Citation Nr: 1329833 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-04 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to vocational rehabilitation and employment (VRE) benefits under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION According to documents in the Veteran's VRE file, he served on active duty from May 1985 to May 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the Veteran's request for VRE services. The Board notes that, in addition to the paper VRE file, there is an electronic (Virtual VA) file associated with the Veteran's claim. The electronic file contains a July 2013 brief submitted by the Veteran's representative, which the Board has reviewed. The remainder of the documents in the electronic file are either duplicative of the evidence in the paper VRE file or are irrelevant to the issue on appeal. For the reasons set forth below, this appeal is being REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Vocational rehabilitation is a program offered to assist disabled Veterans whose service-connected disability, or disabilities, affect their ability to prepare for, obtain, and retain employment. See generally 38 U.S.C.A. §§ 3100-3122 (West 2002 & Supp, 2012); 38 C.F.R. §§ 21.1-21.430 (2012). A Veteran is eligible for benefits under this program if, among other things, the Veteran has a disability rating of at least 20 percent and is determined by VA to have an "employment handicap." 38 U.S.C.A. § 3102(a)(1)(A)(i), (b) (West 2002); 38 C.F.R. § 21.40(a) (2012). The term "employment handicap" is defined as an impairment, resulting in substantial part from a disability described in 38 U.S.C.A. § 3102(1)(A) (i.e., a service-connected disability), of a Veteran's ability to prepare for, obtain, or retain employment consistent with the Veteran's abilities, aptitudes, and interests. 38 U.S.C.A. § 3101(1) (West 2002); 38 C.F.R. § 21.35(a) (2012). Once VA has determined that a Veteran is entitled to receive benefits under these provisions, he or she will work with a vocational rehabilitation counselor to develop an individualized written rehabilitation plan, which includes an evaluation of the skills needed and the training or educational services required to achieve rehabilitation. Either alone or as part of an individual rehabilitation plan, employment services may also be provided. 38 C.F.R. § 21.88 (2012). In the present case, the evidence shows that the Veteran was examined for VA compensation purposes in April 2008, prior to his discharge from service. Subsequently, in June 2008, the RO in Salt Lake City, Utah, established service connection for the following disabilities, each evaluated as 10 percent disabling: left hip degenerative arthritis with residuals; recurrent left knee strain with residuals; status-post left ankle strain with residuals; status-post left index finger traumatic amputation; left foot pes planus with plantar fasciitis; right foot pes planus with plantar fasciitis and degenerative arthritis; and bronchial asthma with residuals. The RO also established service connection for the following additional disabilities, each evaluated as zero percent (noncompensably) disabling: right shoulder strain; right ear tympanic membrane rupture with residual scarring; recurrent sinusitis; allergic rhinitis; right inguinal hernia, status-post surgical repair; residual right lower abdominal scar; and residual left index finger scar. The Veteran's combined evaluation was 60 percent, effective June 1, 2008. In September 2008, as noted above, the Winston-Salem RO denied the Veteran's request for VRE services. The RO acknowledged that the Veteran had a combined service-connected disability rating of 60 percent, but denied the Veteran's request for services because he did not have an "employment handicap" as defined by law. The RO's conclusion was based, in part, on the April 2008 VA examination reports; the Veteran's self-report that his disabilities were not then limiting; and evidence showing that he had acquired suitable, provisional employment as a high school Reserve Officers' Training Corps (ROTC) instructor. (The record shows that, in order to clear the provisional status of his employment, the Veteran needed to complete three semester hours of either educational psychology or adolescent psychology; three semester hours in methods and materials of teaching in secondary schools; and a three-year initial licensure program.) In his July 2013 brief on appeal, the Veteran's representative points out, in essence, that the Veteran's service-connected disabilities are chronic and degenerative, and worsen with age; that he has not been examined in more than five years; that the employment he obtained in 2008 was provisional, not permanent; and that an updated assessment of the impact of the Veteran's service-connected disabilities on his employment would be helpful to resolution of his appeal. In this regard, the Board notes that, although the Veteran indicated on a September 2008 VA Form 28-1902w (Rehabilitation Needs Inventory) that his disabilities were not limiting at that time, he also reported that his right shoulder was hurting more. The United States Court of Appeals for Veterans Claims (Court) has recently indicated that, if a Veteran is found ineligible for VRE benefits, he appeals the determination, and evidence is received during the pendency of the appeal to suggest that his disabilities have gotten worse, VA is required to seek an updated assessment from a VRE counselor, or explain why such assistance is not required. See Andrews v. Shinseki, 26 Vet. App. 193 (2013). Under the circumstances, in light of that holding, the fact that the Veteran's last assessment was more than five years ago, and given the evidence suggesting that one or more of the Veteran's multiple disabilities may have increased in severity since that time, the Board finds that an updated VRE assessment should be obtained. A remand is required. 38 C.F.R. § 19.9 (2012). It is not entirely clear that the Veteran's paper claims file contains any additional evidence that would impact on the present appeal, inasmuch as copies of the April 2008 VA examinations and the Salt Lake City RO's June 2008 rating decision have already been associated with the Veteran's paper VRE and electronic claims files. Nevertheless, on remand, in order to afford the Veteran every consideration, and to ensure that his claim is based on an evidentiary record that is as complete as possible, his paper claims file should be located and associated with the remainder of the record on appeal. For the reasons stated, this case is REMANDED for the following actions: 1. Locate the Veteran's paper claims file and associate it with his paper VRE file. 2. After the foregoing development has been completed, arrange for an updated assessment of the Veteran by a VA VRE counselor. After obtaining any additional information necessary, including information from the Veteran with respect to his current employment status, the counselor should make a specific finding as to whether the Veteran has an "employment handicap," as that term is defined by law, and whether he is otherwise eligible for VRE services, based on all available evidence. A complete rationale for all opinions should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters 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 or by the U.S. 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). _________________________________________________ A. JAEGER 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).