Citation Nr: 18158013 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 14-11 145A DATE: December 14, 2018 ORDER The purchase of a bed and chair pursuant to a program of independent living services under Title 38 United States Code, Chapter 31, is denied. FINDINGS OF FACT 1. In September 2013, the Veteran was determined to be entitled to independent living services from September 2013 to September 2014 under an Individual Independent Living Plan (IILP), which was signed by both the Veteran and VA counseling psychologist. 2. The Veteran is entitled to the services outlined in the IILP and comprehensive independent living assessment, which listed certain items deemed necessary for independence in daily living; an adjustable bed and massage chair recliner were not included as items needed for independent living and have not been shown to be required for independence in daily living. CONCLUSION OF LAW The criteria for the provision of a bed and chair pursuant to a program of independent living services under Title 38 United State Code, Chapter 31 have not been met. 38 U.S.C. §§ 3100, 3101, 3104, 3105, 3109, 3110, 3120; 38 C.F.R. §§ 21.1, 21.35, 21.76, 21.90, 21.160, 21.162; VAOGCPREC 34-97. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service in the U.S. Air Force from March 1975 to February 1981 and from May 1981 to May 1995. This matter is on appeal from a February 2014 decision. On the April 2014 VA Form 9, the Veteran requested a videoconference Board hearing; however, in October 2018, the Veteran withdrew the hearing request. Claims involving independent living services are governed by Chapter 31; all applicable notice and assistance has been provided in this case. Chapter 31 Benefits Legal Authority and Analysis The Veteran contends that she would greatly benefit from using an adjustable bed and massage chair recliner to help manage symptoms related to fibromyalgia, low back pain and osteoarthritis, migraines, sleep apnea, posttraumatic stress disorder (PTSD), allergic rhinitis, and hip osteoarthritis pursuant to a program of independent living services. She believes that the purchase of these items should be made by VA under the Chapter 31 independent living services program. The Board initially notes that the Veteran is service connected for PTSD, headaches with vertigo, ovarian cancer residuals, bilateral pes planus with heel spurs and degenerative changes, fibromyalgia, cervical spine degenerative disc disease, diverticulitis/large bowel obstruction with gastroesophageal reflux disorder wand hiatal hernia, left shoulder degenerative joint disease, right upper extremity radiculopathy, left foot hallux valgus, right foot hallux valgus, allergic rhinitis, right hip degenerative joint disease, hemorrhoids, fibrocystic breast disease, anemia, residual scars from removal of a mole in the upper right arm, anal fissure scars, and right hip limitation of flexion. The Veteran has a combined rating of 100 percent and is in receipt of special monthly compensation for the service-connected disabilities. The Veteran also has multiple nonservice-connected disabilities. Because of the severity of the medical conditions, the VR&E determined that it was not feasible for the Veteran to participate in an employment plan of service and approved a plan for independent living services. For those veterans for whom a vocational goal is not reasonably feasible due to severe disabilities, such as in this case, VA conducts a program of independent living services. 38 U.S.C. §§ 3109, 3120; 38 C.F.R. § 21.53(f). The program includes the services needed to enable a veteran to achieve maximum independence in daily living, including counseling, diagnostic, medical, social, psychological, and educational services. See 38 U.S.C. §§ 3100, 3101(4); 38 C.F.R. § 21.35(a). 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). Independence in daily living is defined as the ability of a veteran, either without the services of others or with a reduced level of the services of others, to live and function within such veteran's family and community. 38 U.S.C. § 3101(2); 38 C.F.R. § 21.160(b). A program of independent living services may be authorized to enable the Veteran to: (1) reach the goals of the program, and (2) maintain the newly achieved level of independence in daily living. 38 C.F.R. § 21.76 (a). The duration of the independent living services program may not exceed 24 months unless the counseling psychologist finds that an additional period of up to 6 months would enable the Veteran to substantially increase his or her level of independence in daily living. The concurrence of the Vocational Counseling and Rehabilitation Officer in this finding is required. 38 U.S.C. § 3105(d); 38 C.F.R. § 21.76(b). 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 §§ 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. See 38 C.F.R. § 21.162(a). By way of providing background pertinent to the issue on appeal, the May 2013 VA Rehabilitation Needs Inventory form reveals that the Veteran identified several items that she reportedly needed to improve independent daily living, including a massage chair and an adjustable bed. In July 2013, an independent living assessment was performed, and the counselor recommended, in pertinent part, that the Veteran be provided with a laptop computer to pay her bills to promote independence in managing her finances. In August 2013, the VA vocational rehabilitation counselor met with the Veteran and discussed the independent living assessment results and provided a letter for her physician to request approval for exercise equipment. On September 3, 2013, the physician signed a letter requesting issuance of an Xbox Kinect Fitness system for the Veteran to promote weight loss. On September 16, 2013, the Veteran and the VR&E counseling psychologist agreed to and signed an individual independent living plan (ILLP), with the identified objective of the ILLP of increasing communication with family and friends as well as the ability to pay bills online by providing the Veteran with a desktop computer and printer during the period from September 2013 to September 2014. Subsequently, on the September 17, 2013 comprehensive independent living services evaluation report, the VA vocational rehabilitation counselor wrote that he had discussed with the Veteran the items that were being approved to help with independent living needs and could be purchased by the Chapter 31 program. The VA vocational rehabilitation counselor also wrote of the disabilities causing independent living restrictions and noted that the Veteran’s independence in daily living restrictions required her to improve her independence in caring for nutritional needs, maintain her independence in communicating with family and friends, and improve her physical health and control weight gain. The VA vocational rehabilitation counselor further wrote that the VA services required to ameliorate or help overcome the Veteran’s independent living restrictions were as follows: (1) two anti-fatigue mats; (2) a desktop computer and printer with basic software; and (3) X-box Kinect bundle with health trainer disc and blender. The September 2013 and October 2013 Requests for Receipt of Supplies forms show that all of the items approved and identified on the September 2013 comprehensive independent living services evaluation report were received by the Veteran. After review of all the evidence of record, the Board finds that the Veteran is not entitled to the purchase of an adjustable bed and massage chair recliner through the Chapter 31 benefits under the IILP. As of October 2013, the Veteran had been provided with all the supplies and equipment (i.e., two anti-fatigue mats, desktop computer with printer and software, and Xbox Kinect bundle with health trainer disc and blender) required to care for nutritional needs, maintain her independence in communicating with family and friends, and improve her physical health and control weight gain, as agreed upon by the vocational rehabilitation counselor and Veteran in the September 2013 IILP and September 2013 comprehensive independent living evaluation. Although the Veteran subsequently submitted a February 27, 2014 letter signed by a treating physician explaining that she would benefit from use of an adjustable bed and massage chair recliner and requesting the identified items to help with medical conditions, the vocational rehabilitation counselor denied the request for the additional items in April 2014 on the basis that they were not required to receive independence in daily living. Chapter 31 grants VA a great deal of discretion in determining the nature and scope of services needed by a veteran in an independent living services program. VAOPGCPREC 34-97. The Veteran has not presented evidence to show that the massage chair recliner and adjustable bed are needed to maintain independence in daily living. The February 2014 letter written by the Veteran and signed by the physician merely states that these items would be beneficial to the Veteran and does not suggest that these items are required for independence in daily living. (Continued on the next page)   Thus, upon review of the evidence, the Board finds that the Veteran is not entitled to purchase of a massage chair recliner and an adjustable bed under the Chapter 31 independent living services program; the appeal is denied. 38 C.F.R. §§ 21.160, 21.162. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel