Citation Nr: 1301992 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 05-10 676A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether the discontinuance of a drug and alcohol abuse counselor program of VA Vocational Rehabilitation and Employment (VR&E) benefits under Chapter 31, Title 38, United States Code, was proper. (The issues of entitlement to an effective date prior to May 26, 2010, for the grant of an increased rating for hepatitis C; entitlement to an effective date prior to March 27, 2009, for the grant of service connection for right lower extremity edema; entitlement to an effective date prior to March 27, 2009, for the grant of service connection for left lower extremity edema; entitlement to SMC at a higher rate; and entitlement to service connection for heart disease are addressed in a separate Board decision). ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1969 to April 1970. This matter is before the Board of Veterans' Appeals (Board) in connection with a January 2010 determination by the Vocational Rehabilitation and Employment Service of the Denver Regional office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in March 2011 for further development. A review of the record shows that the RO has complied with all remand instructions associating the Veteran's vocational rehabilitation folder with the other volumes of his claims file, and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDINGS OF FACT 1. The Veteran selected a VR&E goal of becoming a drug and alcohol abuse counselor. 2. Pertinent certification requirements in the state of Colorado for entry-level certification (CAC I) include 1000 hours of clinically supervised work experience. 3. The Veteran failed to maintain satisfactory conduct and cooperation by not showing a commitment to participate in the requisite clinically supervised hours, by not being forthcoming about his criminal history, and by failing to attend appointments scheduled in 2010 regarding his Vocational Rehabilitation plan. 4. All reasonable counseling efforts have been made and are found not reasonably likely to be effective. CONCLUSION OF LAW The discontinuance of a drug and alcohol abuse counselor program of VR&E benefits under Chapter 31, Title 38, United States Code, was proper. 38 U.S.C.A. §§ 3101, 3106, 3107 (West 2002); 38 C.F.R. §§ 21.1, 21.33, 21.80, 21.84, 21.197, 21.198, 21.362, 21.364 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Regulations concerning VA's responsibility to provide notification and assistance regarding information or evidence needed for an individual to substantiate a claim for vocational rehabilitation benefits and services in accordance with the VCAA were codified at 38 C.F.R. §§ 21.32, 21.33 (2012). VA has a duty to notify claimants of necessary information or evidence, except when a claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit, when VA receives a complete or substantially complete application for vocational rehabilitation benefits and services provided under this subpart or subpart M of this part VA will: (1) notify the claimant of any information and evidence that is necessary to substantiate the claim; (2) inform the claimant which information and evidence, if any, the claimant is to provide to VA and which information and evidence, if any, VA will try to obtain for the claimant; and (3) inform the claimant of the time limit, as provided in paragraph (c) of this section, for responding to VA's notification, and of actions, as provided in paragraph (d) of this section, that VA may take to decide the claim if the claimant does not respond to such notification within 30 days. 38 C.F.R. § 21.32(a). While no notification letter was provided, in meeting with his case manager in October 2009, the Veteran was informed of the state licensure requirements. She stated that the goal of his rehabilitation plan must be employment within the services provided. She reminded the Veteran that the educational program at Walden University was not authorized until the full rehabilitation plan was developed, which must include his commitment to volunteering no less than 10 hours a week. Moreover, after the meeting, the vocational rehabilitation counselor attached an application and other requirements for licensure as a certified Addictions Counselor in her October 2009 letter addressed to the Veteran. While the Veteran was not informed of the time limit for responding to VA's notification, and that VA may decide the claim if the claimant did not respond within 30 days, there has been no prejudice as a result. Here, the Veteran responses have been timely. As for the duty to assist in Vocational Rehabilitation claims, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim; and give the assistance in obtaining records in the custody and/or not in the custody of a Federal department or agency. 38 C.F.R. § 21.33. School transcripts, letters from his VA physician and counseling records have been obtained. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The goal of a vocational rehabilitation program is to evaluate and improve the Veteran's ability to achieve a vocational goal; provide services to qualify for suitable employment; enable the veteran to achieve maximum independence in daily living; and enable the veteran to become employed in a suitable occupation and to maintain suitable employment. 38 C.F.R. § 21.70(a). An IWRP (Individualized Written Rehabilitation Plan) will be developed for each veteran eligible for rehabilitation services under Chapter 31. 38 C.F.R. § 21.80. The purpose of the IWRP is to: identify goals and objectives to be achieved during the period of rehabilitation services that will lead to the point of employability; plan for placement of the veteran in the occupational field for which training and other services will be provided; and specify the key services needed to achieve the goals and objectives of the plan. 38 C.F.R. § 21.84 (a). The successful development and implementation of a program of rehabilitation services requires the full and effective participation of the veteran in the rehabilitation process. 38 C.F.R. § 21.362. A veteran being provided services under Chapter 31 must, among other responsibilities, conform to procedures established by VA governing pursuit of a rehabilitation plan including enrollment and reenrollment in a course. 38 C.F.R. § 21.362(b)(4)(i). 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 not found reasonably likely to be effective, discontinue services and assistance to the veteran, unless the case manager determines that mitigating circumstances exist. 38 C.F.R. § 21.364. In any case in which services and assistance have been discontinued, VA may institute such services and assistance only if the counseling psychologist determines that the unsatisfactory conduct or cooperation of such veteran will not be likely to recur and the rehabilitation program which the veteran proposes to pursue (whether the same or revised) is suitable to such veteran's abilities, aptitudes and interest. 38 C.F.R. § 21.364 (a)(1)(2). When the case manager determines that the Veteran's conduct and/or cooperation are not in conformity with 38 C.F.R. § 21.362(c), the case manager will: discuss the situation with the veteran; arrange for services (particularly counseling services which may assist in resolving the problems which led to the unsatisfactory conduct or cooperation); and interrupt the program to allow for more intense efforts, if 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 continued and assigned to "discontinued" status unless mitigating circumstances are found. 38 C.F.R. § 21.364(b). Analysis The Board notes that the Veteran meets the basic eligibility requirements for consideration for vocational rehabilitation under Chapter 31, Title 38, United States Code. The only question that remains for consideration is whether the discontinuance of a drug and alcohol abuse counselor program of VA Vocational Rehabilitation services under the provisions of 38 U.S.C. Chapter 31 was proper. For background purposes, the Board notes that in August 2004, his file was reopened after being suspended in February 2003. An October 2004 Rehabilitation Plan reveals that the Veteran was to attend training at the Upward Bound Program to improve academic skills necessary to complete a program of college level training. In February 2005, the Veteran was informed that his vocational rehabilitation program was discontinued since he failed to cooperate in the evaluation process for Chapter 31 benefits. In a March 2005 statement of the case, it was explained that in view of the Veteran's non-cooperation and unwillingness to compete the plan he signed and agreed to, VA could not determine whether he was feasible for suitable employment and able to participate in program of rehabilitation as defined by the Vocational Rehabilitation Counselor (VRC). In June 2006, the Board found that the Veteran's written request for a change in his plan complied with 38 C.F.R. § 21.98. The individualized extended evaluation plan (IEEP), however, was not processed pursuant to 38 C.F.R. § 21.98 as there was no evidence that the counselor forwarded the request for change, together with relevant comment to the VR&E Officer. Thus, the case was remanded for additional development. An October 2006 rehabilitation plan reveals that one of his objectives was to obtain an Associates of General Studies Degree in Paralegal at the Community College in Denver. In November 2006, the Veteran met with his new case manager and discussed requirements of obtaining that degree. In a statement faxed in May 2008, the Veteran expressed desire to pursue a Bachelor's Degree, instead. In July 2009, the University of Colorado denied acceptance due to an undisclosed felony conviction by the Veteran. In the VR&E's notes, an August 2009 shows that the Veteran had been accepted at Colorado State University with the goal of working with youth in correctional facilities or as a Drug and Alcohol Counselor. In September 2009, the Veteran's rehabilitation plan was redeveloped as the school he was attending at the time was no longer approved by the Vocational Rehabilitation program and the Veteran expressed desire to counsel youth or adults with domestic abuse. It was noted that since the Veteran had been away from the workforce for several years, it was imperative that the educational program he pursued composed of at least 50 percent classroom time and that he participate in internship/volunteer/mentoring. At the time of the meeting, the Veteran indicated that he would start school in September 2009. When the Veteran was informed the school and program had not been approved, it was noted that the Veteran became belligerent and combative. Discussed was his need to acquire skills to counsel others without the need to confront and bully. It was the counselor's opinion that the Veteran needed a strong skill building program as he could not deal with others. The Veteran claimed that his disability prevented him from on campus attendance. He was advised to submit a statement from his current psychologist/counselor that working as a drug/alcohol counselor or case manager is appropriate given his disability. The vocational counselor recommended that the Walden University psychology program not be approved because it was an online program that offered no clinical experience or internship, and because it was a preparatory program for a master's degree. In letters written in September 2009, HTN, M.D. of the VA stressed the importance of the Veteran to complete his Bachelor of Science (BS) degree in psychology and supported on-line training. A September 2009 letter from Chrysalis Counseling shows the Veteran made an agreement to complete at least one hour per week of volunteer service starting September 21, 2009. An October 2009 letter reveals that the Veteran had met with a VRC to discuss his rehabilitation plan and goal. He was informed that the State of Colorado required completion of certification classes and 1000 supervised counseling hours to obtain at least the CAC I certification; and that the BS in Psychology program from Walden University contained mostly theoretical psychology courses and was a prepatory program for a master's degree rather than a counseling program providing the requisite classes in interviewing, group counseling skills, cognitive behavioral therapy or clinical supervision. It was noted that if he attended Walden University, then he would probably need to retake the CAC required classes and would need to complete his volunteer hours with clinical supervision from an outside agency. The Veteran was scheduled to meet with someone at Chrysalis Counseling to devise a plan. The State of Colorado regulations provide that certified assistant addiction counselor (CAC I) is an entry-level certification in which persons with this certification shall not conduct alcohol and drug individual and group counseling service independently, but may co-facilitate or assume other therapeutic co-facilitation duties. Certification requirements include documentation of clinically supervised work experience, consisting of at least the following alcohol and drug treatment functions and their documentation: Clinical Evaluation Consisting of Intake, Screening and Differential Assessment; Treatment Planning including Initial, Ongoing and Discharge Planning; Co-facilitation Counseling of Individual, Group, Couples or Families; Management services (an array of service which include at a minimal assessment of the needs of the client and family, service planning, referral and linkage to other services advocacy, monitoring and crisis management); and Client and Family Education. The program at Walden University provides the student will learn to: demonstrate familiarity with major concepts, theoretical perspectives empirical findings and historical trends in psychology; understand and apply basic research methods in psychology; respect and use critical thinking, skeptical inquiry, and a scientific approach to solve problems related to behavior and mental process; understand and apply psychological principles to personal, social and organizational issues; tolerate ambiguity, act ethically and reflect other value that are the underpinnings of psychology as a science; and apply cultural competencies to effective and sensitive interactions with those from diverse backgrounds and cultural perspectives. It was recommended of those considering an advanced degree in psychology to prepare through the preparation for graduate studies concentration in which one would learn to conduct research, analyze data, and present findings; and increase understanding of what influences social behavior by developing the quantitative and qualitative analytical skills for graduate study. An arrest record obtained in October 2009 shows a criminal history that included attempt to commit first degree murder, domestic violence, driving while under the influence, and larceny. A November 2009 memorandum (addressed to the VR&E service director) discussed the Veteran's interpretation of requirements within the State of Colorado of reemployment as a Drug and Alcohol Counselor, his reluctance to disclose his past criminal history, what constitutes appropriate training for his vocational goal, and the commitment necessary to obtain clinically supervised hours. A phone call was made to Chrysalis Counseling to provide clinical supervision for 1000 hours of clinical practice, but the Veteran did not appear for his scheduled clinical hours. Without a commitment from the Veteran to participate in the clinically supervised hours, his desire to attend Walden University could not be approved. The memorandum also noted that another key component of his employability is his agreement to fully disclose his criminal history. Only when he was denied enrollment at a university because of his non disclosure did the VR&E become aware of the seriousness of it and his criminal record was obtained. It was noted that his criminal history could impact his vocationally goal and should have been fully disclosed prior to development of the IWRP. In a January 2010 administrative review, the Director agreed with the Vocational Rehabilitation Counselor's decision not to support the Veteran's vocational goal as a Drug and Alcohol Counselor. The decision was based on the Veteran's legal history, the labor market and the Veteran's unwillingness to participate fully in the program's requirements. In January 2010 the Veteran's VR&E program was interrupted because he was in the process of appealing the recent decision in his case. The VRC's January 2010 notes reflect that an appointment was made to review the decision and steps necessary to proceed with a plan. The Veteran responded that he did not want to attend since he wanted the file to be sent to the Board. In April 2010, the Veteran's vocational rehabilitation program had been discontinued because the program could not proceed while his case was pending an Administrative Review. The Veteran has expressed a desire to become a drug and alcohol abuse counselor by obtaining a degree in Psychology from Walden University. However, he has not been approved for the psychology program offered by that institution. Since it does not appear that the psychology program at Walden University provides the requisite classes and experience for the Veteran to meet his goal, the Veteran was advised to supplement his education with CAC required classes and 1000 hours of clinical experience, which the Veteran refuses to do. The Board acknowledges the in a statement received in October 2009, the Veteran took issue with: (1) the two year time limit to complete the program; (2) the VRC contacting Chrysalis Counseling; (3) not being approved for an online education; and (4) continually being dropped from the program which affected his studies. The statutory and regulatory provisions governing the award for vocational rehabilitation benefits require cooperation from the Veteran. Here, the Veteran failed to appear for his meetings to discuss the most recent plan and to arrange a plan to meet the 1000 hour volunteer requirement. Participating in the psychology program alone at Waldon University online will not meet the state's certification requirements. As a result, the discontinuance of vocational rehabilitation benefits under the provisions of Chapter 31, Title 38, United States Code, was proper. ORDER The discontinuance of a drug and alcohol abuse counselor program of vocational rehabilitation benefits under Chapter 31, Title 38, United States Code, was proper. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs