Citation Nr: 0813462 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-09 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a program of Chapter 31, Independent Living Services. REPRESENTATION The veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. A. Mishalanie, Associate Counsel INTRODUCTION The veteran served on active duty in the military from August 1967 to August 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2004 decision of the Department of Veterans Affairs (VA) Vocational Rehabilitation and Employment Division (VR&E) in Portland, Oregon, which denied the veteran's request for assistance pursuant to Chapter 31, Independent Living Services. FINDINGS OF FACT 1. Achievement of a vocational goal for the veteran is not currently reasonably feasible. 2. Financial assistance to remodel the veteran's bathroom or to purchase a laptop, video game player, scanner, photo printer, APC back-up power system, digital camera, digital camcorder, software for photo-editing, blank CDs, photo paper, tutoring, an air purifier, or an old car for riding in parades, is not necessary to improve the veteran's independence in daily living. CONCLUSION OF LAW The criteria for entitlement to a program of Independent Living Services, pursuant to Chapter 31, have not been met. 38 U.S.C.A. §§ 3104, 3109, 3120 (West 2002); 38 C.F.R. §§ 21.76(a)(2), 21.160, 21.162 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In Barger, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA, with its expanded duties, is not applicable to certain cases, pointing out that the statute at issue in such cases (Chapter 53) was not found in Title 38, United States Code, Chapter 51 (i.e. the laws changed by VCAA). Barger v. Principi, 16 Vet. App. 132 (2002). As the statute at issue in this matter is not found in Chapter 51, rather, it is found in Chapter 31, the VCAA is inapplicable. Governing Statutes and Regulations The pertinent statutory authority, found at 38 U.S.C.A. § 3120, provides that the Secretary may conduct programs of independent living services for severely handicapped persons. 38 U.S.C.A. § 3120(a). The Secretary 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 it has been determined that the achievement of a vocational goal is not currently feasible. 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. 38 C.F.R. § 21.160(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. 38 C.F.R. § 21.160(c). The 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 Section 21.35(i) except for a course of education or training as described in Section 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 skills; (iii) attendant care; (iv) health maintenance programs; and (v) identifying appropriate housing accommodations. 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 Sections 21.90 and 21.92 of this part for the development and preparation of an IILP have been completed; and (4) the VR&E Officer concurs in the IILP. 38 C.F.R. § 21.162(a). Legal Analysis The veteran is service-connected for post-traumatic stress disorder (PTSD) with secondary major depressive disorder at 70 percent, tinnitus at 10 percent, paralysis of the ulnar nerve at 10 percent, hypertension at 10 percent, a perforated eardrum at 0 percent, and bilateral hearing loss at 0 percent. He receives a total disability rating based on individual unemployability (TDIU). He also has a history of nonservice-connected congestive heart failure, asthma, obesity, and joint pains. In September 2002, the veteran applied for assistance from the Independent Living Services program. He said he struggled daily with PTSD symptoms, especially social isolation. He requested various items to help him "reach some sort of satisfaction in [his] life." These items included a laptop computer, a video game player (X-box or Playstation), a flatbed scanner, a photo printer, an APC back-up power system, a digital camera, a digital camcorder, software for photo editing, blank CDs and paper, and tutoring to help him learn to use the equipment. He noted that he was unable to work and not interested in learning any employment skills. He said he enjoyed driving to the beach and said he would like to be able to take photographs. In January 2003, Dr. Garwood, Ph.D., conducted an initial assessment of the veteran's interests, aptitudes and abilities. The doctor indicated that the veteran had a serious employment handicap and that achievement of a vocational goal was not currently feasible. It was reported that the veteran was engaged in "meaningful life activities" such as repairing his home and supporting his adult children who had temporarily moved home, and participating in weekly group therapy and Pointman Ministry. The veteran reported that his bathroom needed repairs because it was too small for his needs, and that he had little to occupy his time. He said he had no hobbies. He proposed to obtain an old car for $8,000 to $10,000 to ride in parades, purchase a laptop, a digital camera, and related to equipment so he could take beach pictures. The doctor said that the veteran and his wife reported having at least $2,000 per month in discretionary income. In May 2003, a vocational rehabilitation counselor contracted by VA, met with the veteran to conduct an independent living evaluation. The veteran reported that he received counseling once or twice a month for PTSD and attended a weekly PTSD group. He said he had made great strides regarding his psychological condition. He said he also saw a nutritionist once every three months, but had difficulty losing weight and was feeling frustrated and depressed about the situation. The counselor indicated that the only unmet need concerned the veteran's obesity. The veteran was six feet tall and weighed 389 pounds. The counselor suggested that the multiple care providers should develop an overall plan to address the veteran's obesity. The counselor suggested the plan include a structured exercise program, and lessons for the veteran's wife in preparing and buying food. The counselor also noted that the veteran was impaired in the areas of meaningful activities, hobbies, and interests, but that his overall health, particularly his obesity, was a much more pressing concern. According to the counselor, treating the veteran's obesity would likely place him in a better frame of mind and physical condition to pursue hobbies and interests. In October 2003, a vocational rehabilitation panel met to discuss the veteran's case. The panel included a vocational specialist; Dr. Garwood, a licensed psychologist; and a licensed psychiatrist. The panel noted that the veteran consistently complained of boredom and requested numerous items to develop his hobbies and interests. The panel noted that the veteran had $2,000 per month in discretionary income and suggested that he could spend that money engaging in the kinds of activities he was requesting, but that he chose not to do so. The panel opined that he needed to first develop the capacity to involve himself in interesting activities, and that this need would not be fulfilled by simply giving him those resources. With regard to the veteran's obesity problem, the panel stated that binge eating was not a symptom of PTSD, but rather an unresolved characterological issue. The panel stated that the veteran needed to find healthy ways of coping with his inner emptiness. It was recommended that he receive this type of psychotherapy from the VA's Community Outpatient Clinic. The panel did not find any other unmet needs, or other dependencies that could be reduced. Therefore, no further services were recommended. In the March 2003 notice of disagreement (NOD), the veteran said that he wanted his bathroom remodeled because he could not get in and out of the bath and that he wanted an air purifier for asthma. In February 2004, Dr. Garwood determined that vocational rehabilitation was infeasible and that the veteran was not in need of the independent living services program. The VRE officer concurred. In an April 2004 memorandum, Dr. Garwood stated that the veteran's case was reviewed and that long-term, twice weekly intense psychotherapy, was recommended to help the veteran resolve characterological issues. An inquiry had been made to determine whether those services could be provided by a mental health provider at a VA Medical Center (VAMC). It was noted that if the mental health provider could not provide him with those level of services, there was nothing more that could be done. The claims file includes a copy of an email that was sent from Dr. Garwood to a nurse practitioner at the VAMC. The nurse practitioner stated that she could not meet the veteran's counseling needs. She forwarded the email to a clinical social worker, who said he could see the veteran once every 5 to 6 weeks, but not more frequently because his schedule was full. The social worker suggested the veteran might benefit from joining a weekly PTSD group, if appropriate. Dr. Garwood responded that the veteran was more in need of character-changing psychotherapy than therapy for PTSD. VA outpatient treatment records dated in 2003 and 2004 show that the veteran received counseling regarding his diet. The record shows the veteran has a serious employment handicap and that the achievement of a vocational goal is not currently reasonably feasible with a vocational rehabilitation program. Therefore, he meets the basic eligibility criteria to participate in the independent living services program. As such, he has requested various equipment (laptop, digital camera, video games, etc.), an old car to ride in parades, tutoring, assistance in remodeling his bathroom, and an air purifier. The vocational rehabilitation panel, however, determined that these things were not necessary to assist him with functioning more independently in his family or community. The only recommendation made by the panel was that he receive additional therapy to help him with problems related to obesity. The veteran, however, has not requested additional psychotherapy and does not agree with the conclusion made by the panel. He has contended that he has needs related to PTSD, for which he is receiving treatment, and has essentially rejected the finding that he has needs related to obesity. In January 2004, Dr. Garwood acknowledged that PTSD caused the veteran difficulty in concentration, memory, understanding, and adaptation to changes; difficulty following instructions, working with other, and working around others. The issue, however, is whether PTSD causes disability, but whether independent living services are needed to render the veteran more independent. The veteran wants VA to pay for equipment, an old car, the remodeling of his bathroom, and an air purifier, but the medical and counseling experts have all found that such financing is not necessary to assist him in functioning more independently in his family or community. He has been recommended for services for obesity, but has rejected services beyond those already being provided through his VA health care. He has been found infeasible for vocational rehabilitation, and there is no expert opinion or contention that such financing would help him become reasonably feasible for a vocational rehabilitation program or for an extended evaluation. The preponderance of the evidence is against the veteran's claim-meaning there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 4.7, 4.21. (CONTINUED ON NEXT PAGE) ORDER Entitlement to Chapter 31, Independent Living Services, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs