Citation Nr: 0841269	
Decision Date: 12/02/08    Archive Date: 12/09/08

DOCKET NO.  05-08 713	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Whether the interruption and subsequent discontinuance of 
vocational rehabilitation benefits under the provisions of 
38 U.S.C.A. Chapter 31 was proper.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's Spouse


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 1991 to July 
2000.

This case comes before the Board of Veterans' Appeals (Board) 
from multiple determinations of the Vocational Rehabilitation 
and Counseling Division (VR&C) of the Department of Veterans 
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The appellant and the appellant's spouse testified before the 
undersigned Veterans Law Judge at a Travel Board hearing in 
May 2008.  A transcript of this hearing is associated with 
the claims folder.

In May 2008 additional evidence was received at the St. 
Petersburg RO subsequent to the issuance of the most recent 
Supplemental Statement of the Case.  The RO forwarded the 
documents to the Board; they were received at the Board in 
October 2008.  The Board notes that the evidence was either 
duplicative or not relevant to current claim on appeal and, 
therefore, the Board finds it unnecessary to remand the claim 
for the issuance of a Supplemental Statement of the Case.  
See 38 C.F.R. § 19.31 (2008).


FINDINGS OF FACT

1.  Currently, the veteran has the following service-
connected disabilities: Scheuermann's kyphosis of the 
thoracic spine status post T3 to L1 fusion, rated as 20 
percent disabling; scarring from back surgery, rated as 10 
percent disabling; patellofemoral syndrome of the right knee, 
rated as noncompensably disabling; costochondritis, rated 
noncompensably disabling; post operative residuals of 
disarticulation of three ribs, right side, associated with 
Scheuermann's kyphosis of the thoracic spine status post T3 
to L1 fusion, rated as noncompensably disabling; and erectile 
dysfunction, rated as noncompensably disabling.  The combined 
service-connected disability rating is 30 percent.  This 30% 
rating has been in effect since August 1, 2000, the effective 
date of the veteran's permanent retirement from service.

2.  In March 2000, the RO granted entitlement to vocational 
rehabilitation benefits. 

3.  In October 2000, the VR&C created an Individualized 
Written Rehabilitation Plan (IWRP) with an agreed upon 
vocational goal.  In January 2001, the IWRP was signed and 
agreed to by the veteran, counseling psychologist, and case 
manager.  Specifically, the plan indicated that the veteran 
would complete a Bachelor of Fine Arts (BFA) Degree in 
Photography and Digital Imaging; the VA would sponsor the 
payment of required tuition, books, supplies, and monthly 
subsistence allowance; the veteran would comply with the 
school's attendance and academic policies and maintain a GPA 
of 2.5 or better to graduate, with no grades of D, F, W, or 
I; the veteran would meet with case manager at least once per 
semester for review of progress; and the veteran would 
provide the case manager with copies of class schedules and 
grades each semester.  The program was scheduled to run for 
four years and four months from January 2001 to May 2004. 

4.  The veteran has not shown satisfactory cooperation or 
conduct in that he has not complied with the school's 
policies and has obtained grades of D and F.

5.  In August 2003 the veteran was noted to be threatening by 
a Ringling School of Art and Design officer and the veteran's 
vocational rehabilitation program was placed in interrupt 
status due to unsatisfactory conduct and cooperation.

6.  In February 2004 the veteran's vocational rehabilitation 
plan was found to be infeasible.

7.  In July 2004 an attempt was made to provide the veteran 
with readjustment counseling and to create an Individualized 
Independent Living Plan (IILP) for the veteran.  The veteran 
did not adequately respond to requests for information.

8.  In January 2005 the veteran was notified of a proposal to 
discontinue vocational rehabilitation benefits and in 
February 2005 the veteran's vocational rehabilitation 
benefits were discontinued.


CONCLUSION OF LAW

The interruption and subsequent discontinuance of vocational 
rehabilitation benefits under the provisions of Chapter 31, 
Title 38, United States Code, was proper.  38 U.S.C.A. §§ 
3111, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 21.197, 
21.198, 21.362, 21.364 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

VA will notify a claimant of any information, and any medical 
or lay evidence, that is necessary to substantiate the claim, 
and assist a claimant in obtaining evidence necessary to 
substantiate a claim unless there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. §§ 
3.102, 3.159(c)-(d).  These requirements do not extend to 
vocational rehabilitation benefits which are governed by 
Chapter 31.  See Livesay v. Principi, 15 Vet. App. 165, 179 
(2001); Barger v. Principi, 16 Vet. App. 132, 138 (2002); 
Lueras v. Principi, 18 Vet. App. 435 (2004).

Notwithstanding, VA educational programs have their own 
provisions that address notification and assistance.  For 
example, under 38 C.F.R. § 21.1031(b), "[i]f a formal claim 
for educational assistance is complete, or VA requires 
additional information or evidence to adjudicate the claim, 
VA will notify the claimant of the evidence and/or 
information necessary to complete or adjudicate the claim and 
the time limit provision of § 21.1032(a)."  In this case all 
relevant and probative evidence is contained in the veteran's 
Counseling/Evaluation Rehabilitation folders pertaining to 
his application for Chapter 31 benefits and the evaluations 
and counseling records generated in connection with that 
application.  As will be explained in greater detail below, 
the veteran has also been provided with considerable 
information outlining his due process rights, and the 
requirements for entitlement to VR&E services as well as the 
information and action that were required of him in order to 
assist VA in delivering those services.

These documents, including a August 2003 VCAA-style notice 
letter pertinent to VR&E benefits, the October 2004 statement 
of the case, and the January 2005 supplemental statement of 
the case, provided notification of the information and 
evidence necessary to substantiate this claim, and indicated 
to the veteran that the RO would make reasonable efforts to 
obtain relevant records adequately identified by the veteran.  
Thus, under the circumstances in this case, VA has satisfied 
its duties to notify and assist the veteran, and adjudication 
of this appeal poses no risk of prejudice to the veteran.  
See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  
There is no indication that there is additional evidence that 
should or could be obtained prior to adjudicating this claim.

II. Interruption and Subsequent Discontinuance of
Vocational Rehabilitation Benefits

The purpose of vocational rehabilitation (VR) services is to 
enable veterans with service-connected disability to achieve 
maximum independence in daily living and, to the maximum 
extent feasible, to become employable and to obtain and 
maintain suitable employment.  See 38 U.S.C.A. §§ 3100, 3101; 
38 C.F.R. §§ 21.35(b), 21.70, 21.71.

The three "basic requirements" for eligibility for Chapter 
31 VR training are set out in 38 C.F.R. § 21.1(b).  The first 
requirement is that of a basic entitlement to services under 
38 C.F.R. § 21.40. 38 C.F.R. § 21.1(b)(1).  The second 
requirement is that the services necessary for training and 
rehabilitation must be identified by VA and the veteran. 38 
C.F.R. § 21.1(b)(2).  The third requirement is that VA and 
the veteran must develop a written plan describing the 
program goals and the means through which those goals will be 
achieved. 38 C.F.R. § 21.1(b)(3).

The VA shall determine the reasonable feasibility of 
achieving a vocational goal in each case in which a veteran 
has either an employment handicap or a serious employment 
handicap.  The term "vocational goal" means a gainful 
employment status consistent with the veteran's abilities, 
aptitudes and interests.  38 U.S.C.A. §§ 3101, 3106, 38 
C.F.R. § 21.53.

38 C.F.R. § 21.198 provides that the purpose of discontinued 
status is to identify situations in which termination of all 
services and benefits received under Chapter 31 is necessary.  
VA will discontinue the veteran's case and assign the case to 
discontinued status following assignment to interrupted 
status as provided in 38 C.F.R. § 21.197 for reasons 
including but not limited to the following: (1) the veteran 
declines to initiate or continue the rehabilitation process; 
(2) unsatisfactory conduct and cooperation; (3) end of 
eligibility and entitlement occurs; (4) medical and related 
problems; (5) the veteran voluntarily withdraws from the 
program; and/or (6) the veteran fails to progress in the 
program.

38 C.F.R. § 21.362, pertaining to Satisfactory Conduct and 
Cooperation, provides:

(a) General. The successful development and implementation of 
a program of rehabilitation services require the full and 
effective participation of the veteran in the rehabilitation 
process.

(1) The veteran is responsible for satisfactory conduct and 
cooperation in developing and implementing a program of 
rehabilitation services under Chapter 31; (2) The staff is 
responsible for insuring satisfactory conduct and cooperation 
on the veteran's part; and (3) VA staff shall take required 
action when the veteran's conduct and cooperation are not 
satisfactory. (See § 21.364)

(b) VA responsibility. VA shall make a reasonable effort to 
inform the veteran and assure his or her understanding of:

(1) The services and assistance which may be provided under 
Chapter 31 to help the veteran maintain satisfactory 
cooperation and conduct and to cope with problems directly 
related to the rehabilitation process, especially counseling 
services; (2) Other services which VR&C staff can assist the 
veteran in securing through non-VA programs; and (3) The 
specific responsibilities of the veteran in the process of 
developing and implementing a program of rehabilitation 
services, especially the specific responsibility for 
satisfactory conduct and cooperation.

(c) Veteran's responsibility. A veteran requesting or being 
provided services under Chapter 31 must:

(1) Cooperate with VA staff in carrying out the initial 
evaluation and developing a rehabilitation plan; (2) Arrange 
a schedule which allows him or her to devote the time needed 
to attain the goals of the rehabilitation plan; (3) Seek the 
assistance of VA staff, as necessary, to resolve problems 
which affect attainment of the goals of the rehabilitation 
plan; (4) Conform to procedures established by VA governing 
pursuit of a rehabilitation plan including: (i) Enrollment 
and reenrollment in a course; (ii) Changing the rate at which 
a course is pursued; (iii) Requesting a leave of absence; 
(iv) Requesting medical care and treatment; (v) Securing 
supplies; and (vi) Other applicable procedures. (5) Conform 
to the rules and regulations of the training or 
rehabilitation facility at which services are being provided.

(d) Responsibility for determining satisfactory conduct and 
cooperation. VR&C staff with case management responsibility 
in the veteran's case will: (1) Monitor the veteran's conduct 
and cooperation as necessary to assure consistency with 
provisions of paragraph (c) of this section. (2) Provide 
assistance which may be authorized under Chapter 31, or for 
which arrangements may be made under other programs to enable 
the veteran to maintain satisfactory conduct and cooperation.

38 C.F.R. § 21.364, pertaining to Unsatisfactory Conduct and 
Cooperation, provides:

(a) General.  If VA determines that a veteran has failed to 
maintain satisfactory conduct or cooperation, VA may, after 
determining that all reasonable counseling efforts have been 
made and are found not reasonably likely to be effective, 
discontinue services and assistance to the veteran, unless 
the case manager determines that mitigating circumstances 
exist.  In any case in which such services and assistance 
have been discontinued, VA may reinstitute such services and 
assistance only if the counseling psychologist determines 
that:

(1) The unsatisfactory conduct or cooperation of such veteran 
will not be likely to recur; and (2) The rehabilitation 
program which the veteran proposes to pursue (whether the 
same or revised) is suitable to such veteran's abilities, 
aptitudes, and interests.

(b) Unsatisfactory conduct or cooperation exists.  When the 
case manager determines that the veteran's conduct and/or 
cooperation are not in conformity with provisions of § 
21.362(c), the case manager will:

(1) Discuss the situation with the veteran; (2) Arrange for 
services, particularly counseling services, which may assist 
in resolving the problems which led to the veteran's 
unsatisfactory conduct or cooperation; (3) Interrupt the 
program to allow for more intense efforts, if the 
unsatisfactory conduct and cooperation persist.  If a 
reasonable effort to remedy the situation is unsuccessful 
during the period in which the program is interrupted, the 
veteran's case will be discontinued and assigned to 
"discontinued" status unless mitigating circumstances are 
found.  When mitigating circumstances exist, the case may be 
continued in "interrupted" status until VA staff determines 
the veteran may be reentered into the same or a different 
program because the veteran's conduct and cooperation will be 
satisfactory, or if a plan has been developed, to enable the 
veteran to reenter and try to maintain satisfactory conduct 
and cooperation.  Mitigating circumstances include: (i) The 
effects of the veteran's service and nonservice-connected 
condition; (ii) Family or financial problems which have led 
the veteran to unsatisfactory conduct or cooperation; or 
(iii) Other circumstances beyond the veteran's control.

It is the Board's responsibility to evaluate the entire 
record.  See 38 U.S.C.A. § 7104(a).  When there is an 
approximate balance of evidence regarding the merits of an 
issue material to the determination of the matter, the 
benefit of the doubt in resolving each such issue shall be 
given to the claimant.  38 U.S.C.A. § 5107.  In Gilbert v. 
Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that 
"a veteran need only demonstrate that there is 'an 
approximate balance of positive and negative evidence' in 
order to prevail."  To deny a claim on its merits, the 
preponderance of the evidence must be against the claim.  See 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing 
Gilbert, supra.

In March 2000, the veteran was granted entitlement to 
vocational rehabilitation benefits pursuant to 38 U.S.C.A. 
Chapter 31.  Subsequently, in October 2000, the VR&C created 
an Individualized Written Rehabilitation Plan (IWRP) with an 
agreed upon vocational goal.  In January 2001, the IWRP was 
ratified by the veteran, counseling psychologist, and case 
manager.  The plan indicated that the veteran would complete 
a Bachelor of Fine Arts (BFA) Degree in Photography and 
Digital Imaging at the Ringling School of Art and Design 
(Ringling); that VA would sponsor the payment of required 
tuition, books, supplies, and monthly subsistence allowance; 
that the veteran would comply with the school's attendance 
and academic policies and maintain a GPA of 2.5 or better to 
graduate, with no grades of D, F, W, or I; that the veteran 
would meet with case manager at least once per semester for 
review of progress; and that the veteran would provide the 
case manager with copies of class schedules and grades each 
semester.  The program was scheduled to run for four years 
and four months from January 2001 to May 2004. 

In August 2003 the Director of Advising and Registration 
Services/Registrar at Ringling submitted a letter to the 
veteran's case manager explaining the veteran's status at the 
school.  The letter reported that the veteran had been placed 
on Academic Probation 1 after the Fall 2002 semester because 
he failed a class and his grade point average (GPA) fell 
below 2.0.  The Director reported that the veteran was 
subsequently placed on Academic Probation 2 after the Spring 
2003 semester for again failing a class and having a GPA 
below 2.0.  The Director explained that in order for a 
student to be removed from Academic Probation, the student 
must not fail any classes and must have a cumulative GPA 
above 2.0 and that after three semesters on Academic 
Probation a student's academic record is reviewed by the 
Academic Standards Committee to determine if the student 
should be academically dismissed from the school.  The 
veteran had asked that he be withdrawn from a class that he 
had failed for medical reasons.  The veteran had not, at that 
time, provided an adequate physician's note to be withdrawn 
from the class and his grade remained an F.  The veteran was 
reported to have asked an instructor to sign a form 
indicating that supplies, including very expensive lenses, 
were required for a class.  Both the instructor and the 
department head refused to sign the form citing that the 
items were not necessary for the course work and were not 
required of the other photography students.  The Dean of 
Faculty reviewed the request and also refused to sign the 
form and instead signed a second supply list consisting of 
supplies including film, processing, and miscellaneous 
supplies, that were necessary for all photography students.

The Director reported that the veteran had indicated that he 
planned to "crucify himself for his senior thesis project" 
and that the veteran stated that he had four physician's 
approvals and instructions on how to perform the project 
without doing damage to himself.  The Director expressed 
concern for the veteran's safety and indicated that school 
policy does not permit students to injure themselves or 
others and that exhibition displays are subject to legal and 
safety considerations.

The Director noted that the veteran had conversations with 
staff members regarding his medications, the difficulties 
maintaining the proper dosage, and the consequences of being 
over-medicated.  She noted how school personnel are concerned 
about the amount of, combinations of, and dosages of 
medication that the veteran was taking and how they affected 
his behavior.  The Director reported that questions had been 
asked regarding whether the veteran could make rational 
decisions given the amount of medication he was taking.  The 
veteran was reported to have attended classes in a wheelchair 
and to have taken liquid morphine in class without the staff 
being made aware of any condition that would require these 
treatments.

The Director reported that the veteran had intimidated the 
staff and faculty members by threatening to sue the school, 
report the school to legislators, and have the school's 
ability to educate veterans revoked if he does not get what 
he wants.  In August 2003 the veteran made threats against 
the Dean of Faculty.  The Director indicated that this was 
"typical threatening behavior" from the veteran.

In response to the Director's letter, the veteran's 
vocational rehabilitation benefits were placed into interrupt 
status in August 2003, pursuant to 38 C.F.R. §§ 21.197 and 
21.364 the veteran's case manager found that the veteran's 
behavior represented unsatisfactory conduct and cooperation.  
In November 2003 the veteran's interrupt status was reviewed 
and approved by the head of Vocational Rehabiliation and 
Employment.  It was found that the vocational rehabilitation 
case manager provided appropriate levels of supplies and made 
appropriate determinations regarding reimbursement requests.  
It was further found that it was questionable as to whether 
it was feasible for the veteran to complete the program of 
study and that the case manager took appropriate action in 
interrupting the veteran's case and advising the veteran to 
seek treatment to stabilize his medical and psychological 
conditions.

The Board notes that the veteran's case manager was in 
continuous contact with the veteran, as demonstrated by his 
case notes, and that the veteran left numerous uncooperative, 
aggressive, and threatening messages for the case manager.  
The veteran demonstrated through these messages his 
unwillingness to cooperate with the procedures of the 
vocational rehabilitation program 

Special Reports of Training were produced in March 2002, 
October 2002, and March 2003 regarding the veteran's progress 
and the problems the veteran was encountering in his program.  
In March 2003, the report indicated that interruption of the 
veteran's program may be necessary in light of his mental 
health issues.

The Board notes that the veteran's VA psychologist indicated 
in May 2003 that the veteran was capable of returning to 
class at Ringling.  A VA psychiatrist also stated in April 
2003 that he was able to attend two classes through 
Vocational Rehabilitation.  However, the veteran's VA 
psychology examinations revealed that the veteran's function 
was seriously impaired.

In February 2004, the veteran's case manager found the 
veteran's vocational rehabilitation plan infeasible based 
upon unsatisfactory conduct and cooperation due to the 
veteran's continued mental instability and failure to 
cooperate with the vocational rehabilitation program's 
procedures.

In a letter dated in March 2004, the President of Ringling 
indicated that the veteran was qualified to reapply and would 
be considered a senior upon readmission to a program.  
However, the letter made no reference to the veteran's 
behavior.

The claims folder reveals that in June 2004 the veteran was 
arrested for shoplifting and being under the influence at a 
Walmart.  The veteran was noted to be in a disassociative 
state and not to know where he was or what he was doing.

In July 2004 readjustment counseling was requested to create 
an Individualized Independent Living Plan (IILP) and a 
consent form was forwarded to the veteran.  The veteran 
returned signed, modified copies of the consent forms 
provided.  However, the veteran never adequately responded to 
the request for consent for the release of information or to 
the creation of an IILP.

In January 2005 the veteran was proposed to be discontinued 
from his vocational rehabilitation program due to 
infeasibility and, subsequently, in February 2005, the 
veteran was discontinued from his vocational rehabilitation 
program.

In February 2005, a letter from L. Thompson to a U.S. Senator 
indicated that there was no finding of unusual or disruptive 
behaviors in Fall 2003.  He also indicated that the veteran 
was enrolled in two classes that semester.  There was no 
reference to the veteran's grades.  

In light of the evidence the Board finds that interruption 
and subsequent discontinuance of the veteran's vocational 
rehabilitation benefits was proper.  The veteran did not 
conform to the procedures established by VA governing the 
pursuit of his rehabilitation plan by failing to maintain the 
specified GPA without obtaining any D or F grades.  As a 
result the veteran was placed on academic probation.  In 
addition, the veteran failed to obtain the proper 
documentation for reimbursement for the alleged necessary 
expenses incurred while pursuing his education.  The Board 
notes that the veteran attempted to obtain the proper 
documentation, however, the veteran's faculty and the Dean of 
the program area refused to sign off on all of the expenses 
claimed by the veteran citing that they were not necessary 
for completion of the program or required of the other 
students in the program.  The veteran failed to conform to 
the rules and regulations of the training facility by 
attempting to complete a project which the school found to be 
potentially dangerous and by threatening the staff and 
faculty.

A Vocational Rehabilitation Panel met in February 2004 and 
after reviewing medical records, correspondence from the 
school, and the counselor's reasons for interruption, 
concluded that it was not then feasible for the veteran to 
continue his vocational rehabilitation program.  While his 
condition was being treated with medication, his behavior was 
not being treated.  A recommendation was made that the 
veteran be provided readjustment counseling by an independent 
provider to stabilize his behavior.  If his behavior were to 
stabilize then the question of feasibility would have been 
revisited.  An independent living program was also suggested.  
See 38 C.F.R. § 21.53(e)-(f).  As the veteran did not 
complete the consent forms as required and therefore did not 
participate in either private counseling or an independent 
living program, VA was not thereafter able to consider 
whether it was feasible for him to participate in a Return to 
Work program.  Based on the facts known at the time the 
veteran was placed in interrupted status, that he was 
exhibiting erratic and threatening behavior, interruption and 
the subsequent discontinuance were proper based on 
unsatisfactory conduct and cooperation.  38 C.F.R. 
§§  21.197, 21.198, 21.364.  While a VA psychologist and 
psychiatrist both stated that the veteran was able to 
participate in vocational rehabilitation, such statements 
were issued months prior to the behaviors that resulted in 
the veteran's benefits being interrupted and discontinued.   

It is noted that the veteran's GPA did increase to above the 
mark set by the initial vocational rehabilitation plan and a 
letter from the President of Ringling indicated that the 
veteran would be welcome to reapply to continue his studies 
at Ringling and would continue as a senior.  The President of 
the school also wrote a letter in February 2005 on the 
veteran's behalf, however, it was not written contemporaneous 
to the Fall 2003 semester which resulted in the veteran being 
placed in an interrupted status.   Moreover, it is noted that 
the veteran has alleged that VA discriminated against him and 
that his civil rights were violated.  However, the Board 
finds that the evidence supports the interruption and 
eventual termination and there is no evidence of 
discrimination or violations of his civil rights. 

Accordingly, the Board finds that the interruption and 
subsequently discontinuance of the veteran's vocational 
rehabilitation benefits was proper.

In reaching the decisions above the Board considered the 
doctrine of reasonable doubt, however, as the preponderance 
of the evidence is against the veteran's claim, the doctrine 
is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

The interruption and subsequent discontinuance of vocational 
rehabilitation benefits under the provisions of 
38 U.S.C.A. Chapter 31 was proper.



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs