Citation Nr: 0833569 Decision Date: 09/30/08 Archive Date: 10/07/08 DOCKET NO. 03-11 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to payment or reimbursement by VA for expenses incurred related to the veteran's participation in an education program at Victor Valley College and California State University-San Bernardino based on his retroactive induction into the Chapter 31 vocational rehabilitation training program. [The issues of entitlement to service connection for a left wrist disorder, whether new and material evidence has been presented to reopen a claim for entitlement to service connection for PTSD, entitlement to a temporary evaluation of 100 percent under 38 C.F.R. § 4.30 beyond August 31, 2005 for convalescence following left knee arthroscopy, and entitlement to additional compensation benefits for dependents will be addressed in a separate decision.] WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Ferguson, Associate Counsel INTRODUCTION The veteran had active service from June 1970 to April 1972. This matter returns to the Board of Veterans' Appeals (Board) following a remand issued in March 2004. The issue of entitlement to vocational rehabilitation benefits under chapter 31, title 38, United States Code, was previously remanded by the Board in March 2004 for further notification and development as the veteran had been deemed not currently feasible and the Board noted that a material change in his status seemed to be reasonably indicated from then-recent correspondence. However, while the case was in remand status, the VR&E determined that the veteran was entitled to vocational rehabilitation and employment services. An individualized written rehabilitation plan was developed and signed by the veteran in June 2006, which identified the program goal as completion of a bachelor of arts degree in social work at California State University-San Bernardino and/or continued education to obtain an entry-level position as a social worker or related occupation in the social service field. The VR&E also granted retroactive induction into the vocational rehabilitation training program and agreed to reimburse the veteran for the tuition, fees, and supplies required for his training program at Victor Valley College and California State College-San Bernardino. Although the veteran cancelled his rehabilitation plan during the course of this appeal because VA did not reimburse him for the all of the expenses for which he believed that he was entitled and indicated to VR&E that he wanted to proceed with his original appeal to the Board, it is clear from the correspondence of record that the veteran cancelled his rehabilitation plan and is currently not receiving vocational rehabilitation services of his own volition. Furthermore, the veteran's rehabilitation program apparently remains in "interrupted" status pending resolution of this appeal as there is no indication in the record that it has been formally discontinued. 38 C.F.R. §§ 21.197, 21.198 (2007). Thus, the issue of entitlement to vocational rehabilitation services under chapter 31, title 38, United States Code has been resolved and is no longer before the Board. Nonetheless, the veteran perfected an appeal with respect to a claim for entitlement to payment or reimbursement by VA for expenses incurred related to the veteran's participation in an education program at Victor Valley College and California State University-San Bernardino based on his retroactive induction into the Chapter 31 vocational rehabilitation training program while this case was in remand status. Indeed, VR&E issued an August 2006 determination, which denied the veteran's request to be reimbursed or otherwise paid for certain expenses related to his time as a student at the aforementioned educational institutions. In response, the veteran filed a notice of disagreement with respect to the determination in October 2006, a statement of the case was issued in November 2006, and the veteran submitted a VA Form 9 in February 2007. Thus, that issue is properly before the Board and is subject to appellate review. 38 C.F.R. §§ 20.101, 20.200 (2007). In that regard, the Board recognizes that the RO framed the issue on appeal differently in its statement of the case and supplemental statement of the case from what is reflected on the title page of this decision. However, it is clear from the correspondence sent by the veteran as well as the discussion and substance of the adjudication in both the SOC and SSOC by VR&E that the issue essentially involves the reimbursement or payment of expenses related to the time that the veteran was pursuing coursework at Victor Valley College and California State University-San Bernardino before he had been granted vocational rehabilitation services, which included retroactive induction. Thus, the Board has recharacterized the issue in the interest of clarity. The Board notes that the veteran has repeatedly alleged that the RO has denied his claims due to racial discrimination and has requested at various times during the course of this appeal that jurisdiction of his appeal be transferred to the RO in San Diego or San Francisco. However, the Board has no authority to rule on such matters and refers the veteran's requests to the RO for review. Also, during the course of this appeal, the American Legion requested to withdraw its power of attorney with respect to the veteran's appeal citing its inability to work with the veteran in a cooperative manner as the basis for the withdrawal. As the record reflects that proper procedures for withdrawing representation after an appeal has been certified to the Board have been followed and good cause has been shown, the American Legion's representation of the veteran in the present matter has been properly withdrawn. 38 C.F.R. § 20.608(b)(2)(2007). Furthermore, the veteran was allowed an opportunity to appoint another representative but chose to represent himself in the matter on appeal. The Board further notes that the veteran appears, in January 2008 correspondence, to be attempting to file a claim with the Board against the Los Angeles RO and certain individuals and entities for discrimination. However, the Board has no authority to rule on such claims as they are outside of the scope of the Board's jurisdiction. Moreover, the record reflects that the veteran testified at a Board hearing in November 2003 before a Veterans Law Judge who is no longer at the Board and, recently, testified at a Board hearing held in Washington, D.C. in October 2007 before the undersigned Veterans Law Judge. Both hearing transcripts are of record. Nevertheless, the veteran has repeatedly requested to be scheduled for another Board hearing in correspondence received since the October 2007 hearing. While the Board observes that the veteran did not present testimony with respect to all of the issues that had been perfected for appeal at the October 2007 Board hearing, the veteran was provided ample opportunity to present hearing testimony with respect to any issue on appeal at that time. Furthermore, the veteran has submitted numerous written statements during the course of this appeal wherein he has clearly articulated the reasons he disagrees with the RO's denial of his claims. For the foregoing reasons, the Board finds no reason to afford the veteran with another hearing. The Board also received additional evidence from the veteran at the October 2007 Board hearing, which was accompanied by a waiver of his right to initial consideration of the new evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c) (2007). Accordingly, the Board will consider the evidence in the first instance in conjunction with the issue on appeal. The Board will also consider the numerous written statements that the veteran has subsequently submitted that are duplicative of arguments already included in the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND After careful review of the record, the Board finds that additional development is necessary before proceeding to evaluate the merits of the veteran's claim. The record shows that the VR&E has undertaken efforts to pay or reimburse the veteran for certain expenses for which he is entitled as an approved participant in the vocational rehabilitation training program based on retroactive induction. However, it is not clear what specific expenses have already been reimbursed to the veteran (and their amounts). It is also unclear what specific expenses (and their amounts) that the veteran believes should be reimbursed or paid by VA. Accordingly, the case is REMANDED for the following actions: 1. The VR&E should send correspondence to the veteran asking him to identify clearly and with specificity any and all expenses (and their amounts) that he believes should be reimbursed or paid by VA related to his participation in an education program at Victor Valley College and California State University-San Bernardino and to submit any evidence in his possession that pertains to his claim to include any receipts and documentation of reported expenses. 2. The VR&E should also clearly identify with specificity any and all expenses reimbursed and/or paid to the veteran by VA related to the veteran's participation in an education program at Victor Valley College and California State University- San Bernardino for the period relevant to the current appeal. To the extent feasible, the VR&E should also clearly identify with specificity those expenses that were denied reimbursement and/or payment and their respective amounts. 3. Thereafter, the veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the veteran should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to obtain additional development. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).