Citation NR: 9736957 Decision Date: 10/31/97 Archive Date: 11/05/97 DOCKET NO. 90-04 455 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Nashville, Tennessee Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. (Entitlement to an increased disability evaluation for anorexia nervosa with history of amenorrhea, currently evaluated as 10 percent disabling, is the subject of a separate appellate decision.) ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from June 1984 to April 1989. The current matter came before the Board of Veterans’ Appeals (Board) originally on appeal from a November 1989 determination by the Roanoke, Virginia Regional Office of the Department of Veterans Affairs (VA), which denied the veteran’s claim seeking entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. The case was last before the Board in July 1995 at which time it was remanded to the Nashville, Tennessee Regional Office (RO) of the VA for additional development and due process considerations. The RO was unable to fully comply with the Board’s remand instructions because of the veteran’s failure to cooperate, which included affording her an opportunity to appoint an accredited representative in Tennessee. Currently the claims folder contains no power of attorney in favor of any individual or organization. Accordingly, the veteran is unrepresented in this matter. CONTENTIONS OF APPELLANT ON APPEAL The veteran initially contended, in effect, that she is entitled to vocational rehabilitation training because she has an employment handicap due to her service-connected psychiatric disability. Essentially, contentions were advanced to the effect that she needs Chapter 31 vocational rehabilitation benefits in order to obtain a teaching certificate. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files and vocational rehabilitation folder. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claim seeking entitlement to vocational rehabilitation training pursuant to Chapter 31, Title 38, United States Code. FINDINGS OF FACT 1. Service connection has been granted for anorexia nervosa with history of amenorrhea, evaluated as 10 percent disabling. 2. The veteran’s current claim for Chapter 31 vocational rehabilitation training was received in May 1989. 3. The veteran was notified by the VA VR&C Officer in an August 1995 letter, that she would be required to undergo complete vocational evaluation, to include vocational testing and exploration, in order to determine her eligibility for VA vocational rehabilitation services. 4. The veteran failed to keep a September 19, 1995 scheduled appointment to undergo vocational evaluation and testing. 5. The veteran’s failure to accept VA’s attempt to offer vocational evaluation constitutes lack of cooperation. CONCLUSION OF LAW The applicable criteria for Chapter 31 vocational rehabilitation training have not been met. 38 U.S.C. §§ 1501(1), 1502(1)(A) (1989); 38 C.F.R. §§ 21.40, 21.50, 21.51(b), 21.362, 21.364 (1989). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the merits of this case because the veteran's contentions are found to be sufficient to constitute evidence of a "well-grounded" claim, within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). As will be set forth below, the VA has made attempts to further develop the record, with no cooperation from the veteran. She has been apprised by the VA VR&C Officer of the requested initial vocational evaluation. The veteran has refused to participate in the evaluation. Therefore, no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991). As previously indicated, service connection has been granted for anorexia nervosa with history of amenorrhea, evaluated as 10 percent disabling, effective May 1, 1989. The veteran’s claim for Chapter 31 vocational rehabilitation training was received in May 1989. In response to the Board’s July 1995 remand, a Report of Contact dated August 21, 1995, shows that the veteran was contacted by telephone and informed of the VR&C Officer’s plan to schedule her for a vocational rehabilitation evaluation as soon as possible. On that occasion, the veteran agreed to undergo counseling by a contract counseling service with a follow-up evaluation by the VA VR&C Officer. Further review of the evidence of record reflects that the veteran was notified by VA letter of August 28, 1995, that in order to determine her eligibility for vocational services, and to assist in vocational or career planning, she would be required to complete a vocational evaluation. She was also told that the first phase of the evaluation would be conducted by a contract counseling service in Chattanooga, Tennessee. A report of contact shows that on August 31, 1995, a telephone call was received from the veteran in reference to the scheduling of an appointment for vocational evaluation and testing. At that time, she indicated that she would be available on September 19, 1995. However, on September 18, 1995, the veteran called an answering service and left a message that she desired no further services in reference to her claim for vocational rehabilitation training. A veteran is entitled to training or rehabilitation under Chapter 31, Title 38, United States Code, if various criteria are met. When a veteran’s application for vocational rehabilitation training is received prior to November 1990, as in this case, basic entitlement requires the veteran have a service-connected disability that is rated 10 percent disabling or more, and be found by the VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C. § 1502(1)(A); 38 C.F.R. § 21.40. (The Board notes that because the law changed to require that a veteran have a service-connected disability rated at least 20 percent, to meet this basic eligibility requirement, for claims filed beginning in November 1990, consideration has been given to the earlier, more favorable version of the law. Additional regulations in effect at the time she filed her claim, set forth below, have remained essentially the same.) An employment handicap means an impairment of the veteran's ability to prepare for, obtain or retain employment consistent with his or her abilities, aptitudes and interests. 38 U.S.C. § 1501(1); 38 C.F.R. § 21.51(b). The term "impairment" means the restrictions on employability caused by the veteran's disabilities, deficiencies in education and training, negative attitudes towards the disabled, and other pertinent factors. 38 C.F.R. § 21.51(c)(1). An employment handicap does not exist if the veteran's employability is not impaired or employability is impaired but the service-connected disability does not materially contribute to it, or if the veteran has overcome the effects of the impairment of employability through employment in an occupation consistent with his or her pattern of abilities, aptitudes and interests, and is successfully maintaining such employment. 38 C.F.R. § 21.51(f)(2). The Board notes that once the veteran filed for Chapter 31 benefits it was necessary for her to be evaluated by appropriate staff of the VR&C Division for several purposes including establishing whether a vocational goal is reasonably feasible, the effect of her disability on her employability and, if vocational rehabilitation is feasible, to write an individual program for her. 38 C.F.R. § 21.50(b). However, the veteran must cooperate in the initial evaluation to first establish whether she is eligible for Chapter 31 benefits. The counseling psychologist must make a reasonable effort to secure the veteran's cooperation but, if cooperation cannot be secured, shall suspend the initial evaluation until such time as the veteran cooperates. 38 C.F.R. § 21.50(e). Furthermore, if the VA determine 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 likely to be effective, discontinue services and assistance to the veteran. 38 C.F.R. § 21.364(a). The veteran is responsible for satisfactory conduct and cooperation in developing and implementing a program of rehabilitative services under Chapter 31. 38 C.F.R. § 21.362(a). In the Board's view, the VA met its obligation to assist the veteran by according her the opportunity to undergo an initial evaluation for the purpose of determining the need for Chapter 31 training and feasibility of her chosen vocational goal. Nevertheless, the record shows that the veteran refused to cooperate. Under the law the veteran is required to cooperate in the completion of the initial evaluation, for purposes of developing an appropriate rehabilitation plan. In this case, the veteran has indicated that she desires no further VA vocational and rehabilitation services in connection with her current application. Thus, on the basis of the available record for appellate review, the preponderance of the evidence is against the veteran’s claim seeking vocational rehabilitation benefits under Chapter 31, Title 38, United States Code. The Board concurs with the counseling psychologist's determination that the veteran did not sufficiently cooperate in the completion of the initial Chapter 31 evaluation, and further services are not warranted. 38 C.F.R. §§ 21.50, 21.362, 21.364. N. R. ROBIN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -