Citation Nr: 1124514 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 09-43 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to reentrance into an independent living services program under Chapter 31, Title 38, United States Code. (The issues of entitlement to service connection for chronic fatigue, claimed as due to an undiagnosed illness, and entitlement to an initial rating in excess of 10 percent for chronic pain syndrome of the upper and lower extremities, except for carpal tunnel syndrome, due to an undiagnosed illness, are addressed in a separate decision.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran served on active duty for training from May 1986 to September 1986 and active duty from December 1990 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 determination of the Vocational Rehabilitation and Employment (VR&E) Service of the Regional Office (RO) in St. Paul, Minnesota. It was determined that the Veteran was not entitled to additional independent living services. In December 2010, the Board remanded the case to satisfy a hearing request. On remand, the RO scheduled the Veteran for a hearing in March 2011 in which all appealed issues were to be addressed. In February 2011, the Veteran withdrew his request for a Board hearing. Accordingly, the Board will proceed. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he requires additional independent living services-specifically, a riding mower to maintain his property as his disabilities have worsened and prevent him from utilizing a push mower. By way of background, the Board observes that the Veteran requested vocational rehabilitation services in July 2005. In September 2005, the determination was made that the Veteran had a serious employment handicap, that achievement of a vocational goal was not currently feasible, and that the Veteran was in need of independent living services. The October 2005 Independent Living Home Assessment Summary showed recommendations of items that would increase the Veteran's independence included an all-in-one tractor (mower/snow blower/garden tiller). The March 14, 2006 Independent Living Plan Approval Request listed several barriers to independence including the maintenance of the Veteran's yard and property. The noted objective was to allow the Veteran to safely maintain his property. The noted method was to provide the Veteran with a riding lawnmower/snowblower. The noted behavioral outcome was to improve the Veteran's ability to maintain his home and continue to live in his current home independently and decrease the extent he must depend upon his wife and children. The plan was signed by the case manager (C.C.) and concurred by the VR&E Officer. The March 15, 2006 Rehabilitation Plan noted the same objective of allowing the Veteran to safely maintain his yard and property with the use of a riding lawnmower and snowblower attachment. The portions that referred to the riding lawnmower and snowblower attachment, however, were later crossed off (which appeared to have occurred on annual review in March 2007) to note that the Veteran would instead be provided with information and training on safe maintenance procedures on "how to avoid back stairs, etc.," and that the Veteran would follow doctor recommended restrictions. The record also reflects that one bid for a multi-terrain tractor was provided to C.C. in July 2006. In May 2007, a Special Report of Training noted that the Veteran was advised "again" that for items over $2,500 such as the tractor, he needed to provide three bids in writing. The Veteran indicated that he would provide the bids. No further notations in this regard were reflected during the plan period. In July 2008, the Veteran was declared rehabilitated. The July 2008 Rehabilitation Closure Statement noted that the Veteran was provided with information on how to accomplish home and yard maintenance chores while staying within his physical limits. The Veteran filed the instant claim for additional independent living services in February 2009. In a March 2009 statement, the Veteran explained that his disability had worsened and was manifested by constant joint and muscle pain and fatigue. The April 2009 Rehabilitation Needs Inventory showed the Veteran reported that because of his joint and muscle pain, it was hard to perform household outdoor activities and maintain landscaping and lawn work. A July 2009 Independent Living Assessment Report showed the Veteran reported that most of the yard work was either performed by the Veteran's wife and children or he paid for it to be done. The Veteran maintained that this was problematic because his wife and children worked full-time and had limited time or interest in doing the yard work. He felt he would be able to do it and avoid the cost of hiring someone to do it if he had a riding lawnmower. The rehabilitation counselor noted that being able to take care of the home and property could possibly provide the Veteran with some additional self worth and satisfaction that might help with his current mental health issues. It was recommended that the Vocational Rehabilitation Counselor (VRC) consider assisting the Veteran with obtaining a riding lawn mower so that he would be able to care for his yard himself. In the appealed August 2009 VR&E Service determination, the VRC found that no independent living needs had been identified. The VRC indicated that while the Veteran requested a riding lawnmower, currently his friends and family members helped him maintain his property. The VRC also noted that the Veteran was "currently participating in physical therapy and [was] restricted from performing lawn care activities as it [might] aggravate [his] condition." In an October 2009 statement, the Veteran maintained that he only had one son living with him and he had a job that he performed in the summer and after school in the fall. In a concurrent statement from the Veteran's wife, she indicated that she did not have time to perform yard work because she was a full-time student. She also confirmed that they have had to pay to have yard work performed. In the April 2010 statement of the case, the VRC and VR&E Officer found that lawn care was a common commercially available service and was not considered an independent living need. The