I CAN’T HEAR YOU!

My good friends at the Seattle VR&E office have finally received their marching orders from the DC overlords. In what appears to be a case of scarce judicial resources, they gave up on a local attempt to rebut my NOD and sent it out to the cleaners. I will grant them this. They are speedy and must be employing the VBMS. I have never seen a Statement of the Case (SOC) issued in such record time since my filing in 1994. At that time, a NOD filed on December 7^th, 1994 was answered with a SOC on January 9^th, 1995. This one was a close second in that the NOD was filed in October 2012 and the SOC arrived last week. It took me a few days to digest it. For a while there, I thought that they had me confused with another Vet. After finding all those other Vets’ records in my c-file, I was positive this was the case. After reading further, I realized it was me after all. Anyone here who has been following the claim is probably aware that this is a discussion about one (1) (uno) (nung) (un) greenhouse. Imagine my surprise to read that I have not one but two (or three) greenhouses and am being greedy. I was also informed that my attempt to cheat local merchants out of their due by growing my own veggies ( and flowers) is right out. Apparently I can’t use the Independent Living Program to skirt paying the local truck farmers. My Form 9 will have to include a Miriam Webster dictionary definition of what constitutes a “greenhouse”. I have often talked here on the blog as well as in my book about how VA uses the written word to “bend” the meaning of things. Nowhere is that more evident than their latest opus. I include the decision here for those who will follow after me on this quest. When the battle is won, a clear path through the wreckage will emerge.

This may help many of you to avoid the pitfalls I have   encountered. I can see the battle lines are being drawn along the “independence in daily living” argument I tried to poke a hole in. The word “avocational” also seems to be a big stumbling block as well. It’s rather hard to carry on a conversation with the likes of a Cheez-it® cracker screaming “I can’t hear you!” Yet this is what I am dealing with at the VARO level. Actually, I suspect it is lip synching via the Washington DC Bureau of Denials. Perhaps they just transmit the language back to the local yokels for the steno pool. The long and the short of all this is that once again VA has resorted to taking one small niggling fact you have supplied and running pell mell down the field in the wrong direction. In this case, I suspect the problem lies with my Voc Rehab guru. Mr. K has perused the gardening facilities and come to the remarkable conclusion that I have numerous “greenhouses” on site and therefore do not require additional ones. The additional argument is what should disturb every last one of you who  aspires to ILP greatness. “His intention is to use avocational intervention to sustain his independence in daily living is not necessary, reasonable, or justifiable under Title 38 CFR 21.160” Let’s just overlook for a moment that this is a run-on sentence. There are too many “is”s in it. What the VA is saying is that at no time-ever- will avocational programs be permitted under the IL Program umbrella. The word “avocational” is anathema to them. It is commensurate with flawed dogma. The whole Voc-Rehab program is predicated on one tenet: VA allocates funds/training/ tools to qualifying Veterans to prepare them for reentry into the job market. It is vocational in its thrust. In a word, it seeks to employ you. On the other hand, once you have demonstrated that you are not a candidate for the vocational rehabilitation by virtue of your disabilities, you are a candidate for the IL program. This is where the dichotomy yawns between logic and illogic.

Decades ago at the inception of this program, the concept of avocational pursuits to while away the hours was considered by psychiatrists as valuable to the continuing mental health of Veterans. Gradually they moved away from that pronouncement and gravitated to what could be a proven path to maintaining mental health. Finally, after almost thirty years, the present philosophy of providing grab bars and cordless phones in lieu of photography equipment has emerged. No longer are Vets provided an outlet for their creative juices. They are corralled into a small area and offered devices to put their socks on with. Shoe horns are a big item, too. VA is also big on issuing grab devices to get that can of pork and beans off an upper shelf in order to maintain you independence in everyday living with the reduced help of family and community. Always remember that grabbing said can of beans is purely a vocational pursuit.

At what point do we say enough? Let’s take the term “independent living” and run it through the smell test. Independence is a term that connotes the ability to be free in your person and life to make choices. Independent living as a phrase connotes living with reduced supervision in the ILP context but only from the myopic viewpoint of Veterans. VA’s take on this convolutes the meaning and inserts a means test with an impenetrable barrier. Anything beyond Depends® undergarments is avocational which is now prohibited. How, then, do we explain decades of grants for John Deere riding lawnmowers and snowplow attachments? What about that computer they “issued” many of us? If it wasn’t to obtain that high-paying job as a technical consultant (read vocational), then it was-uh oh- avocational, right? This is the dreaded means test. There must be an unwritten rule of VA ILP that the cost of an item or items is the definitive reason for denial. The Dell computer, all-in-one-printer and software obviously did not break the bank or overstep the financial limits in my case. Mr. Bruce McCartney’s greenhouse grant in Atlanta similarly did not set off alarms other than his protracted fight to obtain it. Another Vet down in Vancouver, Washington (USNDW) has had great success with his Voc Rehab counselor concerning a wide variety of items but is slowly discovering there are limits.

Accepting that there is a means test is not, in and of itself, a barrier to obtaining “things” from VA. The IL program started out as a way of providing us with knick knacks like Tandy leather products kits to make our own wallets and key fobs. This progressed to photography dark rooms and associated equipment. It extended into ham radio gear and eventually into the riding lawnmower arena. At some point the alarm sounded and the eventual cost, if not contained, threatened to engulf the funds available- or so it seems. By 1996 a retrenchment began with Congress’ rescission of all the original rules on this and a new definition of what “is” is. The IL program suddenly got a haircut- modest but noticeable. Again, in 2001, revamping and redefining the limits of largesse came into play. No longer were Vets automatically given their own bowling alleys and vintage cars to ride in at parades. The new paradigm became the “essentials” and the VR&E police began the “Well, bubba. We’d sure like to give you that photo lab but it isn’t necessary and vital to your independence in everyday living.”

Just like God, the IL Program exists. It’s there but intangible. You can find it listed and described in §§21.160 and .162. You can see it in practice here and there but you cannot touch or weigh it. VA insists you qualify for it but that all the things you ask for are not essential for your independence in everyday living. What good is a program that is never employed? What does it accomplish? Who benefits? Why even have it if no one qualifies? I think we know the answer.

VA has a storied history of reciting the mantra at the VBA of “Grant if you can and deny if you must”. This is old hat. With a denial rate in excess of 85% on the first venture, Vets can discern the true nature of the benefit. After you read my book, you better understand the problem and the eventual solution. This works for compensation claims because you can clearly demonstrate a cause and effect scenario-i.e. injury in service, injury now and nexus tying them together. Nowhere in the ILP scheme is there a path or description akin to the seminal CAVC Caluza decision in 1994 that states you need to exhibit these three ingredients to prevail. In fact, all you have to pass is the disability bar. If you are extremely disabled, the fruits of the tree are yours (within reason). The more disabled you are is the predicate for who is granted these dispensations. That’s the paper view at any rate. Were that the case, 2,700 extremely disabled Veterans would be awarded this dispensation annually and be given meaningful “avocational” tools to while away their hours. Not only does this not occur, but the program continues to be wrapped in secrecy and hidden on an upper shelf out of sight of most. For those of us lucky enough to discover it, the next big disappointment is the almost universal denial or bait and switch with grab bars and cordless phones for “independence”. When pressed (read NOD), VA will acquiesce and grant the small potatoes. The big ticket items remain on the top shelf and inaccessible to most, if not all of us. I don’t want to appear greedy. This is inevitably what VA will try to characterize us as. I note with interest the email VA’s congressional liaison sent to Sen. Patty Murray’s VA coordinator last year. The missive centered on the fact that I was in receipt of 100% compensation equaling $2924.00 a month. Shoot, pilgrim. The man is awash in cash and wants a greenhouse too. What the hey? We gave him a computer and he’s still not happy.

Just applying for ILP is not a guarantee of admission. You become a candidate and are measured and weighed. If it is felt that there is nothing that can contribute to your independence in this magical thing we call everyday living, then you are not eligible for the fruits. Since this occurs in about 90% of cases, the barriers to success are even higher than those for compensation. Some other intangible is at play that would get you a greenhouse in Atlanta but no more than a grab bar in Seattle. This is the odyssey I set out on in March of 2011 to discover for all of us. What are the barriers and what is the magic password? Learning VA’s secret handshake has been my mission. VA has been very adroit in performing their Dog and Pony show. They have conducted the home inspections and interviewed me repeatedly. Each time they have collected more info and patrolled the garden. My old computer was carefully searched for pornography to ensure I wasn’t requesting it for prurient pursuits. In the end, the computer, greenhouse and sewing machine were denied because- you guessed it- it wouldn’t contribute one iota to that mythical independence I sought every morning upon arising from bed. In the end, after a NOD, the computer was granted but not for avocational interests. Somehow this is a vocational pursuit that yields employment of an intangible kind. No money changes hands. The occasional Vet I help sends me exquisitely hand-knapped arrowheads (WGM) or a jug of Vermont’s finest nectar-maple syrup (Frank). Some have gone so far as to come to Gig Harbor and buy me lunch (Peter and Azjensmom). Forgive me if I didn’t list it on my W-2. Nevertheless, it is not an “avocational” tool. That is forbidden.

This is where reality flies out the window. VA cannot conceive of anything that passes the vocational test other than cheap plastic tools that improve your independence. How they can then make the argument that the grab bar is “vocational” escapes me. I welcome enlightenment from any of you who are less myopic than me. VA cannot or will not entertain the idea, here in Seattle’s VR&E office, that the IL program encompasses anything other than a vocational interpretation. This conveniently allows them to deny any requests for anything other than what they deem necessary and vital. We know where that leads. It means there is no booklet or list that contains what is permitted and what is verboten. The regulations giveth but the personnel taketh away. If a Veteran can string together a pearl necklace of statutes and regulations that the VA cannot overcome with logic, then the item is granted. On the other hand, the greatest majority go away empty-handed due to their inability to plead convincingly. Few if any lawyers for Veterans will enter this arena because there is no money in it. Envisage a country doctor taking apples or potatoes in lieu of cash for delivering a baby to indigent folks. You get the picture. There’s damn few of those left. Pro bono work in this field is non-existent. VA vainly attempts to characterize it as a viable perk yet steadfastly refuses to grant in most cases. This is evident from the correspondence to Sen. Murray pointing out that I already get tons of tax-free money every month for doing nothing. A greenhouse would simply add insult to injury to the taxpayer.

Until we change the mindset of the VR&E folks on what this program is, we will all continue to marvel at the lucky few who prevail. It is just another adjunct of what I wrote in my book- the squeaky wheel gets the grease. More importantly, the grease is applied when it is evident that the applicant has no intention of giving up. I suspect the VA took one look at the cart employed to move my 7-volume c-file around the VARO and decided to play knick knack, paddy whack, give the Vet a Dell. I am what VA might define as a frequent filer. They have no love for me but they try to remain polite and equitable. By law they are required to. This does not diminish their desire to see me choke on a fish bone and die-sooner rather than later.

Below is the SOC explaining why I will never get a greenhouse. As for the Reasons and Bases, I will let the reader try to wend their way through the tangled semantic thicket and emerge on the far side without shaking their heads in confusion. I see that from one perspective I will be harmed by having additional greenhouses because I will have to slave night and day to maintain them. Then, in following paragraphs, I am attempting to circumvent the whole precept to the ILP by avocational pursuits.

The VA formula for those mathematically inclined is simple.

ILP ≠AP

where A = Avocational and P= Pursuits. Very simple. Very effective.     As you can see, VA employees are far too modest to take credit for these decisions and do not identify themselves by other than their signatures. Names might imply authorship. I am currently researching new meanings for “greenhouse”. I will submit them with my new Form 9 which is currently under construction by ____________. Here, according to VA, is my current inventory of them.

temporarily out of order due to cold weather

temporarily out of order due to weather

winter broccoli that never materialized due to cold weather

actual greenhouse which, unfortunately, is non-ADA compliant

New (solar-heated) DIY VA-approved greenhouse.(note: for vocational use only)