Citation Nr: 1301772 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 03-03 067A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to vocational rehabilitation services under Chapter 31, Title 38, United States Code. ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) from December 2000 and April 2001 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2005 the Board issued decisions denying the Veteran's claim that there was clear and unmistakable error (CUE) in a September 1972 rating decision and denying the Veteran's claim for vocational rehabilitation services. The Veteran appealed the decisions to the United States Court of Appeals for Veterans Claims (Court). In November 2009, the Court issued a memorandum decision affirming the Board's decision to the extent it denied the Veteran's claim that there was CUE in a September 1972 rating decision, and vacating the denial of vocational rehabilitation benefits. Two Board decisions dated in September 2009 denied numerous appeals, including issues related to clear and unmistakable error in prior rating decisions. The Veteran's claim for vocational rehabilitation services is the only issue currently in appellate status. The Veteran wrote to the Board in June 2012 a putative order to refrain from deciding the case. This letter does not constitute a withdrawal of appeal and there is no basis for the Board not to proceed with appellate review of this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks vocational rehabilitation services under Chapter 31, Title 38, United States Code. The Veteran's claim was denied because the Veteran has refused to undergo an initial evaluation. He was placed in a discontinued status because by refusing an initial evaluation he failed to maintain satisfactory cooperation. The Court vacated the December 2005 Board decision on the basis that the Court was unable to determine if VA had complied with various regulatory requirements before discontinuing services to the Veteran. In light of Wing v. West, 11 Vet. App. 98 (1998), in the instant case the Veteran has not been given adequate notice of the procedural steps pertaining to the administration and discontinuance of vocational and rehabilitation services. Prior to RO's adverse decision the Veteran was not provided notice of the purpose of an initial evaluation, notice of his responsibility for satisfactory conduct and cooperation, and notice that if he failed to cooperate, vocational rehabilitation benefits will be denied. The Veteran should be given another opportunity for initial counseling after providing the Veteran the proper notice. The Board further notes that the Veteran has not been provided notice of all the appropriate regulations in a statement of the case. If his claim is not granted, he should be provided a supplemental statement of the case that includes recitation of 38 C.F.R. §§ 21.50, 21.180, 21.182, 21.198, 21.362, 21.364, and 21.420. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send a letter to the Veteran explaining to him the purpose of an initial evaluation for vocational and rehabilitation benefits. The letter must explain to the Veteran that he has a responsibility for satisfactory conduct and cooperation, which includes participating in an initial vocational rehabilitation evaluation. The letter should provide the Veteran a date to appear for a counseling session before a VA vocational and rehabilitation counselor at the appropriate VA office. He should be informed that if he fails to cooperate, vocational rehabilitation benefits will not be available to him. 2. If the Veteran does not appear for the counseling session, send him a letter informing him of the suspension of the initial evaluation, the reasons for the suspension, and the steps necessary to resume the initial evaluation. 3. If vocational and rehabilitation services are again discontinued, issue the Veteran a supplemental statement of the case (SSOC) which provides the Veteran the appropriate regulations including 38 C.F.R. §§ 21.50, 21.180, 21.182, 21.198, 21.362, 21.364, 21.420. The SSOC should discuss whether special review under 38 C.F.R. § 21.198(b)(7) is appropriate. 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 A. PAPPAS 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) (2012).