Citation Nr: 1046460 Decision Date: 12/13/10 Archive Date: 12/20/10 DOCKET NO. 08-00 097A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to independent living services under Title 38, United State Code, Chapter 31. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1965 to September 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2007 determination rendered by the Vocational Rehabilitation and Employment (VR&E) Division of the Department of Veterans Affairs Medical Center (VAMC) in Spokane, Washington, the agency of original jurisdiction (AOJ). In August 2010, the Veteran testified before the undersigned at a travel Board hearing at the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO); a transcript of the hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of initial AOJ consideration. See 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. Service connection is in effect for posttraumatic stress disorder, rated 100 percent disabling; traumatic arthritis of the lumbar spine with disc disease, rated 60 percent disabling; diabetes mellitus, rated 40 percent disabling; and renal insufficiency/renal hypertension, rated 30 percent disabling; thoracic spine traumatic arthritis with disc disease, rated 20 percent disabling, peripheral artery disease of the right lower extremity associated with diabetes mellitus, rated 20 percent disabling, tinnitus, rated 10 percent disabling, atrial fibrillation rated 10 percent disabling, peripheral neuropathy of the left upper extremity rated 10 percent disabling, peripheral neuropathy of the right upper extremity rated 10 percent disabling, peripheral neuropathy of the right lower extremity rated 10 percent disabling, peripheral neuropathy of the left lower extremity rated 10 percent disabling, left rib cage scar, rated 0 percent disabling, impotency rated 0 percent disabling, and peripheral artery disease of the left lower extremity rated 0 percent disabling. A combined disability rating of 100 percent has been in effect since March 21, 1994. 2. Achievement of a vocational goal for the Veteran is not currently reasonably feasible. 3. Psychosocial rehabilitation, courses in grant writing, meditation, art and photography, and art supplies and photography equipment, are not necessary to improve the Veteran's independence in daily living. CONCLUSION OF LAW The criteria for entitlement to independent living services pursuant to the provisions of Title 38, U.S.C., Chapter 31, have not been met. 38 U.S.C.A. §§ 3104, 3109, 3120 (West 2002 & Supp. 2009); 38 C.F.R. §§ 21.76, 21.160, 21.162 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326. However, the VCAA is inapplicable to claims such as the one decided herein. See Barger v. Principi, 16 Vet. App. 132 (2002). In Barger, the Court held that the VCAA, with its expanded duties, is not applicable to certain cases, pointing out that the statute at issue in their case was not found in Title 38, United States Code, Chapter 51 (i.e. the laws changed by VCAA). Likewise, the statute at issue in this matter is not found in Chapter 51, rather, it is found in Chapter 31. Laws and Regulations VA may conduct programs of independent living services for severely handicapped persons. See 38 U.S.C.A. § 3120(a). VA may also provide a program of independent living services and assistance under this section only to a veteran who has a serious employment handicap resulting in substantial part from a service- connected disability, and with respect to whom it has been determined that the achievement of a vocational goal currently is not reasonably feasible. See 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. See 38 C.F.R. § 21.1609(a). 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. 38 C.F.R. § 21.160(b). Independent living services may be furnished: (1) as part of a program to achieve rehabilitation to the point of employability; (2) as part of an extended evaluation to determine the current reasonable feasibility of achieving a vocational goal; (3) incidental to a program of employment services; or (4) as a program of rehabilitation services for eligible veterans for whom achievement of a vocational goal is not currently reasonably feasible. This program of rehabilitation services may be furnished to help the veteran: (i) function more independently in the family and community without the assistance of others or a reduced level of the assistance of others; (ii) become reasonably feasible for a vocational rehabilitation program; or (iii) become reasonably feasible for extended evaluation. See 38 C.F.R. § 21.160(c). The services which may be authorized as part of an Individual Independent Living Program include: (1) any appropriate service which may be authorized for a vocational rehabilitation program as that term is defined in § 21.35(i) except for a course of educational training as described in § 21.120; and (2) independent living services offered by approved independent living centers and programs which are determined to be necessary to carry out the veteran's plan including: (i) evaluation of independent living potential; (ii) training in independent living skills; (iii) attendant care; (iv) health maintenance programs; an (v) identifying appropriate housing accommodations. See 38 C.F.R. § 21.160(d). A program of independent living services and assistance is approved when: (1) VA determines that achievement of a vocational goal is not currently reasonably feasible; (2) VA determines that the veteran's independence in daily living can be improved, and the gains made can reasonably be expected to continue following completion of the program; (3) all steps required by §§ 21.90 and 21.92 of this part for the development and preparation of an Individual Independent Living Program, have been completed; and (4) the VR&E officer concurs in the program. See 38 C.F.R. § 21.162(a). Factual Background and Analysis The Veteran is requesting that VA, through the program of independent living services, pay for psychosocial rehabilitation, courses in grant writing, meditation, art and photography, and art supplies and photography equipment (including computers, scanners and cameras), to help him socialize and integrate with people. Review of the record reveals the Veteran is currently service connected for posttraumatic stress disorder, rated 100 percent disabling; traumatic arthritis of the lumbar spine with disc disease, rated 60 percent disabling; diabetes mellitus, rated 40 percent disabling; and renal insufficiency/renal hypertension, rated 30 percent disabling; thoracic spine traumatic arthritis with disc disease, rated 20 percent disabling, peripheral artery disease of the right lower extremity associated with diabetes mellitus, rated 20 percent disabling, tinnitus, rated 10 percent disabling, atrial fibrillation rated 10 percent disabling, peripheral neuropathy of the left upper extremity rated 10 percent disabling, peripheral neuropathy of the right upper extremity rated 10 percent disabling, peripheral neuropathy of the right lower extremity rated 10 percent disabling, peripheral neuropathy of the left lower extremity rated 10 percent disabling, left rib cage scar, rated 0 percent disabling, impotency rated 0 percent disabling, and peripheral artery disease of the left lower extremity rated 0 percent disabling. A combined disability rating of 100 percent has been in effect since March 21, 1994. The record reveals the Veteran was also awarded special monthly compensation under 38 U.S.C.A. § 1114(k) and (s). Historically, the Veteran submitted his original claim for vocational rehabilitation benefits under Chapter 31 in 1992. This claim was denied in February 1993 by the Anchorage, Alaska Outpatient Clinic and RO due to the Veteran's failure to report to counseling. He submitted a new claim in March 1993 and underwent initial evaluation testing that same month. However, the Veteran withdrew his claim in May 1994 prior to the development of a plan. In January 1995, the Veteran submitted a new claim for vocational rehabilitation benefits and his Chapter 31 benefits were reactivated. In July 1995, he developed an Individualized Written Rehabilitation Plan (IWRP) with the goal of improving rehabilitation potential in community development. He expressed a desire to enter the legal profession, do consulting in natural resources, or tax/financial consulting, or economic development, or management/business. In August 1996, the Veteran's IWRP was redeveloped with the goal of becoming a photojournalist. In August 1997, the Veteran's IWRP was redeveloped with the goal of becoming a professional writer. An August 1997 VA mental health note from the Veteran's psychiatrist was to the effect that a return to a full time university curriculum could potentially place the Veteran at emotional risk, and that part time study was recommended . In November 1998, the Veteran withdrew from all his classes because of physical disability. His case was placed in interrupted status. In June 2002, his case was placed in discontinued status. Thereafter, the Veteran moved to Arizona. In October 2002, he reapplied for vocational rehabilitation benefits. He attempted to develop a Chapter 31 plan of independent living. In January 2004, his case was once again placed in discontinued status. A January 2004 Counseling Summary notes that several attempts to develop an independent living program had been unsuccessful. Several attempts were made to contact the Veteran but he did not respond to these attempts and it was presumed that he was no longer interested in Chapter 31 benefits. Thereafter, the Veteran moved to Washington. He reapplied for VR&E benefits in February 2005. In May 2005, the Veteran's case was once again placed in discontinued status because of his failure to report for counseling. In June 2005, the Veteran asked that his case be reopened. In August 2005, the Veteran met with a counselor, who found him to be unemployable; the Veteran was offered an independent living assessment. A March 2006 independent living assessment found that the Veteran functioned independently at home albeit with a high level of pain secondary to physical disabilities. He believed his PTSD was his most limiting disability; and caused social dysfunction and prevented him from accessing the community and society. The Veteran stated that VA had not met his needs, yet he was unable to identify any "specific wants." The Veteran was not interested in having any in-home evaluations or using any adaptive equipment other than what he already had in his home. No specific independent living needs were identified and the Veteran was advised to seek medical and psychological treatment to address his needs. A May 2006 VA Counseling Record notes that the Veteran was informed that the independent living assessment was unable to identify any specific independent living needs. The Veteran stated that he was set up for failure when his training was limited to the business area, which was affected by his PTSD. He was reminded that he had a change of program to photojournalism, and responded that his service-connected back and PTSD, as well as his knees contributed to his failure to complete the training. The Veteran was encouraged to continue his therapy and to reactivate his request for rehabilitation services once his therapists supported entry into a training program. In July 2006, the Veteran's case was placed in interrupted status. In November 2006 the Veteran's case was returned to evaluation and planning status. The Veteran was again provided with a detailed explanation of the independent living program. The Veteran again expressed his desire to reduce his social isolation to achieve "maximum" independence. In February 2007, the Veteran's case was placed in discontinued status by a VA psychologist. The basis of the action was explained to the Veteran. He was told that VA was awaiting input from the Veteran's therapists regarding his readiness to participate in a rehabilitation program with the intent of enabling him to return to competitive employment He submitted a notice of disagreement. The February 2007 determination is the subject of the instant appeal. In a December 2007 letter, Dr. DP, clinical psychologist and vocational expert stated that he reviewed the Veteran's independent living plan. He opined that an educational program was a safe and supportive step in a hierarchy designed to improve the Veteran's emotional well-being and his sense of isolation. In an August 2010 letter, Dr. DP stated that overcoming social isolation was a quality of life issue for the Veteran. During the August 2010 travel Board hearing and in a statement submitted at the hearing, the Veteran stated that he is requesting that VA, through the program of independent living services, pay for psychosocial rehabilitation, courses in grant writing, meditation, art and photography, and art supplies and photography equipment (including computers, scanners and cameras), to help him socialize and integrate with people. He maintained that the 2006 independent living assessment should be discarded as baseless and meaningless because, in part, the assessor was a physical therapist (not a psychologist) and therefore was not qualified to make an assessment in this case, especially as regards the Veteran's PTSD. Moreover, he maintained that the assessment should be discarded because the assessor did not consider his orthopedic disabilities. As was noted above, in August 2005 it was determined that the achievement of a vocational goal is not currently feasible and that the Veteran is therefore an appropriate candidate for independent living services. See 38 U.S.C.A. § 3120(b). Based upon the satisfaction of the threshold criteria, the question before the Board then becomes whether or not the additional training requested by the Veteran is "necessary" to support his ability to live and function within his family and community. Generally, this determination is made by a professional independent living assessment. The Veteran's service-connected disabilities include PTSD and numerous physical disabilities, including orthopedic disabilities, as noted above. The 2006 independent living assessment notes that the Veteran functioned independently at home albeit with a high level of pain secondary to physical disabilities. The Veteran was not interested in having any in- home evaluations or using any adaptive equipment other than what he already had in his home. Without an in-home evaluation, no need for adaptive equipment could be identified. With regard to his PTSD, the Veteran stated that this was his most limiting disability, causing social dysfunction and preventing him from accessing the community and society. It was noted that the Veteran was in both individual and group counseling for his PTSD several times a week. No specific independent living needs were identified and the Veteran was advised to seek medical and psychological treatment to address his needs. Based on a longitudinal review of the evidence of record, the Board finds that the requested additional training or help with psychosocial rehabilitation and courses in grant writing, meditation, art and photography (including the purchase art supplies, photography equipment, computers, scanners and cameras) is not required to allow the Veteran to achieve independent living. It should be noted that in the past, the Veteran has admitted that his PTSD, back and knee disorders have kept him from completing photojournalism training (May 2006). The Board notes that VA has wide discretion in the types of equipment and services to be approved. However, as noted by VA's General Counsel, in making a determination for approving such service "the operative word...is 'necessary,' that is the services provided must be vital to achieving the [independent living] goal, not merely desirable or helpful." See VAOPGCPREC-6-2001. While the Board is cognizant of the severity of the Veteran's service-connected disabilities, the record reflects that it was clearly explained to the Veteran on several occasions that the independent living assessment was unable to identify any specific independent living needs. A review of the record demonstrates that the Veteran's desire to "better socialize and integrate with people" through psychosocial rehabilitation, and courses in grant writing, meditation, art and photography (including the purchase art supplies, photography equipment, computers, scanners and cameras) is desirable as opposed to necessary and the Board finds that this is not vital to achieving the goals of an independent living program. Accordingly, the Veteran's request for entitlement to additional training under an individual independent living program is denied. ORDER Entitlement to independent living services under Title 38, United State Code, Chapter 31, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs