Citation Nr: 1647516 Decision Date: 12/21/16 Archive Date: 12/30/16 DOCKET NO. 13-18 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an LP gas pool heater as part of an Independent Living Program under Chapter 31, Title 38, of the United States Code. (The issue of the validity of the recoupment of special separation benefits paid at retirement and whether a waiver is warranted is addressed in a separate decision.) REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty in the U.S. Air Force from January 1976 to December 1993. This appeal to the Board of Veterans' Appeals (Board) is from an August 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this decision, the Board is granting entitlement to a LP gas pool heater as part of the Veteran's independent living service program, through Vocational Rehabilitation and Employment (VRE) services. FINDING OF FACT The Veteran is enrolled in a VRE individualized independent living program. A gas pool heater is shown to be necessary or vital for the Veteran to maintain maximum independence in daily living. CONCLUSION OF LAW The criteria for entitlement to equipment purchase of a LP pool heater for therapeutic purposes under the provisions of a Title 38, United States Code, Chapter 31, independent living program have been met. 38 U.S.C.A. §§ 3104, 3109, 3120 (West 2002 & Supp. 2009); 38 C.F.R. §§ 21.76 , 21.160, 21.162 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A veteran shall be provided a program of independent living (IL) services if it is determined that a she 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. Such program is designed to enable the veteran to achieve maximum independence in daily living. See 38 U.S.C.A. §§ 3104 , 3109, 3120. Services and assistance that may be provided pursuant to an IL program include "services necessary to enable a Veteran to achieve maximum independence in daily living." 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 her family or community. 38 C.F.R. § 21.160(b). 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; and, (2) independent living services offered by approved independent living centers and programs which are determined to be necessary to carry out the 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. 38 C.F.R. § 21.160(d). Under 38 C.F.R. § 21.90, the purpose of an Individualized ILP (IILP) is to identify the steps through which a veteran, whose disabilities are so severe that a vocational goal is not currently reasonably feasible, can become more independent in daily living within the family and community. Here, the Veteran is totally and permanently disabled. She has been adjudicated to have total unemployability as due to her service-connected disabilities. Accordingly, after her application for VRE services, it was determined that a vocational goal would not be feasible, and she has instead been provided IL services. The objectives of her IL plan were to "maintain stability of physical and mental health" and that she will "increase independence in her home through the provision of a home automation system." There is no dispute as to these facts. The issue under consideration here is whether a LP pool heater should be provided to the Veteran under the provisions of her IL service plan. This has been denied for a variety of reasons, including that it has not been found to be essential by a VA physician and that it has not been specifically listed on her IL service plan. The Veteran argues that it is essential to her physical health and well-being, as set forth by her private physicians. VA's General Counsel has held 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 IL program to live and function independently in his family and community without, or with a reduced level of, services from others. See VAOPGCPREC 6-2001. This includes the authority to approve services and assistance that are, in whole or part, recreational in character when the services are found to be needed to enable or enhance a veteran's ability to engage in family and community activities integral to achieving his/her independent living program goals. See VAOPGCPREC 34-97. However, while VA has wide discretion in the types of equipment and services to be approved, as noted by VA's 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 or helpful." See VAOPGCPREC 6-2001. Turning to the record, the Board observes two medical opinions that support the Veteran's contentions. A January 2011 letter from Dr. M.J.B. indicated the Veteran had been prescribed water aerobics for her disabilities since the mid-1990's. She has service-connected loss of use of both feet and neuropathies due to spinal injuries, as well as bilateral knee and feet disabilities, along with migraine headaches, and some other less severe diagnoses. Dr. B noted that the VAMC in the Veteran's last home location had funded these exercises, but they were denied by her current VAMC. He said that the water aerobics helps with pain reduction, weight control, flexibility, and balance. He also said that her disabilities preclude normal weight bearing exercise, but the buoyancy of the water resolves her weight-bearing issues. Because of her inability to do normal weight-bearing exercise, he opined that having the pool heater is medically necessary for the Veteran to maintain her current level of independence. He mentioned that driving to such aerobics classes is not always possible due to her chronic pain. He said that she could not do such exercises at home when the water temperature dips below 84 degrees. He also felt that a one-time payment of the heater would, in the long run, be cheaper than providing her classes out of the home. A December 2011 letter from Dr. C.B.P. noted concurrence with Dr. B's opinion. Dr. P reiterated that home pool therapy is essential to helping her maintain and improve her balance, mobility, and coordination, and that it also helps with pain management. The Board notes that the Veteran's IL services counselor acknowledged the above opinions regarding medical necessity, but thought that such an opinion must be obtained by a VA physician, citing 38 C.F.R. § 21.160(e). After review of that regulation, the Board construes no such requirement, and is otherwise unaware of any other regulation requiring as much. Given the medical opinions on record, and the absence of a substantive reason for its denial, the Board finds that a LP gas pool heater for water aerobics and water therapy is necessary for her to achieve her IL services objective of "maintaining the stability of her physical health." Accordingly, this appeal is granted. ORDER A LP gas pool heater is granted under Title 38, United States Code, Chapter 31, regarding independent living services. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs