular aid and attendance of another family member or person due to his service-connected disabilities, both due to and apart from his lower extremities. See 38 C.F.R. § 3.352(a). Although the Veteran is diagnosed with various nonservice-connected disorders, VA treatment records and VA examinations corroborate that the severity of the Veteran's service-connected diabetes and residuals, such as his lower and upper extremity neuropathy, standing alone, would necessitate the regular aid and attendance of another for many activities of daily living. See 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350, 3.352.

Therefore, resolving any doubt in the Veteran's favor, the Board finds the evidence supports SMC for regular aid and attendance and the claim is granted.

3. Automobile or other conveyance and adaptive equipment or for adaptive equipment only

The Veteran also argues he should be entitled to financial assistance for an automobile, such as a van, or other adaptive equipment due to his service-connected disabilities.

Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. See 38 U.S.C. § 3902 (a), (b). Eligibility for assistance to purchase a vehicle and 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; (5) amyotrophic lateral sclerosis (ALS); or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. See 38 U.S.C. §§ 3901, 3902; 38 C.F.R. §§ 3.808, 17.156.

The term "permanent loss of use" is not defined under 38 C.F.R. § 3.808. However, under other relevant VA regulations, "loss of use of a hand or foot" is defined as no effective function remaining other than that which would
greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis (ALS); or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. See 38 U.S.C. §§ 3901, 3902; 38 C.F.R. §§ 3.808, 17.156.

The term "permanent loss of use" is not defined under 38 C.F.R. § 3.808. However, under other relevant VA regulations, "loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with 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 38 C.F.R. §§ 3.350(a)(2)(i), 4.63.

Further, in Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that 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. The Board must also consider the impact of pain. Id.

In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court further clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities." Id. The Jensen Court did note, however, that "loss of use" in a general sense was the "deprivation of the ability to avail oneself" of that extremity. Id.

Here, based on the evidence discussed in greater detail above, the Board finds that the Veteran has loss of use of his bilateral lower extremities and bilateral upper extremities due to peripheral neuropathy. Indeed, he has been service connected for peripheral neuropathy of the lower and upper extremities since 2011, with his condition deteriorating with additional disabilities and higher ratings granted. He has been in receipt of 100 percent total disability rating since November 2003 and receives special monthly compensation on account of statutory housebound, and by virtue of the above grant, will also receive SMC on account of needing regular aid and attendance.

Specifically, the Veteran's neuropathy of the bilateral upper extremities and bilateral lower extremities associated with his diabetes mellitus have shown that he has a loss of use of his, at a minimum, bilateral upper extremities. It is not in dispute that he has had constant pain with use of his hands and that he and his wife reported his grip and strength has deteriorated as to not be able to hold items and he requires assistance from his doctor to dress and bathe. In addition, his bilateral lower extremities also cause a loss of use; his neuropathy and radiculopathy causes a great deal of his issues with walking and requiring assistive devices, the Veteran has reported that he has trouble with standing and walking due to the numbness in his feet such that he is wheelchair bound, and needs a walker when in his home.

The Board notes that the relevant standard is not total loss of use, but only such loss of use that amputation and use of a prosthesis would serve the Veteran equally well. See C.F.R. §§ 3.350(a)(2). Although VA examiners opined that an amputation would not help this Veteran, the medical records as well as the 2013 opinion from Dr. V.S. further indicates that the Veteran has weakness of his legs and hands, numbness of his feet, and constant pain so that he is unable to grip or hold things, and as noted above, his hand, foot and ankle pain, and numbness and weakness in the upper and lower extremities are a result of the bilateral lower and upper extremity neuropathy, which are service connected. Again, the Board notes
use that amputation and use of a prosthesis would serve the Veteran equally well. See C.F.R. §§ 3.350(a)(2). Although VA examiners opined that an amputation would not help this Veteran, the medical records as well as the 2013 opinion from Dr. V.S. further indicates that the Veteran has weakness of his legs and hands, numbness of his feet, and constant pain so that he is unable to grip or hold things, and as noted above, his hand, foot and ankle pain, and numbness and weakness in the upper and lower extremities are a result of the bilateral lower and upper extremity neuropathy, which are service connected. Again, the Board notes that "the Board is required to consider the impact of pain... and articulate how pain on use was factored into its decision." Tucker, 11 Vet. App. 369, 373.

The Board finds it strains credulity that the Veteran's pain, numbness, and weakness, in their totality which have been rated as "moderately severe" since 2011, do not require him to use assistive devices, or that his pain, numbness, and weakness do not cause a loss of use of his hands and feet as he is unable to grip things in his hands or feel anything in his feet and ankles. The Board therefore concludes that the totality of his bilateral upper extremity and bilateral lower extremity neuropathy is sufficient to show the Veteran's diabetes with peripheral neuropathy manifested by the effective loss or permanent loss of use of both feet and both hands.

Accordingly, resolving doubt in the Veteran's favor, the Veteran meets the criteria for eligibility for an automobile and adaptive equipment, or for adaptive equipment only, and the claim is granted. See 38 U.S.C. §§ 3902, 5107(b); 38 C.F.R. §§ 3.102, 3.808.

Entitlement to specially adapted housing (SAH)

Specially adapted housing is available to a veteran who is entitled to compensation for permanent and total disability due to: (1) ALS rated as 100 percent disabling; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) 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 (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows.

Specially adapted housing is additionally available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities, such as to preclude locomotion; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which affect the functions of balance or propulsion as to preclude unaided locomotion. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. 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(c).

The term "permanent loss of use" is not defined under 38 C.F.R. § 3.808. However, under other relevant VA regulations, "loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with 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 38 C.F.R. §§ 3.350(a)(2)(i), 4.63.

The Board again points out that the relevant standard is not total loss of use, but only such loss of use that amputation and use of a prosthesis would serve the Veteran equally well. See C.F.R. §§ 3.350(a)(2).
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 38 C.F.R. §§ 3.350(a)(2)(i), 4.63.

The Board again points out that the relevant standard is not total loss of use, but only such loss of use that amputation and use of a prosthesis would serve the Veteran equally well. See C.F.R. §§ 3.350(a)(2). Although the VA examiners opined that an amputation would not help this Veteran, the examiners explained that the Veteran has weakness and numbness of his legs and upper extremities and constant pain, and that he requires constant use for assistive devices such that he is wheelchair bound. Again, the Board notes that "the Board is required to consider the impact of pain... and articulate how pain on use was factored into its decision." Tucker, 11 Vet. App. 369, 373. To the extent the medical evidence suggests the Veteran does not have loss of use of his upper or lower extremities, reasonable doubt must be resolved in his favor. VA examiners have noted his inability to walk, and trouble gripping and using his bilateral upper and lower extremities, and that he requires assistance to walk.

As already discussed in greater detail above, the Board finds that the Veteran has loss of use of his bilateral lower extremities and bilateral upper extremities due to diabetes and peripheral neuropathy and his balance disorder associated with his heart disorder. Indeed, he has been service connected for peripheral neuropathy of the lower extremities and the upper extremities since 2011; with his condition deteriorating with additional disabilities and higher ratings granted, and as noted above, has been in receipt of a 100 percent total disability rating since November 2003. He is also granted by virtue of this decision SMC, in part, on account of being so helpless as to be in need of regular aid and attendance.

Thus, the evidence shows that the Veteran has loss of use of both lower extremities and upper extremities. Therefore, specially adapted housing is granted. See 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809.

Special Home Adaptation Grant

Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. See 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a(b). As discussed above, the Veteran is being granted a certificate of eligibility for specially adapted housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a). Thus, the appeal seeking a certificate of eligibility for a special home adaptation grant is dismissed as moot.

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board G.Hoy, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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