Jensen: Specially Adapted Housing and “loss of use”

Jensen v. McDonald, Opinion Number 15-4788, was decided September 12, 2017 and concerns the eligibility of a veteran to specially adapted housing (SAH).

The veteran needs a cane to ambulate and for a while effectively used aqua-therapy.  However, the travel and expense to aqua therapy was onerous.  Therefore, he sought SAH to install a therapeutic pool.  The veteran was service connected for radiculopathy of both extremities at 10% as well as a rating for his cervical and lumbar spine, urinary condition, and SMC.  While rated schedularly at 90% he was receiving TDIU.

The VA agreed the veteran met the permanent and total service connected requirement and the pool was a type of SAH available.  The argument was over subparagraph (B), the Court stated:

The portion of subparagraph (B) that applies to this case states that, to be eligible for SAH, a veteran's disability must be "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." 38 U.S.C. § 2101(a)(2)(B)(i). The Board made no findings against the appellant concerning the phrases "due to" and "both lower extremities." The Board determined that the appellant's locomotion is "precluded . . . without the aid of braces, crutches, canes, or a wheelchair." That finding is favorable to the appellant. The Court, therefore, will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also concluded, however, that the appellant's "serviceconnected disabilities do not result in the loss of use of . . . lower extremities." The only question raised by this case, then, is whether his disabilities produce a "loss of use" of both of his lower extremities.

Id at. *4.

The Board and Secretary argued the phrase “such as” in section 2101(a)(2)(B)(i) means “and” essentially arguing the section means “a veteran is eligible for SAH if his permanent disability produces (1) loss, or loss of use of both lower extremities; AND (2) precludes locomotion without the aid of braces, crutches, canes, or a wheelchair.”  Id. at *4. 

“The appellant assert[ed] that the Board erred by ignoring the plain meaning of the phrase "such as." He argues that section 2101(a)(2)(B)(i) clearly conveys that a "loss of use" exists if a veteran's locomotion is precluded without the aid of braces, crutches, canes,

or a wheelchair.  Id. at *4.

The Court accepted the veteran’s reading of section 2101(a)(2)(B)(i).  It noted that

In the scheme that the Secretary envisions, a veteran who has a reduction in the functionality of his lower extremities so severe that he cannot walk without a cane might be ineligible for SAH because he does not have some sort of additional loss of use. Taken one step farther, the Secretary's argument and the Board's findings in this case suggest that the Board believes that it could conclude that a permanently wheelchair-bound  veteran who is entitled to receive disability benefits for a disorder that causes a reduction in functionality in both lower extremities so severe that he cannot walk does not have a loss of use sufficient to warrant SAH.  That creates an undefinable and unworkable standard laden with an unacceptably high potential for absurd and unfair results.

We think it better to view "loss of use" in a manner consistent with the definitions discussed above. It is a deprivation of the ability to avail oneself of the anatomical region in question. It is a general term, one that can readily accept additional specificity in various circumstances.

"Such as" is, if nothing else, a directional phrase, and it links "loss of use" to preclusion in section 2101(a)(2)(B). Consequently, in that provision, 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.  That definition comports with VA's view of preclusion.

Id. at *14-15

The Court acknowledged the VA’s concerns that too loose a standard would open SAH to all individuals prescribed an assistive device in conjunction with a lower extremity disability.  However, it stated that the VA needs not concern itself with too loose a standard as “That individual must (1) have a permanent and total disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. There are plenty of limitations built into that standard.”  Id.at *16.

Judge Bartley wrote an interesting concurrence essentially arguing the Court should use the “loss of use” standard as defined in the SMC contexts, which the Secretary had urged.  However, she would have ruled the veteran did meet that standard because the Board had already ruled the veteran’s locomotion was precluded and found the “loss of use” standard would have been triggered by that finding.

This is an interesting case that tests the bounds of SAH and the term loss of use.  While seemingly limited to SAH uses, it might assist in defining “loss of use” in other contexts, such as SMC.

Decision by J. Pietsch, joined in by J. Greenberg.  J. Bartley wrote a concurrence.