Citation Nr: 1424998 Decision Date: 06/03/14 Archive Date: 06/16/14 DOCKET NO. 08-06 574A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Temple, Texas THE ISSUE Entitlement to benefits under the Home Improvement and Structural Alterations (HISA) program, pursuant to 38 U.S.C.A. § 1717, specifically converting the Veteran's existing bathtub to a walk-in shower. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to January 1984. This matter arises before the Board of Veterans' Appeals (Board) on appeal of a March 2007 administrative action, in which the Veterans Affairs Medical Center (VAMC) in Temple, Texas, through the HISA Committee, denied the Veteran's request to convert his existing bathtub to a walk-in shower. The Board has recharacterized the issue on appeal to more accurately reflect the matter on appeal. The Board remanded this case in December 2009 and October 2013 for additional development. The case is now before the Board for final appellate consideration. FINDING OF FACT Conversion of the Veteran's existing bathtub to a walk-in shower is necessary to provide access to essential lavatory and sanitary facilities. CONCLUSION OF LAW The criteria for benefits under the HISA program, pursuant to 38 U.S.C.A. § 1717, specifically converting the Veteran's existing bathtub to a walk-in shower, have been met. 38 U.S.C.A. § 1717 (West 2002); VHA Handbook 1173.14 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). In this case, the Board is granting the claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran seeks a HISA grant pursuant to 38 U.S.C. § 1717 for the conversion of his bathtub to a walk-in shower. 38 U.S.C.A. § 1710 authorizes VA to furnish medical services which VA determines to be needed to any veteran for a service-connected disability and to any veteran with a service-connected disability rated 50 percent or more. 38 U.S.C.A. § 1710(a). Home health services determined by VA to be necessary for effective and economical treatment of a disability may be furnished to any veteran to include home improvements and structural alterations as are necessary to assure the continuation of treatment or to provide access to the home or to essential lavatory and sanitary facilities. 38 U.S.C.A. § 1717(a)(2). Veterans Health Administration (VHA) Handbook 1173.14 outlines the procedures governing the administration of the HISA program. HISA grants provide for medically necessary improvements and/or structural changes to the veteran's residence for the following purposes: (1) allowing entrance to, or exit from, the veteran's residence; (2) use of essential lavatory and sanitary facilities; (3) allowing accessibility to kitchen or bathroom sinks or counters; (4) improving entrance paths or driveways in immediate area of the home to facilitate access to the home by the veteran; and (5) improving plumbing or electrical systems made necessary due to installation of dialysis equipment in the home. VHA Handbook 1173.14, para. 3. Based on a thorough review of the evidence, the Board finds that the evidence shows that conversion of the Veteran's existing bathtub to a walk-in shower is necessary to provide access to essential lavatory and sanitary facilities. Id. Initially, the Board notes that the Veteran meets the basic eligibility criteria for benefits under 38 U.S.C.A. § 1717(a). His service-connected disabilities include, inter alia, radiculopathy, left lower extremity associated with traumatic arthritis, lumbar spine and right knee, evaluated as 20 percent disabling; traumatic arthritis, lumbar spine, evaluated as 10 percent disabling; traumatic arthritis, right knee, evaluated as 10 percent disabling; and radiculopathy, right lower extremity associated with traumatic arthritis, lumbar spine. His combined evaluation is 50 percent. The medical records reflect that the Veteran's right knee disability causes him to fall (see July 2012 VA Disability Benefits Questionnaire), including in the bathtub (see May 2007 report from M.J.L., M.D.). A November 2013 VA Occupational Therapy Assessment (OTA) provides an impression that the Veteran was able to transfer in/out of the tub with some discomfort and decreased stability, especially in the right leg. At this time, the Veteran had not had any grab bars installed by VA. He refused utilization of a shower chair to sit rather than stand during bathing, and in fact the slope of the Veteran's garden tub did not lend itself to using a shower chair or tub transfer bench. The OTA identified the problems as that the Veteran had a history of frequent falls, often in the bathroom. He had a garden tub and it was difficult to get a tub or shower seat that fit that type of tub. Sliding glass doors on the tub were difficult to maneuver around and created a hazard. There were no grab bars in the bathroom. The OTA recommend that the sliding glass doors be removed and grab bars be installed next to the tub to assist with the transitioning process. Given the history of frequent falls, the Veteran should consider sitting during showering, but refused the offer of a shower chair, not believing it would work in the tub. The OTA conceded that a shower chair would not work in a garden tub. The Veteran should consider referral for use of a walker. A guardian alert should be ordered so that the Veteran could summon help if he fell and was unable to get back up. The OTA noted that while installing a walk-in shower would obviously allow a safer and easier transition, the Veteran could also benefit significantly from the above recommendations to make the process easier as well. The Board finds that the November 2013 OTA supports conversion of the Veteran's tub to a walk-in shower. The Board finds it significant that the OTA itself acknowledged the Veteran's falls, and conceded that a walk-in shower would obviously allow a safer and easier transition for him than its own recommendations. Moreover, the OTA itself acknowledged that one if its own recommendations, a shower chair, would not work with the Veteran's garden tub. The Board observes that in a March 2008 statement in response to similar, earlier OTA recommendations, the Veteran noted that removal of the sliding glass doors would allow water to splash on the tile floor causing a safety hazard even if he did use a shower curtain, because the curtain the would not cover the area where the shower seat was extending to the outside of the tub. Using a shower seat would still require him to lift his legs up high enough to clear the exterior wall of the garden-sized tub, which would cause discomfort and pain to his legs and back. The Veteran also stated it would cause additional pain and discomfort if he had to lift his legs over the high exterior wall of his garden tub to slide into the tub area on a shower seat. In light of the above, the Board finds that conversion of the Veteran's tub to a walk-in shower is necessary to provide access to essential lavatory and sanitary facilities. VHA Handbook 1173.14, para. 3. ORDER Benefits under the HISA program, pursuant to 38 U.S.C.A. § 1717, specifically converting the Veteran's existing bathtub to a walk-in shower, are granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs