BVA remand

[Dolphin25]

I filed for a higher level of AA in 2008 along with a Special Home Adaption Grant.  In January 2015 the BVA granted me the SHA Grant and remanded the higher level of AA back to the RO.  A request for a new C&P was granted and in September 17, 2015 I was seen by the VA Hosp in Fayetteville, Arkansas.  The examiner was a Nurse and still in the Military, he was really kind and nice and since I was taken to the VA via a wheelchair van and had no one to push me he did so with out any problem.  I couldn't do anything, like stand, walk and needed physical help to get on the gurney.  I am unable to stand or walk or use my arms or hands to any degree as my disabilities are spinal related from a broken back in the service from a Helicopter crash.  I already receive SMC at the "M" rate b/c of a 100% rating and a 60% rating plus a whole lot of 10's 20's and 40's. I also receive the K rate. 

I received my C&P exam notes a few days after the examination that lasted all 15 minutes and from what I could read the only thing the RO or BVA wanted answered was concerning 2 letters from 2 Doctors about whether there was any conflict in whether or not I need to be in a residential facility or in my home.  Both Doctors stated that if I do not receive a higher level of AA then I should be housed in a residential facility to be better taken care of.  The examiner stated he did not find any conflict and that was basically it.

Here they granted me the SAH Grant:

CONCLUSION OF LAW

The criteria for entitlement to a certificate of eligibility for assistance in acquiring

specially adapted housing are met. 38 U.S.C.A. §§ 2101, 5107(b) (West 2014); 38

C.F.R. § 3.809 (2014).

Now the criteria for the SAH Grant are as follows:

For a certificate of eligibility for assistance in acquiring specially adapted housing, the

evidence must establish 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 loss of use of one lower extremity; or 3)

the loss, or loss of use, of one lower extremity together with the 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, 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; or 5) the loss

or loss of use of both upper extremities such as to preclude use of the arms at or

above the elbow; or 6) 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. 38 U.S.C.A. § 2101(a) (West 2014); 38 C.F.R. § 3.809(b)

(2014).

After reviewing all the evidence and resolving any doubt in favor of the Veteran, the

Board finds that the Veteran's service-connected disabilities manifest in the loss of

use of one or both lower extremities as to preclude locomotion without the aid of

braces, crutches, canes or a wheelchair. 38 C.F.R. §§ 3.102, 3.809 (2014).

Therefore, entitlement to a certificate for assistance in acquiring specially adapted

housing is granted.

In the C&P exam notes the only question the BVA wanted answered is this:

COMMENTS:

In rendering the requested opinions, the examiner should

reconcile his or her opinion with the October 2010 letter from

Dr. Keller indicating that due to his chronic medical problems

absent twenty-four hour attendant care the Veteran would require

a long-term care placement and the January 2012 correspondence

from Dr. Lippert stating that the Veteran would probably benefit

from a higher level of care and absent such care, might require

hospitalization, nursing home care, or other residential

institutional care.

This is what the examiner wrote in response to the question sought:

Clarification:

In review, I did not see opinion or rational from Dr Keller in the VBMS or VA medical system records. There does not seem to be a conflict in the opinions or either provider that I can see. They both indicate that assistace would

be needed but Keller indicates this wasnt arranged he would need full time facility placement.  It should be noted that the client's wife, who was previously a RN and care provider, has significant medical problems and she herself is in need of

full time care support. Client states his daughter comes and helps them some, but he is paying out of pocket for caregiver to come in daily and help with meals and bathing. I personally am skeptical of the entire evaluation process

and would suggest an estensive in home Social worker evaluation for feedback on his and her abilities to live safely independantly vs need for long term care facility placement for both of them.

 

My question is since it looks as though I have met the criteria for the SAH Grant and the grant and the R-2 require both the same criteria,  then to me it stands to reason if I meet the one then I meet the other. 

Am I looking at this wrong???