Citation Nr: 19133294 Decision Date: 04/30/19 Archive Date: 04/29/19 DOCKET NO. 17-39 742 DATE: April 30, 2019 ORDER Discontinuance of vocational rehabilitation benefits under the provisions of Chapter 31, Title 38, United States Code, was proper; the appeal is denied. FINDINGS OF FACT 1. The Veteran did not maintain satisfactory conduct and cooperation by withdrawing from an approved program of study, repeatedly missing appointments, insistence that VA provide for a Master’s degree in a field of his choosing and at a location of his choice, being unable or unwilling to benefit from the guidance provided by various counselors to whom he had been assigned, and showing a consistent pattern of disrespectful behaviors, which were outside the scope of acceptable behaviors in a workplace setting. 2. VA made reasonable efforts to assist the Veteran in rectifying his unsatisfactory cooperation, including rescheduling missed appointments, enrolling him in a computer skills course, offering employment services, and placing him in an interrupted status multiple times. 3. There are no mitigating circumstances that would allow the Veteran to remain in an interrupted status. CONCLUSION OF LAW The discontinuance of VA Vocational Rehabilitation and Employment benefits under Chapter 31, Title 38, United States Code, was proper. 38 U.S.C. §§ 3101, 3106, 3107; 38 C.F.R. §§ 21.1, 21.33, 21.80, 21.84, 21.197, 21.198, 21.362, 21.264. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from May 1982 to November 1982. The Veteran contends that the discontinuance of his Vocational Rehabilitation Chapter 31 benefits was not proper. The goal of a vocational rehabilitation program is to evaluate and improve the Veteran’s ability to achieve a vocational goal; provide services to qualify for suitable employment; enable the 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 C.F.R. § 21.70(a). The successful development and implementation of a program of rehabilitation services requires the full and effective participation of the Veteran in the rehabilitation process. 38 C.F.R. § 21.362(a). The Veteran is responsible for satisfactory conduct and cooperation in developing and implementing a program of rehabilitation service under Chapter 31. 38 C.F.R. § 21.362(a)(1). A Veteran being provided services under Chapter 31 must cooperate with VA staff in carrying out the initial evaluation and developing a rehabilitation plan. 38 C.F.R. § 21.362(c)(1)). The Veteran must conform to procedures established by VA governing pursuit of a rehabilitation plan including enrollment and reenrollment in a course. 38 C.F.R. § 21.362(c)(4)(i). If VA determines that a Veteran has failed to maintain satisfactory conduct or cooperation, VA may, after determining that all reasonable counseling efforts have been made and are not found reasonably likely to be effective, discontinue services and assistance to the Veteran, unless the case manager determines that mitigating circumstances exist. 38 C.F.R. § 21.364(a). In any case in which services and assistance have been discontinued, VA may institute such services and assistance only if the counseling psychologist determines that the unsatisfactory conduct or cooperation of such veteran will not be likely to recur and the rehabilitation program which the veteran proposes to pursue (whether the same or revised) is suitable to such veteran’s abilities, aptitudes and interest. 38 C.F.R. § 21.364(a)(1),(2). 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 (1) discuss the situation with the Veteran; (2) arrange for services (particularly counseling services which may assist in resolving the problems which led to the unsatisfactory conduct or cooperation); and (3) 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 continued and assigned to “discontinued” status unless mitigating circumstances are found. 38 C.F.R. § 21.364(b). In 38 C.F.R. § 21.364, VA regulations note that the veteran will not be placed in discontinued status if mitigating circumstances are found. 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. Mitigating circumstances include: (i) the effects of the veteran’s service-and nonservice-connected condition(s), (ii) family or financial problems which have led the veteran to unsatisfactory conduct or cooperation, or (iii) other circumstances beyond the veteran’s control. See 38 C.F.R. § 21.364(b). Review of the Veteran’s Vocational Rehabilitation file reveals he signed and entered into an Individualized Written Rehabilitation Plan (IWRP) in August 2014 with a program goal of obtaining a Master’s degree in Gerontology Administration. He agreed to comply with the rules and regulations outlined in the school catalog governing progress, attendance, and conduct. The Veteran was subsequently enrolled in a Master’s program at Linwood University to begin October 4, 2014. However, on October 7, 2014, the Veteran contacted his Vocational Rehabilitation Counselor (VRC) to inform her he was already behind in his class due to health concerns. On October 8, 2014, he withdrew from his Master’s program at Linwood University. The same day, the Veteran contacted his VRC indicating an interest in exploring other options, including Criminal Justice or law school. The Veteran met with his VRC in November 2014, at which time he indicated he was having a number of health issues mainly with dizziness, nausea, and balance. They discussed the Veteran returning to school again in January 2015 if his health improved. At a December 2014 meeting, the Veteran informed his VRC that he was no longer interested in returning to college. He discussed employment options using his current degree in Criminal Justice, and met with an Employment Counselor (EC) and expressed interest in a non-paid work experience (NPWE) program. In January 2015, the Veteran indicated he continued to have problems with his balance and health issues. He continued to express interest in a NPWE program. The VRC agreed to allow the Veteran to complete a more sedentary program in hopes he would be able to learn basic computer skills which may lead to a NPWE program and eventual employment. The same day, the Veteran signed and entered into an amended IWRP with a new program goal of obtaining and maintaining entry level employment in the occupational goal of customer service, administration, or other area of interest. The primary objective of this IWRP was for the Veteran to complete a certificate training program in a Computer and Administrative Skills Training (CAST) program provided by Goodwill Industries. He was scheduled to enter this program in February 2015. In mid-February 2015, the Veteran informed his VRC that he was in Washington State to care for his daughter and would advise when he was able to return to the CAST program. In May 2015, he again contacted his VRC to inform that he had been caring for his daughter since February, and expressed interest in attending law school through the VR&E program. The VRC informed the Veteran she could not support this new program goal, and placed the case in interrupted status. VA contacted the Veteran in September 2015, at which time he stated he would contact his VRC when he was ready to seek employment. In October 2015, the Veteran contacted his VRC and indicated he wanted to return to training. He met with his VRC in November 2015 and indicated he wanted to return to school to complete a Master’s degree in Rehabilitation Counseling. The VRC denied this change in program goal, as the Veteran had failed to progress in the previous two VR&E programs. He was again offered employment services and computer skills training. In December 2015, the Veteran again signed and entered into an IWRP/Individualized Employment Assistance Plan (IEAP), with a program goal of obtaining entry level employment in the field of customer service or administration with a primary objective of completing a certificate training program in the CAST program provided by Goodwill Industries. He was instructed to report to this program on March 21, 2016. However, on March 4, 2016, the Veteran informed his VRC that he expected to begin a Master’s degree program in Social Work upon completion of the CAST program. The VRC again denied the change in program goal, and offered employment assistance following completion of the CAST program. The Veteran refused, stating he did not want a “dead end job.” The VRC cancelled the Veteran’s enrollment in the CAST program and informed the Veteran she would move to close his VR&E case. On June 10, 2016, the Veteran’s case was again placed in interrupted status. That same day, the VRC received correspondence from the Veteran’s representative requesting he be authorized for continued education for a Master’s degree in an area of his choosing. The VRC scheduled an appointment on June 20, 2016, with the offer to authorize a return to the CAST program. On June 20, 2016, the Veteran appeared in person to inform his VRC he was going on vacation and could not meet that day. The meeting was rescheduled for the following week. Three days later, the Veteran sent his VRC several text messages to her private number regarding his desire to return to school. The VRC reported these activities to her supervisors, expressing concern that she did not provide the Veteran with her private number. The Veteran met with his VRC on June 27, 2016, at which time he was again informed further education in a Master’s program would not be approved and was offered employment assistance. He again refused this offer and stated he was considering moving to California. In July 2016, the Veteran’s case was discontinued upon a finding that he had not made satisfactory progress in his rehabilitation and is unable to benefit from rehabilitation services despite VA’s best efforts to assist him. The Veteran asserts that VA improperly interrupted his VR&E program and should return him to a Master’s degree program. He asserts that he was unable to previously complete this program due to health issues and family emergencies, but believes he can now complete such a program. He further suggests his VRC was prejudiced against him due to his ethnicity. The Board finds the discontinuance of the Veteran’s vocational rehabilitation benefits was proper as the evidence of record documents that the Veteran failed to maintain satisfactory conduct and cooperation. The Board notes that, after he withdrew from the Master’s program at Linwood University, he entered into a new IWRP in January 2015, agreeing to a change in his program goal to include completion of a computer skills CAST program. Following a period of time during which the Veteran was unable to attend this training due to caring for his daughter out of state, his program was placed in an interrupted status. The Veteran was notified as to the reasons for the interruption. The Veteran reentered the program in December 2015 when he again signed and agreed to a program goal including completion of a computer skills CAST program. Prior to the commencement of this program, the Veteran informed his VRC that he would not pursue the December 2015 IWRP/IEAP unless he would be allowed to pursue a Master’s degree following completion. His case was again placed in an interrupted status based upon insistence of obtaining a Master’s degree in a program of his choosing and refusal to follow the January and December 2015 IWRPs. The Veteran was again notified as to the reasons for the interruption. The Veteran was again offered employment services and an opportunity to attend the CAST program. However, the Veteran was not interested in participating in this program and suggested he would move out of state. Thereafter, the Veteran’s vocational rehabilitation program was discontinued. It has been noted that he has a Bachelor’s degree and was thought to be employable with the skills and training he had. Thus the offer of employment services, which, as noted, were declined. The Board has considered whether any mitigating circumstances exist, including health concerns and/or family problems, to allow the Veteran to remain in interrupted status. The purpose of interrupted status is to recognize that a variety of situations may arise in the course of a rehabilitation program in which a temporary suspension of the program is warranted. 38 C.F.R. § 21.197(a) (emphasis added). A veteran’s case will be assigned to interrupted status when either (i) a definite date for resumption of the program is established; or (ii) 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)(2). The Board finds there are no mitigating circumstances that would allow the Veteran to remain in interrupted status. The Board acknowledges the Veteran withdrew from his Master’s program at Linwood University due to health issues. However, the Board notes the Veteran agreed to a change in his program goal in January 2015, and again in December 2015, to include completion of CAST computer skills training and employment services. While this aspect of his VR&E program was interrupted due to caring for his daughter out of state, upon his return, the Veteran refused to comply with the terms of his IWRP. Given the Veteran’s lengthy history of an unwillingness to attend the CAST computer skills training, which he twice agreed to do, and instead insisting on obtaining a Master’s degree in an undetermined field, VA cannot reasonably approximate a future date at which the Veteran would be able to resume his rehabilitation program, thereby impeding the temporary purpose of interrupted status. The evidence shows that the AOJ complied with the relevant regulations, and there are no mitigating circumstances present to allow the Veteran to remain in interrupted status. Therefore, discontinuance of vocational rehabilitation benefits under the provisions of Chapter 31, Title 38, United States Code, was proper, and the Veteran’s appeal is denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.