Citation Nr: 21065381 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-08 623 DATE: October 26, 2021 ORDER Entitlement to veteran readiness and employment (VR&E) benefits in pursuant of an avocational activity under Chapter 31, Title 38 of the United States Code, is denied. FINDINGS OF FACT 1. The Veteran's pursuit of leisurely farming is an avocational activity; his service-connected disabilities do not limit or prevent participation in that activity and there is no statutory or regulatory basis for awarding funding to pay for equipment in pursuit of that interest. 2. To the extent that the Veteran's request for tools/equipment involves updating or replacing existing equipment, the Veteran is barred under VR&E policy from obtaining such equipment in furtherance of an avocational activity. CONCLUSION OF LAW The criteria for VR&E benefits in pursuit of an avocational activity under Chapter 31, Title 38 of the United States Code, have not been met. 38 U.S.C. §§ 3104(a)(15), 3109, 3120; 38 C.F.R. § 21.160. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from January 1968 to June 1969. The Veteran is a Vietnam Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 letter of determination issued by the Department of Veterans Affairs (VA). In an October 5, 2018 correspondence, the Veteran requested a Board videoconference hearing; however, on October 12, 2018, he withdrew the hearing request. This case was previously before the Board in March 2019, January 2020, February 2020, and November 2020. In March 2019, the case was remanded to obtain a new VR&E assessment to determine the feasibility of a vocational goal. In January 2020 and February 2020, the Board remanded the claim for substantial compliance with the March 2019 remand directives. In June 2019, the Veteran's feasibility was assessed and determined by the Vocational Rehabilitation Counselor (VRC); the claim was returned to the Board for appellate consideration. See June 2019 Counseling Memorandum (Notably, the VRC reassessed the Veteran and found that no vocational goal was feasible). However, the Board remanded the case again in November 2020 for issuance of a supplemental statement of the case (SSOC) to consider in the first instance evidence and administrative decisions that had been added to the record since the February 2020 Remand. In May 2021, a VRC issued an SSOC to the Veteran and readjudicated the claim on appeal. The Board finds that VA has substantially complied with all prior remands of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also notes that, during the pendency of the appeal, the Veteran's attorney withdrew from representing the Veteran. See July 13, 2020 third party correspondence. In a September 2020 notice letter, the Veteran was informed that he would no longer be represented in his appeal before the Board. See September 23, 2020 correspondence. The Veteran in this matter is proceeding pro se. While additional documents were added to the claims file after issuance the May 2021 SSOC, the Board finds that this evidence does not change the outcome of the case as discussed below. Thus, the Board finds no reason to prolong the appeals process by remanding this matter again. As such, the Board will proceed with the adjudication of the claim on the merits. Entitlement to VR&E Benefits The Veteran is currently in receipt of a 100 percent combined disability rating based on the following service-connected disabilities: posttraumatic stress disorder (PTSD), rated 100 percent disabling; a left foot shrapnel wound scar, rated 0 percent disabling; and a right arm shrapnel wound scar, rated 0 percent disabling. He is also severely impacted by his nonservice-connected major depression. The Veteran reports that he owns approximately 20 acres of land on which he engages in leisurely farming; that he works at the orchard for his mental health; that he can borrow or lease the tools/equipment; that the farm is next to one but his cousin and that they have collaborated on farming activities in the past; and that he hires someone twice a year to plow the field. The Veteran has specifically requested VR&E funding under an Independent Living Plan to purchase the tools and equipment that he believes are necessary to carry out orchard management activities (e.g., maintaining the apple trees, pumpkins, and blueberries and pruning/clearing the orchard floor on his farm). Initially, the Board observes that a determination was made in June 2019 that employment (including self-employment) was not a feasible goal for this Veteran. Subsequently, both a Preliminary Independent Living Assessment and a Comprehensive Independent Living Assessment were completed to identify the potential of unmet Independent Living Needs. The Comprehensive Independent Living Assessment dated in November 2019 documented that the Veteran was requesting VR&E funding to purchase the following tools/equipment: 1. a Honda rototiller; 2. a medium chain saw; 3. a Stihl pruning saw with pole pruner attachment; 4. a cordless screwdriver/cordless drill; and 5. a Stihl basic hearing protector. The evaluator recommended a Surveillance Camera System to monitor his home and surrounding property. VR&E determined that the Veteran's request was in furtherance of an avocational interest (i.e., the pursuit of leisurely farming not work). Independent living services are offered 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 U.S.C. §§ 3104(a)(15), 3109, 3120; 38 C.F.R. § 21.160. Such services may be furnished under the following circumstances: (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. See 38 C.F.R. § 21.160(c). Under this fourth criterion, the program of rehabilitation services may be furnished to help the veteran function more independently in the family and community without assistance of others or a reduced level of the assistance of others; become reasonably feasible for a vocational rehabilitation program; or become reasonably feasible for extended evaluation. 38 C.F.R. § 21.160(c)(4)(i)-(iii). VR&E has created its own internal regulations in the VR&E Service Manual (M28R) to administer self-employment services to eligible veterans. These rules do not apply to the Board, but may be considered. M28R, Part IV, Section C, Chapter 9, describes the guidelines for the development and administration of an independent living plan. Chapter 9.05 defines "avocational" as "activities or hobbies outside one's main occupation that are done for enjoyment that enables or enhances the individual's ability to engage in family and/or community activities that are integral to the achievement of the goals of the Individualized Independent Living Plan (IILP)." Additionally, Chapter 9.05 sets forth the following eligibility criteria for establishing entitlement to services designed to support an avocational interest: The disability condition limits or prevents participation in the avocational interest; The activity must have been previously performed for a significant amount of time, defined as over a twelve-month period; A medical and/or mental health provider must provide documentation that continued support of the activity is not contraindicated; An expert consultation to identify accommodations required to enable continued support of the activity must be completed by a qualified person, such as an occupational therapist; The pursuit of the avocational interest must improve the individual's independence in daily living in a measurable and verifiable manner; and The individual must have the ability and resources to sustain the activity or pursuit after the period of rehabilitation services are completed. Notwithstanding the foregoing, there are limitations on providing services for the pursuit of an avocational interest. For example, Chapter 9.05 specifically states, "The VRC should not update or replace existing equipment that enables participation in an avocational activity." The Board has conducted a comprehensive review of the record, including all VRC assessments and the statements made by the Veteran throughout the appeal period. Based on that review, the Board finds that the Veteran is not entitled to VR&E benefits in pursuant of an avocational activity. In her assessment of the Veteran, the VRC found that the Veteran's service-connected disabilities do not limit or prevent participation in his avocational interest as required the eligibility criteria set forth in Chapter 9.05 of the M28R. The Board agrees with the VRC's assessment. Despite his increased psychiatric symptoms, the record does not demonstrate that the Veteran's mental health condition prevents him from performing leisurely farming duties. If anything, the Veteran has consistently reported that he needs to participate in the leisurely farming activities to alleviate the severity of his psychiatric symptoms. The Board acknowledges that the M28R is a VA policy manual and does not supersede the applicable statutes and regulations as they pertain to the administration of VR&E benefits. Furthermore, the Board is not bound by the policies set forth in Chapter 9.05 of the M28R. This case will not be decided on the basis of a policy manual. In this case, the Veteran has applied for independent living services. 38 C.F.R. § 21.160 establishes the criteria for furnishing independent living services to eligible veterans. Specifically, 38 C.F.R. § 21.160 provides that independent living services may be furnished for 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. The Veteran's service-connected PTSD has been rated 100 percent disabling since May 2018 and his nonservice-connected major depression has had a significant impact on his mental health over the past several years. In fact, the Veteran's service-connected and nonservice-connected disabilities are of such severity that he cannot (and, more importantly, does not wish to) reenter the workforce. Thus, the Veteran clearly falls within the category of "veterans whose ability to function independently...is so limited by the severity of disability (service and nonservice-connected)." The circumstances under which independent living services may be furnished are limited to four specific scenarios. The only applicable scenario is characterized "[a]s a program of rehabilitation services for eligible veterans for whom achievement of a vocational goal is not currently reasonably feasible." The Veteran has expressed that he does not wish to return to work, and the objective medical evidence of record clearly demonstrates that his service-connected and nonservice-connected disabilities are at a level of severity that achievement of a vocational goal is not currently reasonably feasible. See 38 C.F.R. § 21.160(c)(4). While the Veteran contends that the farming equipment that he requested will help him function more independently (see 38 C.F.R. § 21.160(c)(4)(i)), the regulation does not provide any basis for funding equipment in the pursuit of an avocational interest. Given that 38 C.F.R. § 21.160 does not directly address the circumstances under which VR&E benefits can be provided for avocational interests, the Board finds it necessary to consult VA's policy manual, the M28R, on this matter. As noted above, Chapter 9.05 of the M28R provides guidance on how VR&E implements 38 C.F.R. § 21.160 for 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. It is important to note that Chapter 9.05 of M28R expands the scope of the available services by clarifying that benefits may be provided in support of an avocational activity that the individual can no longer perform due to the effects of his or her disabilities. In that type of situation, a VRC may provide resources to enable the individual to continue the activity in an effort to increase community involvement, as well as functional ability and mobility. While the equipment requested by the Veteran would be helpful in his pursuit of leisurely farming, the Board finds that the VRC properly denied the claim on the basis that the Veteran's service and non-service connected disabilities do not prevent him from pursuing leisurely farming. Rather, leisurely farming serves as a method of coping with his severe psychiatric symptoms. The Veteran does not need a large farm to do farming. The Veteran can still farm without, for example, a chain saw. The Veteran simply wants to farm on a large scale on 20 acres of land. The Board understands the Veteran's desire for funding to pay for tools/equipment in furtherance of an avocational activity. However, the evidence of record does not demonstrate that the Veteran's service-connected disabilities limit or prevent participation in his avocational interest. The Board notes that, when the Veteran originally applied for VR&E benefits, he was seeking benefits under Self-Employment Category 1. However, he has since indicated that his service-connected and nonservice-connected disabilities have worsened to the extent that he is not interest in working. Indeed, the VRC in this case found that the Veteran's severe PTSD and depression symptoms would interfere with any employment situation which would require the Veteran to interact with others. See October 2020 VRC Memorandum. The VRC noted that the Veteran's previous counselor had also deemed any occupational goal to be infeasible when he was afforded a Comprehensive Independent Living Assessment in June 2019. Id. In situations where an occupational goal is infeasible, the Veteran may be entitled to independent living services if specific criteria are met (possible example: a wheelchair). Unfortunately, the Veteran does not meet the criteria set forth for establishing entitlement to services designed to support an avocational interest: large scale farming (large by the standards of someone who does some residential gardening). The Board also recognizes that the Veteran does have issues with PTSD and Depression. On March 17, 2021, the Veteran underwent a brief psychiatric assessment by a VA advanced registered nurse practitioner (ARNP). The ARNP noted, "Patient needs equipment to utilize...where he owns a large tract of land." He also indicated, "The equipment will be beneficial for this Veteran to manage his symptoms of PTSD." However, these observations were made as part of reporting the Veteran's medical history and not as part of a formal recommendation. Likewise, even if there is some truth to these observations, the Veteran has not demonstrated how having the requested tools/equipment will reduce the severity of his PTSD and depression symptoms. In any event, the ARNP's observations simply do not demonstrate that his PTSD and depression prevent him from participating in leisurely farming. The Veteran is encouraged to farm. The Board has carefully considered the Veteran's statements in support of his claim. However, the VRC's findings are highly probative regarding this matter, and the Board finds that the previous assignment of the discontinued status (based on an infeasible vocational goal with no independent living needs) was appropriate. The Board recognizes that the Veteran will probably not agree with this outcome. However, the Board sincerely hopes that the Veteran understands that his current circumstances do not meet the statutory, regulatory, or internal policy requirements to allow for the award of the benefits requested. As a final matter, the Board notes that the VRC also denied the claim on the basis that the Veteran already had the necessary farming tools and equipment to pursue leisurely farming and that, as a policy matter, VR&E funding could not be used to update or replace existing equipment that enables participation in an avocational activity. Indeed, Chapter 9.05 of the M28R dictates that the VRC should not update or replace existing equipment that enables participation in an avocational activity. Thus, given that the Veteran already has farming tools and equipment for leisurely farming (as demonstrated by the fact that he has been maintaining the farm for years and that he hires someone twice per year to mow the acres), the Board no reason to controvert established VA policy. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.