Citation Nr: 18154252 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 10-13 850A DATE: November 29, 2018 ORDER Entitlement to Chapter 31 vocational rehabilitation and employment (VR&E) services is denied. (The issues of entitlement to service connection for a urethral disorder, a gastrointestinal disorder, and a lumbosacral spine disorder and entitlement to an initial compensable evaluation for staphylococcus infection are the subject of separate decisions.) FINDINGS OF FACT 1. In April 2008, the agency of original jurisdiction (AOJ) found that the Veteran met the basic entitlement criteria for Chapter 31 benefits based on having service-connected disability and a serious employment handicap; however, the achievement of his vocational goal of employment has not been shown to be reasonably feasible. 2. The Veteran has not responded to the requests made by the AOJ for the necessary information to allow a counseling psychologist or vocational rehabilitation counselor to make a determination as to the reasonable feasibility of a program of independent living services. CONCLUSION OF LAW The criteria for entitlement to Chapter 31 VR&E services have not been met. 38 U.S.C. §§ 3100, 3101 (2012); 38 U.S.C. §§ 21.35, 21.53 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1970 to January 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 decision of the Department of Veterans Affairs (VA). In August 2012 and July 2016, the Board remanded this issue to schedule the Veteran for a hearing. The Veterans Appeals Control and Locator System (VACOLS) shows that the Veteran withdrew this appeal after an informal hearing with the AOJ later in July 2016 and planned to reapply for VR&E services. The originally requested hearing was held before the undersigned Veterans Law Judge in April 2017. A transcript of the hearing is of record. Given the Veteran’s intent to continue his appeal to the Board based on his testimony, the Board finds that this issue remains in appellate status. The Veterans Law Judge held the record open for a 60-day period following the hearing to allow for the submission of additional evidence; however, the Veteran did not submit any additional evidence during that time. The Veteran did later submit additional evidence, and he waived initial AOJ consideration of evidence received after the March 2010 statement of the case (SOC). See August 2018 Board waiver request letter and written response. The Board also notes that the AOJ fulfilled the Veteran’s Privacy Act request for a copy of the SOC in a July 2015 written response. See 38 C.F.R. §§ 1.577 and 20.1200. Law and Analysis VA’s notification and assistance duties under the Veterans Claims Assistance Act of 2000 are not applicable in this case, given the nature of the issue on appeal. See, e.g., Barger v. Principi, 16 Vet. App. 132, 138 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Rather, the law pertaining to Chapter 31 VR&E benefits contains its own notice and assistance provisions. 38 C.F.R. §§ 21.32, 21.33. During the initial intake appointment, it was noted that the Veteran was provided a full explanation of Chapter 31 benefits. See April 2008 case note; see also March 2008 application (explanation of benefits contained on application form). The Veteran was also provided copies of his individualized extended evaluation plan (IEEP) and the vocational rehabilitation guidelines in September 2008 after being found to have met the basic entitlement criteria. The AOJ also gathered supporting documentation from the Veteran’s claims file and notified the Veteran of changes to his case status. In addition, the record indicates that the Veteran was afforded an informal AOJ hearing, as well as his requested Board hearing. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The provisions of Chapter 31 benefits 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. § 3100; 38 C.F.R. § 21.1. In this case, the AOJ found that the Veteran met the basic entitlement criteria for Chapter 31 benefits based on having service-connected disability and a serious employment handicap, but denied VR&E services based on a finding that achievement of his vocational goal was not reasonably feasible. See April 2008 case manager narrative report and December 2009 decision; see also 38 U.S.C. § 3102 and 38 C.F.R. § 21.40 (outlining basic eligibility criteria). The term “serious employment handicap” means a significant impairment, resulting in substantial part from a service-connected disability rated at 10 percent or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests. The term “vocational goal” means a gainful employment status consistent with a veteran’s abilities, aptitudes, and interests. VA shall determine the reasonable feasibility of achieving a vocational goal in each case in which a veteran is eligible to receive Chapter 31 benefits. 38 U.S.C. §§ 3101(7), 3106; 38 C.F.R. §§ 21.35(g), (h) and 21.53. In order to find that the achievement of a vocational goal is reasonably feasible, the evidence must show that the effects of the veteran’s disability, when considered in relation to his or her circumstances, do not prevent successful pursuit of a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran’s abilities, aptitudes, and interests. The criteria for feasibility are: (1) a vocational goal has been identified; (2) the veteran’s physical and mental conditions permit training for the goal to begin within a reasonable period; and (3) the veteran possesses the necessary educational skills and background to pursue the vocational goal, or will be provided services by VA to develop such necessary educational skills as part of the program. 38 C.F.R. §§ 21.35, 21.53. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the criteria for entitlement to Chapter 31 VR&E services have not been met. The record shows that the Veteran sought Chapter 31 VR&E services to achieve suitable employment. He was determined to have a serious employment handicap based on his lack of specific training and limited education suitable for the number and severity of his disabling conditions, as well as his unstable and limited employment history. See March 2008 application; April 2008 case manager narrative report. He underwent a comprehensive vocational evaluation in mid-2008. The contract counselor recommended an IEEP to assess the Veteran’s capacity to successfully pursue training. The counselor also indicated that, following recommended complete medical, physical capacity, and neuropsychological examinations, if his physical/psychological conditions allowed, the Veteran could begin courses at the community college towards the vocational goal of computer assisted drafting to see if he would be capable of managing his symptoms while receiving training. See August 2008 narrative report. During the following month, the case manager expressed agreement with the findings of the contract counselor and created an IEEP that included objectives of completion of the above evaluations and a work tolerance evaluation, as well as completion of the winter term of prerequisite classes for the computer assisted drafting program at the community college with a minimum grade point average (GPA) requirement. The Veteran’s vocational goal was listed as computer assisted drafting drafter. See September 2008 IEEP documents. Although the AOJ found that the Veteran met the basic entitlement criteria for Chapter 31 benefits, the achievement of his vocational goal has not been shown to be reasonably feasible. In this regard, the Veteran’s case manager noted that the Veteran claimed ongoing pain that severely limited his capacity to work, but he also claimed that his conditions were treatable by methods that the VA physicians could not justify using. She also noted that his motivation for returning to work was questionable, but that he should be given an opportunity to demonstrate his capability to work through the IEEP objectives. See September 2008 feasibility worksheet. The record shows that the Veteran was ultimately unable to establish feasibility through the IEEP. For example, he enrolled in classes for the winter 2009 term, but subsequently withdrew on the first day from all classes except a one-credit class for using the computer tutorial room. He then enrolled as a full-time student in the spring term, but he then withdrew from 5 credits of classes, taking classes at the half-time rate. See, e.g., February 2009 written statement from community college (noted Veteran withdrew but did not tell the veterans’ service office at the college); December 2009 infeasibility memorandum; March 26, 2010, email from Veteran (described one-credit class). In a July 2009 summary report of contact, the Veteran’s case manager noted that she informed the Veteran that, based on his IEEP, a second term of training could not be authorized until feasibility was established. In response to her question as to the Veteran’s intent and ability to work in light of his physical conditions and claims with VA and the Social Security Administration (SSA), it was noted that the Veteran stated that he really did not think that he could work, but that he wanted to attend school. It was further noted that he seemed more concerned about his ability to complete his dental work and waiting for the results of his pending claims than with training for returning to work, based on his vague and conflicting responses to her questions regarding feasibility. The record also shows that the Veteran moved to California for medical treatment purposes (after relocating to live with his son shortly after applying for Chapter 31 benefits), but he did not take classes there. See September 2008 case note (noted Veteran’s initial move to live with his son in Oregon allowed him closer access to public transportation, medical and training resources); email correspondence from December 2009 (Veteran reported temporary move to California to get gastrointestinal matter evaluated), January 2010 (evaluation process longer than planned), and March 31, 2010 (counseling psychologist notified Veteran that, to his knowledge, he had not taken any classes since the two prerequisite classes during the spring term at the community college); March 2010 report of contact (Veteran indicated he was still in California but planned to return to Oregon). The Veteran’s counseling psychologist determined that his nonservice-connected somatoform disorder interfered with his ability to complete an educational program that would lead to suitable employment. In so finding, he explained that the Veteran had sought medical treatment at various facilities because of the disorder, showing that he would not maintain a residence sufficiently long enough to complete a course of studies. He also indicated that the Veteran had difficulties in maintaining stable relationships with care providers and that his difficulties could be predicted to continue. See December 2009 infeasibility memorandum and March 2010 SOC. The findings of the counseling psychologist are consistent with the findings in the SSA records, showing that the Veteran was awarded SSA disability benefits in 2003 based on his somatoform disorder alone as a severe impairment. The counseling psychologist also considered more recent VA treatment records and the February 2009 VA genitourinary examination report in reaching his determination, in addition to providing his opinion as a medical professional with knowledge, training, and expertise. The Veteran’s case was also considered by the Chief of the VR&E program, who concurred with the counseling psychologist’s determination. Based on the foregoing, the Veteran himself indicated that he did not have an identified vocational goal after his initial application and processing for Chapter 31 services, as shown by his reports as to his ability to work again. In the December 2009 decision, the AOJ placed the Veteran’s case into interrupted status (i.e., temporary suspension of the program). The Veteran expressed disagreement with that determination the following month, and the AOJ subsequently placed the case in discontinued status (i.e., termination of all Chapter 31 benefits) in a March 4, 2010 decision. Shortly thereafter, the AOJ reviewed the case and re-established it in applicant status to correct procedural errors, notifying the Veteran by email that he had been partially re-instated in the program with eligibility for an independent living services review. See March 8, 2010, decision; March 2010 case review memorandum; March 8, 2010, email correspondence; see also 38 C.F.R. §§ 21.197, 21.198 (definitions of interrupted and discontinued status). The more recent record shows that the Veteran continues to acknowledge that he does not have an identified vocational goal. He testified during the Board hearing that his initial plan “a long time ago” was to pursue the computer assisted drafting training, but that he could not take a full course load because of his gastrointestinal problems. When asked whether the ultimate goal of the training was for him to be employed or to pursue a new career, he responded “[p]robably not,” indicating that his health problems had gotten worse. He further indicated that, when he initially sought vocational rehabilitation benefits, he thought that he was going to return to the workforce, but that his current goal was survival/independent living. See April 2017 Bd. Hrg. Tr. at 5-8. Rather than an identified vocational goal that he is capable of achieving, it appears that the Veteran’s primary concern related to VR&E benefits has been to participate in the independent living service program. See, e.g., March 5, 2010, email (Veteran response to initial March 2010 decision indicating that “it would appear [he] lost independent living [entitlement] as well!”); Bd. Hrg. Tr. at 5-8; January 2016 written statement. In each case in which a vocational rehabilitation program is not found reasonably feasible, the counseling psychologist or vocational rehabilitation counselor shall determine the current reasonable feasibility of a program of independent living services. 38 U.S.C. §§ 3100, 3101(4); 38 C.F.R. §§ 21.35(d), 21.53(f). In this case, as discussed above, the Veteran’s counseling psychologist did make such an infeasibility determination for vocational rehabilitation services. The counseling psychologist also notified the Veteran about the information needed from him to initiate the assessment phase of the process for the independent living services program, including in the December 2009 decision (providing an explanation of the program and requested information, with a copy sent to his representative). See also March 8, 2010, decision and email correspondence (email to Veteran that confirmed mailing of decision as to infeasibility of vocational rehabilitation services and of eligibility for an independent living services review; counseling psychologist indicated he was looking forward to Veteran’s response); May 2010 decision (case placed in interrupted status; requested Veteran contact counseling psychologist within 30 days to discuss his case status and to work out any problems preventing him from obtaining full benefits of vocational rehabilitation) and July 2010 decision (case placed in discontinued status). After the Veteran submitted an August 2011 application, he also did not fully participate in the process. See September 2011 decision (noted Veteran did not complete his scheduled appointment the day prior, did not return or call to reschedule the appointment, and did not respond to messages left on multiple days thereafter); June 2016 notification letter (response to Veteran’s January 2016 request for independent living services; explained that request contingent upon Veteran’s completion of attached preliminary independent living assessment form). In other words, the Veteran has not responded to the requests made by the AOJ for the necessary information to allow a counseling psychologist or vocational rehabilitation counselor to make a determination as to the reasonable feasibility of a program of independent living services. The Board observes that, if VA determines that a veteran has failed to maintain satisfactory conduct or cooperation, including when a veteran declines to initiate or continue the rehabilitation process, services and assistance may be discontinued. See, e.g., 38 C.F.R. §§ 21.198, 21.362, 21.364. The Board has considered the Veteran’s contentions, including his report that the VR&E office had no reason to discontinue his Chapter 31 benefits and that it did not offer him a “remedy.” See, e.g., February 2016 written statement. Nevertheless, the record as discussed above shows that the AOJ provided the Veteran with the reasons for the change in status of his case on multiple occasions and corrected its procedural errors. The AOJ also re-instated the case to allow for consideration of independent living services following the December 2009 decision; however, the Veteran did not provide the requested information when asked for it. The Veteran also essentially requested a monetary payment equivalent to what he believes he is owed for vocational rehabilitation services that he would be eligible for but did not receive; however, the purposes of the program do not include such a consideration. See 38 U.S.C. § 3100; 38 C.F.R. § 21.1. The Veteran has also acknowledged his lack of an identified vocational goal, which is one of the criteria for reasonable feasibility of achieving a vocational goal, and the remainder of the evidence as discussed above shows that achievement of a vocational goal is not currently reasonably feasible for the Veteran. The Board also acknowledges the Veteran’s contention that he was essentially incorrectly terminated from Chapter 31 benefits because he thought he had 10 years to complete his objective. The April 2008 narrative report shows that the Veteran had an eligibility termination date in November 2019, which relates to the time period for eligibility to receive vocational rehabilitation, not as to the requirements for completion of certain vocational goals within the program once a veteran is determined eligible for such services. 38 U.S.C. § 3103; 38 C.F.R. §§ 21.41-21.48. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran’s claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Postek, Counsel