Citation Nr: 1428046 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 11-15 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether discontinuance of Vocational Rehabilitation and Employment benefits under the provisions of Chapter 31, Title 38, United States Code, was proper. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from January 1996 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 administrative decision by Department of Veterans Affairs (VA) Vocational Rehabilitation & Employment (VR&E) Division in Milwaukee, Wisconsin, wherein the Veteran's Vocational Rehabilitation and Employment (VR&E) program was discontinued. In November 2011, the Veteran participated in a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Veteran submitted additional evidence with a waiver of initial Agency of Jurisdiction (AOJ) review in accordance with 38 C.F.R. § 20.1304(c) (2013). The evidence is accepted for inclusion in the record on appeal. FINDING OF FACT Assignment of "discontinued" status for the Veteran's VR&E program was proper. CONCLUSION OF LAW The discontinuance of VA VR&E benefits under Chapter 31, Title 38, United States Code, was proper. 38 U.S.C.A. §§ 3104, 3107 (West 2002); 38 C.F.R. §§ 21.70, 21.180, 21.197, 21.198 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The goal of a VR&E program is to evaluate and improve the veteran's ability to achieve a vocational goal; provide services to qualify for suitable employment; enable a 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 U.S.C.A. § 3104; 38 C.F.R. § 21.70(a). An IWRP (Individualized Written Rehabilitation Plan) is developed for each veteran eligible for rehabilitation services under Chapter 31. 38 C.F.R. § 21.80. A variety of situations may arise in the course of a rehabilitation program in which a temporary suspension of the program is warranted, and the veteran's case is thereby assigned an "interrupted" status. 38 C.F.R. § 21.197(a). In each case, VA must first determine that the veteran will be able to return to a rehabilitation program or a program of employment services following resolution of the situation causing the interruption. Id. Assignment to "interrupted" status is made when VA determines that a suspension of services being provided is necessary; and either a definite date for resumption of the program is established or the evidence indicates the veteran will be able to resume the program at some future date, which can be approximately established. 38 C.F.R. § 21.197(b). In situations where termination of all services and benefits received under Chapter 31 is necessary, the veteran's case is assigned a "discontinued" status. 38 C.F.R. § 21.198(a). It is the responsibility of VA to ensure it has made reasonable efforts to inform the Veteran and assure her understanding of the services and assistance that may be provided under Chapter 31 to help her maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process, especially counseling services; other services VR&E staff can assist in securing through non-VA programs; and the specific responsibilities of the Veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation. 38 C.F.R. § 21.362(b). 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 discontinued and assigned to "discontinued" status unless mitigating circumstances are found. 38 C.F.R. § 21.364(b). When mitigating circumstances exist, the case may be continued in "interrupted" status until VA staff determines the Veteran may be reentered into the same or a different program because the Veteran's conduct and cooperation will be satisfactory, or if a plan has been developed to enable the veteran to reenter and try to maintain satisfactory conduct and cooperation. Review of the record reflects that the Veteran's IWRP was developed in August 2003. The goal was to obtain and maintain entry level employment in the occupational goal of a case worker. The objective was to complete an associate's degree in human services. She enrolled at the Milwaukee Area Technical College (MATC). She began her studies in August 2003. During her time as a student at MATC, the Veteran was allowed to take certain classes at Upper Iowa University (IUI) to transfer classes to MATC. An August 3, 2010 letter notified the Veteran of a scheduled meeting to review her progress. In an August 13, 2010 e-mail from the Veteran to her counseling psychologist, she explained that she had met with the dean at MATC and an advisor from Human Services. The Veteran reported that it served her no purpose to continue in the program at MATC. She stated that she had tried to finish, but it had been difficult. She stated that UIU had accepted her in their bachelor's program. She was planning to complete their program. She stated that she could not attend MATC any longer. An August 16, 2010 summary of the meeting noted the Veteran expressed frustration with her attempts to complete her associate's degree in human services from MATC. After 7 years, she was only 2/3 done. She was currently on academic probation for at least the 3rd time. She had a very demanding, overextended schedule between her two young children, including a severely disabled child, single parenting, and working full time at the United States Postal Service (USPS). Her schedule at USPS was changed on a few occasions, leading to conflicts with school. MATC allowed her to take a few classes at another institution and transfer them back to MATC as a way to help her graduate. She indicated that she no longer wished to continue with her Chapter 31 program and asked that her file be closed. She decided that she needed to withdraw as she was overscheduled. Her case was to be processed for discontinuation. An August 30, 2010 letter notified the Veteran of her "interrupted status" because she had requested that her Chapter 31 file be closed. She was told that she would be placed in interrupted status for 30 days, and thereafter, a proposal to place the file in discontinued status would be initiated. In a September 4, 2010 e-mail from the Veteran to her counseling psychologist, she asked if she should appeal because she wanted the program to be reinstated at UIU or whether she has to do the application and testing again or explain why she no longer continued and has not obtained her degree. In an e-mail response from her counseling psychologist, the Veteran was told that transferring to Upper Iowa was not an option. Her counseling psychologist explained that MATC agreed to work with her but she was unable to complete her classes at UIU and her grade point average (GPA) was .67. A better plan was needed. Her counseling psychologist stated that the only service that could be provided was to develop a realistic 6 credit per term, part-time schedule to compete her degree at MATC. Upcoming interruption was the first step in closing the file, as the Veteran had requested. An October 2010 letter to the Veteran stated that her program was being interrupted. She was directed to contact her counseling psychologist within 30 days to discuss participation in the VR&E program, otherwise the program would be discontinued and she would not be eligible for the benefits under this program. She was advised that she may be eligible to re-enter training in the Chapter 31 program if she reestablished her eligibility and entitlement to those benefits and demonstrated that the reason for discontinuance had been eliminated. She was informed that in order to reestablish eligibility and entitlement, she would need to complete a new VA Form 28-1900. In an October 2010 e-mail to her counseling psychologist, the Veteran stated that she was confused as to why her VR&E program was discontinued. She reported that her advisor at MATC told her to complete her degree at Upper Iowa. She noted that the October 2010 letter stated that she had to contact VA within thirty days and asked whether she should submit the VA Form 28-1900 to complete the degree at UIU. A November 29, 2010 letter to the Veteran explained that her VR&E program had been discontinued because she was not "pursuing the services outlined in your rehabilitation plan and have declined to meet with this case manager and your academic advisor to review your situation and discuss possible interventions to assist you." In this case, the Board finds that the assignment of the Veteran's "discontinued" status was proper. The veteran was fully informed of her "discontinued" status by a letter that stated the reasons for the change in status, per 38 C.F.R. § 21.180(d), and she had been afforded prior notification of the adverse action, per 38 C.F.R. § 21.420(d). In this regard, the Board notes that the Veteran was sent a letter in October 2010 regarding her interrupted status and that she should contact her counseling psychologist personally or by telephone within 30 days if she wished to remain in the VR&E program. Although, following the October 2010 letter, the Veteran contacted her counseling psychologist, and indicated that she wished to remain in the program, she repeated that she did not want to complete her degree at MATC, and that she was interested in switching the objective of the program to a bachelor's degree at UIU. A change in the plan may be requested by the Veteran at any time. 38 C.F.R. § 21.94. However, the Veteran's counseling psychologist had previously advised the Veteran in a September 2010 e-mail response that this was not an option, outlined the reasons why, and advised her that the only service that could be provided was to develop a realistic 6 credit per term, part-time schedule to complete her degree at MATC. There is no documentation of record that the Veteran was amenable to this or any reasonable effort to remedy her history of unsastisfactory performance in the program. The Board recognizes that VA regulations state that the purpose of assignment to interrupted status is to assure that all appropriate actions have been taken to help the veteran continue in his or her program before discontinuing benefits and services. 38 C.F.R. § 21.197(4). This has been accomplished in this case as outlined above. ORDER Discontinuance of VR&E benefits under the provisions of Chapter 31, Title 38, United States Code, was proper; the appeal is denied. ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs