Citation Nr: 21031947 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-15 686 DATE: May 25, 2021 ORDER Vocational rehabilitation and employment (VR&E) services or benefits pursuant to a program of independent living services under Title 38 United States Code (U.S.C.), Chapter 31 is denied. FINDINGS OF FACT 1. The Veteran's vocational goal of employment is not reasonably feasible. 2. The Veteran will not significantly benefit from VR&E Independent Living Services at this time. CONCLUSION OF LAW The criteria for entitlement to VR&E services or benefits pursuant to a program of independent living services pursuant to the provisions of Title 38, U.S.C., Chapter 31, have not been met. 38 U.S.C. §§ 3104, 3120; 38 C.F.R. §§ 21.76, 21.160, 21.162. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1977 to March 1979. This matter is on appeal from an August 2014 decision. In September 2015, the Veteran testified at a videoconference Board hearing. In December 2018 and December 2020, the Board remanded the case for additional evidentiary development. The Veteran was previously represented by Disabled American Veterans; however, he revoked that representation in an April 2021. He is now proceeding pro se. VR&E services or benefits pursuant to a program of independent living services under Title 38 U.S.C., Chapter 31. The Veteran seeks VR&E services or independent living services to obtain additional equipment, tools, and wheelchair accessible workspace so that he may start a small woodworking business from home in order to achieve self-employment and/or maximum self-sufficiency. Legal Criteria The provisions of Chapter 31, Title 38, United States Code are intended to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. 38 C.F.R. § 21.1. 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). Analysis In January 2014, the Veteran was evaluated by a Vocational Rehabilitation Counselor (VRC). The VRC determined that the Veteran had an employment handicap and serious employment handicap due to wheelchair restrictions and medications. The VRC determined that feasibility of the Veteran's vocational goal was uncertain, noting he has had repeated medical interventions and a wheelchair due to his neck. As such, VR&E proceeded with an Independent Living Needs assessment. In February 2014, a Preliminary Independent Living Assessment was conducted. The report reflected that he is dependent on others or assistive devices for most activities of daily living. It was further noted that the Veteran usually did not do several activities because of disabilities, including work around the house, walking several blocks, climbing one flight of stairs, participating in moderate or vigorous recreational activities, writing, bending, stooping, or lifting. The report indicates he was dependent on others for assistance, but receives a personal care attendant through the state of Alaska. The report further reflects he lives with his girlfriend and receives assistance from his children. The record reflects that during a subsequent teleconference with the VRC in August 2014, the Veteran reported working with the Alaska Veterans Affairs Healthcare System (AKVA) on his independent living needs. See August 2014 Interruption Letter. The Veteran also indicated there would be no need for a comprehensive independent living assessment. Id. VR&E proceeded to deny the appeal on the basis that achievement of a vocational goal was not reasonably feasible due to the severity of his disabilities and the Veteran declined to participate in a comprehensive independent living evaluation after reporting that his current independent living needs were being met through the Veterans Health Administration (VHA). In an August 12, 2014 email (the same day as the reported teleconference), the Veteran indicated that he initially declined a comprehensive independent living assessment during an early morning telephone call with the VRC when he was not fully coherent. The Veteran reiterated that his goal is to become self sufficient. He noted he receives assistance through Social Security Administration (SSA) benefits, Adult Public Assistance, as well as VA benefits. The Veteran also reported that he is only able to function for limited stretches of time, and required frequent break. He noted that the greater amount of activity, the greater the need for frequency and length of breaks. He noted he has an irregular sleep pattern and requires several hours to shake the effects of his medication. He further indicated he had bowel and bladder issues that interfere with his ability to leave his home. In March 2015, another Preliminary Independent Living Assessment associated with the claims file. The report continues to reflect that he is dependent on others or assistive devices for most activities of daily living. VR&E issued a determination that achievement of a vocational goal is not currently reasonably feasible. It was determined that the Veteran would not benefit from an employment outcome due to the severity of his service connected and non-service-connected disabilities. It further reflected that his independent living needs have been addressed through the AKVA or the state of Alaska. In April 2015, an advisory opinion was obtained. The opinion reflects concurrence with the VRC's determination that the achievement of a vocational goal is not currently reasonably feasible and that his independent living needs are being met through VHA. At the September 2015 Board hearing, the Veteran testified that he initially declined a comprehensive independent living assessment during an early morning telephone call with the VA rehabilitation counselor when he was not fully coherent but later emailed the rehabilitation counselor on the same day requesting a comprehensive independent living assessment and acknowledging that he may be entitled to benefits under the independent living services program for which he was unaware. In December 2018, the Board remanded this matter for to obtain a comprehensive independent living assessment to determine whether an individualized independent living plan is warranted. Thereafter, a Comprehensive Independent Living Assessment was conducted in February 2020. Following evaluation, the counselor noted that there were currently no unmet needs identified and, as such, no proposed interventions. The report reflects the Veteran has had bathroom modifications, ramp installation, wheelchair, and hospital bed provided. He uses Anchor Ride, City Bus, family, friends, and wheelchair to travel to stores and appointments. He has a personal care attendant and VA home base medical team consisting of a primary care physician, nurse, physical therapist, dietician, and specialist. It was also reported that the Veteran's family and friends provide additional support. Given this, the counselor found the Veteran is of sound mind and highly capable of taking care of himself. 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. Here, the VR&E division made a negative feasibility determination. This determination was based on the fact that the Veteran had significant physical health issues, was in receipt of SSA benefits, and the Veteran's self-reports of his inability to care for himself. See Counseling Record Narrative Report Feasibility Determination; see also April 2015 Advisory Opinion. Additionally, additional equipment, tools, and wheelchair accessible workspace are not necessary to allow the Veteran to live more independently. In reaching this decision, the Board notes that while a Preliminary Independent Living Assessment reflects that he is dependent on others or assistive devices for most activities of daily living, the February 2020 Comprehensive Independent Living Assessment found there were currently no unmet needs identified and no proposed interventions. The report reflects that the Veteran is receiving significant services through VHA, Medicaid, and the State of Alaska. As such, because there were no unmet needs, the Veteran was found to be highly capable of taking care of himself. (Continued on the next page) The Board has considered the Veteran's statements. See, e.g., March 2015 Notice of Disagreement; September 2015 Board hearing. However, the Veteran has not presented persuasive or credible evidence to show that, contrary to the VRC's determination, achievement of a vocational goal may be reasonably feasible in this case or that there are unmet independent living needs. Given the record before it, the Board finds that evidence with regard to this claim does not reach the level of equipoise. Specifically, the negative feasibility determination was made based on a comprehensive evaluation of the Veteran's case, along with a proper assessment to determine whether the Veteran would benefit from VR&E Independent Living Services. As such, the Board finds that the claim for VR&E services or benefits pursuant to a program of independent living services must be denied. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, Associate 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.