Citation Nr: 1817375 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 11-25 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a personal trainer and computer training under the Independent Living Services Program for Vocational Rehabilitation and Education (VR&E), Chapter 31 of Title 38 of the United States Code. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his Form 9 substantive appeal; however, the Veteran withdrew his request in correspondence received by VA in February 2018. FINDING OF FACT The weight of the competent and probative evidence is against finding that a personal trainer and/or computer training is necessary to improve the Veteran's independence in daily living. CONCLUSION OF LAW The criteria for entitlement to a personal trainer and/or computer training as independent living services under Chapter 31 of Title 38 of the United States Code have not been met. 38 U.S.C. §§ 3104, 3109, 3120 (2012); 38 C.F.R. §§ 21.76, 21.160, 21.162 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). I. Independent Living Services The Veteran contends that the services of a personal trainer and computer training are necessary to allow him to live more independently. VA may conduct programs of independent living services for severely handicapped persons. See 38 U.S.C. § 3120(a). A program of independent living services and assistance may be made available under this Section only to a veteran who has a serious employment handicap resulting in substantial part from a service-connected disability and for whom achievement of a vocational goal currently is not reasonably feasible. 38 U.S.C. § 3120(b). A program of independent living services and assistance for a veteran shall consist of such services described in 38 U.S.C. § 3104(a) as the Secretary determines necessary to enable such veteran to achieve maximum independence in daily living. 38 U.S.C. § 3120(d). 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). A program of independent living services may be authorized to enable a 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 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. 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 Individualized Independent Living Plan (IILP) include: (1) any appropriate service which may be authorized for a vocational rehabilitation program as that term is defined in 38 C.F.R. § 21.35(i) except for a course of educational training as described in 38 C.F.R. § 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. 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 38 C.F.R. § §§ 21.90 and 21.92 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). In a precedential opinion by the VA General Counsel, it was 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 independent living program to live and function independently in his or her family and community without, or with a reduced level of, services from others. VAOPGCPREC 6-01; see also VAOPGCPREC 37-97. It was further noted that the operative word as to this matter was "necessary," and independent living services (to include services that may have a recreational component) provided to the veteran must be "vital" to achieving the independent living program goal, not merely desirable or helpful. VAOPGCPREC 6-01. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that the Veteran is not entitled to independent living services in the form of a personal trainer and/or computer training. In May 2010 the Veteran requested VR&E benefits in the form of independent living services; more specifically, a personal trainer to increase upper body strength and computer training. 05/26/2010, Other, pp. 14, 130-32. In July 2010, VR&E determined that it was infeasible for the Veteran to achieve a vocational goal and proceeded with an Independent Living Needs assessment. The rehabilitation counselor determined that the Veteran does not have any independent living needs, finding that he is functioning well in his own apartment and is able to live independently without difficulty. The counselor explained that the Veteran's physical capabilities would greatly improve with weight loss, but that the Veteran does not believe that to be the case. Instead, the Veteran focuses on the perceived need for a personal trainer, despite the fact that he could receive physical therapy from a VA medical center (VAMC). As to his request for computer training, the counselor noted that the Veteran is able to use his computer for email and internet browsing and could easily pick up other computer skills through a continuing education course. 05/26/2010, Other, pp. 129-32. In July 2010, a Vocational Rehabilitation Panel concurred with the counselor's finding that employability is not a feasible goal, and with the decision to deny independent living services. 05/26/2010, Other, p. 69. In July 2010, the Veteran was notified of VR&E's decision to deny entitlement to the requested independent living services, and of the Vocational Rehabilitation Panel's recommendation that he focus on weight loss through VA's weight loss program (MOVE). 05/26/2010, Other, p. 46. An August 2009 physical therapy treatment note indicates a diagnosis of weakness of the bilateral upper and lower extremities. The physical therapist determined that the Veteran would benefit from a treatment that consists of conditioning and strengthening exercises for arms and legs. 05/26/2010, Other, pp. 124-25. The Veteran was afforded physical therapy from August to October 2010. In October 2010, the physical therapist found that the Veteran was ready for discharge to a home exercise program (HEP). She noted that the Veteran had difficulty adhering to the procedure for checking in and participating in supervised physical therapy despite frequent redirection. She stated that he was able to achieve the endurance goals and was encouraged to continue his HEP and that further physical therapy is not indicated. It was recommended that the Veteran follow his HEP as instructed for an indefinite time to maintain functional mobility and improve strength. 05/26/2010, Other, pp. 65-66. A more comprehensive Independent Living Assessment was conducted in October 2011. At that time, the Veteran stated that he could only stand for three minutes, but denied difficulty with the upper extremities other than occasional numbness of the fingers. The Veteran reported paying others to perform more tedious tasks such as grocery shopping and cleaning, but that he often goes out to eat or visit the spa. The evaluator opined that the Veteran knows how to, and is capable of, maintaining a healthy diet and exercise routine, but simply lacks the motivation to do so. The Veteran recognized the need to exercise regularly, but did not want any equipment in his apartment and did not fully use the services at the wellness center he belonged to. The counselor concluded that the Veteran may benefit from classes on nutrition and/or cooking, and that computer classes may provide some interesting activity as well as an opportunity to interact with fellow classmates. 05/26/2010, Other, pp. 48-55. In December 2011, a Vocational Rehabilitation Panel concurred with the October 2011 assessment that employment is not feasible, and that the Veteran does not have any independent living needs. The Panel recommended that the Veteran utilize the VA weight loss program MOVE available to him through the VAMC. 05/26/2010, Other, p. 34. In light of the above, the Board finds that the weight of the competent and probative evidence is against finding that the services requested by the Veteran are "necessary" to support his ability to live and function within his family and community. In other words, personal training and computer training are not necessary to allow the Veteran to live more independently. In reaching this decision, the Board notes that the Veteran has opted not to participate in VA's weight loss program, which was recommended to address the physical limitations identified by the Veteran. Additionally, the Veteran completed physical therapy in October 2010, at which time the therapist found that the identified goals could be completed through commitment to the home exercise program. Regarding computer training, the Veteran is capable of using his computer for email and internet browsing, and further skills could be obtained through a local continuing education course. The Board notes a February 2013 rating decision granted special monthly compensation based on the need for aid and attendance, effective September 26, 2011. In other words, the Veteran is currently receiving enhanced compensation so as to allow him to pay others to assist him complete tasks he sought to achieve, at least in part, through the requested independent living services. ORDER Entitlement to personal training and/or computer training as independent living services under Title 38, United State Code, Chapter 31, is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs