Jensen v. Shulkin, 29 Vet.App. 66 (Sept. 12, 2017)
HELD: In order to be eligible to receive a specially adapted housing (SAH) grant, a claimant “must (1) have a permanent and total disability (2) due toa disorder that (3) involves bothlower extremities and (4) causes a loss of use so severe that it precludeslocomotion without the regular and constant use of assistive devices.” Under 38 U.S.C. § 2101(a)(2)(B), “a loss of use exists if a veteran has suffered a deprivation in his ability to use his lower extremity so severe that he is precluded from perambulating without one of the required assistive devices.” However, “locomotion is precluded even if a veteran is capable on occasion of moving about unaided.”
SUMMARY: Robert Jensen was service connected for residuals of a right-foot fracture shortly after his separation from service in 1984. In 2002, he was service connected for degenerative disc disease of his lumbar spine. In 2006, he was granted an unemployability rating. He had been using a cane since 2004. In 2008, a nurse practitioner wrote that “he is severely limited in his ability to walk due to his condition.” His doctors recommended aqua therapy, which helped. Unfortunately, “the travel and expense necessary to attend therapy sessions had become onerous,” so he filed a claim for SAH, requesting a one-time grant of $50,000 “to defray the cost of installing a heated therapy pool in his home.”
Under 38 U.S.C. § 2101(a)(1), VA may assist a veteran in acquiring housing or equipment that is made necessary by the veteran’s disability. A veteran is eligible for this benefit if he/she is “entitled to compensation . . . for a permanent and total service-connected disability” that results in 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.” 38 U.S.C. § 2101(a)(2)(B)(i).
The RO denied Mr. Jensen’s claim and he appealed to the Board. He stated that he needed a cane or crutches to ambulate and that “without the assistance of prosthetic devices and daily aqua-therapy,” he would “no longer have the use of both lower extremities.” After several VA examinations and a Board remand, the RO granted service connection for several related conditions, but continued to deny the SAH grant. The Board affirmed the denial.
On appeal, the Court considered whether Mr. Jensen’s disabilities resulted in the “loss of use” of both lower extremities that would establish entitlement to SAH. Neither the statute nor the relevant regulation – 38 C.F.R. § 3.809(b)(1) – define “loss of use,” but the Secretary urged the Court to adopt the definition of this phrase from the regulation dealing with special monthly compensation, 38 C.F.R. § 3.350(a)(2)(i).
The Court discussed the relevant statutory and regulatory history and determined that the definition of “loss, or loss of use” in 38 C.F.R. § 3.350 did not apply to section 2101(a)(2)(B)(i) for several reasons. First, § 3.350(a)(2)(i) defines “loss of use of a foot,” whereas section 2101(a)(2)(B)(i) deals with the loss of use of both lower extremities. Second, other sections of § 3.350 expressly discuss the “loss of use of both lower extremities.” The Court found that the Secretary’s proposed interpretation essentially separated the phrase “loss of use” from “lower extremities” – and that this “interpretation alters the statute rather than clarifies it.”
The Court also found it persuasive that “Congress and VA have had nearly 60 years to give some hint of a cross-reference between [§ 3.350 and section 2101(a)(2)(B)(i)] that would have given claimants and adjudicators a clear idea of their intentions, and they never have.”
Having rejected the Secretary’s proposed interpretation, the Court turned to the dictionary to define “loss of use” and “such as.” The Court held that “a loss of use exists if a veteran has suffered a deprivation in his ability to use his lower extremity so severe that he is precluded from perambulating without one of the required assistive devices.” The Court further held that “locomotion is precluded even if a veteran is capable on occasion of moving about unaided.” Applying this definition to the facts of this case, the Court concluded that Mr. Jensen met the requirements for SAH and reversed the Board’s denial.
Finally, the Court addressed the Secretary’s argument that “every time an individual is prescribed an assistive device in conjunction with a lower extremity disability, he or she would then automatically be eligible to receive” SAH. The Court rejected this argument by stating that an eligible claimant “must (1) have a permanent and total disability (2) due toa disorder that (3) involves bothlower extremities and (4) causes a loss of use so severe that it precludeslocomotion without the regular and constant use of assistive devices.”