Citation Nr: 1109753 Decision Date: 03/11/11 Archive Date: 03/24/11 DOCKET NO. 09-17 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to independent living services pursuant to Title 38, United States Code, Chapter 31, to include the purchase, refurbishing or repair of a tractor. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia A. Talpins, Counsel INTRODUCTION The appellant served on active duty from May 1968 to December 1971. This matter comes before the Board of Veterans' Appeals ("BVA" or "Board") on appeal from a January 2009 rating determination of the Vocational Rehabilitation and Education (VR&E) division of the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Louis, Missouri in which the RO denied the appellant's request for independent living services pursuant to Title 38, United States Code, Chapter 31. The appellant appealed this adverse rating determination to the Board. Thereafter, the RO referred the case to the Board for further review. After reviewing all of the evidence of record, the Board finds that additional development of the appellant's claim is necessary. As such, this appeal is REMANDED to the RO via the Appeals Management Center ("AMC") in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND In this case, the appellant is service-connected for and assigned a 100 percent disability evaluation for posttraumatic stress disorder ('PTSD") and a 10 percent disability evaluation for hearing loss. See April 2008 counseling record narrative report. As will be explained in more detail below, the evidence of record reveals that the appellant is an appropriate candidate for independent living services. See 38 U.S.C. § 3120(b). Pertinent statutory authority provides that a veteran is entitled to a program of rehabilitation services if the veteran has a service-connected disability of 20 percent or more, and is determined to be in need of rehabilitation to overcome an employment handicap. See 38 USC §3102; 38 CFR § 21.40. To receive VR&E benefits, a veteran must (1) meet the criteria for basic entitlement to services under 38 CFR § 21.40; (2) VA and the veteran must identify the services necessary for training and rehabilitation; and (3) VA and the veteran must develop a written plan describing the program goals and the means through which those goals will be achieved. 38 CFR § 21.1. During the initial evaluation for VR&E services, it is determined, inter alia, whether the veteran has an employment handicap under 38 CFR § 21.40 (b) and whether achievement of a vocational goal is feasible; if so, a plan is developed. 38 CFR § 21.184. If it is determined that a veteran has a serious employment handicap under 38 CFR § 21.40 (b) resulting in substantial part from a service-connected disability and that achievement of a vocational goal is not feasible, the veteran shall be provided a program of independent living ("IL") services and assistance designed to enable such veteran to achieve maximum independence in daily living. See 38 U.S.C.A. §§ 3104, 3109, 3120. Services and assistance which the Secretary may provide pursuant to an IL program include "services necessary to enable a veteran to achieve maximum independence in daily living." See 38 U.S.C.A. §§ 3104(15). The term "independence in daily living" means the ability of the 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). 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. § 21.160(a). Per VA regulations, specific services which may be authorized as part of an Individual Independent Living Program ("IILP") 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); also see 75 FR 3163-01, 2010 WL 171899 (F.R. Jan. 20, 2010) to be codified at 38 CFR §§ 21.40, 21.41, 21.42, 21.44, 21.45, 21.46, 21.50, 21.214, 21.282, 21.254, 21.257, 21.258, 21.8020 (VA's vocational rehabilitation regulations were amended effective February 19, 2010). Turning to the facts of this case, the Board observes that the appellant has submitted several claims for VR&E services under Chapter 31, Title 38, United States Code in the past. See April 2008 counseling record narrative report. Most recently, the appellant met with a VR&E counselor in March 2008 and expressed dissatisfaction with his previous applications for VR&E services. April 2008 WINRS Case Note. At that time, the RO noted that the appellant wanted VA to purchase a tractor for his use around a 100 acre farm he inherited from his parents for the purpose of raising horses, cutting hay, brush-hogging and performing other general farm work. Id. The appellant reported to the counselor that he had a 1968 tractor, but that it was in constant need of repair. Id. He also stated that he did not understand VR&E's denial to pay for the tractor he requested (as well as previous requests for a horse trailer and computer/printer); and inquired about independent living services. Id. In response to the appellant's inquiry, the VR&E counselor informed the appellant that an independent living assessment was necessary to determine what service needs, if any, the appellant might have that VR&E could assist. In doing so, the counselor told the appellant that VR&E "does not purchase tractors in general or as part of an IL plan" after she "verified" this information with her VR&E Chief. Id. Thereafter, VR&E sent a letter to the appellant in March 2008 informing him of an initial meeting to discuss the program guidelines, and do some testing to identify his abilities, aptitudes, and interests. See March 2008 letter from the RO to the appellant. The appellant's vocational rehabilitation folder contains a copy of an April 2008 counseling session prepared by a VR&E Rehabilitation Counselor. In that report, the counselor essentially indicated that: the appellant had an impairment of employability; the appellant's service-connected disabilities contributed to his impairment; the appellant had not overcome the effects of the impairment to employability; the appellant had an employment handicap; the handicap was a serious employment handicap; and, achievement of a vocational goal was not currently feasible. See April 2008 counseling record narrative report. The counselor also indicated that she tried to discuss an IL assessment with the appellant at that time, but that he would not listen after she told him VA would not purchase him a tractor. Id. In a letter dated in May 2008, the RO denied the appellant vocational rehabilitation services. In that letter, the RO indicated its willingness to provide an assessment to determine if the appellant had any independent living needs, but notified the appellant that the assessment would not be used to consider purchasing the appellant a tractor. See May 2008 letter from the RO to the appellant. Subsequently, the appellant was given an independent living program orientation. An independent living assessment was then completed pursuant to 38 C.F.R. § 21.53(f) in November 2008. A review of the appellant's independent living assessment report, titled "Adaptive Computer and Communication Program Occupational Therapy Home Visit Consultation" and prepared by a registered occupational therapist, indicates that the IL assessment visit was made "to explore the client's needs at home that would maximize his success and quality of life at home." See November 2008 home visit report. Based upon overall observations and general conversation with the appellant over the course of two hours, the examiners ultimately reported that the appellant's home setting provided the optimal secure environment to live and maintain his sense of independence and quality of life and recommended assistance in renovating the appellant's home in terms of installing an appropriate heating and cooling system, as well as possibly providing the appellant minimal kitchen equipment such as a dishwasher and garbage disposal to facilitate the appellant's independent living and cleanliness. Id. Although the examiners reported that the appellant had "pretty much kept to himself at this home and [took] care of his needs as best as he could," no specifics as to the appellant's activities of daily living were made, nor did the examiners comment on the appellant's request for a tractor. Id. Notably, the examiners also did not address the issue of the appellant's ability to engage in family and community activities, other than to report that the appellant lived alone in his childhood home that was over 100 years old and heated by a woodburning stove; worked approximately 100 acres of land associated with his home with his tractor; and had approximately 17 horses that he took care of. Id., p. 1. In regards to his community, the examiners noted only that the appellant told them that all of the people in town and his surrounding neighbors had known him all of his life; that they realized he "does his own thing"; and that even though they "may refer to him as 'crazy [ ],' they know he is a 'good guy.'" Id., p. 2. Lastly, the Board observes that while the examiners reported the appellant was pleasant during his assessment visit, they also stated it was evident that the appellant had a significant amount of anger and/or bitterness to the effects that his life activities have had on his current emotional status and living conditions. Id., pgs. 2-3. In this regard, a review of the record in this case reveals emails and counseling records that support the above-referenced statement; however, none of this evidence is referenced in the November 2008 assessment report or was followed-up by the RO. See notes to file. In a January 2009 letter to the appellant, the RO denied the appellant's request for independent living services on the basis that the assessment referenced above recommended items that were considered routine house maintenance and could not be provided by VA. See January 2009 letter from the RO to the appellant. Concurrence was sought and received from the VR&E Officer; and no individualized independent living plan was created for the appellant. See 38 CFR 21.162. In light of pertinent regulations, it appears that the RO viewed the November 2008 home visit report as evidence that the appellant was functioning independently with regard to his activities of daily living; and denied the appellant's request for a tractor based upon the implicit finding that a tractor was not vital to achieving any independent living needs or goals identified for the appellant. In doing so, it also appears that the RO concluded (without conducting an assessment) that the appellant's request for a tractor was solely recreational; and therefore, it did not qualify as a service that could be provided under Chapter 31. However, in making the above-referenced implicit findings, it appears that the RO failed to consider two VA General Counsel opinions that address questions related to benefits that have a recreational component that may be provided pursuant to 38 U.S.C. § 3120. In VA Precedent Opinion 34-97, VA's General Counsel essentially found that VA has the authority to provide services and assistance of a recreational nature (in this case, a computer) as a component of an eligible veteran's program of independent living services; and that VA has the authority, and responsibility, to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in such a program to live and function independently in his or her family and community without, or with a reduced level of, the services of others. This includes the authority to approve, when appropriate, services and assistance that are in whole or part recreational in character when the services are found to be needed to enable or enhance the veteran's ability to engage in family and community activities integral to the veteran's achieving his/her independent living program goals. See VAOGCPREC 34-97. Thereafter, in VA Precedent Opinion 6-2001, VA's General Counsel found that services requested pursuant to a program of independent living services (in this case, the construction of an enclosed studio on the rear of the veteran's home) may be approved when such services are found necessary as part of an individualized IL program. In this regard, General Counsel once again noted that VA has both the authority and the responsibility to provide all services and assistance deemed necessary on the facts of a particular case to enable an eligible veteran participating in an independent living program to live and function independently in his family and community without, or with a reduced level of, services from others. In doing so, General Counsel clarified that the operative word in the forgoing sentence was "necessary," that is, the IL services (to include services that may have a recreational component) provided to the veteran must be vital to achieving the IL goal, not merely desirable or helpful. For example, in the case before VA's General Counsel upon which Precedent Opinion 6-2001 was based, the veteran's VR&E counselor had determined that a proposed enclosed-deck studio where the veteran could gain proximity to the outdoors and pursue his painting and photography interests was necessary to permit the veteran to maintain maximum independence in daily living. See VAOGCPREC 6-2001, p. 1. In addressing the question of whether the assistance proposed by the VR&E counselor could be independently authorized under Chapter 31 as part of the veteran's program of independent living services, General Counsel determined that providing appropriate accommodations to and modifications of living space remained a viable option under Chapter 31; and that "such a fact-based determination, if supported by the record, in our view would establish the proposed services as among those that may be authorized for an eligible veteran under sections 3120 and 3104(a)(15) of chapter 31." Id., pgs. 1-3, 7. After reviewing the above-referenced General Counsel Opinions in the context of varying Chapter 31 IL factual scenarios presented to the Board in the past, it appears to the Board that contrary to the assertions of the RO, there is no concrete rule that VR&E "does not purchase tractors in general or as part of an IL plan" or that VA regulations absolutely prohibit VA from providing assistance in terms of purchasing, repairing or refurbishing tractors or other types of machinery. Rather, it appears that 38 U.S.C. § 3109 and § 3120 (and associated regulations) would allow VA to assist a veteran in repairing and/or refurbishing a piece of machinery viewed as having a recreational component pursuant to a program of independent living services in certain factual situations. Specifically, not only would a veteran need to eligible for independent living services (in terms of having a serious employment handicap and the achievement of a vocational goal has been found not to be feasible), the evidence would also need to show that the machinery in question was determined to be necessary to permit the veteran to maintain maximum independence in daily living (i.e., the ability of the 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). Since the November 2008 independent living assessment in this case did not adequately address the appellant's activities of daily living, the appellant's ability to engage in family and community activities and/or whether the appellant's use of his tractor is necessary to permit the appellant to maintain maximum independence in daily living, the Board finds that this case should be remanded for the purpose of affording the appellant a new Chapter 31 independent living assessment by a qualified mental health counselor to address these issues. See also VBA Circular 28-05-01 (circular provides guidelines for the administration of the independent living program). Accordingly, the case is REMANDED for the following actions: 1. After reviewing this remand decision in full, the RO should undertake any additional actions appropriate to the evaluation of the appellant's claim and his possible entitlement to independent living services, to include obtaining medical records pertaining to the appellant's service-connected PTSD and scheduling the appellant for a new living assessment with a qualified mental health professional for the purpose of determining the appellant's activities of daily living, the appellant's ability to engage in family and community activities and whether the appellant's use of his tractor is necessary to permit the appellant to maintain maximum independence in daily living as that term is defined in Title 38, United States Code, Chapter 31. 2. After completely the foregoing, the RO should readjudicate the appellant's Chapter 31 request in light of all evidence of record, to include its consideration as to whether repairing and/or refurbishing the appellant's current tractor is a viable option under Chapter 31. If the benefit sought on appeal is not granted, the appellant and his representative should be provided a supplemental statement of the case and given a reasonable time to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).