Citation Nr: 18148350 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-33 658 DATE: November 7, 2018 ORDER Entitlement to independent living services under Title 38, U.S.C., Chapter 31, to include the purchase, refurbishing or repair of a tractor, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the purchase of an enclosed tractor, a hay conditioner, and a wheel rake would be necessary or vital for the Veteran to achieve maximum independence in daily living. CONCLUSION OF LAW The criteria for entitlement to independent living services under Title 38, U.S.C., Chapter 31, to include the purchase, refurbishing or repair of a tractor, have been met. 38 U.S.C. §§ 3104, 3109, 3120; 38 C.F.R. §§ 21.76, 21.160, 21.162. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from January 1968 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 administrative decision by the Vocational Rehabilitation and Education (VR&E) division of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s request for independent living services under Title 38, U.S.C., Chapter 31. The Veteran testified on this matter before the undersigned Veterans Law Judge Kennedy at a June 2010 Central Office hearing. A transcript of this hearing is of record. In March 2011, the Board remanded the issue on appeal to schedule a new Chapter 31 independent living assessment by a qualified mental health counselor. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran testified again on this matter before the undersigned Veterans Law Judge Rein at a June 2017 Central Office hearing. A transcript of this hearing is of record. All Veterans Law Judges who conduct hearings must participate in making the final determination of the claims on which testimony was received. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102(a). Thus, when an appellant has had a personal hearing before two separate Veterans Law Judges during the appeal on common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held. At the time of the June 2017 Board hearing, Veterans Law Judge Rein explained during the prehearing conference that the issue on appeal had already been the subject of a hearing by Veterans Law Judge Kennedy. The Veteran indicated that he was waiving his right for a third hearing. Given the Veteran's waiver of a third hearing, the Board can proceed. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board’s favorable decision in granting independent living services under Title 38, U.S.C., Chapter 31, to include the purchase, refurbishing or repair of a tractor, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Independent Living Services 1. Entitlement to independent living services under Title 38, U.S.C., Chapter 31, to include the purchase, refurbishing or repair of a tractor The Veteran contends that he needs an enclosed tractor, a hay conditioner, and a wheel rake to achieve maximum independence in daily living. A veteran shall be provided a program of independent living (IL) services if it is determined that a veteran has a serious employment handicap under 38 C.F.R. § 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. §§ 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. §§ 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 veteran’s family or community. 38 C.F.R. § 21.160(b). Services which may be authorized as part of an Individualized 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 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. Based on a careful review of all the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that he is entitled to independent living services in the form of an enclosed tractor, a hay conditioner, and a wheel rake. At issue in this case is whether VA has the authority to provide the Veteran with farm equipment, specifically a tractor, as part of an IL services program. The Veteran has a 100 percent combined disability evaluation for his service-connected disabilities: posttraumatic stress disorder (PTSD) at 100 percent disabling; bilateral hearing loss at 10 percent disabling; and eczema as noncompensable. It has been determined that the Veteran has a serious employment handicap based on his 100 percent rating for PTSD and achievement of a vocational goal is not currently feasible; therefore, he is an appropriate candidate for independent living services. See 38 U.S.C. § 3120(b); see also November 2013 counseling record. At his June 2010 Board hearing, the Veteran testified that due to his PTSD, he remained isolated on his farm, which consisted of more than 100 acres. He owned a tractor that was built in 1968; he used it to mow and farm his land; and he cared for approximately 17 horses. The Veteran considered his farming of the land as work rather than recreational. To maintain the land and provide his horses with hay and grass from his farm without going to outside sources, he needed a new tractor. He explained that his current tractor was in extensive need of repairs. He described how he injured his buttocks after sitting on a piece of plywood that he used as a seat on his tractor. If he had an enclosed tractor, he said that he could farm in hot and cold weather without breathing in the hay, dust and pollen. He also reported that his ability to function independently was directly related to his ability to remain isolated and refrain from social interaction. He explained that his quality of life was dependent on his ability to function on his farm. Aside from farming, he did not have any other activities. Farming gave him “a sense of peace.” In the March 2011 Board remand, the Board found that the Veteran’s November 2008 independent living assessment did not adequately address the Veteran’s activities of daily living, his ability to engage in family and community activities and/or whether his use of a tractor was necessary to permit the Veteran to maintain maximum independence in daily living. The Board remanded the appeal with instructions to provide the Veteran with a new Chapter 31 independent living assessment to address whether his use of a tractor was necessary to permit him to maintain the maximum independence in daily living. In January 2014, the Veteran underwent an independent living assessment. The evaluator noted that the Veteran lived alone in a home that was over 100 years old on a 120-acre family farm. He maintained the farm, which included caring for the horses, cutting the hay and general home and land repair issues. His farm equipment was old and in constant need of repair. Because the tractor was not enclosed, the evaluator found that the Veteran was exposed to the heat and cold elements. Regarding his community environment, the January 2014 evaluator noted that the Veteran had grown up in the area and he knew many people in the area. His mother lived on a nearby farm. He kept mostly to himself, but worked with neighbors on projects as needed. He indicated that he felt secure living in his home with family and neighbors that supported him. Overall, the January 2014 evaluator concluded that the Veteran’s primary goals related to improving his quality of life by improving his home environment and increasing his ability to manage his farm by having working and appropriate equipment. Noting the Veteran’s pride in his ability to maintain his independence and keeping his farm, the evaluator found that the Veteran needed assistance in the purchase of up-to-date, functioning equipment to maintain the farm. The evaluator specifically identified the purchase of an enclosed tractor to permit working in all weather conditions, a hay conditioner, and a wheel rake. In a February 2015 administrative decision, the RO found that the purchase of a tractor was prohibited when providing IL services. The RO indicated that VA VR&E regulations provided that the purchase of or rental of trucks, cars, golf carts, all-terrain vehicles, or other means of transportation is prohibited by the Chapter 31 program. See February 2015 VR&E Service Central Office guidance; see also M28R, Part IV, Section C, Chapter 2 and M28R, Part V, Section A, Chapter 4. According to an April 2015 VA correspondence, the Veteran became a participant in an IILP. The IILP identified the following goals: 1) to develop basic computer skills; and 2) maintain health. As part of the IILP, the Veteran was provided a laptop computer, all-in-one-printer and private computer lessons. It was determined that the equipment would be beneficial, because the Veteran lived in a rural area and had a very isolated life. At his June 2017 Board hearing, the Veteran testified that he worked on his farm, not as a way to make money, but to engage in an activity that was familiar and relaxing. He described it as “therapy.” He had no desire to leave the farm. He was in a trusted and safe area. People at his church knew and supported him. The Veteran confirmed that the purchase of an enclosed tractor was vital and would provide him the maximum independence in daily living. D.B., a friend of the Veteran’s for the past 40 years and a Veterans Service Officer, testified that she has only known the Veteran as a farmer, that he would be unable to function outside of his environment, that he needed the farm equipment to continue to function the way he was, and that if he did not work on the farm, he would not have anything to do. D.B. explained that the Veteran was fully capable of performing the necessary work on the farm with the proper equipment. Because he did not have that equipment, the Veteran was forced to hire people to do the work, but it was expensive. The Veteran allowed very few people onto his property. Since the Veteran was well-known in the community, including his reputation for being quick-tempered, D.B. stated that it was important that the Veteran remain in the area, because there were neighbors who understood him and helped him. 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. Viewing the facts of this case in light of the General Counsel opinions, the evidence is at least in equipoise. Given the findings of the January 2014 independent living assessment and the testimony at the June 2010 and the June 2017 Board hearings, the Board finds that the purchase of an enclosed tractor, a hay conditioner, and wheel rake are necessary towards “maintaining health,” which has been identified as one of his IL program goals. Further, the evidence shows that the purchase of the farm equipment is necessary and vital to the Veteran achieving his IL goal of maintaining both his physical and mental health. Thus, the evidence is at least in equipoise as to whether the purchase of an enclosed tractor, a hay conditioner and a wheel rake would allow the Veteran to function more independently in the family and community. Therefore, the Veteran’s claim for independent living services in the form of purchasing an enclosed tractor, a hay conditioner and a wheel rake is granted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw