Citation Nr: 1538123 Decision Date: 09/04/15 Archive Date: 09/10/15 DOCKET NO. 13-09 654A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a greenhouse under Chapter 31, Title 38, United States Code, Vocational Rehabilitation and Employment (VR&E) Independent Living Program. (The issue of entitlement to a higher rating for porphyria cutanea tarda will be addressed in a separate decision). REPRESENTATION Appellant represented by: Robert P. Walsh, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from October 1969 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Vocational Rehabilitation and Employment (VR&E) staff at the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned at an April 2015 Travel Board hearing. The undersigned noted the issue on appeal and engaged in a colloquy with the Veteran toward substantiation of his claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the hearing is included in the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of the appeal should take into consideration the existence of the electronic record. FINDINGS OF FACT 1. The Veteran has a serious employment handicap resulting in substantial part from his service-connected disabilities, and it has been properly determined that the achievement of a vocational goal is not currently feasible. 2. The Veteran is frequently home by himself and has an avid interest in growing vegetables; his disabilities prevent sunlight and cold exposure, and sometimes require the use of a wheelchair or walker. 3. Based on the facts in this case, the evidence is at least in equipoise regarding whether having a heated, ADA-compliant greenhouse would allow the Veteran to function more independently in the family and community without the assistance of others or a reduced level of the assistance of others. CONCLUSION OF LAW The criteria for entitlement to a greenhouse under Chapter 31, Title 38, United States Code, Vocational Rehabilitation and Employment (VR&E) Independent Living Program have been approximated. 38 U.S.C.A. §§ 3100, 3101, 3102, 3109, 3120 (West 2014); 38 C.F.R. § 3.102, 21.1, 21.35, 21.76, 21.160, 21.162 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA does not apply in cases where the statute at issue is not found in Chapter 51, Title 38, United States Code (i.e. the laws changed by the VCAA). Barger v. Principi, 16 Vet. App. 132 (2002). Here, the statute at issue is in Chapter 31, therefore the VCAA is inapplicable. Nevertheless, 38 C.F.R. §§ 21.32 and 21.33 set forth VA's duty to notify and assist for vocational rehabilitation claims. These regulations are substantially similar to the VCAA implementing regulations. But because the Veteran's claim is granted, any error related to the these duties is harmless. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009). Merits of the Claim The Veteran contends he is entitled to a heated greenhouse that is compliant with the Americans with Disabilities Act of 1990 (ADA) as part of his independent living services program. The pertinent statutory authority, found at 38 U.S.C.A. § 3120 (West 2014), 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 non service connected) that vocational or rehabilitation services need to be appreciably more extensive than for less disabled veterans. 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. 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 reasonable feasible for a vocational rehabilitation program; or (iii) Become reasonable feasible for extended evaluation. 38 C.F.R. § 21.160. In May 2011, a vocational rehabilitation counselor determined that the Veteran had a serious employment handicap but a vocational goal was not reasonably feasible. May 2011 Rehabilitation Services Note. He was provided with contact information for Independent Living services. Id. In September 2011, the Veteran was informed he was not entitled to VR&E Independent Living services, since he did not have independent living needs as he lived in an ADA-compliant home that allowed him to manage independently. In April 2012, the decision was overturned and a Rehabilitation Plan was provided with a program goal "to maintain activities of daily living through community outreach of veterans in the community." April 2012 Rehabilitation Plan. Pertinent to his assertions here, an intermediate objective to achieving the planned goal was to maximize organization of home activities and community participation. Id. In May 2012, a document for the Veteran's orientation to the Independent Living program noted that he "want[ed] an extension added to his existing green house," and that he "[grew] tomatoes and other vegetables for his family and [took] the remainder to a coop food bank." May 2012 Special Report of Training. The note reported that the Veteran stated he wanted to be independent and self-sufficient from the local grocery store, and characterized this activity as avocational. Id. It further noted that he did not require help in performing this activity. Subsequent follow-up for his Independent Living technological assistance noted he assisted other veterans in claims presentation and that he grew vegetables. July 2012 VA Independent Living Case Support Evaluation Form. In an October 2012 report, his case manager noted he had "a very successful garden," reporting that he had one greenhouse with heat and water and a smaller, more portable greenhouse, as well as several garden beds. October 2012 VA Independent Living Case Support Evaluation Form. The case manager reported the Veteran was "able to walk around in the garden independently, plant, cultivate, and clean his garden beds," and that his family also helped in the garden. Id. The evaluation form further reflected that the Veteran wanted a greenhouse so that he could be independent of grocery stores to provide his vegetables, but that the case manager "talked to the [V]eteran on many occasions" and indicated that another greenhouse had nothing to do with being independent of others in performing activities of daily life, although there was also a notation that the Veteran was "home by himself most of the time." Id. Relevant to the reasons for the denial of the benefit sought, the Veteran's request for a greenhouse continued to be denied as unnecessary for independent living. October 2012 VR&E Decision. Specifically, the VR&E counseling psychologist noted that the Veteran was able to "perform the avocational activities involved in planting, producing and cultivating in [his] current agricultural activities," therefore he did not require a greenhouse, or an additional greenhouse, for independence in his daily living activities. Id. However, the Veteran testified that before the undersigned he warranted a larger greenhouse with raised tables and rubber mats on the floors so he could use his wheelchair and would not become injured in case he fell. April 2015 Hearing Transcript, pp. 12. He stated that an ADA-compliant greenhouse would protect him from the sun and low temperatures due to his cryoglobulinemia and porphyria cutanea tarda (PCT), and would essentially allow him access to the outside that he might not have otherwise. Id. at pp. 8. He reported that his PCT caused skin eruptions with sun exposure and that because of the cryoglobulinemia, weather below 40 degrees caused his blood to coagulate in his ears, hands, nose, and feet. Id. at pp. 13. The Veteran also submitted photographs of his current greenhouse. He noted that it was borrowed, and that it was not wide enough for wheelchair access. Photographs Marked Exhibits 1, 2, and 5. While a walker could fit in the small greenhouse, the Veteran testified there was not enough room for him to turn around and no place for him to sit. Id.; see also April 2015 Hearing Transcript, pp. 13. The Veteran further testified that he had raised planters, or makeshift "greenhouses" using shower doors, but that they weighed approximately 40 pounds each, and he had a clinically-determined weight restriction of 10 pounds. April 2015 Hearing Transcript, pp. 14, 16; Photographs Marked Exhibits 3 and 4. Moreover, these raised planters were exposed to the elements, including the sun and cold temperatures. Id. The Veteran has cited several VA Office of General Counsel Precedent Opinions. In his response to a May 2014 Supplemental Statement of the Case (SSOC), the Veteran stated that the "existing greenhouse" referenced in the SSOC was actually an unheated "coldframe" that also belonged to his mother in law, which he could not use in the winter. May 2014 Rebuttal to SSOC, pp. 2. He further stated that he sometimes required a wheelchair which would not fit in his existing structure, and reiterated that he had to avoid sunlight due to his PCT. Id. at pp. 3; see also July 2008 VA Examination Report (noting that the Veteran's PCT required that he avoid the sun). While photographs he submitted do appear to depict a new, ADA-compliant greenhouse, the Veteran has indicated that this was borrowed. Photographs. The Veteran has further reported that his Hepatitis C and PCT cause total disability, therefore he meets the criteria for a severe handicap under 38 U.S.C. §§ 3120(b) and 3104(a)(1)(B). May 2014 Rebuttal to SSOC, pp. 3. He stated that due to his PCT, he could only garden in the morning, and that his Hepatitis C caused extreme fatigue, but that a "large, heated greenhouse with a hard-surfaced floor would greatly facilitate [his] access to the outside," thus giving him more independence in every day living and improving his activities of daily living. Id. at pp. 4. In additional correspondence, the Veteran noted that "[t]he 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). He specifically noted that the regulations list "health maintenance programs" as an authorized service. 38 C.F.R.§ 21.160(d)(iv). He stated that "growing pesticide-free vegetables is part and parcel of a vocational desire to maintain the health of my liver or what is left of it," and that physical exercise is "another health benefit." Evidence or Argument pp. 6. As an initial matter, the issue of whether pesticide-free vegetables are necessary due to the Veteran's liver disorder is a medical determination, not a factual determination. See Similes v. Brown, 6 Vet. App. 555, 557 (1997). Regardless, further medical inquiry is unnecessary, as the Veteran's entitlement to a greenhouse under Chapter 31 relies on a factual determination of whether the greenhouse would allow this Veteran to function more independently. The evidence in this regard is in balance and the claim will be granted. The Veteran has already been found to have a "serious employment handicap," largely due to his service-connected disabilities, making vocational goals not feasible. 38 U.S.C.A. § 3120(b); see also May 2011 Rehabilitation Services Note and April 2012 Rehabilitation Plan. For veterans for whom vocational goals are not feasible, Independent Living services may be furnished to help a veteran function more independently in his family and community. The Veteran's October 2012 VA Independent Living Case Support Evaluation Form noted that the Veteran was home by himself most of the time. The Veteran has reported that one of his few hobbies is growing vegetables. While he does have current structures to facilitate growing vegetables on his property, the evidence shows that these structures are unheated and not wheelchair accessible. See April 2015 Hearing Transcript. The Veteran has testified that his service-connected disabilities prevent him from being exposed to sunlight and cool temperatures, and that he sometimes uses a wheelchair or walker due to his fibromyalgia. See Id. While the October 2012 VR&E Decision denying the Veteran's request for a greenhouse noted that he was able "perform the avocational activities involved in planting, producing and cultivating in [his] current agricultural activities," the evidence of record does not support this finding. October 2012 VR&E Decision. His current "greenhouse"-type structures do not allow him access during the day due to excessive sunlight and during cold weather, which he testified is frequent where he lives, as well as at times when he is unable to walk or stand. The Veteran has reported that an ADA-compliant greenhouse would give him more independence, presumably especially during the frequent times when he is at home alone. May 2014 Rebuttal to SSOC, pp. 4. The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the General Counsel of the VA. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2012). In VAOPGPREC 34-97, the General Counsel observed that the Congressional directive of the law is that VA "must afford the services and assistance deemed necessary to accomplish the broad statutory program objective of enabling eligible veterans to achieve maximum independence in daily living. Thus, if [VA considers a particular service necessary to enable the individual to participate in family and community activities, even when those activities are recreational in nature, that service may be included as an appropriate part of an individual's independent living program." VAOPGPREC 34-97 The General Counsel noted that the test for inclusion of desired services was not whether the service may be used for recreational purposes, but rather, whether it furthers the ability of the particular veteran to become independent, and that such a determination was to be based on the circumstances in the individual case. The General Counsel ruled that there was no law that either specifically directed VA to authorize or which precluded VA from authorizing services and assistance of a recreational nature as a component of an eligible veteran's program of independent living services and assistance under the law. Italics added. It was also specifically held 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 or her independent living program goals." VAOPGPREC 34-97, Italics added. Viewing the facts of this matter in light of the General Counsel opinion, the evidence is in approximate balance. Doubtless, the Veteran doubtless pursues gardening as a recreational activity, but also towards such "family and community activities" integral to his own independent living goals. The Veteran is frequently alone and he should not be compelled to unreasonably restrict his recreational activities in his home activities. As to integration into community, the record suggests that the Veteran's gardening is in effect a very small farming operation for his own use as well as benefiting others. The evidence is therefore in equipoise as to whether a heated, ADA-compliant greenhouse would allow the Veteran to function more independently in the family and community. Therefore, the benefit-of-the-doubt rule applies and entitlement to a heated, ADA-compliant greenhouse under Chapter 31, Title 38, United States Code, Vocational Rehabilitation and Employment (VR&E) Independent Living Program is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board emphasizes that its determination in this matter is based on the specific facts of this case. This decision is non-precedential, and has no weight in the decision for a different veteran. 38 C.F.R. § 20.1303. ORDER Entitlement to a heated, ADA-compliant greenhouse Chapter 31, Title 38, United States Code, Vocational Rehabilitation and Employment (VR&E) Independent Living Program is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs