Citation Nr: 1751065 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-35 447A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical Center in Fayetteville, Arkansas THE ISSUE Entitlement to benefits under the Home Improvement and Structural Alterations (HISA) program, pursuant to 38 U.S.C.A. § 1717, specifically for the installation of a walk-in tub. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from May 1956 to April 1959, and from January 1960 to April 1977, to include service in the Republic of Vietnam. He was awarded a Vietnam Service Medal with three bronze stars, among other decorations. The Veteran died in December 2015, and the appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 decision by the Department of Veterans Affairs (VA) Medical Center. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In May 2015 a VA Medical Center received a Specially Adapted Housing grant application, which was returned to the Veteran to mail to the VA Regional Office. This correspondence also provided details of the requirements for the HISA grant. 2. In August 2015 the appellant had a walk-in tub installed at her personal expense. 3. The Veteran passed away in December 2015. 4. In March 2016 the appellant submitted an application for a HISA grant, indicating that the installation had already been completed. CONCLUSION OF LAW The criteria for benefits under the HISA program, pursuant to 38 U.S.C.A. § 1717, specifically for the installation of a walk-in tub, have not been met. 38 U.S.C.A. § 1717 (West 2014); 38 C.F.R. §§ 3.1000, 17.3102, 17.3120, 17.3126 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis The appellant seeks a HISA grant pursuant to 38 U.S.C. § 1717 for the installation of a walk-in tub. Initially, the Board notes that only certain individuals are eligible for a HISA grant. These include veterans eligible for VA hospital care and medical services and certain service members. 38 C.F.R. § 17.3102. The appellant is not eligible for HISA benefits. She essentially asserts she is entitled to HISA benefits on her late husband's behalf as an accrued benefit. In this case HISA benefits are not available as an accrued benefit. As explained below, the Veteran did not have a claim for HISA benefits pending at the time of his death. 38 C.F.R. § 3.1000(a). In addition, HISA allows for a payment to be used for improvements and structural alterations to the home; this is not considered a periodic monetary benefit, which is the only type of benefit eligible to be paid as an accrued benefit. Id.; see also 38 C.F.R. §§ 17.3101, 17.3130 (2017). The Board notes that even if the appellant was potentially eligible for HISA benefits the claim could not be approved. 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, ¶ 3. Pursuant to 38 C.F.R. § 17.3120(a) (2017), to apply for HISA benefits, the beneficiary must submit to VA a complete HISA benefits application package, to include a prescription written or approved by a VA physician that includes a) the beneficiary's name, address, and telephone number; b) identification of the prescribed improvement or structural alteration; and, c) the diagnosis and medical justification for the prescribed improvement or structural alteration. The application must also include a completed and signed VA Form 10-0103, Veterans Application for Assistance in Acquiring Home Improvement and Structural Alterations; a signed statement from the property owner authorizing the improvement or structural alteration; a written itemized estimate of costs for labor, materials, permits, and inspections for the home improvement or structural alteration; and color photograph of the unimproved area. Once this application package is complete, VA will inspect the site to determine eligibility. Under 38 C.F.R. § 17.3120(b), VA will not approve a HISA application unless VA has either conducted a pre-award inspection or has determined that no such inspection is needed. In this case, the Veteran submitted an application for specially adapted housing to the VA Medical Center in May 2015. In turn, the VA Medical Center returned the application directing the Veteran to submit the application to the VA Regional Office, as this is the body that adjudicates claims for specially adapted housing. This correspondence also provided the Veteran with the requirements for a HISA application. It is noteworthy that the requirements for specially adapted housing and the HISA grant differ greatly. As noted, 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. Specially adapted housing is applicable for veterans with a permanent and total disability under Chapter 11 of title 38 of the United States Code; these disabilities include (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 anatomical loss or loss of use of one lower extremity; or (3) The loss or loss of use of one lower extremity together with 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 of 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 C.F.R. § 3.809 (2017). In short, the two programs are different and are regulated by different parties within VA; the Veteran was so notified in the May 2015 correspondence, and was given instructions on applying for the HISA grant and what would be needed for the application. Unfortunately, the Veteran passed away in December 2015. In March 2016 the appellant submitted an incomplete HISA grant application in which she stated that she had already installed the walk-in tub in August 2015 and that she would like reimbursement. Her application included treatment notes from two providers indicating the medical necessity of the walk-in tub. This is not a valid application because it does not meet the requirements outlined above. The first requirement was that a prescription be made or approved by a VA treatment provider, which was not done in this instance. More importantly, the walk-in tub installation was done prior to VA inspection and approval. Notably, per regulation, VA will disapprove a HISA benefits application if the complete HISA benefits application does not meet all of the criteria outlined in § 17.3125(a). 38 C.F.R. § 17.3126. The Board is sympathetic to the appellant's contentions. She stated that she did not understand and that she had submitted the application for the specially adapted housing grant and having heard nothing, decided to take proactive measures to comfort her husband. She also asserted that the Veteran had been in charge of the mail until his death, and that she was unaware of the requirements of the HISA grant or that the specially adapted housing grant application had been returned. The appellant indicated that she was worried about her husband's safety while bathing, and that she wanted to act quickly to help him. Unfortunately, there is a process for applying for a HISA grant that requires several steps which were delineated in correspondence to the Veteran. There is no exception to the rules to allow for retroactive payment without pre-approval. The appellant's representative has contended that the instructions for the different grants were too complex and that even the VA Medical Center could not understand them, and that the VA Medical Center should have forwarded the application over to the Regional Office rather than returning it to the Veteran. Sadly, these programs are adjudicated by two different offices within VA, and the VA Medical Center returned the Veteran's application in May 2015, more than two months prior to when the appellant had the tub installed which may have allowed for a correction and pre-approval. In addition, the original application was not for HISA benefits. Despite these contentions, the appellant's claim cannot succeed. In light of the above, the Board finds that the criteria for benefits under the HISA program, pursuant to 38 U.S.C.A. § 1717, specifically for the installation of a walk-in tub, have not been met. ORDER Entitlement to benefits under the Home Improvement and Structural Alterations (HISA) program, pursuant to 38 U.S.C.A. § 1717, specifically for the installation of a walk-in tub, is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs