Citation Nr: 1604579 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 14-21 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to additional vocational rehabilitation training benefits under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel INTRODUCTION The Veteran had active duty service from July 2002 to March 2005. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2013 decision of the VA Vocational Rehabilitation and Education Division at the RO in St. Paul, Minnesota. In October 2014, the Veteran, sitting at the RO, testified at a hearing conducted via video conference with the undersigned Veterans Law Judge. A transcript of the hearing is of record. In addition to the paper claims file, there is a Virtual VA and VBMS (the Veterans Benefits Management System) paperless claims file associated with the Veteran's claim. The documents in these files have been reviewed and considered as part of this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran is seeking additional vocational rehabilitation training benefits under Chapter 31, Title 38, United States Code. The Veteran has already received such benefits and has been placed in "rehabilitated" status as of September 3, 2010. By way of history, in an October 2006 decision, the Veteran was awarded entitlement to vocational rehabilitation training benefits under Chapter 31, Title 38, United States Code. A rehabilitation plan was developed to assist him with his postsecondary endeavors in a Chemistry Bachelor's degree program, so that he could establish himself in a new career that was accommodating of his disabilities and gainful in nature. He was enrolled at the University of Minnesota, where he obtained a Bachelor of Arts in Chemistry with a sub-field in Biochemistry and a minor in Mathematics. He graduated in May 2009. He most recently worked in an administrative capacity at the Minneapolis VA Medical Center (VAMC). In any event, he left his job at the Minneapolis VAMC in 2009. In Fall 2012, the Veteran began attending the University of Minnesota School of Medicine, where he currently attends classes. In February 2013, he requested additional training requesting assistance with completing his medical degree. Specifically, he requested additional vocational rehabilitation training benefits for enrollment at the University of Minnesota School of Medicine in order to receive a medical degree in Allopathic Medicine. Applicable law provides that, if the Veteran has participated in a prior vocational rehabilitation program and been found "rehabilitated," he is barred from participation in another program. However, an exception exists if the Veteran has a compensable service-connected disability and either, current facts, including any relevant medical findings, establish that the service-connected disability has worsened to the extent that the effects of the service-connected disability, considered in relation to other facts, precludes him from performing the duties of the occupation for which the Veteran previously was found rehabilitated; or the occupation for which the Veteran previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of the Veteran's specific employment handicap and capabilities. See 38 C.F.R. § 21.284(a), (c)(1) (2014). In addition to the exception cited above, a finding of rehabilitation to the point of employability by VA may be set aside during a period of employment services, and an additional period of training and related services provided, if the rehabilitation services originally provided are now inadequate to make the Veteran employable in the occupation for which he pursued rehabilitation; or experience during the period of employment services has demonstrated that employment in the objective or field for which the Veteran was rehabilitated to the point of employability should not reasonably have been expected at the time the program was originally developed; or the Veteran, because of technological change which occurred subsequent to the declaration of rehabilitation to the point of employability, is no longer able to perform the duties of the occupation for which he or she trained, or in a related occupation, or to secure employment in the occupation for which he or she trained, or in a related occupation. 38 C.F.R. § 21.284(c)(2-4). Under 38 C.F.R. § 21.52, for each individual who is found to have an employment handicap, a Counseling Psychologist or Vocational Rehabilitation Counselor must make a separate determination of whether the individual has a serious employment handicap. A serious employment handicap will be found to exist only if a Counseling Psychologist or Vocational Rehabilitation Counselor determines that the individual meets the conditions enumerated under 38 C.F.R. § 21.52 (2014). In April 2013, a VA Vocational Rehabilitation Counselor determined that there was insufficient evidence to show that the Veteran could no longer work in the occupation in which he was trained for due to the worsening of a service-connected disability or that the occupation in which he was rehabilitated in was now unsuitable for him due to his specific employment handicap and capabilities. However, an August 2013 Administrative Review by the Vocational Rehabilitation and Employment Department of Veterans Affairs Central Office (VACO) staff, stated that in July 2012, the Veteran resigned from his position as a Medical Administration Specialist due to difficulties associated with his service-connected posttraumatic stress disorder (PTSD). It was also pointed out that the Veteran's PTSD rating increased from 30 percent to 50 percent effective the same month of July 2012. Moreover, the Board notes that at the time the Veteran was declared "rehabilitated," his combined service-connected rating was 50 percent. Since then, the combined disability rating has increased to 80 percent. Thus, it appears that there has been a significant worsening of his service-connected disability. The Veteran asserts, in part, that the occupation for which he was found rehabilitated is now unsuitable on the basis of his specific employment handicap and capabilities. Additionally, he asserts that the occupational requirements in the occupation for which he trained have changed to such an extent that additional services are necessary to enable him to work in that occupation, or in a related field. Based on the above, the Board finds that a VA psychological evaluation would be helpful in evaluating the Veteran's vocational rehabilitation claim. Lastly, in an October 2014 statement, the Veteran's representative requested that St. Cloud VAMC treatment records dated from 2005 to 2014 be obtained to help support the Veteran's claim. To date, it appears as though the complete records have not yet been associated with the Veteran's claims file. An effort should be made to obtain any records of treatment the Veteran has received that are not already on file. 38 U.S.C.A. § 5103A(c) (West 2014). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Any pertinent VA or private records, specifically including any and all VA records from the St. Cloud VAMC, since 2005, should be obtained and incorporated in the claims folder. The Veteran should be requested to provide the necessary authorization for release of private medical records to the VA. All attempts to procure those records should be documented in the file. If the AOJ cannot obtain the aforementioned records, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. Thereafter, the Veteran should be afforded a VA psychological examination. The Veteran's claims folder, to include his virtual file, must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must provide an opinion as to the following: a. Whether the Veteran is rehabilitated to the point of employability. b. If the Veteran is rehabilitated to the point of employability, whether he meets one of the following conditions: (1) one or more of his service-connected disabilities has worsened, preventing him from working in the occupation for which he trained, or in a related occupation; (2) his current employment handicap and capabilities clearly show that the occupation for which he was previously trained is currently unsuitable; or (3) the occupational requirements in the occupation for which the Veteran trained have changed to such an extent that additional services are necessary to enable him to work in that occupation, or in a related field. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder or virtual file. 3. Following any additional indicated development, the originating agency should review the claims file and readjudicate the issue on appeal. If a benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).