BVA9502577 DOCKET NO. 92-10 895 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Outpatient Clinic, El Paso, Texas THE ISSUE Entitlement to home health care services. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from June 1942 to January 1946. This is an appeal from a July 1991 determination by the Department of Veterans Affairs (VA) Outpatient Clinic, El Paso, Texas, that the veteran was not entitled to the claimed home health care services since they were nonmedical in nature. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that he should be entitled to receive the claimed home health care services at VA expense under Veterans Health Services and Research Administration (VHS&RA), Circular 10-90-133, dated in October 1990, authorized daily home health care on a fee basis as long as the cost of the care does not exceed the cost that would be incurred if treatment was in a contract nursing home during any one month. Prior to Circular 10-90-133, there was a fee-basis home health service but the Government in its wisdom saw a need to provide home health care for veterans who did not wish to go to a contract nursing home and, thus, under that circular accommodated both the VA and the veteran. Circular 10-90-133 creates the safety net that rescues the veteran who falls through the cracks. The veteran indicates that he has provided statements from many doctors who attest to his debilitated condition. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's entitlement to the home health care services in question. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. The veteran has established service connection for bilateral varicose veins, rated 60 percent disabling, and sinusitis, rated 10 percent disabling. The combined rating is 60 percent. A total rating based on individual unemployability due to service- connected disability has been in effect since October 1971. 3. A claim for the cost of additional custodial and/or homemaker services for the veteran was submitted by the Columbia Home Health Services of El Paso, Inc., in July 1991. 4. The custodial and homemaker services requested by the veteran were nonmedical in nature and may not be paid by the VA under the VA home health care services program. CONCLUSION OF LAW Entitlement to custodial and/or homemaker services as a VA fee- basis home health service is not in order. 38 U.S.C.A. §§ 1717, 5107 (West 1991); 38 C.F.R. § 17.60(f) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the veteran's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The record reflects that the veteran has established service connection for bilateral varicose veins, rated 60 percent disabling, and sinusitis, rated 10 percent disabling. The combined rating is 60 percent. A total rating based on individual unemployability due to service-connected disability has been in effect since October 1971 and permanency of that rating has been established. The record further reflects that in July 1991 the Columbia Home Health Services of El Paso, Inc., advised the regional office that the veteran wished assistance with homemaker services in his home. The veteran was requesting the services for basic homemaking services, along with assisting him to the bathroom, and general activities of daily living, excluding personal care and bathing. It was indicated that he was currently receiving home health aid services three days per week for bathing and personal care. He was also receiving skilled nursing services once every third month along with registered nurse supervisory visits every two weeks for supervision of his home health aid. It was indicated that the services he was currently receiving were covered services of his Medicare benefit and there was no charge to the veteran. It was further indicated that Medicare did not cover the additional custodial and/or homemaker services which the veteran had requested. In July 1991, the veteran's claim was denied by the originating agency on the basis that nonmedical-type services such as domestic, custodial or homemaker services which, although beneficial to the veteran, were not considered to be medical treatment and were, therefore, not authorized under the VA fee- basis home health services program. The veteran subsequently provided statements from a number of physicians dated from December 1987 to September 1991 attesting to his various severe disabilities. As part of medical services furnished to a veteran under Section 1712(a) of this title, the Secretary may furnish such home health services as the Secretary finds to be necessary or appropriate for the effective and economical treatment of a veteran's disability. 38 U.S.C.A. § 1717(a)(1); 38 C.F.R. § 17.60(f). In this particular case, the record reflects that the veteran is currently receiving home health aid services several days a week and he is also receiving skilled nursing services and registered nurse supervisory visits. He has requested that the VA approve for payment additional custodial and/or homemaker services. Under VA instructions (VA Manual M-1, Part I, Chapter 30.10, March 1986), authorization for these nonmedical services may not be approved under the fee-basis home health services program as they are not considered medical treatment. The Board agrees that the requested services are not medical in nature and, therefore, the veteran is not entitled to fee-basis authorization for such services under the VA home health services program. The VHS&RA Circular 10-90-133, dated in October 1990, referred to by the veteran, simply allows the provisions of home health services on a daily basis. Thus, that circular would not warrant entitlement to the benefit sought in this case. The Board has carefully reviewed the entire record; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to VA fee-basis home health services is not established. The appeal is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.