Citation Nr: 1308451 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 09-46 916A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to additional payment for woodworking tools under a Department of Veterans Affairs independent living services program. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1968. By letter dated December 2007, the Regional Office (RO) informed the Veteran that his request for reimbursement of additional woodworking equipment was denied. He filed a timely appeal to the Board of Veterans' Appeals (Board). A hearing was held at the RO before the undersigned Veterans Law Judge in March 2012. The 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. REMAND The Veteran is service-connected for PTSD, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, shell fragment wounds of the right leg, diabetes mellitus type II, degenerative disc disease of the lumbar spine, shell fragment wound residuals of the left arm, shell fragment wounds of the left thigh, shell fragment wounds of the right knee, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, malaria, tinnitus, bilateral hearing loss, an aneurysm of the right arm, and impotency, with a combined rating of 100 percent. The record reflects the Veteran was granted reimbursement by the VA for the purchase of certain items of woodworking equipment as part of a VA independent living program. He seeks to have the VA pay him for additional purchases of woodworking equipment. The Statement of the Case issued in November 2009 noted that the Veteran had been determined to be unfeasible for a jobs program, but that he did present with some independent living needs. 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 it has been determined that the achievement of a vocational goal is not currently 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. § 21.160(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. See 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 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 living skills; (iii) attendant care; (iv) health maintenance programs; and (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 Sections 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&C Officer concurs in the program. See 38 C.F.R. § 21.162(a) . In considering the evidence of record under the laws and regulations as set forth above, the Board notes that a Veteran is not entitled to support of a home-based woodworking activity and hobby under a program of Independent Living Services unless it is necessary for his independence in daily living. The Board notes that VA has wide discretion in the types of equipment and services to be approved. However, as noted by VA 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 of helpful." See VAOPGCPREC 6-2001. The Board is of the opinion that an examination and medical opinion are required to make this determination. In addition, the Board notes that in the statement of the case issued in November 2009 reflects that the VA purchased in excess of $3,900 in tools, classes and reference books for the Veteran. It was indicated that, in general, the Los Angeles RO had a limit of $1,500 for such purchases. The RO, however, did not cite a statutory or regulatory basis for such limitation. The statement of the case stated the case manager was responsible for the authorization of supplies, subject to the requirements for prior approval set forth in 38 C.F.R. § 21.258 (2012). The Board notes that this regulation states that a self-employment plan with an estimated or actual cost of less than $25,000 may be approved by the VR&E officer with jurisdiction. The stated rationale was the VA had determined that more than adequate tools and equipment had been purchased to permit the Veteran to pursue his avocational activity of woodworking. In the event that the claim is denied based solely on some type of monetary limit (as opposed to an evaluation reflecting lack of necessity), the SSOC must reflect the basis for such a monetary limit. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an evaluation by a psychiatrist or psychologist for the purpose of determining whether the provision of additional payment for woodworking tools is necessary to enable the veteran to achieve maximum independence in daily living. The claims file, the vocational rehabilitation file, and a copy of this remand should be reviewed by the examiner. The rationale for this determination should be fully explained. 2. If the Veteran's claim is not granted, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The RO should provide the regulatory, statutory or VA manual criteria upon which the Veteran's claim was denied. In the event that the claim is based on excessive cost, rather than lack of need, then the SSOC should state whether there are national standards regarding the payment for such equipment under this program. The case should then be returned to the Board for further appellate consideration. The appellant 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). 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. 2012). _________________________________________________ MICHAEL MARTIN 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) (2012).