Citation Nr: 1325174	
Decision Date: 08/08/13    Archive Date: 08/13/13

DOCKET NO.  11-09 291	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to retroactive induction into a program of service to complete medical school training at the University del Noreste in Tampico, Mexico, between 1993 and 2001.

(The issues of entitlement to service connection for diabetes mellitus, hypertension, peripheral neuropathy of the upper and lower extremities, retinopathy, and atypical chest pain are addressed in a separate Board decision).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from August 1971 to May 1972.

This case comes before the Board of Veterans' Appeals (Board) from decisions of the Vocational Rehabilitation and Education department of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In February 2013, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record.

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).


FINDING OF FACT

The vocational rehabilitation training the Veteran obtained outside the United States was available in the United States and personal hardship would not have resulted from requiring that he pursue training in this country.
 

CONCLUSION OF LAW

The criteria for entitlement to vocational rehabilitation training outside the United States under the provisions of Chapter 31, Title 38, United States Code, have not been met.  38 U.S.C.A. §§ 3100, 3101, 3102, 3114 (West 2002); 38 U.S.C.A. § 3114 (West 1991); 38 C.F.R. §§ 21.1, 21.32, 21.33, 21.40, 21.51, 21.130 (2012); 38 C.F.R. § 21.282(c)(3) (2012); 75 Fed. Reg. 3163 (Jan. 20, 2010); 38 C.F.R. § 21.130 (1993-2001); 38 C.F.R. § 21.282(b)(1)(ii) (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  The Court has, however, carved out exceptions where the provisions of the VCAA are not applicable.  See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006).  One of those exceptions is for claims that involve chapters of title 38 of the U.S. Code other than chapter 51, applicable to claims, effective dates, and payments.  

In this case, the claim involves chapter 31 of title 38 of the U.S. Code, applicable to training and rehabilitation for veterans with service-connected disabilities.  Under the principles enunciated in Barger v. Principi, 16 Vet. App. 132, 138 (2002), and Lueras v. Principi, 18 Vet. App. 435 (2004), the VCAA is inapplicable in this case.  Indeed, regulations applicable to vocational rehabilitation and education contain specific provisions requiring notification and assistance to claimants.  The provisions of 38 C.F.R. § 21.32 require notification by VA of necessary information or evidence and 38 C.F.R. § 21.33 provides that VA has a duty to assist claimants in obtaining evidence.  These notification and assistance requirements are similar to those in the VCAA and the RO complied with them in this case.  There is no issue as to providing an appropriate application form or completeness of the application.  After the Veteran filed his claim, he was notified of the relevant information and responsibilities of himself and VA, and the case was readjudicated in the February 2011 statement of the case.
 
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the Veteran's claim.  There is no evidence that additional records have yet to be requested.

The Board will therefore proceed to the merits of the appeal.

Analysis

This case involves the Veteran's request for reimbursement of medical school training and related expenses while he attended Universidad Del Noreste in Tampico, Mexico.  The Veteran's request for funding or reimbursement for these expenses was previously denied in 1994.  The issue in this case has sometimes been characterized as whether new and material evidence has been submitted to reopen the previously denied claim.  For the following reasons, however, the Board finds that the issue is most appropriately characterized as on the title page, i.e., as one for entitlement to retroactive induction into a program of service to complete medical school training at the University del Noreste in Tampico, Mexico, between 1993 and 2001.  First, the Court has indicated that the term "reopening," and the attendant legal principles, should only apply to service connection claims.  See Abernathy v. Principi, 3 Vet. App. 461, 464 ("We agree with the Secretary that . . . the term "reopening," although occasionally used to refer to other types of claims, applies, in its strictest sense, only to the process of presenting new and material evidence to allow a previously denied claim for service-connected benefits to be considered anew").  Second, the vocational rehabilitation and educational regulations discussed below specifically anticipate a claim for retroactive benefits, and therefore contemplate that such a claim will be addressed on a de novo basis.

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 maximum extent feasible, to become employable and to obtain and maintain suitable employment.  38 U.S.C.A. § 3100; 38 C.F.R. § 21.1. Generally, a veteran is entitled to a program of vocational rehabilitation if he or she has a service-connected disability that is rated 20 percent disabling or more 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.

The Veteran has met these preliminary requirements.  He has been in receipt of service connection for hysterical personality with conversion reaction (recharacterized as posttraumatic stress disorder since April 2009), rated 50 percent since January 1978, thus meeting the 20 percent or more requirement and indicating an employment handicap.  See 38 U.S.C.A. § 3101 (West 2002); 38 C.F.R. § 21.51 (defining employment handicap).

There are also specific requirements that apply when a Veteran seeks reimbursement for a rehabilitation program unto which he has previously been inducted and which he has already completed.  The benefit sought in such circumstances is authorization of retroactive induction into a rehabilitation program for a past period under a claim for vocational rehabilitation benefits.  The regulations authorizing such benefits were amended effective February 19, 2010, prior to the Veteran's claim in this case, and provide that multiple requirements must be met to entitlement to such benefit.  One of those requirements is that 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 for which benefits are sought.  38 C.F.R. § 21.282(c)(3) (2012); see also Vocational Rehabilitation and Employment Program-Basic Entitlement; Effective Date of Induction Into a Rehabilitation Program; Cooperation in Initial Evaluation, 75 Fed. Reg. 3,163 (Jan. 20, 2010).  The same requirement existed in the prior version of the regulation.  See 38 C.F.R. § 21.282(b)(1)(ii) (2010).

Between 1993 and 2001, as well as currently, 38 U.S.C.A. § 3114 provided that VA may provide a vocational rehabilitation program outside the United States when VA determines that such training is necessary in a particular case to provide the preparation needed to render a veteran employable and enable such veteran to obtain and retain suitable employment, and in the best interest of such veteran and the Federal Government.  38 U.S.C.A. § 3114 (West 1991); 38 U.S.C.A. § 3114 (2002).  The regulation implementing this statute, 38 C.F.R. § 21.130, provided between 1993 and 2001, as well as currently, provides that, generally, VA may provide educational and vocational courses outside of the United States if the case manager determines that such training is in the best interest of the veteran and the Federal Government. 38 C.F.R. § 21.130(a).  Specific conditions are that (1) the training must be necessary to enable the veteran to qualify for, obtain, and retain suitable employment in the occupational objective; and (2) either: (i) the training is not available in the United States; or (ii) the training is available in the United States, but personal hardship would result from requiring that the veteran pursue training in this country; and (3) all necessary supportive and follow-up services, including medical care and treatment and employment services, reasonably can be provided by or through VA, considering such factors as the availability, accessibility and cost of such services.  38 C.F.R. § 21.130 (1993-2001); 38 C.F.R. § 21.130(b) (2012).  VA's Vocational Rehabilitation Manual provides similarly, including the requirement that the Veteran met the criteria of entitlement to vocational rehabilitation for that period.  See Vocational Rehabilitation Manual, M28, Part IV, subpart iv, ch. 2, section D3, Handling Retroactive Inductions, a (guidelines for approval) (Dec. 29, 2006).

In his written statements and hearing testimony, the Veteran indicated that medical training was necessary to qualify him to obtain and retain suitable employment in his occupational objective and that, while medical training was available in the United States, personal hardship would result from requiring that he pursue training in this country.  He indicated that he felt under intense pressure in New York and that he needed to go to a foreign country to see if he could attend a small university in a quiet place without crowds or too much noise.  

The Veteran arguably may have faced difficulties at a medical school in the United States between 1993 and 2001, given the severity of his service-connected psychiatric disability at that time.  The Board may also, however, take judicial notice of facts not subject to reasonable dispute, see McCreary v. Nicholson, 19 Vet. App. 324, 327 (2005) and also interpret the evidence and draw reasonable inferences from it.  Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990).  

In this respect, if the Veteran was seeking a small university in a quiet place without crowds or too much noise, there was no need that he receive medical training in New York.  There are 141 accredited medical schools in the United States, with at least one in each state.  See Liaison Committee on Medical Education, Medical School Directory (www.lcme.org/directory.htm ).  The size of the cities where these schools are located varies in size, and this variety offered him the chance to attend a small university in a quiet place without crowds or too much noise.  For example, Tampico's population is approximately 300,000.  See 2010 Census by the Mexican government's Instituto Nacional de Estadística y Geografía.  http://www.inegi.org.mx/sistemas/consulta_resultados/iter2010.aspx?c=27329&s=est  quoted at http://en.wikipedia.org/wiki/Tampico,_Tamaulipas#cite_note-2 .  In contrast, the Penn State Hershey College of Medicine is in Hershey, Pennsylvania, where the population is about 14,000.  http://factfinder2.census.gov/faces/nav/jsf/pages/community_facts.xhtml  In reviewing cities similar to Tampico in size, the University of Pittsburgh School of Medicine is located in Pittsburgh, Pennsylvania.  Pittsburgh has a population comparable with the size of Tampico.  See US Census publication Annual Estimates of the Resident Population for Incorporated Places over 50,000, Ranked by July 1, 2012 Population: April 1, 2010 to July 1, 2012.  See http://www.census.gov/popest/data/cities/totals/2012/index.html 

Given these facts, the Board cannot find that the Veteran could not attend a medical school in the United States that was similar to the one he attended in Mexico in terms of the surrounding environment.  It therefore cannot be said that personal hardship would have resulted from requiring that the appellant pursue training in this country.  The Veteran thus did not meet the criteria for entitlement to vocational rehabilitation benefits and services under 38 U.S.C. Chapter 31 in effect between 1993 and 2001 when he attended medical school at the University del Noreste in Tampico, Mexico.  Retroactive induction into this program, and consequent reimbursement of medical school training and related expenses incurred by the Veteran, is not warranted.

The Veteran also indicated that a vocational rehabilitation counselor in New York told him that VA would not have any problems if he went to medical school in Mexico.  Even assuming that the Veteran correctly understood what was stated to him by the vocational rehabilitation counselor, VA would not be bound by erroneous advice dispensed by a VA employee.  Shields v. Brown, 8 Vet. App. 346, 351 (1995) (inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (erroneous advice given by a government employee cannot be used to estop the government from denying benefits).

For the foregoing reasons, the preponderance of the evidence reflects that the Veteran did not meet the criteria for entitlement to vocational rehabilitation benefits and services in effect between 1993 and 2001 when he attended medical school at the University del Noreste in Tampico, Mexico.  As this is one of the criteria for establishing entitlement to retroactive induction into this program, and consequent reimbursement of medical school training and related expenses incurred by the Veteran, his claim for such benefits must be denied.  

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107(b).  The Board therefore need not discuss the other requirements for establishing entitlement to this benefit.


ORDER

Entitlement to a retroactive induction into a program of service to complete medical school training at the University del Noreste in Tampico, Mexico, between 1993 and 2001, is denied.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs