Citation Nr: 1342035 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-00 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Lake City, Florida THE ISSUE Entitlement to home improvement and structural alterations (HISA) benefits under 38 U.S.C.A. § 1717 for a Home Air Conditioning system. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from December 1978 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 decision letter by the North Florida/ South Georgia Veterans Health System in Gainesville, Florida. The Veteran was scheduled for a Board hearing in January 2012. In January 2012, the Veteran reported that he would be unable to attend. The Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2013). In a January 2012 VA Form 21-4138, the Veteran waived regional office consideration of additional evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an increased rating for bronchitis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. (In January 2012, the Veteran asserted that he uses several inhalers throughout the day and a nebulizer; the Board is unsure if this treatment is due to the Veteran's service-connected bronchitis or his nonservice-connected COPD.) FINDINGS OF FACT 1. In 2009, the Veteran applied for a HISA grant for a home air conditioning system. 2. In May 2010, the Veteran was verbally notified that his HISA grant request had been denied. 3. In June 2010, prior to any approval of his request for a HISA grant, the Veteran had a home air conditioning system installed. 4. The most probative competent evidence of record is against a finding that the Veteran was clinically prescribed a home air conditioning system because he had a disability which was substantially worsened by exposure to heat and humidity, and where the absence of a controlled environment subjected him to health-threatening circumstances. CONCLUSION OF LAW The criteria for payment for the cost of a home air condition system as a necessary part of outpatient care under the Home Improvement and Structural Alterations (HISA) program have not been met. 38 U.S.C.A. §§ 1710(a), 1717, 5107 (West 1991); 38 C.F.R. § 17.150 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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). See 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). The Board notes that the Veteran was provided with the laws applicable to payment of air conditioning under HISA in the September 2010 Statement of the Case (SOC). Legal Criteria According to the pertinent law and regulation, as part of the medical services furnished to veterans with a service-connected disability (See 38 U.S.C.A. § 1710(a)), the Secretary may furnish home health services where the Secretary finds such services to be necessary or appropriate for the effective and economical treatment of the veteran's disability. 38 U.S.C.A. § 1717(a). Such services may include reimbursement for improvements or structural alterations to any setting in which the veteran is residing. 38 U.S.C.A. § 1717(b). In addition, VA regulations provide that prosthetic and similar appliances, including therapeutic and rehabilitative devices, such as a lift for invalids, may be purchased for any veteran upon a determination of feasibility and medical need provided that is a necessary part of outpatient care. 38 C.F.R. § 17.150 (emphasis added). Analysis Initially, the Board notes that in January 2012 correspondence, the Veteran indicated that he would be having oxygen consultation and pulmonary function tests in the future. Records from any such appointments are not associated with the claims file. Nevertheless, the Board finds that a remand to obtain them is not warranted. The Veteran's application for a HISA grant was in 2009, and the actual work was performed in 2010. Thus, the pertinent clinical records are those from 2009 and 2010 (see VHA Handbook 1173.14, para. 6(8)); such records are associated with the claims file. The Veteran is service connected for loss of use of left upper and lower extremities, bilateral hearing loss disability, hypertension, bronchitis, dysarthria, and epididymitis. A November 2009 VA computer record reflects that the Veteran requested a HISA grant to pay for an air conditioning system for his home. A central air conditioning system may be provided under a HISA grant "when prescribed to an eligible veteran suffering from a spinal cord injury, neurological conditions, and severe respiratory or coronary disease, which are substantially worsened by exposure to heat and humidity, and where the absence of a controlled environment subjects the veteran to health-threatening circumstances. (see VHA Handbook 1173.14(3)(c)). Room air conditioners are provided, if necessary, and are charged as a prosthetic item. If the need for a central air conditioning system exists, the medical justification must be sufficient to substantiate cooling an area beyond the primary living quarters (see VHA Handbook 1173.08). A March 2010 VA computer record reflects that a VA employee, C.C., had informed the Veteran that she had received his application for the air conditioning system. She further informed the Veteran that he needed to submit quotes for his application, which the Veteran then faxed to C.C. C.C. submitted the quotes to "Engineering for evaluation." An April 30, 2010 VA computer record reflects the notes of Dr. L.G., (HISA Committee Chairman) as follows: I reviewed available [information] on record, I need additional information to approve AC unit to be paid for by HISA such as - is he on O2 for bronchitis, evidence of repeated infection, hospitalization [for] respiratory problems or any details to suggest the severity of pulmonary problem. A subsequent April 30, 2010 VA computer entry note from S.R. reflects that the Veteran does not use oxygen for bronchitis, there is no evidence of repeated infection, he had not been hospitalized for a respiratory problem since November 2008, and there was no objective data such as PFT's to give a degree of impairment. The chest x-ray of March 12, 2010 was negative. A May 3, 2010 entry from Dr. L.G. reflects that based on the information provided, the use of an HISA grant for an air conditioning system was not warranted. A May 11, 2010 VA clinical record reflects that the Veteran was seen for a medication renewal and "to discuss his HISA grant for home air-conditioning denial." Thus, as of May 11, 2010, the Veteran was aware that his HISA request had been denied. In a notice of disagreement, dated on July 26, 2010, but received by VA on August 17, 2010, the Veteran stated that he was told verbally over the telephone, by C.C., that his application for a HISA grant had been denied. He also stated that on April 22, 2010, VA employee C.C. had called the subcontractor for the air conditioning, W.C. Enterprises, Inc., and stated that she was going to "put the amount of charges on the credit card of [W.C.] Enterprises, Inc for instatllation [sic] of the air conditioner with duct work." In undated correspondence from W.C., he stated, in pertinent part, as follows: It is our understanding that on or about April 22, 2010 that a representative from your office agreed to pay [W.C.] Enterprises, Inc by credit card provided that [W.C.] Enterprises, Inc was registered with CCR. [W.C.] Enterprises registered with CCR on 4/22/10 and received notice the registration was accepted on 4/24/10. Services were performed on 6/1/10 to install a 4 ton package unit with duct work for [the Veteran]. [W.C.] Enterprises, inc. performed the work totaling $5,300.00 as a subcontractor to KLC Construction. Since payment was not received from the United States Department of Veterans Affairs by June 30, 2010, KLC Construction paid [W.C.] Enterprises, Inc. In August 2010 correspondence, VA informed the Veteran that his request for an HISA grant was denied. In sum, in approximately November 2009, the Veteran applied for a HISA grant for a home air conditioning system. Prior to obtaining any written approval, and with verbal notification that his claim was denied, the Veteran had the work completed in June 2010. When the Veteran's claim was denied in in writing in August 2010, the work had already been completed. First, the Board will address whether the Veteran was entitled to an HISA grant for an air conditioning system based on his medical condition. VA may provide a claimant home health services that are found to be necessary or appropriate for the effective and economic treatment of service-connected disabilities. VA home health services include payment or reimbursement for home improvements and structural alterations that are necessary to assure continued treatment of service-connected disabilities or to provide access to the home or to essential lavatory and sanitary facilities. 38 U.S.C.A. § 1717(a)(2). According to VHA Handbook 1173.14(3)(c), home improvements under the HISA program can include central air systems "when prescribed to an eligible veteran suffering from a spinal cord injury, neurological conditions, and severe respiratory or coronary disease, which are substantially worsened by exposure to heat and humidity, and where the absence of a controlled environment subjects the veteran to health-threatening circumstances." Initially, if one interprets the section as written, to mean that the Veteran must have a spinal cord injury, neurological conditions and a severe respiratory or coronary disease, the Veteran is not eligible for a home air conditioning system because he does not have a spinal cord injury. The Board will further consider that the Veteran need not have spinal cord and neurological condition, but merely a severe respiratory or coronary disease. VHA Handbook 1173.14, 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. 6(8). As noted above, the clinical notations above reflect that the Veteran did not need oxygen for bronchitis, there was no evidence of repeated infection, and the Veteran had not been hospitalized for a respiratory problem since November 2008. In addition, the March 2010 x-ray was negative, and there was no objective data such as PFTs to give a degree of impairment. Dr. L.G. opined that the use of an HISA grant for an air conditioning unit was not warranted. While the Veteran is competent to report breathing difficulties, he has not been shown to have the experience, training, and education necessary to determine that air conditioning in his home was medically necessary because the absence of a controlled environment subjects him to health-threatening circumstances and that his disabilities are substantially worsened by exposure to heat and humidity. The Board finds that the opinion of Dr. L.G. is more probative than the Veteran's opinion. In support of his contention that air conditioning was medically necessary, the Veteran submitted a statement that he uses several inhalers throughout the day and night, as well as a nebulizer every six hours. He also stated that he lives in a "very humid climate and I cannot do without air conditioning." However, he has not stated that air conditioning has been medically prescribed by a physician, and his clinical records do not reflect such. Moreover, a December 2008 clinical record reflects that the Veteran requested a note stating that he is well enough to do part time work that involves mowing. He reported that he had done this for more than four years without problem. Thus, the record reflects that as of December 2008, the Veteran was able to be outside in warm weather (e.g. that is weather in which mowing is warranted.) In addition, the Veteran's exacerbations were noted to be in November 2008 for sinusitis/bronchitis, which had since cleared without the use of a home air conditioning system. Prior VA clinical records recommend that the Veteran discontinue smoking; they do not prescribe a home air conditioning system. July and August 2009 VA clinical records reflect that the Veteran was still smoking. It was noted that he had "asthma, unspecified type, without mention of status asthatmicus or acute exacerb". A February 2010 VA clinical record reflects that the Veteran was to use cough suppressant, allergy medication, and inhalers. May 2010 VA clinical records reflect that the Veteran had a respiratory infection and was treated with medication. None of the records reflects that an air conditioning system was prescribed for the Veteran or that heat and humidity had been a reason for his symptoms. An August 2010 VA clinical record reflects that the Veteran had been seen for bronchitis and had been prescribed a "z-pack". It was noted that he had a nebulizer at home which "helps some." He was assessed with COPD exacerbation. A subsequent August 2010 record reflects that the Veteran reported that his breathing had improved and he was at his baseline. The report is negative for any mention of the need for an air conditioning system. Notably, these incidents were after the Veteran had his home air conditioning installed. A private December 2011 record from Jackson Hospital reflects that the Veteran was seen for an acute exacerbation of COPD. The Veteran was "going to require several more days here in the hospital with O2 support, IV steroids which when then be switched to oral when appropriate along with breathing treatments." It was noted that he was a smoker and had quit two weeks early when he started having increased shortness of breath. The record does not reflect that air conditioning was prescribed for the Veteran or that heat and humidity had been a reason for his acute exacerbation of COPD. This incident was after the Veteran had his home air conditioning system installed. None of the records reflect that a doctor, or medical professional, has prescribed air conditioning for the Veteran, or that if air conditioning was necessary, more than a room air conditioner was necessary to prevent a worsening of the Veteran's health. Second, the Board will address the contention that VA verbally informed a subcontractor that a HISA grant request had been approved. The subcontractor, [W.C.] Enterprises, Inc. has stated that VA informed him that it would pay him by credit card if he was registered with CCR. The CCR (Central Contractor Registration) was a database of contractors for the U.S. Federal government. (It was replaced by the System for Award Management (SAM) in 2012.) Merely because a contractor was registered with the CCR does not mean that any contracts or work has been approved for payment. CCR is a prerequisite in the event that a grant may be approved. In addition, in the event that the Veteran, or someone else, may have verbally received some incorrect information from VA personnel as to the HISA grant process or the status of the Veteran's claim, "bad advice" from VA personnel is not a basis for an award of benefits. See Shields v. Brown, 8 Vet. App. 346, 351 (1995) (inaccurate actions or advice by VA personnel do not create any legal right to benefits where such benefits are otherwise precluded); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("[e]rroneous advice given by a government employee cannot be used to estop the government from denying benefits "). The Veteran's January 2012 contention that he assumed that he was approved for a HISA grant is less than credible as he was verbally informed prior to installation that his claim was denied. Having reviewed the relevant facts in this case along with the pertinent law, the Board finds that the criteria for payment of the cost of a home air conditioning system under the HISA program are not met. As noted in the VHA Handbook, the "HISA benefit is limited to the improvement and structural alterations necessary only to ensure the continuation of treatment and/or to provide access to the home or to essential lavatory and sanitary facilities. NOTE: It does not include those improvements which would serve only to lend comfort." Based on the foregoing, the Board finds that the criteria for entitlement to a HISA grant for air conditioning have not been met. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but 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). ORDER Entitlement to Home Improvement and Structural Alterations (HISA) benefits under 38 U.S.C.A. § 1717 for a home air condition system is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs