Citation Nr: 1332580 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-09 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to additional vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from November 1996 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran is seeking entitlement to additional vocational rehabilitation training under the provisions of Chapter 31, Title 38, of the United States Code. In a September 2009 statement, the Veteran asserts that his vocational rehabilitation case was closed because the vocational rehabilitation services told him that they could not get in touch with him and because his training was not successful. The Veteran disputes both reasons for closing his vocational rehabilitation case. He states that VA could have contacted him by mail even though he was homeless; he asserts that he still would have received his mail. The Veteran also asserts that he contacted VA about his vocational rehabilitation benefits and was told that his file was transferred from Lansing to Detroit and the file was lost. He contends that he requested a copy of his vocational rehabilitation file and was told that the file was missing. The Veteran also asserts that his training was successful and the Lansing vocational rehabilitation office had approved his program. Title 38 U.S.C.A. Chapter 31 provides for vocational rehabilitation for veterans with service-connected disabilities. Implementing regulations pertinent to eligibility criteria and administrative procedures are found at 38 C.F.R. Part 21. The basic eligibility criteria are that the veteran must have a service-connected disability of 20 percent or more (or less than 20 percent in some circumstances); the veteran must be in need of rehabilitation to overcome an employment handicap; and an individual written plan must be developed by VA and the veteran describing the goals of the program and the means through which the goals will be achieved. 38 C.F.R. § 21.1, 21.40, 21.80, 21.84 (2013). The basic period of eligibility for vocational rehabilitation benefits is 12 years beginning from the date of the veteran's discharge from service. The 12-year period does not begin to run until the veteran establishes a compensable service-connected disability required for purposes of establishing basic entitlement to benefits under 38 C.F.R. § 21.40(a). See 38 U.S.C.A. § 3103; 38 C.F.R. §§ 21.41, 21.42(a). This time period may be extended. See 38 C.F.R. §§ 21.42, 21.44, and 21.45. A review of the Veteran's VA claims folder and Virtual VA file reveals that a large part of the Veteran's VA vocational rehabilitation folder is missing. Of record are copies of the Veteran's March 2010 VA Form 9, his September 2009 statement, and the statements by the Veteran's representative dated in September 2012 and September 2013. However, copies of pertinent records such as the VA decision, statement of the case, and evidence considered in connection with VA's determination are missing and are not of record. As noted above, the Veteran indicated that he requested a copy of his vocational rehabilitation folder and he was told by VA that his folder was missing. According to VA procedures which govern this situation, several specific steps must be taken when a Veteran's file has been lost. See M21-1MR, Part III, Subpart ii, Chapters 1-8. First an exhaustive search of the entire office must be accomplished. The file must be added to a master 'search list.' Next, a request for the missing file must be made to the Records Management Center, as well as to any station(s) where there is reason to believe the file may be located. Review of the currently available folder and Virtual VA folder does not indicate any of the above steps were taken, or that if they were, no steps were documented in the currently available folder. Therefore, upon remand, the obvious repositories and any other VA offices which may subsequently become apparent should be contacted and requested to search their respective offices for the Veteran's vocational rehabilitation folder. If these efforts are fruitless, the RO must construct a "Rebuilt Folder" in accordance with the guidelines in the M21 Manual. In reconstructing lost records, attempts to obtain duplicate records which were or should have been in the Veteran's original vocational rehabilitation folder should be made. In addition, each and every step taken to reconstruct the vocational rehabilitation folder must be documented. VBA should take all necessary steps to provide a clear record of the actions taken so that review by higher tribunals can be meaningful and so that the Veteran will have a clear understanding of what steps have been taken to rebuild the vocational rehabilitation folder and what information is available in the Veteran's VA claims folder. At the very least, copies of all computerized records, including all relevant decisions, VA-generated letters, statements of the case, VA medical records from all relevant locations, and VA vocational rehabilitation records should be associated with a rebuilt VA vocational rehabilitation folder. Having apparently misplaced a portion of the Veteran's vocational rehabilitation folder, it is now incumbent upon VA as an organization to make diligent efforts to locate the Veteran's missing vocational rehabilitation folder and, if the folder is not found, efforts to reconstruct the Veteran's VA vocational rehabilitation folder as completely as possible must be made. The Board also finds that the AMC/RO should provide the Veteran with appropriate notice concerning the information and evidence necessary to substantiate his claim for entitlement to additional vocational rehabilitation training under the provisions of Chapter 31, Title 38, U.S.C. and VA's duty to assist him as set forth in the notice provisions of 38 C.F.R. §§ 21.32 and 21.33. Accordingly, the case is REMANDED for the following action: 1. Conduct a search for the Veteran's Vocational and Rehabilitation Folder. Requests to search for the missing Vocational and Rehabilitation Folder shall be made to the Records Management Center; the Detroit, Michigan, RO; the Lansing, Michigan Vocational and Rehabilitation Office, and any other facilities which would have provided vocational rehabilitation services or evaluation. If any other VA entity is later determined to have had access to the Vocational and Rehabilitation folder, requests for search of those locations shall be made. The search should be made in accordance with VA procedures which govern the search for missing and lost claims folders as set forth in M21-1MR, Part III, Subpart ii, Chapters 1-8. All requests, responses and actions taken to locate the Veteran's missing Vocational and Rehabilitation folder must be fully documented in the Veteran's VA claims folder for future review. Document negative responses. 2. If after making reasonable efforts to secure the Vocational and Rehabilitation folder, the records cannot be obtained, notify the Veteran of such and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts that were made to obtain the records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. If the Veteran's missing Vocational and Rehabilitation folder is not located, then the RO shall reconstruct and rebuild the Veteran's VA Vocational and Rehabilitation folder following the guidance provided in the M21-1MR Manual. All steps taken to reconstruct and rebuild the Vocational and Rehabilitation folder shall be documented in the VA claims folder. 4. Provide the Veteran with appropriate notice concerning the information and evidence necessary to substantiate his claim for entitlement to additional vocational rehabilitation training under the provisions of Chapter 31, Title 38, U.S.C. and VA's duty to assist him as set forth in the provisions of 38 C.F.R. §§ 21.32 and 21.33. 5. Thereafter, readjudicate the claim for an extension of vocational rehabilitation benefits in light of the entire record. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ M. Tenner Acting 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).