Citation Nr: 21063190 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 13-31 494A DATE: October 13, 2021 ORDER A claim for additional specially adapted housing benefits, reimbursement, not to exceed $30,024, is granted, subject to the laws governing the grant of monetary benefits. FINDINGS OF FACT 1. In April 2008 the RO issued a rating decision concluding that the Veteran was entitled to specially adapted housing. 2. The Veteran was notified that he met the basic eligibility criteria for entitlement to a specially adapted housing grant in February 2010, with a maximum grant of up to $63,780. 3. The Veteran and the Appellant (his spouse) made modifications to his bathroom and bedroom, making it handicap accessible between 2009 and 2010. 4. The Veteran died in June 2012. 5. The Veteran, during his lifetime, did not receive any funds pursuant to the VA specially adapted housing grant. 6. At the time of death, there were unpaid financial obligations related to the modifications to his bathroom that the Veteran and Appellant incurred in connection with the specially adapted housing grant. 7. In March 2013 the United States Government issued the Appellant a check for $33,755.64. 8. As a matter of equity, the remaining $30,024 of the specially adapted grant monies which had been awarded to the Veteran may be paid to the Appellant to reimburse the Veteran's estate to discharge certain obligations incurred by the Veteran in reliance upon an approved grant. CONCLUSION OF LAW The criteria for entitlement to additional specially adapted housing benefits, reimbursement, not to exceed $30,024, have been met. 38 U.S.C. §§ 2101, 2106, 5122, 5107; 38 C.F.R. §§ 3.809, 3.1003, 36.4407; VAOPGCPREC 13-95 (May 10, 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from in the United States Army from June 1967 to June 1970. He died in June 2011. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 determination of the Department of Veterans Affairs (VA) Regional Office (RO), which reimbursed the Appellant $33,755.64 in expenses related to a specially adapted housing grant and denied the second reimbursement claim for additional specially adapted housing benefits. Legal Criteria Under applicable criteria, VA is authorized to assist any veteran who is entitled to disability compensation for the loss of use of one lower extremity together with residuals of organic disease or injury, or the 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, in acquiring a suitable housing unit with special fixtures or movable facilities made necessary by the nature of the disability and necessary land therefore. 38 U.S.C. § 2101. A certificate of eligibility for assistance in acquiring specially adapted housing may be provided to a Veteran. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(b). The statute under which claims are made allows for assistance, in the form of a grant, to be provided to a Veteran in acquiring a home suitable to meet his/her service-connected disability-related needs. § 36.4406 Reimbursement of costs and disbursement of grant funds. (a) After providing conditional approval of a specially adapted housing grant for an eligible individual pursuant to § 36.4405, the Secretary may authorize the incurrence, prior to obtaining final specially adapted housing grant approval, of preconstruction costs of the types and subject to the limits specified in this paragraph. (1) Preconstruction costs to be incurred may not exceed 20 percent of the eligible individual's aggregate amount of assistance available, unless the individual is authorized by the Secretary in writing to incur specific preconstruction costs in excess of this 20 percent limitation. Preconstruction costs may include the following items: (i) Architectural services employed for preparation of building plans and specifications. (ii) Land surveys. (iii) Attorneys' and other legal fees. (iv) Other costs or fees necessary to plan for specially adapted housing grant use, as determined by the Secretary. (2) If the Secretary authorizes final approval, the Secretary will pay out of the specially adapted housing grant the preconstruction costs that the Secretary authorized in advance. If the specially adapted housing grant process is terminated prior to final approval, preconstruction costs incurred that the Secretary authorized in advance will be reimbursed to the eligible individual, or the eligible individual's estate pursuant to paragraph(c) of this section, but will be deducted from the aggregate amount of assistance available and the reimbursement will constitute one of the three permitted grant usages (see § 36.4403). (b) The Secretary will determine a method of disbursement that is appropriate and advisable in the interest of the eligible individual and the Government, and will pay the specially adapted housing grant accordingly. Disbursement of specially adapted housing grant proceeds generally will be made to third parties who have contracted with the veteran, to an escrow agent, or to the eligible individual's lender, as the Secretary deems appropriate. If the Secretary determines that it is appropriate and advisable, the Secretary may disburse specially adapted housing grant funds directly to an eligible individual where the eligible individual has incurred authorized preconstruction or construction-related costs and paid for such authorized costs using personal funds. (c) Should an eligible individual die before the Secretary disburses the full specially adapted housing grant, the eligible individual's estate must submit to the Secretary all requests for reimbursement within one year of the date the Loan Guaranty Service learns of the eligible individual's death. Except where the Secretary determines that equity and good conscience require otherwise, the Secretary will not reimburse an eligible individual's estate for a request that has not been received by the Department of Veterans Affairs within this timeframe. With the death of a veteran, the object of the law cannot be accomplished. A one-time payment for assistance for specially adapted housing does not qualify as a "periodic monetary benefit" for purposes of 38 U.S.C. § 5121, and therefore is not payable to a veteran's survivor as an accrued benefit. See Pappalardo v. Brown, 6 Vet. App. 63, 65 (1993). However, a veteran's estate may be reimbursed to discharge certain obligations incurred by the veteran in reliance upon an approved grant. See, e.g., VAOPGCPREC 13-95 (May 10, 1995), 60 Fed. Reg. 43,187 (1995). Furthermore, the United States shall automatically ensure any eligible veteran who is or has been granted assistance in securing a suitable housing unit under chapter 21, of Title 38 United States Code, against the death of a veteran. The amount of insurance provided a veteran under this section may not exceed the lesser of $90,000 or the amount of the loan outstanding on the housing unit. 38 U.S.C. § 2106. Contentions The Appellant is requesting a total of $63,780. The bedroom was $34,380.64 and the bathroom was $36,785. She is requesting reimbursement for the bedroom that was enlarged to accommodate all the Veteran's medical equipment and supplies and for the bathroom that was gutted to rebuild it for handicap accessibility. She stated that she was not aware of the SAH at time of the work, but she later became aware and applied for ramps and sidewalks. He passed away before getting to use the grant for the ramps and sidewalks. They requested reimbursement for the bathroom at the same time they were awaiting word on the ramp. Since they are no longer going with the ramps and sidewalks her request is limited to the work done in the bedroom. See August 2012 statement. She stated that the expenses that were denied were incurred for the bedroom and family room, and totaled $30,024.36. See April 2013 VA-Form 9. Evidence An April 2008 rating decision concluded that the Veteran was entitled to specially adapted housing. The Veteran filled out and signed the VA Form 26-4555, Veteran's Application in Acquiring Specially Adapted Housing (SAH) or a Special Home Adaptation Grant, on February 2, 2010. VA sent a letter to the Veteran dated February 9, 2010, stating that it has been determined that he meets the basic eligibility requirements for SAH. The letter described that the SAH benefits provides the Veteran with a maximum grant of up to $63,780. A March 2010 SAH initial interview illustrates that the statutory maximum grant for SAH was discussed and that adaptive features required (Handbook design VA Pamphlet 26-13). In March 2010, an SAH Agent inspected the property with the Veteran and submitted a report indicating that this home was feasible to adapt. The Veteran filled out and signed the VA Form 26-4555c, Veteran's Supplemental Application for Assistance in Acquiring Specially Adapted Housing (SAH) on April 25, 2010. A contract dated October 7, 2009 shows that the Veteran contracted to have his bedroom and four-season room constructed to be handicap accessible. The contract sum was stated as $84,493.42. A contract dated May 26, 2010 shows that the Veteran contracted to have his bathroom constructed to be handicap accessible. The contract sum was stated as $33,755.64. A specifications form shows that the total investment of the project was $28,799.72. A letter dated October 20, 2010 shows that the application for the grant in the amount of $63,780 under Chapter 21, Tile 38 United States Code was approved. This letter is from VA to the Escrow Company and requested that once they receive the escrow documents, they provide VA with a copy. A December 17, 2010 statement signed by the Veteran indicates he understood that there were additional funds in the grant that he was not using at the time and stated that it was his intent was to use the remaining funds at a future date. A 2011 reimbursement request signed by the Veteran states that he is requesting reimbursement for the amount paid to make his bathroom handicap accessible. He requested that this amount ($33,755.64) be taken out of the adaptive grant and he acknowledged that he would only then receive around $29,236.64 for the remaining work to be done. He also requested that the escrow fee of $200 be deducted from the grant. Email correspondence dated November 2011 from the contractor confirms that all invoices for the bathroom have been paid in full and no further payments were due for that project. Email correspondence dated June 2012 from the contractor confirms that the project has been paid in full, with no outstanding invoices. The contractor also confirmed that the deck between the bedroom and sunroom is included in the bedroom portion. In a March 2012 Memorandum, an SAH agent provided a summary. The memorandum was addressed to a loan officer. Payment in full evidence with invoices had been provided by Veteran for reimbursement. The contractor confirmed the remodeled bathroom was paid in full. The Veteran was seeking reimbursement of $29,236.65 for remodeling/adapting bathroom for his safety. The Veteran had $63,780 available in grant funds. The total cost of the project was $34,343.35. The Veteran selected Linda Gates as the escrow agent and her fee for services was $200.00. Thus, $29, 236.65 of the funds qualified for reimbursement. All funds would be escrowed. The SAH agent concluded, "I believe these adaptions to be in the best interest of this Veteran and recommend approval of the $63,780 SAH grant." In a July 2012 Memorandum, an SAH agent provided a summary. The memorandum was addressed to a loan officer. The Appellant requested reimbursement of $63,780 for modifications made prior to the Veteran's passing. It covered two items, the adapted bathroom and the Veteran's bedroom addition that lead out onto a deck. The requested reimbursement for the adapted bathroom was $33,755.64. The Appellant also requested an additional reimbursement for a compliant addition that was added to the Veteran's bedroom during the 20092010 time frame. The deck was added immediately outside the Veteran's door to allow for the enjoyment of the outside environment. The original contract ($84,493.42) had an itemized cost of the bedroom addition and the adjacent deck of $36,785.04. This project was 100 percent complete when the initial review took place on March 3, 2010. "The maximum reimbursement (when coupled with the bathroom modification listed above) can only be $30,124.26." The Appellant provided the contract, check stubs (less two), signatures of payment disbursements (all draws), plans, and contractor's itemized breakdown for the bedroom addition and adjoining deck. The contractor also provided documentation as being paid in full. An April 2013 inspection report confirms that the bathroom in the master bedroom was compliant. A February 2013 letter from VA confirms that SAH has been approved. It states that VA expects to receive grant funds from the U.S. Treasury in approximately 2 to 3 weeks. A public voucher dated February 2013 shows that $33,755.64 was due and payable in accordance with the provisions of Title 38 Chapter 21, U.S. Code. An April 2013 U.S. Treasury check shows acknowledgement and receipt of $33,755.64 by the Appellant. Analysis The following facts are not in dispute: the Veteran was approved for the amount of $63,780 for the SAH grant, the Appellant was reimbursed a total of $33, 755.64, and the Veteran and Appellant incurred additional expenses when making the area handicap accessible. The question before the Board is whether the Appellant is entitled to additional monies under the SAH grant, not to exceed the total amount of $63,780 granted. In general, VA may reimburse the estate the amount necessary to pay off contract obligations, or other approved related expenses incurred before or as a result of the acquisition of a specially adapted home. The amount of the grant approved equals the upper limit of the amount that may be authorized for reimbursement. In pertinent part, VAOPGCPREC 13-95, page 7, reads as follows: "Under 38 C.F.R. § 36.4407, the Secretary is permitted to take action 'to relieve undue prejudice to a veteran or third party contracting or dealing with such veteran....' We believe this regulation would permit VA to continue the practice... of reimbursing the veteran's estate or a third party for certain limited costs clearly incurred in preparation for the remodeling of the home. We understand, for example, that the contractor ordered special supplies and incurred a loss in returning those items. This would be a reasonable expense under section 36.4407. Your proposal to reimburse the family for a potential loss on the resale of the property goes well beyond what the statute and regulations envision, however." The Board acknowledges the reasoning set forth by the RO in their denial of the claim. The October 7, 2009 contract is dated prior to the formal SAH application. Prior to the February 2010 letter establishing SAH requirements were met, the claim was denied, stating the contract shows there was no reliance upon the approved grant. Notwithstanding, the Board finds that application to result in the undue prejudice to the Appellant. Yes, the contract was entered into prior to the letter confirming the SAH requirements were met. However, the Veteran was severely disabled, as a result of his service to his county. The modifications were necessary for the safety of the Veteran. Meaning, the Appellant and the Veteran would have to incur whatever costs in order to reconstruct the living area whether there was a grant or not. In this case, fortunately the SAH grant was given to the Veteran. Also of note, the date of the contract alone is not dispositive when determining whether there was any reliance in receiving the grant or not. Meaning, in this case the first indication that a SAH grant would be received was back in April 2008 when the RO issued the rating decision. Also, it would be an injustice to refuse the rest of the SAH grant simply because the contract date did not come after the formal filing of the SAH application. All said, the Board finds that the Appellant is entitled to the remaining amount of the SAH award. Also of note, there are two memorandums provided by two different SAH agents who after summarizing the details of this case both agree that the Appellant should be reimbursed. The Veteran was granted a total of $63,780. Of that amount, a total of $33,755.64 had been used. In an effort to relieve the undue prejudice and encumbrance of the expenses related to making the home handicap accessible, the Board finds that additional monies under the SAH should be given to the Appellant. Specifically, she should be reimbursed for the money she paid to have the bedroom reconstructed for the safety of the Veteran. As stated above, a Veteran's estate may be reimbursed to discharge certain obligations incurred by the Veteran in reliance upon an approved grant. Here, the Veteran and the Appellant were made aware of SAH eligibility in 2008. In this situation, the Board will apply the basic legal principle that, when the law pertaining to veterans' benefits is ambiguous, any interpretive doubt is to be resolved in the veteran's favor. See Brown v. Gardner, 513 U.S. 115, 118 (1994). With this standard in mind, the Board initially observes that the Appellant has already been reimbursed $33, 755.64 for fees which leaves a remaining balance of $30,024.36 of specially adapted funds available to be used as reimbursement. The Veteran adapted his home to be handicap accessible which could accommodate his disabilities. Prior to the issuance of the April 2008 rating decision, the Veteran did not enter a contract to undergo these adaptations. The specially adapted grant was awarded to the Veteran prior to his death, in the amount of $63,780. By way of February 2010 letter, the Veteran was notified of such. As SAH monies may, according to all authority provided concerning this issue, be paid out after the Veteran's death to pay off obligations made prior to the Veteran's death, the Board finds that the Appellant should be paid the rest of the grant monies. The Board recognizes that in the July 2012 Memorandum the SAH agent states that the total amount remaining is $30,124.26. However, this reads as a clerical error as the memorandum lists the grant total amount as $63,780 and requested reimbursement as $33,755.64. Giving every benefit of the doubt to the Appellant, including ambiguity in the controlling law, the remaining $30,024.36 of the specially adapted grant monies which had been awarded to the Veteran may be paid to the Appellant for any expenses actually incurred. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.