Citation Nr: 1319783 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 12-22 876 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to retroactive induction into a program of vocational rehabilitation training program under Chapter 31 of Title 38 of the United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from February 1952 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision of the RO in Newark, New Jersey, which found that retroactive induction into a vocational rehabilitation training program was not warranted. The Board has not only reviewed the Veteran's physical claims file but also the file on the "Virtual VA" system to insure a total review of the evidence. 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 audited a class in the fall of 2011 and filed an original claim for vocational rehabilitation benefits in April 2012. 2. The Veteran was within his twelve year basic period of eligibility in the fall of 2011. 3. The Veteran was in receipt of disability compensation for service-connected disabilities under 38 U.S.C. Chapter 11 during the period in question. 4. The Veteran met the criteria for entitlement to a program of independent living services in the fall of 2011. 5. The Veteran's fall 2011 class pertained to areas of reduced independence and was reasonably needed to achieve increased independence in family and community activities and may be included in a plan developed for the Veteran. 6. The record shows that the Veteran was not otherwise enrolled in a VA education program in 2011. 7. An initial evaluation was completed in May 2012. 8. A period of extended evaluation was not required because the initial evaluation determined that achievement of a vocational goal was not reasonably feasible. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, retroactive induction into a Chapter 31 vocational rehabilitation program is warranted. 38 U.S.C.A. §§ 3100, 3102, 3103, 5103, 5103A, 5107, 5113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.1, 21.40, 21.35, 21.53, 21.282 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The claim has been granted, as discussed below. As such, the Board finds that no further explanation is required as to how VA fulfilled the duties to notify and assist the Veteran in this case. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.32, 21.33 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Retroactive Induction Vocational Rehabilitation Legal Criteria A veteran is entitled to vocational rehabilitation under 38 U.S.C. Chapter 31 if he has one or more service-connected disabilities compensable at certain rates and if he is determined to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.40. In each case in which an employment handicap is found, a separate determination shall be made with respect to whether that impairment constitutes a "serious employment handicap." 38 U.S.C.A. § 3106(a) (West 2002 & 2012); 38 C.F.R. § 21.52(a) (2012). A serious employment handicap constitutes a significant impairment of a veteran's ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes, and interests. 38 C.F.R. § 21.52(b) (2012). For each veteran found to have a serious employment handicap warranting rehabilitation services under Chapter 31, VA is required to develop a written plan describing the veteran's vocational goals and the program through which those goals will be achieved. 38 C.F.R. § 21.1(b)(3) (2012). Vocational goal means a gainful employment status consistent with the veteran's abilities, aptitudes, and interests. A VA counseling psychologist shall determine whether achievement of a vocational goal is reasonably feasible. 38 C.F.R. § 21.53(g) (2012). Where a vocational goal is not reasonably feasible, a program of independent living services may be offered. 38 C.F.R. § 21.53(f). VA has the authority to provide services and assistance of a recreational nature as a component of an eligible program of independent living services. VA has the authority, and responsibility, to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in such a program to live and function independently in his or her family and community without, or with a reduced level of, the services of others. This includes the authority to approve, when appropriate, services and assistance that are in whole or part recreational in character when the services are found to be needed to enable or enhance a veteran's ability to engage in family and community activities integral to achieving his/her independent living program goals. Applicable statutes provide VA a great deal of discretion in determining the nature and scope of services needed by a veteran in an independent living services program. VAOPGCPREC 34-97. VA has both the authority and the responsibility to provide all services and assistance deemed necessary on the facts of a particular case to enable an eligible veteran participating in an independent living program to live and function independently in his family and community without, or with a reduced level of, services from others. The operative word as to this matter was "necessary" and independent living services (to include services that may have a recreational component) provided to the veteran must be "vital" to achieving the independent living program goal, not merely desirable or helpful. VAOPGCPREC 6-2001. The basic eligibility period for vocational rehabilitation is twelve years after the date of discharge. 38 C.F.R. § 21.41(a) (2012). This period is tolled until the claimant has a qualifying service connection disability. 38 C.F.R. § 21.42(a) (2012). Retroactive induction into a rehabilitation program may be authorized for a past period under a claim for vocational rehabilitation benefits when all of the following conditions are met: (1) The past period is within - (i) A period under § 21.40(c) during which a service member was awaiting discharge for disability; or (ii) A period of eligibility under §§ 21.41 through 21.44 or 38 U.S.C. § 3103. (2) The individual was entitled to disability compensation under 38 U.S.C. chapter 11 during the period or would likely have been entitled to that compensation but for active-duty service. (3) The individual met the criteria for entitlement to vocational rehabilitation benefits and services under 38 U.S.C. Chapter 31 in effect during the period. (4) VA determines that the individual's training and other rehabilitation services received during the period were reasonably needed to achieve the goals and objectives identified for the individual and may be included in the plan developed for the individual (see §§ 21.80 through 21.88, and §§ 21.92 through 21.98). (5) VA has recouped any benefits that it paid the individual for education or training pursued under any VA education program during any portion of the period. (6) An initial evaluation was completed under § 21.50. (7) A period of extended evaluation is not needed to be able to determine the reasonable feasibility of the achievement of a vocational goal. 38 C.F.R. § 21.282(c) (2012). Retroactive Induction Analysis The Veteran contends that expenses related to a class he audited in the fall 2011 semester at a local college should be paid by VA. The record reflects, and the Veteran does not contest, that he did not file a claim for vocational rehabilitation until April 2012. Accordingly, the only path to benefits is through retroactive induction into an appropriate program of rehabilitation services. The file reflects that Veteran was granted service connection for cold injury residuals of his extremities effective May 2002. The Veteran was within his twelve year basic period of eligibility in the fall of 2011. The first criterion for retroactive induction is satisfied. 38 C.F.R. § 21.282(c). The Veteran was in receipt of disability compensation for service-connected disabilities under 38 U.S.C. Chapter 11 during the period in question. The second criterion for retroactive induction is satisfied. 38 C.F.R. § 21.282(c). The Veteran was provided a May 2012 initial evaluation by a VA counseling psychologist. The psychologist concluded that the Veteran had a serious employment handicap materially caused or contributed to by his service-connected disabilities which he had not overcome. She also concluded that a vocational goal was not reasonably feasible. She based the decision on the facts that the Veteran had not worked since 1983, that he had subsisted on disability benefits since that time, and that he was now in receipt of service-connected compensation at a 100 percent rating based on permanent and total disability. The Veteran has not contested this determination. Given this finding, the Veteran may only be eligible for a program of independent living services. 38 C.F.R. § 21.53(f). The counseling psychologist completed a preliminary independent living assessment that found the Veteran 80 percent independent, usually avoiding moderate and vigorous activities because of his disabilities and having some difficulty with walking and climbing stairs, doing work around his house, doing errands, participating in community activities, bending, stooping, lifting, sleeping, and memory and concentration. Explanatory notes indicate that the Veteran had difficulty with participating in community activities and memory and concentration because of hearing loss and tinnitus. An independent living services program plan was not developed as the counseling psychologist was informed by a Vocational Rehabilitation & Employment Officer that the Veteran failed to meet the first retroactive induction criterion. The Board has found that the first criterion was satisfied. Given that the Veteran was 80 percent independent and that the counseling psychologist had been in the process of developing a plan, the Board resolves reasonable doubt in the Veteran's favor and finds that he was eligible for an independent living service program. The Board finds that the Veteran met the criteria for a program of independent living services in the fall of 2011. The third criterion for retroactive induction is met. 38 C.F.R. § 21.282(c). The fourth criterion for retroactive induction is that VA determines that the individual's training and other rehabilitation services received during the period were reasonably needed to achieve the goals and objectives identified for the individual and may be included in the plan developed for the individual. 38 C.F.R. § 21.282(c). As stated, the RO did not develop a specific plan for the Veteran. The preliminary independent living assessment identified several areas of reduced ability, particularly participating in community activities and memory and concentration attributed to hearing loss and tinnitus. The Veteran is service connected for bilateral tinnitus and left ear hearing loss. The Veteran was also noted to have stable housing, personal transportation, and stable finances. The Veteran had difficulty with balance, standing or walking long periods, and was unable to maintain physical stamina or complete physically laborious activities. The Veteran had difficulty communicating with others in loud or noisy environments and this could cause strain with co-workers or supervisors. The services received in the fall of 2011 consisted of a course in Latin at a local college which the Veteran audited. The study of Latin requires exercise of memory and concentration. Latin also forms the basis, directly and indirectly, of much of the English language. Practice of Latin may be reasonably expected improve the Veteran's communication skills, memory, and concentration. This in turn enhances the Veteran's ability to engage in family and community activities. See VAOPGCPREC 34-97. In light of the foregoing, the Board resolves reasonable doubt in favor of the Veteran and finds that the Latin course received during the period was reasonably needed to increased independence in family and community activities and may be included in an independent living services plan developed for the Veteran. The fourth criterion for retroactive induction is met. 38 C.F.R. § 21.282(c). The record shows that the Veteran was not otherwise enrolled in a VA education program in 2011. An initial evaluation was completed in May 2012. A period of extended evaluation was not required because the initial evaluation determined that achievement of a vocational goal was not reasonably feasible. The fifth, sixth, and seventh criteria are met for retroactive induction. 38 C.F.R. § 21.282(c). In light of the foregoing, the Board finds that the evidence is at least in equipoise that all seven criteria for retroactive induction have been met. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for retroactive induction into a program of vocational rehabilitation are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Retroactive induction into a program of vocational rehabilitation training program under Chapter 31 of Title 38 of the United States Code is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs