Citation Nr: 1802469 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-07 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to various equipment purchases/home modifications under the vocational rehabilitation independent living plan. (The issues of entitlement to a higher rating for chronic low back strain and entitlement to clothing allowance for the year 2014 are the subject of separate Board decisions with different docket numbers.) ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions dated in October 2016 and November 2016 of a Regional Office (RO) of the Department of Veterans Affairs (VA). In the December 2016 notice of disagreement, the Veteran indicated that he also was entitled to an alarm system as part of entitlement to various equipment purchases/home modifications under the vocational rehabilitation independent living plan. In a statement in September 2017, the Veteran disagreed with a September 2017 denial of additional home adaptations to include installation of outside vertical wheel chair lift for pool access, wood walkway from top of hill to top access of lift, and replacement of existing wood pool deck/railing at pool level connection to bottom of the lift. The Board thus refers these matters to the RO for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the delay associated with this remand; however, further development is necessary for the following reasons. The Veteran is service-connected for posttraumatic stress disorder (PTSD); loss of effective use of both feet; status post arthroscopic repair of the left knee with osteochondritis and osteoarthritis; postoperative bursitis, synovial irritation of the right knee with history of arthritis; posttraumatic right wrist derangement; chronic migraine headaches; left wrist arthritis; chronic low back strain; duodenal ulcer and hiatal hernia; voiding dysfunction; erectile dysfunction; amputation of proximal middle phalanx of left long finger; and, left and right shoulder disorder. The record reflects the equipment purchases/home modifications that have and have not been recommended for approval. The items that have not been recommended for approval include the following: an overhead cover for lift and front of home; a cover over the front walk; widening of all doorways inside the home; installation of new hardwood flooring throughout the house; replacement of the whole house intercom; installation of a central air conditioning system; installation of automatic door openers for the kitchen door and family room door; a complete 2 story addition to the rear of the home which would extend the kitchen, living room, master bedroom, lower-level bedrooms, stairway area, and family room; installation of flooring to the proposed new addition; replacement of existing wood decks; downstairs addition for the purpose of installing a new bathroom; extension at the rear of the main bedroom to create space for a walk-in closet and a work out room in the floor below; creating access to the outdoor kitchen close to the pool area; extension of the front courtyard; remodeling of kitchen to be able to access while using wheelchair; front loading washer and dryer; lift at the back of the home to exit from all levels. See February 2017 Statement of the Case. 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 described in section 3102(1)(A)(i) of this title and with respect to whom it is determined under section 3106(d) or (e) of this title that the achievement of a vocational goal currently is not reasonably feasible. 38 U.S.C. § 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 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). 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 § 21.35(i) except for a course of educational training as described in § 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. See 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 §§ 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). According to VA's General Counsel, 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 family and community without, or with a reduced level of, services from others. VAOPGCPREC 6-2001. 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. Id. The evidence indicates that the Veteran's disabilities may have worsened during the past year. In a statement in September 2017, the Veteran stated that he fell down the stairs in September 2016 due to weakness in his service-connected lower extremities and broke his collar bone and fractured his ribs. He had surgery in May 2017 whereby a metal plate was placed in the collarbone. While the Veteran submitted a private opinion regarding his requested home modifications in October 2016, a determination based on this opinion cannot be sufficiently made as to whether the home adaptations/equipment purchases that are currently before the Board are vital to achieving an independent living goal or whether they are merely desirable or helpful. Thus, a VA examination and opinion is necessary to address this matter. Second, the Veteran's February 2017 Statement of the Case shows that his claim was denied on October 13, 2016; November 15, 2016; and November 17, 2016. The file does not include a copy of the November 17 determination, and the only copies of the October 13 decision and the November 15 decision are ones the Veteran provided. Thus on remand copies of all three decisions should be associated with the record along with any other pertinent outstanding evidence. Lastly, 38 C.F.R. § 21.32 and 38 C.F.R. § 21.33 set forth VA's duty to notify claimants of information and evidence needed to substantiate a vocational rehabilitation claim and set forth VA's duty to assist claimants in obtaining evidence and information necessary to substantiate such a claim. These regulations are substantially similar to the Veterans Claims Assistance Act of 2000 (VCAA). In the instant case, it is unclear whether the requirements of 38 C.F.R. § 21.32 have been met. Thus, the Veteran should be sent a notice letter compliant with 38 C.F.R. § 21.32 pertaining to this claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a notice letter in compliance with 38 C.F.R. § 21.32, which informs him of the evidence necessary to substantiate his claim of entitlement to various equipment purchases/home modifications under the vocational rehabilitation independent living plan. 2. Associate with the record copies of the decisions denying the Veteran's claim of entitlement to various equipment purchases/home modifications under the vocational rehabilitation independent living plan, which are dated October 13, 2016; November 15, 2016; and November 17, 2016. Associate any other outstanding records that are pertinent to the Veteran's claim, including a 2014 independent living assessment. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. The Veteran should be afforded a VA examination deemed necessary for a proper determination of his entitlement to his large scale equipment purchases/home modifications as part of his Independent Living Plan. The Veteran's file must be made available to the examiner for review in conjunction with the examination. The examiner is hereby advised that the Veteran is service connected for the following disabilities: PTSD; loss of effective use of both feet; status post arthroscopic repair of the left knee with osteochondritis and osteoarthritis; postoperative bursitis, synovial irritation of the right knee with history of arthritis; posttraumatic right wrist derangement; chronic migraine headaches; left wrist arthritis; chronic low back strain; duodenal ulcer and hiatal hernia; voiding dysfunction; erectile dysfunction; amputation of proximal middle phalanx of left long finger; and, left and right shoulder disorder. After reviewing the file and examining the Veteran, the examiner is asked to opine on the following: Whether each of the following equipment purchases/home modifications that the Veteran is seeking is necessary to achieving the independent living program goal that will provide a measurable increase in the Veteran's individual level of independence, or whether they are merely desirable or helpful: * An overhead cover for lift and front of home; * A cover over the front walk; * Widening of all doorways inside the home; * Installation of new hardwood flooring throughout the house; * Replacement of the whole house intercom; * Installation of a central air conditioning system; * Installation of automatic door openers for the kitchen door and family room door; * A complete 2 story addition to the rear of the home which would extend the kitchen, living room, master bedroom, lower-level bedrooms, stairway area, and family room; * Installation of flooring to the proposed new addition; * Replacement of existing wood decks; * Downstairs addition for the purpose of installing a new bathroom; * Extension at the rear of the main bedroom to create space for a walk-in closet and a work out room in the floor below; * Creating access to the outdoor kitchen close to the pool area; * Extension of the front courtyard; * Remodeling of kitchen to be able to access while using wheelchair; * Front loading washer and dryer; and, * Lift at the back of the home to exit from all levels. The rationale for all opinions must be fully explained. 4. Afterwards, undertake any development necessary regarding the Veteran's claim, to potentially include obtaining an updated independent living assessment addressing whether the equipment purchases/home adaptations that he is seeking are necessary to enable him to achieve maximum independence in daily living. 5. If the Veteran's claim is not granted in full, he must be furnished an appropriate Supplemental Statement of the Case (SSOC) and be provided an opportunity to respond. The RO should provide the regulatory, statutory or VA manual criteria upon which the Veteran's claim is denied along with an explanation for the reasons and bases for the denial. The case should then be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).