Citation Nr: 1640022 Decision Date: 10/04/16 Archive Date: 10/19/16 DOCKET NO. 10-48 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to reimbursement of $3,200 for bathroom remodeling under the Independent Living Services Program (ILLP) for Vocational Rehabilitation, Chapter 31 of Title 38 of the United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to April 1972. This matter comes to the Board of Veterans' Appeals (Board) from an April 2010 decision of the Director of Vocational Rehabilitation and Employment Service (VR&E). In the decision, the Director declined the Veteran's request for reimbursement of construction-related expenses. The Veteran timely noted her appeal. In March 2011, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing is of record. The Board remanded the case for further development in February 2014. FINDINGS OF FACT 1. The Veteran has a serious employment handicap resulting in substantial part from her service-connected disability, and it has been properly determined that the achievement of a vocational goal is not currently feasible. 2. The Veteran's IILP contemplated the remodeling of her bathroom so that she could independently use the shower and, for that purpose, a Vocational Rehabilitation Counselor assisted her in applying for partial reimbursement of the total cost of the work through a Home Improvement and Structural Alterations (HISA) grant. 3. The Veteran received approval from an authorized official working in the Prosthetics Division of a VA Medical Center to proceed with the requested remodeling of her bathroom and eventually received a HISA grant of $6,800, a partial reimbursement of the total estimate of $10,000. 4. The evidence is at least evenly balanced as to whether $3,200 in remodeling services were provided to the Veteran pursuant to her IILP before the expiration of a 6 months extension to the IILP, which was approved in August 2009, and before the expiration of 30 months from the date that the Veteran began receiving independent living services. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, she is entitled to reimbursement of $3,200 for bathroom remodeling under the Independent Living Services Program. 38 U.S.C.A. §§ 3100, 3101, 3102, 3109, 3120 (West 2014); 38 C.F.R. §§°21.70, 21.90, 21.92, 21.160 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA applies only to cases under Chapter 51, Title 38, United States Code. Barger v. Principi, 16 Vet. App. 132 (2002). The statute authorizing the disputed benefit in this case is in Chapter 31, making the VCAA is inapplicable. Nevertheless, 38 C.F.R. §§ 21.32 and 21.33 set forth VA's duty to notify and assist for vocational rehabilitation claims. These provisions are which are substantially similar to the VCAA implementing regulations. But because the Veteran's claim is granted, any error related to these duties is harmless. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009). (CONTINUED ON NEXT PAGE) Analysis 38 U.S.C.A. § 3120(a) authorizes the Secretary to conduct programs of independent living services for severely handicapped persons. The Secretary may provide a program of independent living services and assistance under this section to veterans with a serious employment handicap resulting in substantial part from a service-connected disability if it has also been determined that the achievement of a vocational goal is not currently feasible. 38 U.S.C.A. § 3120(b). The purpose of independent living services is to assist eligible veterans whose ability to function independently in family, community, or employment, is so limited by the severity of disability (service and nonservice-connected) that vocational or rehabilitation services need to be appreciably more extensive than for less disabled veterans. The term independence in daily living means the ability of a veteran, without the services of others or with a reduced level of the services of others to live and function within the veteran's family or community. The Veteran receives service-connected disability compensation for major depressive disorder, currently rated as 100 percent disabling. In addition to depression, the Veteran's treating physician wrote a letter in April 2007 which indicated bilateral knee pain with torn right meniscus, fibromyalgia, degenerative joint disease, meralgia paresthetica, obesity and bilateral dependent edema. According to the letter, "Due to the above listed medical conditions; [the Veteran] should refrain from prolonged standing or walking. She should also be allowed to elevate her legs as much as possible." The Veteran met with a Vocational Rehabilitation Counselor, who wrote a memorandum in April 2007 finding that a program of rehabilitation was not feasible for her. A rehabilitation counselor performed an independent living assessment in June 2007. Based on the findings in that assessment, the Veteran entered a rehabilitation plan in August 2007. The objective of the plan was defined broadly: "Veteran will become more independent in daily living skills." The plan had several specific elements which did not concern the remodeling of the Veteran's bathroom. For example, the plan indicated that she should be given a sock aid, a rail for her bed, a lift chair and a motorized scooter. The plan did, however, indicated that the Veteran had applied for a Home Improvement and Structural Alterations (HISA) grant and that Vocational Rehabilitation "will monitor progress to determine if the IILP needs redeveloping at a later time." At this point it will be useful to explain that VA administers several programs which, under certain circumstances, may provide home modifications to eligible veterans and their families. These are the Specially Adapted Housing (SAH) grant, the Special Housing Adaption (SHA) grant, the Temporary Residence Assistance (TRA) grant, and the HISA grant. Although the Vocational Rehabilitation Division does not directly administer these programs, independent living services "will generally require extensive coordination with other VA and non-VA programs. If appropriate arrangements cannot be made to provide these services through VA, other governmental, private nonprofit and for-profit agencies and facilities may be used to secure necessary services if the requirements contained in § 21.294 are met." 38 C.F.R. § 21.160. There is no evidence that the Veteran applied for an SAH, SHA or TRA grant and it is not necessary for the Board to analyze whether she might potentially be eligible for benefits under those programs. The Veteran's application for a HISA grant, however, is significant to the issue in this appeal. An HISA grant is provided for medically necessary improvements and structural alterations to Veterans' or Service members' primary residence when such improvements are "necessary to assure the continuation of treatment or to provide access to the home and to essential lavatory and sanitary facilities." 38 U.S.C.A. § 1717(a)(2) (West 2015). Currently the maximum amount of a HISA grant is $6,800. 38 U.S.C.A. § 1717(a)(2)(A)(ii). HISA grants are not administered by VR&E personnel, but by authorized personnel at VA medical centers. Cf. Veterans Health Administration (VHA) Handbook 1173.14. The current version of VR&E Manual, the M28R, provides that if home modifications are part of a proposed independent living program, once the coordination of other VA programs is complete and the individual has been informed whether he or she will qualify for another VA housing grant, the assigned Vocational Rehabilitation Counselor will develop a proposed home modification plan. See VBA VR&E Manual (M28R), Part IV, Section C, Chapter 9 (revised March 31, 2014). Current VR&E policy requires the Veteran to apply for other VA programs first, but also authorizes the payment of construction costs as part of independent living services. Payment for construction costs as part of independent living services is not limited to the $6,800 applicable to HISA grants. The current version of applicable handbook requires the approval of the Director of the Regional Office for IILPs containing construction costs between $2,000 and $25,000. See M28R, Part IV, Section C, Chapter 9(e)(2). The version of the manual in effect during the Veteran's application process only required approval for program costs exceeding $25,000. See M28, Part IV, Subpart iv. Chapter 9, 1. D. Even before the adoption of these manual provisions, it appears to have been VR&E policy to encourage recipients of independent living services to apply for other forms of VA assistance for housing modifications before providing payment for housing modifications as part of an IILP. Correspondence between the Veteran and her Vocational Rehabilitation Counselor indicates that the Veteran inquired about the possibility of assistance in remodeling her bathroom. The counselor advised the Veteran that her application for an HISA grant should be submitted to the Prosthetics Department at the local VA Medical Center. The Veteran submitted her initial HISA grant application in October 2007. Notes from her Vocational Rehabilitation Counselor indicate that the progress of the independent living plan was delayed while the Veteran waited for her HISA grant application to be approved. In October 2007, the Veteran was told that her initial application had been lost. The file indicates that the Veteran applied for HISA benefits again. In contemporaneous correspondence to her counselor and in her credible hearing testimony, the Veteran wrote that the authorized official at the Prosthetics Department suggested that she submit bids from contractors estimating the cost of the requested home improvements. In April 2009, she submitted an estimate of $10,000. In May 2009, the counselor wrote that the Veteran had submitted her HISA grant application and she was waiting for approval from the Prosthetics Department. In 2009, the maximum payment under a HISA grant was $4,100. The counselor explained that "The bids were well over this amount. If approved, Voc Rehab will be able to apply for the remaining charges that HISA does not cover." In August 2009, the Veteran's vocational rehabilitation counselor requested an extension of the Veteran's independent living plan, which was set to expire. The reason for the requested extension was "[the Veteran] is waiting on the HISA grant to be approved to remodel her bathroom so she can independently shower." According to the extension request form, a six-month extension was approved by a VR&E Officer in September 2009. According to the Veteran, she contacted the representative of the Prosthetics Department later that year and he told her that she could proceed with the remodeling work. In December 2009, the counselor wrote that "[the Veteran] reports today that her bathroom will be started on right after the holidays . . . . [The counselor] has tried numerous times to get in touch with [the representative of the Prosthetics Department], but he will not return phone calls." The counselor's notes from February 23, 2010 indicate that the Veteran told her that the bathroom project was complete. The counselor also wrote that "[the prosthetics representative] is still not responding to the attempts to contact him. [The Assistant VR&E Officer] has been made aware of this and he has also attempted to contact [the prosthetics representative]." In March 2010, the counselor wrote to the Veteran that she "just got word from [the prosthetics representative] that you were NOT approved for HISA . . . did you get a letter or some kind of paperwork showing you were approved for the $4100 grant?" In her reply, the Veteran wrote that she had contacted the prosthetics representative in November 2009 and "explained that the construction would be started in January [and] he told me alright and to make sure I got an itemized bill. He told me that all I had to do was to make sure that the bill for the bathroom was brought to him then he would send it in for payment." An April 2010 memorandum signed by a VA contracting officer and the Director of the Muskogee RO indicates that the Prosthetics Department initially refused to make any payment pursuant to HISA because the contractor who performed the work was not registered in a certain database and a "purchase card" could not be utilized. After this determination, the Director of VR&E issued the decision which is now on appeal. According to the Director, the Veteran's request for reimbursement of the costs of remodeling was denied for two reasons. First, the Veteran's Individualized Independent Living Plan (IILP), as amended, was set to expire in October 2009. The director wrote that "[independent living services] can only be authorized within a valid IILP." The Director also noted that 33 months had passed since the Veteran began receiving independent living services: "The total duration of [independent living services] for this Veteran cannot exceed 30 months (including a maximum extension of six months, if approved by the Vocational Rehabilitation and Employment Office and the Vocational Rehabilitation Panel)." The Director did not acknowledge the August 2010 six-month extension request. Second, the Director wrote that ratification of the contract by VA was not appropriate because "no warranted acquisition professional made a commitment to the contractor." After the decision, the record reflects that the Veteran's disputed HISA grant application was approved and paid. According to an August 2010 note of the vocational rehabilitation counselor: "The HISA grant was eventually approved and they paid the $6,800 towards the bathroom remodel. She can now shower independently and safely and is no longer in danger of falling. She is very happy with the work that was completed; although she was disappointed we were unable to pay the balance after HISA paid their part." A note from the counselor later that month described a conversation with a VR&E officer who apparently attributed VA's refusal to reimburse the Veteran to a change in contracting procedures. The relevant contract procedures are not part of the record and were not cited in the October 2010 Statement of the Case, which reaffirmed the Director's denial of the claim. On appeal, the Veteran has argued that VA should reimburse her the $3,200 difference between the cost of construction and the HISA grant because she relied to her detriment on the false representation of the prosthetics representative that her HISA grant had been approved. To support this argument, she has submitted a May 2014 news article indicating that the prosthetics representative later entered a guilty plea to a criminal offense in Federal Court for unlawfully receiving gifts from a medical supply company doing business with VA. These allegations do not appear to relate to this Veteran's case. 38 U.S.C.A. § 503 gives the Secretary the authority to grant equitable relief to claimants who have been denied benefits due to administrative errors committed by the government or its employees. But unlike many of the Secretary's powers the authority to grant equitable relief has not been delegated to the Board. See 38 C.F.R. § 2.7 Fortunately for the Veteran, her failure to follow applicable contract procedures before proceeding with the work on her bathroom became a moot point when her HISA grant was paid. It is clear from the Veteran's IILP that home modifications were contemplated by her plan for independent living services. The strongest evidence for this conclusion is the six-month extension in the Veteran's IILP, which was approved in August 2010. The reason for the extension, according to the form signed by the Veteran's counselor and a VR&E officer, was "[the Veteran] is waiting on the HISA grant to be approved to remodel her bathroom so she can independently shower." If remodeling the bathroom was outside the legitimate scope of the Veteran's IILP, it is difficult to understand why that remodeling project would delay the closure of the Veteran's vocational rehabilitation case. It is true that the text of the initial August 2010 plan does not expressly mention remodeling the bathroom. But 38 C.F.R. § 21.90 ("Individualized Independent Living Plan") does not require that an IILP consist of a single document. Subject to other legal deadlines for the conclusion of vocational and rehabilitation services, the Veteran, the counselling psychologist or the vocational rehabilitation specialist is authorized by regulation to "request a change in the plan at any time." 38 C.F.R. § 21.94(a). VA has the authority to pay additional sums for home modifications which are part independent living programs and, unlike HISA, the amount VA can pay as part of an independent living program is not limited to $6,800. See M28R, Part IV, Section C, Chapter 9(e)(2). The Director's approval is required for such a payment and the Director in this case declined to approve the requested payment. But the Director's refusal to pay is subject to a de novo appeal to the Board. See 38 C.F.R. § 20.101(a)(6). The Director indicated that payment was not appropriate because the work on the home remodeling program took place after the October 2009 expiration date of her IILP and more than 30 months after the Veteran entered the independent living program. The authority for the 30-month deadline presumably comes from M28-1, Part II, Change 5, 8.05 ("Duration and Limitation of Services") (July 22, 1992), which was incorporated by reference in the version of the M28 manual which was effective at the time of the Director's decision in 2010: "No [independent living program] may exceed 30 months." After reviewing the evidence, the Board finds that to deny the Veteran's claim would be inconsistent with the August 2010 extension of the IILP and, more broadly, with the benefit of the doubt doctrine. Although the IILP was scheduled to expire in late 2009, the Veteran's Vocational Rehabilitation counselor requested - and a VR&E officer approved - a six month extension to the IILP. After the extension was approved, the 30 month-period from the date of the Veteran's initial IILP (August 1, 2007) was set to expire on February 1, 2010. Depending on whether the appropriate date to begin the six-month extension of the original plan is the day of the expiration of the initial plan, the day the Veteran's counselor signed the extension request or the day the extension request was approved by the VR&E officer, the extension period expired at some point between February 1 and March 8, 2010. The Director found that the remodeling took place between January 11, and March 2, 2010. It is not clear that this information is correct - on February 23, 2010 the Veteran told her counselor that the work was done. Nevertheless, even if the work was not completed until after the expiration of the 30 days, it certainly began prior to February 1, 2010, which is the earliest conceivable deadline for the completion of independent living services. It is significant that the Veteran is not seeking reimbursement of the entire $10,000 cost of remodeling through the independent living program. $6,800 has already been paid through her HISA grant. Whether the Veteran was eligible for the HISA grant is a moot point. But there is at least a reasonable doubt about whether $2,800 worth of remodeling services had been completed prior to February 1, 2010. The records concerning the construction are not part of the record. The Board remanded this case in February 2014 with instructions to obtain all documents concerning the Veteran's HISA application and all efforts to obtain these documents have been unsuccessful. In light of VA's "heightened duty" to assist a Veteran when records are lost or destroyed, see Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005), the Board must resolve that doubt in the Veteran's favor. For those reasons, the Board finds that the remodeling of the Veteran's bathroom was part of independent living services provided to the Veteran under 38 U.S.C.A. § 3120 and that she is entitled to reimbursement for the $3,200 which was not paid by the HISA grant. ORDER Entitlement to reimbursement of $3,200 for bathroom remodeling under the ILLP for Vocational Rehabilitation, Chapter 31 of Title 38 of the United States Code is granted. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs