Citation Nr: 1436932 Decision Date: 08/18/14 Archive Date: 08/27/14 DOCKET NO. 13-25 290A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Manchester, New Hampshire THE ISSUE Entitlement to reimbursement for the costs of unauthorized home improvement and structural alterations (HISA) pursuant to 38 U.S.C.A. § 1717. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, E.V., and M.V. ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision by the Department of Veterans Affairs Medical Center in Manchester, New Hampshire (VAMC). In July 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge, and a copy of the transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In July 2012, the Veteran applied for a HISA grant to replace the porch and hand railings at the front door entrance to his home. 2. In July 2012, August 2012, and September 2012, the Veteran was notified that his HISA grant request had been denied. 3. In October 2012, without authorization from VA, the Veteran had a new porch and iron hand railings installed at the front door entrance to his home. 4. At the time of the October 2012 improvements, a medical emergency did not exist such that a delay in these home improvements would have been hazardous to the Veteran's life or health, nor had the Veteran established medical entitlement to a new front porch and iron hand railings. CONCLUSION OF LAW The criteria for payment of the costs of unauthorized HISA are not met. 38 U.S.C.A. § 1717, 1728, 5107 (West 2002); 38 C.F.R. § 17.120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has requested reimbursement of the $2,020 cost associated with the replacement of his front porch and iron hand railings. As part of the medical services furnished to any veteran with a service-connected disability rated as 50 percent disabling or more, VA may furnish home health services when the Secretary finds such services to be necessary or appropriate for the effective and economical treatment of the veteran's disability, even if such disability is non-service connected. 38 U.S.C.A. §§ 1710, 1717(a) (West 2002). Improvements and structural alterations, or the amount of reimbursement for such improvements or alterations, may be furnished as part of such home health services only as necessary to assure, in pertinent part, access to the home. 38 U.S.C.A. § 1717(a) (West 2002). In a June 28, 1982 opinion, VA's General Counsel determined that home health services, including home improvements and structural alterations, were a type of outpatient treatment subject to the general requirement that reimbursement for outpatient medical services not authorized in advance may be made only if certain criteria are met. In pertinent part, these criteria require that the services have been rendered in a medical emergency such that delay would have been hazardous to the veteran's life or health. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2013). The General Counsel reasoned that delay of home improvements could not be considered to be hazardous to life or health due to the period of time inherently required to make improvements or structural alterations to the home. The General Counsel concluded that all claims for reimbursement for improvements not authorized in advance by the VA under the HISA program should be denied. Paris v. Brown, 6 Vet. App. 75 (1993) (affirming the portion of a Board decision that denied a claim for reimbursement when the veteran completed improvements without receiving prior authorization under the HISA program). VHA Handbook 1173.14, which addresses the HISA program, states that claims for payment or reimbursement of costs or services performed (without prior authorization) can be authorized when: (a) the veteran meets both the legal eligibility and medical entitlement for the modification for which reimbursement is sought, and (b) the claim is submitted within 30 days of the date that the improvement or alteration was performed, or (c) documented evidence indicates that an application was made for the benefit, or a VA physician recommended furnishing the improvement or alteration before the work was performed. VHA Handbook 1173.14, para. 10(i). The Board first observes that the Veteran meets the basic eligibility criteria for HISA benefits. The Veteran is service connected for bilateral hearing loss, rated 100 percent disabling, and tinnitus, rated 10 percent disabling. The Veteran's combined disability evaluation is 100 percent. In a June 2012 Home Visit Recommendation Summary from a private rehabilitative facility, it was recommended that the Veteran enter and exit the house through the garage after removing the clutter between cars. The facility recommended the installation of a new step and handrail. The facility indicated that the Veteran was not to use the front steps at that time due to an uneven walkway and a lack of railings. On July 12, 2012, the Veteran requested a prosthetics referral for a HISA grant. On July 16, 2012, an occupational therapist (OT) indicated that the Veteran would need a ramp from his front door because there was an unsafe pathway to the house and a lack of railing. The OT observed that the Veteran used his walker outside, and he had difficulty with stairs. On July 16, 2012, the Veteran underwent a consultation for rehabilitative equipment. It was noted that the Veteran had recently been discharged from a private rehabilitative facility. A ramp to the front door was again recommended. On July 19, 2012, it was noted that the Veteran needed a stair railing and ramp to the front door. On that day, the VAMC's Major Medical Committee (MMC) met to evaluate the request for a HISA grant. The committee denied a HISA grant for remodeling because the remodeling project was already well underway. [The Board notes, however, that the facts suggest that renovations to the front porch and hand railings were not, in fact, "well underway" or even begun at this point.] A ramp to the front door of the home was approved. On July 20, 2012, a request was sent to EZ Access to assess the home for a wheelchair ramp. On July 23, 2012, a message from EZ Access to VA indicated that the Veteran had refused a wheelchair ramp. The Veteran indicated that he simply wanted his walkway replaced. On July 23, 2012, the Veteran was informed that the MMC had denied the Veteran's request for HISA grant funds because the Veteran had already renovated his home, and VA would be unable to reimburse the Veteran for those costs. On August 23, 2012, it was noted that the Veteran refused the wheelchair ramp. Instead, the Veteran wanted VA to pay for the repair of an uneven walkway to his home. The Veteran stated that he did not use a wheelchair, and he therefore did not want a ramp. The OT observed, however, that Veteran used a walker, and a ramp would be safer. The OT additionally noted that the Veteran came to the OT clinic ambulating "quite safely" with a cane; in fact, the Veteran forgot his cane in the clinic, and he was able to ambulate without it at least for short distances, if not more. On August 23, 2012, the Veteran was informed that the MMC denied the Veteran's request for HISA funding to replace his front landing and repair his walkway. The MMC indicated that VA would be unable to make outside repairs to his home. The Veteran was informed that the he had been approved, however, to receive a wheelchair ramp for the front entrance of his home. On September 13, 2012, it was noted that the Veteran had a safe, accessible entrance to his home through the garage, and a ramp was therefore not needed. On September 14, 2012, the Veteran was again informed that the MMC denied the Veteran's request for HISA funding to replace his front landing and walkway. An invoice dated October 9, 2012 indicates that the Veteran paid $1,220 to a landscaping company for the installation of a five foot by three foot granite pad and step. An invoice dated October 10, 2012 indicates that the Veteran paid $700 for the fabrication and installation of "one pair of custom ornamental wrought iron platform hand rails built according to the [Veteran's] requested design, using all solid materials. Rails include custom degree lambs tongue handle with drainage holes and scroll work." In September 2013, the Veteran indicated that the contractor completed work on the front porch and handrails at this time, "long after [his] denial date". In January 2013, the Veteran indicated that the private rehabilitation facility considered entry and exit through the garage to be only a temporary solution until railings could be installed at the front entrance. The Veteran indicated that if he used the garage entrance, he ran the risk of tripping on tools and slipping on puddles. In September 2013, the Veteran stated that the private rehabilitative facility indicated that the medical necessity for the front door outside railings was one of the private rehabilitative facility's conditions for the Veteran's release to home care. The facts in this case are clear. The Veteran did not obtain authorization before replacing his front porch and hand rails. Indeed, the Veteran had been informed of VA's denials of his application for HISA benefits on three separate occasions before authorizing the construction that occurred in October 2012. The Veteran had been informed a number of times prior to the commencement of construction that he had been approved for a front door wheelchair ramp, rather than front porch steps and a decorative wrought iron railing. While this is not what the Veteran desired, and the Board understands this fact, it is important for him to understand that what he wanted in this situation is not necessarily what VA can pay for. Simply put, a medical emergency did not exist such that a delay in the installation of the front porch and hand rail would have been hazardous to the Veteran's life or health. For that matter, the Veteran had not even established medical entitlement to the replacement of his front porch and hand rails. To the contrary, the Veteran's private rehabilitation facility recommended that the Veteran enter his house through the garage. Despite the Veteran's arguments that this recommendation represented a tacit statement that it was medically required that the Veteran replace the front porch and hand railing to his home, a plain reading of the rehabilitation facility's recommendations is clearly contrary to the Veteran's reading. The Veteran was safest, in their opinion, entering his house from the garage. VA OTs and other clinicians consistently found, given the Veteran ambulated with a walker, the construction of a wheelchair ramp to the Veteran's front door to be the safest home entry option for the Veteran. The August 2012 observation of a VA OT that the Veteran ambulated "quite safely" with a cane similarly contradicts the notion that delay in the installation of the new porch and wrought iron hand rail would have been hazardous to the Veteran's life or health. In sum, no clinician found that a new porch and handrail constituted a medical necessity for the Veteran; indeed, clinicians consistently found that such improvement constituted an additional danger to the Veteran. The Veteran has argued, for example in January 2013, that cosmetic improvements should be considered when planning changes to a Veteran's home. Specifically, the Veteran stated that he "should not be required to let his house look like a dump just to comply with a preconceived idea of what is suitable." In response to statements such as this one that appear throughout the record, the Board reminds the Veteran that HSIA benefits are medical in nature, designed to, in a case such as this one, assure that veterans have safe access to their residences. It is a misunderstanding of the purpose of the law to view such benefits as aesthetic or decorative in nature. In any event, a ramp would also not have necessary made his home unsightly and may, if fact, have been better for the Veteran's ambulation in the long term. Based on the foregoing, the Board finds that the criteria for reimbursement of the costs to replace the porch and iron railings at the front door entrance to his home have not been met. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but it does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations do not apply to claims for benefits governed by 38 C.F.R. Part 17 (the governing regulations for reimbursement of private medical expenses). 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). ORDER Reimbursement for the costs of HISA pursuant to 38 U.S.C.A. § 1717 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs