Ah. yes. The ongoing greenhouse brouhaha. This will entertain all who are contemplating ILP claims. Remember always in your filings that the operable phrase is “necessary or vital to independence in everyday living”. If you fail to demonstrate this need, your request falls flat like a soufflé. Conversely, the knife cuts both ways. If vA fails to say you haven’t met this hurdle or proceeds to denial saying you can adequately accomplish the mission with the tools (greenhouse) at hand, they are implicitly acknowledging that a greenhouse is necessary and vital to that independence you seek in everyday living. Ofttimes,  phrases become operable assumptions that cannot be retracted.

When my VR&E counselor first denied my computer and greenhouse in 2011, he traveled the “necessary and vital” road to denial in addition to the frivolous nature of  avocational useage. Ruh-oh, Rorge. Avocational is smack dab in the middle of what is allowed. He is so well-versed in the vocational aspect of it that he misread 38 USC § 3120 and assumed everything associated with an ILP program has to be a vocational step closer to an eventual job. Those of us applying for ILP are hopelessly handicapped and are the very reason for the program. We are also not candidates for retraining of any sort.

After almost a year  of denial, one day the sun rose and the need for a computer became “necessary and vital” to my independence in everyday living. How this change occurred I know not. That is immaterial. The good counselor, in his infinite wisdom ascertained that I suddenly  qualified for this item while also determining it was still not necessary and vital to have the greenhouse. I italicize that purposefully.  Last Friday he revised his assessment.

The greenhouse, which was adjudged not necessary and vital to my independence, now is-with a codicil. The existing one I have is adequate for my agricultural production needs and I do not need an additional one. Now for the punchline in three letters-ADA.

Yes, we sadly run afoul of the Americans with Disabilities Act or should I say the VDA? The entrance to my existing greenhouse is only 29 inches wide. The interior aisle is only thirty inches wide with no room for my walker to turn around in. Furthermore, this myopic assessment makes no provisions for future debilitation and will effectively preclude me from my agricultural avocations.  Excuse me, Mr. Counselor. Allow me to draw you a picture.

Ruh-oh. 28 1/4 inches.

No room for seating

30 inches does not an ADA greenhouse make.

Unfortunately for Mr. Counselor, he did not peruse my medical VISTA records or he would know my lifting limit is 15 lbs due to all those lovely hernias I received for Father’s day in 2010. Absent sufficient room to sit inside a greenhouse out of the weather, I am forced to grow outside. Unfortunately, I can’t lift the improvised greenhouse glass he finds adequate because it weighs 85 lbs.

inaccessible romaine lettuce

Last but not least, how do I enter my existing greenhouse unless I back in?

As we all know, any denial must be accompanied by an articulated and  well-reasoned rationale. Sharp-eyed Veterans will note the following excerpts:

This letter provides the following information:

•  The evidence I considered

Under “Why you are denied the service as requested?” (sic) I can only surmise the counselor is temporally challenged with respect to the correct tense. The denial occurred in the past rather than the present and the question is a fragment of an interrogatory.  Time for an Adobe update, Kris.

After carefully reviewing the evidence, I find that you… etc. 

Hold the phone, Alexander Graham Bell.  Where, pray tell, is this elusive evidence which was considered? Granted, it has been carefully reviewed but I do not see the reasoned review. A bald conclusory statement, absent any supporting logic is pure speculation and unsupported by the evidence of record. Any denial lists the evidence, the name of the doctor, and usually a date.

The last sentence is the supposed clincher on the evidence. Current limitations? Check. He’s disabled. Medical records review? Impossible. Had this occurred, there would be a discussion of Raynaud’s syndrome and photosensitivity due to PCT.  Counseling sessions? I must have missed those appointments. Independent Living assessment? I have yet to see one of those.

My Notice of Disagreement will be a pièce de résistance. It will include untold pages of VISTA records, nexus letters for cryoglobulinemia and PCT with supporting blood labs, medical diagnoses of ventral hernias, and an admonition on weight-lifting limits. This is good practice for those of you who are awaiting a long appeal. Remember, you only have to be over 20% to qualify for ILP even though the majority of grants go to exceptionally disabled Vets. Are you listening Squidley? WGM?

The avenue to an administrative appeal is mentioned as a preamble to a full blown substantive appeal. By doing so, I will embroil myself in what amounts to a VR&E DRO Review which could go on for years. No. The smart money, as we know, is to proceed to a NOD. This will provoke a DRO review in its own right, albeit an in-house VR&E one. That is what you want to occur. The problem is my counselor. Due to his unfamiliarity with the ILP, he is laboring under the vocational misconception rather than the more relaxed standard of an avocational interpretation. Infused with this, he cannot see the greenhouse as a legitimate need because it doesn’t lead to an employment goal.

I’ll keep you up to speed on the appeal as it develops. Feel free to plagiarize anything you see here. Dang. Now I have to go out and find some Tickle Me Elmo stickers for the NOD. Onward through the vA fog.