VRC and VR&E Officer noted that the Veteran's disabilities created fatigue and limited his physical abilities, and as a result, he required assistance from others to complete tasks that were identified as physically demanding such as landscaping and lawn care. They concluded that this requirement was currently being completed with the assistance of the Veteran's wife and hired help. In the April 2010 substantive appeal, the Veteran reported that his wife just had surgery and could not stand much less mow the lawn with a push mower. A finding of rehabilitation following a program of independent living services may only be set aside, and an additional period of independent living services provided, if the following conditions are met: (1) either: (i) the veteran's condition has worsened and as a result the veteran has sustained a substantial loss of independence; or (ii) other changes in the veteran's circumstances have caused a substantial loss of independence; and (2) the provisions of § 21.162 pertaining to participation in a program of independent living services are met. 38 C.F.R. § 21.284 (2010). The Board's concerns are twofold. First, the Board is cognizant of the findings of the VRC and VR&E; however, the Board finds it significant that the prior March 2006 Independent Living Plan considered maintenance of the Veteran's yard and property a barrier to his independence for which the initial solution was to provide him with a riding lawnmower and decrease the extent he must depend upon his wife and children. It is unclear why the Veteran ultimately was not provided a riding lawnmower and instead provided with safety information. (The record suggests that the Veteran did not provide three bids for the machinery in writing as requested.) The Veteran now contends that he is in worse physical condition and in more need of a riding lawnmower. It is not clear if the current assessment that no additional independent living services is warranted because family, friends, and hired help can provide the assistance is consistent with the VR&E's prior findings on barriers to the Veteran's independence. Second, the VRC noted that the Veteran was currently participating in physical therapy and was restricted from performing lawn care activities as it might aggravate his condition. VA treatment records associated with the claims file, however, only contain an April 2009 Rehab Medicine Consult for a re-evaluation of the Veteran's complaints of chronic diffuse myalgia and arthralgias. The consultant recommended a graded exercise program, and he indicated that he wanted to follow-up with the Veteran in two months at which point he would likely attempt to get him involved with a physical therapist. Thus, gradual increase in exercise was recommended rather than a course of restriction on physical activity. No follow-up with this consultant is of record. Rather, the August 2009 and February 2010 internal medicine attending notes only generally reference the Veteran's myalgia and arthralgia by the original referring examiner. In the October 2009 VA Form 21-4142, the Veteran specifically reported that he received relevant treatment from the Minneapolis VA Medical Center (MC) in the spring and summer of 2009. Thus, it is not clear if all pertinent VA treatment records are of record. The Board is also cognizant that the RO recently granted service connection for chronic pain syndrome of the upper and lower extremities (except for right carpal tunnel syndrome) and shortness of breath, and assigned each disability a 10 percent rating in a May 2009 rating decision. Given all of the foregoing, the Board finds that in order to make a determination on whether the Veteran's condition has worsened and as a result the Veteran has sustained a substantial loss of independence, VA treatment records pertaining to any physical therapy the Veteran has undergone should be procured. Also, the Veteran should be afforded a VA examination for an opinion on the extent to which his disabilities affect his ability to push a lawn mower. Lastly, the Veteran has indicated that he receives social security disability benefits. See July 2009 Independent Living Assessment Report. Accordingly, a copy of the Social Security Administration (SSA) disability determination and the underlying records upon which the award was based should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain records of any physical therapy/rehabilitation therapy the Veteran has undergone for his disabilities since April 2009 from the Minneapolis VA Medical Center. If such records do not exist or all in existence are of record, clearly annotate the claims file to reflect this finding. 2. Obtain any disability determinations from the SSA pertaining to the Veteran and the underlying records upon which the determinations were based. If the records sought do not exist or further efforts to obtain the records would be futile, issue a formal finding of unavailability for the record, and provide notice of the same to the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 3. After completion of the above development, schedule the Veteran for an appropriate VA examination to determine the nature of the Veteran's chronic pain syndrome of the upper and lower extremities, fatigue, and shortness of breath. The Veteran's claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and reported in detail. The examiner should provide an opinion on the extent to which the Veteran's chronic pain syndrome of the upper and lower extremities, fatigue, and shortness of breath affect his ability to push a lawn mower for the length of time required to maintain his property. The examiner must consider the Veteran's contention that these disabilities inhibit his ability to push a lawn mower, and therefore, it is necessary that he utilize a riding mower. A supporting rationale for the opinion expressed must be provided. 4. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. Consideration should be made of all evidence submitted since the issuance of the April 2010 statement of the case. The Veteran should be given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2010). _________________________________________________ K. PARAKKAL 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) (2010).