Citation Nr: 1300803	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  10-22 773	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an effective date earlier than August 13, 2008, for payment of additional compensation for dependent children pursuant to an award of VA vocational rehabilitation benefits under Chapter 31, Title 38, United States Code.  

2.  Entitlement to reimbursement of payment in the amount of $42.76 for supplies purchased in connection with an individual written rehabilitation plan under Chapter 31, Title 38, United States Code.  

3.  Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Oktibbeha County Hospital in Starkville, Mississippi, on April 4, 2007, and August 9, 2007.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran had active service from April 1977 to June 1983.  

This matter originally came to the Board of Veterans' Appeals (Board) on appeal from administrative decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Board recognizes that, during the pendency of this appeal, the Veteran requested a hearing at VA's Central Office in Washington, D.C.  However, in advance of that scheduled hearing, he notified his service representative that he would be unable to appear.  The representative later conveyed this information to VA.  Significantly, neither the Veteran nor his representative has submitted any requests for a follow-up hearing before a Veterans Law Judge.  As such, the Board finds that the Veteran's request for such a hearing has effectively been withdrawn.

The issue of payment or reimbursement of unauthorized medical expenses is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran has been in receipt of VA vocational rehabilitation benefits under Chapter 31, Title 38, United States Code since May 1986.  

2.  On August 4, 2004, the Veteran requested that his dependents be added to his Chapter 31 subsistence allowance.  He was subsequently provided a VA Form 21-686c, Declaration of Status of Dependents, which he completed with the names and social security numbers of his spouse and one of his children.  However, the Veteran declined to provide the social security numbers of two older twin children whom he also claimed as dependents.

3.  Upon receipt of the Veteran's VA Form 21-686c, the RO sent the Veteran an August 9, 2004, letter, advising him that he would need to provide his twins' social security numbers in order to have them added to his Chapter 31 subsistence allowance.  

4.  The Veteran did not submit the requested information concerning his twins' social security numbers until August 13, 2008.  His Chapter 31 subsistence allowance was subsequently amended, effective that date.

5.  In connection with an individual written rehabilitation plan, developed under Chapter 31, Title 38, United States Code, the Veteran submitted a receipt for textbooks and other supplies totaling $568.88, which he alleged were needed for his Spring 2008 semester at Mississippi State University.  

6.  The Veteran's Vocational Rehabilitation and Counseling case manager subsequently determined that a portion of the supplies listed, totaling $42.76, was unnecessary and, thus, not subject to reimbursement.

7.  The Veteran has not contended, and the record does not otherwise show, that the Vocational Rehabilitation and Counseling case manager's supply need determination was fraudulent or clearly and unmistakably erroneous.  Nor is there any other evidence suggesting that the case manager's determination constituted an abuse of discretion.   


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to August 13, 2008, for payment of additional compensation for the Veteran's dependent twin children pursuant to an award of VA vocational rehabilitation benefits under Chapter 31, Title 38, United States Code, have not been met.  38 U.S.C.A. §§ 1115, 5101, 5110 (West 2002); 38 C.F.R. §§ 3.31, 3.109, 3.158, 3.401 (2012).

2.  The extra supplies totaling $42.76, which were purchased in connection with the Veteran's Spring 2008 semester at Mississippi State University, were not necessary to his program of Chapter 31 vocational rehabilitation services and, thus, reimbursement of the cost of those supplies is not warranted.  38 U.S.C.A. § 3104(a) (West 2002); 38 C.F.R. §§ 21.210, 21.212,21.214(e), 21.258(d) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As a preliminary matter, the Board acknowledges the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  However, those statutory duties do not extend to claims, such as the ones decided herein, which fall within the parameters of Chapter 31, Title 38, United States Code.  38 C.F.R. §§ 17.123-17.132 (2011); Barger v. Principi, 16 Vet. App. 132 (2002); Manning v. Principi, 16 Vet. App. 534 (2002).  Even if that were not the case, the Board would still find the VCAA inapplicable as the underlying claims do not involve disputed facts and must be denied as a matter of law.  Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000) (VCAA was not applicable where the outcome was controlled by the law, and the facts were not in dispute).  Accordingly, the Board will not further consider whether VCAA compliance has been achieved in this case and will instead proceed to the merits of the Veteran's claims.  

Earlier Effective Date for Higher Rate of Chapter 31 Subsistence Allowance

The Veteran, who has long been in receipt of vocational rehabilitation benefits pursuant to Chapter 31, Title 38, United States Code, seeks to have his current rate of compensation under that chapter retroactively extended to August 4, 2004.  Specifically, he claims that his twin children should have been included in his Chapter 31 subsistence allowance as of that date, when he purportedly submitted his initial request to add them as dependents.  

At the outset, the Board observes that the provisions of Chapter 31, Title 38, United States Code, are intended to enable Veterans with service-connected disabilities to achieve maximum independence in daily living and, to the extent feasible, become employable and to obtain and maintain suitable employment.  38 U.S.C.A. § 3100.  

Generally, a Veteran is entitled to a program of VA vocational rehabilitation if he is in receipt of at least a 20 percent rating for one or more service-connected disabilities and, as VA determines, is in need of rehabilitation due to an employment handicap.  38 U.S.C.A. § 3102; 38 C.F.R. § 21.40.  

In this case, the Veteran, who has a combined rating of 20 percent for multiple service-connected disabilities, has been found to meet the above criteria and, thus, to qualify for Chapter 31 vocational rehabilitation benefits, effective May 1986.  He also has been deemed eligible for a Chapter 31 subsistence allowance pursuant to 38 U.S.C.A. § 3108 (2002) and 38 C.F.R. § 21.260 (2012).  Those governing statutory and regulatory provisions direct that payments of an allowance for basic necessities are to be made to a qualified Veteran who is pursuing a program of education or training, but only for the period of enrollment in such program.  38 U.S.C.A. §§ 3108(a)(1); 38 C.F.R. §§ 21.260, 21.320.  

Of particular relevance to this appeal, the above provisions contemplate a higher level of subsistence allowance for a Veteran with a dependent spouse and/or one or more dependent children.  38 U.S.C.A. §§ 3108(b)(1); 38 C.F.R. § 21.260(b)(1).  

Moreover, in such instances where an increase in Chapter 31 subsistence allowance benefits is established for dependents, VA's governing laws and regulations provide that the effective date of the award of additional compensation shall be the latest of the following:  (1) claim date; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the Veteran's award. 38 C.F.R. § 3.401(b).  The 'date of claim' for additional compensation for dependents is the date of the Veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action.  38 C.F.R. § 3.401(b)(1).

Additional VA regulatory provisions, which are relevant to this appeal, direct that an applicant for VA compensation or pension benefits shall, if requested by VA, furnish his or her own social security number as well as the social security number of any dependent or beneficiary on whose behalf, or based upon whom, the claimant is seeking or is in receipt of such benefits.  38 C.F.R. § 5101(c) (2012); see also 38 C.F.R. § 3.216 (mandatory disclosure of social security number).  A failure to supply the social security number is grounds for termination of benefits pursuant to 38 U.S.C.A. § 5101(c)(2).  See VA O.G.C. Prec. Op. No. 24-95 (Oct. 27, 1995) (published in 61 Fed. Reg. 10,064 (1996)).

Also pertinent to the instant case are the VA regulations concerning abandoned claims.  Specifically, those regulations provide that, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned.  After the expiration of one year, further action will not be taken unless a new claim is received.  Should the right to benefits be finally established, pension, compensation or dependency and indemnity compensation based on such evidence shall commence not earlier than the date of filing the new claim.  38 C.F.R. § 3.158 (2012); see also 38 C.F.R. § 3.109 (2012).  

Turning to the evidence of record, the Board notes that the essential facts of this case are not in dispute.  The record reflects, and the Veteran agrees, that he first requested an increase in his vocational rehabilitation benefits on August 9, 2004.  Specifically, at that time, the Veteran asked that his Chapter 31 subsistence allowance be amended to include his spouse and dependent children.  In response to that request, the RO directed the Veteran to complete a VA Form 21-686c (Declaration of Status of Dependents).  He proceeded to fill out that form with the names and social security numbers of his spouse and one of his children.  However, the Veteran declined to provide the social security numbers of two older twin children, whom he also listed as dependents.

Upon receiving the above VA Form 21-686c, a Vocational Rehabilitation and Counseling (VR&C) case manager at the RO sent the Veteran an August 9, 2004, letter, advising him that his subsistence award had been updated to include his spouse and younger child.  In that letter, the case manager also notified the Veteran that he would need to provide his twins' social security numbers in order to have them added to his award.  Significantly, that case manager further informed the Veteran that he would "have up to 1 year from the date of this letter to furnish this information" and that "otherwise the effective date [of his subsistence increase for twins] would be the date of receipt of the requested information."

Notwithstanding the case manager's express warning, the Veteran declined to provide his twins' social security numbers within the one-year timetable allotted for the receipt of such evidence.  See 38 C.F.R. § 3.401(b)(1).  Accordingly, his claim for an increased Chapter 31 subsistence allowance was deemed abandoned in accordance with the provisions of 38 C.F.R. § 3.158 (2012).  

Thereafter, on August 13, 2008, the Veteran finally submitted the requested information, which was treated as a new claim for an increased Chapter 31 subsistence allowance on behalf of his twins.  Id.; see also 38 C.F.R. § 3.109.  His Chapter 31 vocational rehabilitation benefits were subsequently increased to include them as his dependents, effective the date that his new claim was received.

The Board recognizes that the Veteran now alleges that, over the approximately four-year period between August 9, 2004, and August 13, 2008, he informed his vocational rehabilitation and employment case manager that he was having difficulty obtaining his twins' social security numbers as that data, like the twins themselves, were in custody of his ex-wife.  See May 9, 2010, substantive appeal.  Nevertheless, the Veteran does not dispute the fact that he delayed submitting the requested information until August 13, 2008, the date that his increased Chapter 31 subsistence allowance took effect.  Nor does he deny that he was duly apprised that his failure to provide that information within a year of the RO's initial request would be construed as an abandonment of his initial August 2004 claim for increased vocational rehabilitation benefits.  

Accordingly, while sympathetic to the Veteran's contentions, the Board has no authority to grant his claim for an earlier effective date for those additional vocational rehabilitation benefits.  Indeed, where, as here, the underlying facts are not in dispute, the Board lacks the discretion to award such benefits on an equitable basis and must instead observe the limits on its authority set forth by VA statutes and regulations.  See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  As noted above, those governing provisions preclude the retroactive payment of VA benefits in an abandoned claim, such as the one the Veteran submitted in August 2004.  38 C.F.R. § 3.158.  Consequently, his claim for an effective date earlier than the date of receipt of his new claim for increased Chapter 31 compensation (August 13, 2008) must be denied as a matter of law.

Reimbursement for Supplies during Chapter 31 Vocational Rehabilitation Services

In addition to seeking an earlier effective date for the award of an increased Chapter 31 subsistence allowance, the Veteran requests reimbursement under that chapter for the cost of supplies totaling $42.76, which were purchased at a bookstore in January 2008.  He alleges, in essence, that his VR&C case manager erred in determining that such supplies were unnecessary and, thus, not subject to reimbursement in connection with the Veteran's education program at Mississippi State University (MSU).  He recently completed that program of studies under the auspices of a Chapter 31 Individual Written Rehabilitation Plan (IWRP).

By way of background, the Board observes that, since the Veteran's initial enrollment in Chapter 31 vocational rehabilitation services in May 1986, he has partaken in three IWRPs, which have enabled him to pursue associate's and bachelor's degrees in electronics technology and construction management in order to advance his civilian career goals.  

In the course of the Veteran's most recent IWRP, which culminated in his graduation from MSU with a Bachelor of Sciences degree in Spring 2008, he received Chapter 31 vocational rehabilitation benefits totaling $47,946.05.  Of that total award, $20,462.86 was designated as a subsistence allowance for the Veteran and his dependents, while $27,483.19 was allocated for his education program expenses, including tuition, books, and related supplies.  

In this regard, the Board notes that the laws governing entitlement to Chapter 31 services and assistance include the provision of individualized tutorial assistance, tuition, fees, books, supplies, and equipment and other training materials determined by VA to be necessary to accomplish the purposes of an individual's rehabilitation program.  38 U.S.C.A. § 3104(a)(7)(A); 38 C.F.R. § 21.212.  Moreover, those laws direct that supplies will be furnished to enable a Veteran to pursue rehabilitation and achieve the goals of his particular IWRP.  38 U.S.C.A. § 3104(a) (West 2002); 38 C.F.R. § 21.210(a) (2012).  

The term "supplies" encompasses books, tools, and other supplies and equipment that VA determines are necessary to the Veteran's IWRP.  38 U.S.C.A. § 3104(a) (West 2002); 38 C.F.R. § 21.210(b) (2012).  The periods in which supplies may be furnished include during extended evaluation, rehabilitation to the point of employability, employment services, and an independent living services program.  38 U.S.C.A. § 3104(a); 38 C.F.R. § 21.210(c) (2012).

Significantly, while the applicable laws state that VA may furnish certain supplies and equipment, there is no provision that requires VA to do so.  38 C.F.R. § 21.214(e), 21.258(d) (2012).

In addition to the particular laws cited above, the provisions implicated in this appeal include the guidelines set forth in the Veterans Benefits Administration's Manual of Vocational Rehabilitation and Counseling Procedures under Chapter 31, Title 38, United States Code (M28-1).  Specifically, Part II, 6.06a of the M28-1 directs that a Veteran's need for supplies will be determined solely by his VR&C case manager.  Moreover, that provision expressly states that the VR&C case manager is generally not required to submit his supply need determinations for prior review and approval by other RO officials.  M28-1, Part II, 6.06a(1).  Notwithstanding the discretion afforded the case manager, however, the M28-1 does provide for adjustments of supply need determinations, but explicitly notes that "a difference of opinion is insufficient to overturn or modify a need determination." M28-1, Part II, 6.06a(2).  Furthermore, the manual states that "[o]verturning or modifying a need determination requires a reviewing official's formal finding of fraud or clear and unmistakable error."

The guidelines set forth in the M28-1 are highly salient to the Veteran's claim, the crux of which involves whether the designated VR&C case manager erred in his supply need determination, which excluded the items totaling $42.76 for which the Veteran now seeks reimbursement.  Moreover, the Board observes that, while not wholly controlling in this case, such guidelines are analogous to the evidentiary procedures encompassed in M21-1MR, which have afforded great weight by the United States Court of Appeals for Veterans Claims (Court).  Indeed, the Court has held that the M21-1MR procedures are tantamount to VA's governing regulations and, thus, are considered binding on the Board.  See Campbell v. Gover, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated to comply with the applicable M21-1MR provisions concerning service-connected death claims and remanding for compliance with that provision and applicable regulations); Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with evidentiary development called for by the M21-1MR).  Thus, by analogy, the M28-1 provisions implicated in this appeal are, at the very least, worthy of the Board's consideration.

Also worthy of consideration is the Court's well-settled holding that VA and, by extension, RO decision makers, including VR&C case managers, have broad discretion to make determinations with respect to VA vocational rehabilitation benefits.  See Kandik v. Brown, 9 Vet. App. 434 (1996) (interpreting 38 C.F.R. § 21.194 as VA the authority to terminate vocational rehabilitation benefits).  

Having identified the laws and procedures applicable to the Veteran's claim for supply reimbursement, the Board now turns to the relevant facts, which, like those underlying his other Chapter 31 claim, are not in dispute.  Indeed, the record clearly shows, and the Veteran does not deny, that, prior to beginning his program of studies at MSU, he was informed of the textbooks and other supplies that would be covered under his IWRP.  Specifically, written guidelines apprised the Veteran that "required textbooks" and "a reasonable quantity of expendable supplies (pens, pencils, notebooks and incidentals) may be purchased through the school's bookstore at government expense, as long as these do not exceed in quantity or quality those items required of all other students in the same course/program."  The Veteran affirmed his understanding of these guidelines by signing a copy that was provided to him in July 2004.  

The record thereafter shows that in January 2008, the Veteran submitted a receipt for textbooks and other supplies, totaling $568.66, which he had purchased in connection with his final semester at MSU.  He was subsequently informed by his VR&C case manager that $42.76 of the total cost could not be reimbursed.  The reason for that determination was that the supplies in question - four 5-star notebooks, filler paper, and uni paper - exceeded what was authorized under the Veteran's IWRP.

As discussed above, the VR&C case manager is solely responsible for determining the Veteran's supply need under the applicable provisions of VA's Vocational Rehabilitation and Counseling Procedures.  M28-1, Part II, 6.06a(2).  Moreover, those provisions direct that, to overturn or modify a supply need determination, a formal finding of fraud or clear and unmistakable error must be made, and a mere "difference of opinion" will not suffice.  Id.

Tellingly, the Veteran in this case has not provided any evidence of fraud or clear and unmistakable error on the part of the VR&C case manager who made the contested supply need determination.  In fact, the Veteran has not even offered a specific reason for why the $42.76, which he spent on extra notebooks and paper, should have been included in that need determination.  Clearly, the Veteran himself feels that such supplies were necessary to the advancement of his educational goals under his IWRP.  But, without further explanation, his disagreement with his case manager in this regard amounts to no more than a "difference of opinion," which, as noted above, is not a valid basis for increasing or otherwise modifying the award.  M28-1, Part II, 6.06a(2).  

The Board recognizes that it is not absolutely bound by the above procedural guidelines.  Nevertheless, the Board finds that they should be adhered to in the instant case.  Indeed, to do otherwise would violate the discretionary authority of the VR&C case manager, which has been recognized in precedential case law.  See Kandik, supra.  Accordingly, the Board finds that the case manager's determination is not subject to modification and, thus, the Veteran is not entitled to reimbursement of the $42.76, which was expressly excluded from that award. 

In arriving at this conclusion, the Board considers it significant that the Veteran was duly advised in the aforementioned written guidelines accompanying his IWRP that only "a reasonable quantity of expendable supplies" could be bought through his school's bookstore at government expense.  Thus, he clearly understood that not all of the supplies he purchased would be subject to reimbursement.  As such, the VR&C case worker's decision not to reimburse the $42.76 which the Veteran spent on extra supplies should not have come as a complete surprise to him.  In any event, the Board observes that this was only a small fraction of the $568.66 that the Veteran spent on supplies in Spring 2008, the remainder of which was covered under his Chapter 31 vocational rehabilitation award.   

In sum, the Board finds that the Veteran has not presented any evidence to show that the VR&C case manager abused his discretion in excluding the $42.76 in extra education supply costs from the Veteran's Chapter 31 vocational rehabilitation award.  Nor has he otherwise established a basis of entitlement to reimbursement of those costs under the law.  As such, there is no basis for the Board to grant such reimbursement and the Veteran's claim must therefore be denied.


ORDER

Entitlement to an effective date earlier than August 13, 2008, for payment of additional compensation for dependent children pursuant to an award of VA vocational rehabilitation benefits under Chapter 31, Title 38, United States Code, is denied.  

Entitlement to reimbursement of payment in the amount of $42.76 for supplies purchased in connection with an individual written rehabilitation plan under Chapter 31, Title 38, United States Code, is denied.  


REMAND

Along with the Chapter 31 issues adjudicated above, the Veteran appears to have raised a claim for payment or reimbursement of past medical expenses incurred at a private medical facility (Oktibbeha County Hospital in Starkville, Mississippi) in April 2007 and August 2007.  In this regard, the Board notes that, in the April 2010 statement of the case (SOC) addressing the issues on appeal, the RO indicated that staff in its Vocation, Rehabilitation, and Employment division had explained to the Veteran that the determination regarding reimbursement for hospital charges would need to be made by his local VA Medical Center in Jackson, Mississippi.  The RO further indicated that it would refer the Veteran's request for such reimbursement to that VA Medical Center.  However, it is not clear whether the RO has yet done so.  Nor is it clear whether the VA Medical Center has ruled on the Veteran's claim in the first instance, despite the fact that this issue has been ostensibly certified on appeal.  Indeed, while the Board is in possession of the Veteran's claims file and his vocational rehabilitation folder, it has been unable to ascertain whether a separate Consolidated Health Record (CHR) folder exists, which may contain a record of the decision, if any, which has been made on his medical reimbursement claim and the evidence upon which that decision was predicated.

Accordingly, the Board finds that, on remand, the RO should undertake measures to ascertain whether the Veteran's medical reimbursement claim has, in fact, been adjudicated and, if so, obtain a copy of the Jackson VA Medical Center's determination, the records on which it was based, and any other relevant documentation, including that contained in any CHR folder which may exist.  If the Veteran's medical reimbursement claim has not yet been adjudicated in the first instance, the RO should refer that claim to the VA Medical Center for appropriate action, as contemplated in the April 2010 SOC.  

Accordingly, the case is REMANDED for the following action:

Contact the Jackson, Mississippi, VA Medical Center to ascertain whether there has been a decision on the Veteran's claim for reimbursement of unauthorized medical expenses incurred at the Oktibbeha County Hospital in Starkville, Mississippi, on April 4, 2007, and August 9, 2007.  

If the Veteran's medical reimbursement claim has been adjudicated, obtain a copy of the Jackson VA Medical Center's determination, the records on which it was based, and any other relevant documentation, including that contained in any CHR folder which may exist.  

If the medical reimbursement claim has not yet been adjudicated, refer that claim to the VA Medical Center's attention for appropriate action.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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. 2012).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs