Citation Nr: 20002606 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 19-06 552 DATE: January 14, 2020 ORDER Entitlement to additional Vocational Rehabilitation and Employment (VR&E) training benefits to obtain a Master of Legal Studies degree is denied. The appeal of the interruption of VR&E services is granted. FINDINGS OF FACT 1. The Veteran’s proposed Master of Legal Studies degree at an online school did not meet the criteria agreed upon with the Vocational Rehabilitation Counselor (VRC) and was not an objective of his Individualized Written Rehabilitation Plan (IWRP). 2. The October 2017 letter notified the Veteran of a proposed discontinuance of his VR&E program but did not inform him that his case was interrupted. CONCLUSIONS OF LAW 1. The criteria for additional training for a Master of Legal Studies degree through the VR&E program have not been met. 38 U.S.C. §§ 3100, 3101, 3102, 3116, 5107(b); 38 C.F.R. §§ 21.47, 21.70, 21.80, 21.120, 21.292. 2. The interruption of VR&E services was improper. 38 U.S.C. §§ 3100, 3101, 3102, 3107, 3111, 5107(b); 38 C.F.R. §§ 21.197, 21.198, 21.420. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from November 1989 to April 1990, and in September 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 determination of the VR & E program of the Department of Veterans Affairs (VA) Regional Office (RO). Legal Criteria and Factual Background The purpose of Chapter 31, Title 38, United States Code, is to provide for all services and assistance necessary to enable eligible veterans to achieve 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(a), 21.70. Under Chapter 31, the Secretary of VA is given broad authority to make awards and determine the scope of vocational rehabilitation services and assistance. See Kandik v. Brown, 9 Vet. App. 434 (1996). Basic entitlement to Chapter 31 benefits exists when a veteran has a service-connected disability that is rated at least 20 percent disabling, and the veteran is found by VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C. § 3102; 38 C.F.R. § 21.40. For veterans pursuing a vocational rehabilitation program or an employment program, VA and the participating veteran develop a written plan describing the veteran’s employment goals and the program through which those goals will be achieved. 38 C.F.R. §§ 21.1(b)(3), 21.80. A vocational rehabilitation specialist or counseling psychologist has the primary role in carrying out VA’s responsibility for preparing and implementing the plan. 38 C.F.R. § 21.92. If a veteran and VA staff do not reach an agreement on the terms of the plan, the disagreement is appealable to the Board. 38 C.F.R. § 21.98. The Veteran asserts that the October 2017 proposed discontinuance of VR&E services and denial of his request for a Master of Legal Studies degree at an online law school was improper, and that he should be reinstated. The record reflects that in August 2009, a VR&E Counselor found that the Veteran had established entitlement to VR&E services. The Veteran was found to have a serious employment handicap. In an August 2009 Rehabilitation Needs Inventory (RNI), the Veteran’s goal was listed as completing college goals and career development with a vocational goal of a job as a lawyer or in political science or law. The Veteran participated in online training at Kaplan University from 2009 until March 2011 at which time he withdrew. In a May 2012 letter, the Veteran was informed that his VR&E program had been “interrupted” because the Rehabilitation Counselor had not heard from him since 2011. The Veteran responded to the Counselor in May 2012, and he returned to Kaplan University in August 2012. An August 2012 Individualized Written Rehabilitation Plan (IWRP) had a goal of completing a Bachelor’s Degree in Legal Studies with an anticipated completion date of January 2013. The Veteran withdrew due to health issues after completing a term in October 2012. In August 2014, the Veteran participated in an Extended Evaluation for one term. The Veteran was successful and an IWRP was written in December 2014 to complete a bachelor’s degree in Political Science. The Veteran was approved for more than 48 months of rehabilitation in February 2015. The Veteran completed his bachelor’s degree in August 2016. In August 2016, the Veteran proposed completing a Master of Business Administration (MBA) degree during the 2016-17 school year. The Veteran’s Vocational Rehabilitation Counselor (VRC) denied his claim for pursuit of a MBA in September 2016 because he would be pursuing a different vocational goal from the original plan which was achieving a Bachelor degree in Political Science. The Veteran was encouraged to consider very strongly pursuing employment while he awaited possible admission to Law School. An agreement was made at that time that was sent to the Veteran by email in November 2016 stating that: (1) if he participated in a non-paid work experience (NPWE) over at least 4 to 6 months, VR&E would reimburse him for the MBA that he was pursuing at his own cost at that time; (2) If he was accepted into law school for the Fall 2017 term, VR&E would support this endeavor; and (3) If he was not accepted into law school for the Fall 2017 term, VR&E would consider him job ready based on the training he had completed and focus on helping him seek employment. A May 2017 Report of Contact with the Veteran’s VRC reflects that the Veteran stated he would continue doing the NPWE until September 2017. He would then pursue training at a law school in the Fall of 2017. The report noted that the Veteran had taken the LSAT and would be reimbursed for it. He was dismissed from the MBA program in May 2017 due to insufficient academic performance, but he was reimbursed for his MBA expenses. An August 2017 Counseling Evaluation note, signed by the Veteran’s Rehabilitation Specialist, reflects that the first agreed upon next step to be taken was for the Veteran to provide a letter of acceptance to Law School, a copy of the class schedule, program curriculum and degree audit. In September 2017, more than 48 months of Rehabilitation for the Veteran were approved. In October 2017, the Veteran enrolled in a Master of Legal Studies program at an online law school starting in January 2018. Email exchanges indicate the Veteran cancelled many appointments and was notified that due to the many appointment cancellations, it appeared he was not interested in continuing in the program nor wished to be reimbursed for purchases. He was notified in an email that the VRC would begin to close him out of Chapter 31 and failure to provide required documents would result in their inability to reimburse. In an October 2017 meeting with the VRC and Vocational Rehabilitation and Employment Officer (VREO), the Veteran presented his acceptance into an online program at a law school for a master’s degree in legal studies for the Spring 2018 term. The VREO responded to the Veteran that the agreement was clear that acceptance into law school was for fall 2017, and he had not succeeded. In an October 2017 letter, the VRC sent the Veteran a letter informing him that the evidence of record indicated that he had been unable to complete the training or other services outlined in his rehabilitation plan. The Veteran was informed that they were proposing to close his case because he had received maximum rehabilitation benefits from the program. The letter noted that because the Veteran was unable to complete all planned services, they would not close his case as “Rehabilitated.” However, based on the services he had received, including training at Kaplan University, University of Indianapolis, the nonpaid work experience, computer/printer provision and repair, subsistence allowances, school supplies, books and exam fees, they determined that his circumstances had improved in the following specific ways: he had gained the ability to problem-solve, self-confidence, build up motivation, strategically accomplish set goals in his life and developed computer skills. The letter stated, “Therefore, unless we hear from you, we will discontinue your case as having achieved maximum rehabilitation gain at this time.” The Veteran was informed that he had 30 days to notify VR&E if he disagreed with the decision, and he had one year to appeal the decision to the Board. In November 2017, the Veteran filed a notice of disagreement (NOD) with the October 2017 determination proposing the closure of his case and the denial of fees for law school. In an attached letter, the Veteran stated that he was filing a NOD and requested an Administrative Review of the proposal to close his VR&E case in the October 2017 letter. In a November 2017 Administrative Review, a VREO concurred with the decision to deny the Veteran the opportunity to pursue further training in law school. In September 2018, the VRC issued a memorandum in response to the request for Administrative Review finding that the Veteran has been denied the opportunity to pursue further training in law school. In the memorandum, the VRC stated that at the October 2017 meeting, the Veteran was informed that he would be placed in “interrupted” status due to not continuing the rehabilitation process of seeking employment services and that his case would be closed using Maximum Rehabilitation Gain. In a January 2019 Statement of the Case, VR&E found that the decision was made that the Veteran did not meet the criteria for 38 C.F.R. § 21.292, and he would be placed in “interrupted” status under 38 C.F.R. § 21.197. The case would be closed using Maximum Rehabilitation Gain (M28R, Part V, section a, Chapter 7 (7.05). The SOC stated that the Veteran received his bachelor’s degree and attempted master level degree training which was not successful. The Veteran also declined employment services stating he did not want to work. He had not demonstrated continuous satisfactory progress while pursuing training. In May 2019, the Veteran was informed that it was proposed that he be placed in discontinued status in 30 days for VR&E services because he was not actively pursuing services. In July 2019, the VRC proposed discontinuing the Veteran’s case because he met the criteria for Maximum Rehabilitation Gain (MRG). In September 2019, the VRC wrote a full rationale for the movement to discontinue VR&E services. In a September 2019 letter, the Veteran was informed that his case had been placed on discontinued status because he had declined to continue the Rehabilitation process. The decision noted that his current IWRP had expired in December 2017. The Board notes that in October 2019, the Veteran’s representative submitted a statement labeled notice of disagreement, stating that the Veteran disagreed with the November 2017 and September 2018 administrative review memoranda. The Veteran’s representative noted that the Veteran had not previously received copies of the memoranda. The Board finds that the administrative review memoranda were incorporated into the January 2019 Statement of the Case, which addressed the “interrupted” status and denial of further training. The Veteran received timely notice of the Statement of the Case and appealed the decision. The Board also notes that although the Veteran’s representative asserted that the Statement of the Case is incomplete, it incorporates a detailed summary of the evidence in the case, the applicable laws and regulations, and the determination of the agency of original jurisdiction on each issue and the reasons for each determination. Therefore, it is adequate. 38 C.F.R. § 19.31. Master of Legal Studies Degree Program The Veteran has asserted that he is entitled to additional training for a Master of Legal Studies degree program at an online law school. The Board finds that the denial of additional training for the Master of Law degree program is supported by the evidence of record. The Board notes that in proposing a discontinuance of the VR&E program in the October 2017 letter, the VR&E effectively denied the Veteran’s claim for additional education to pursue a Master of Legal Studies degree. The letter was issued following an October 2017 meeting in which the VRC and VREO informed the Veteran that he would not receive additional benefits for the VR&E program. The January 2019 SOC also addressed the issue and the Veteran and his representative received a copy of the administrative review and had an opportunity to respond. As noted above, the Veteran’s IWRP was written in December 2014 to complete a bachelor’s degree in Political Science. The program goal remained obtaining and maintaining employment in the occupational group of legal studies or a related field. The Veteran successfully completed a bachelor’s degree in Political Science in August 2016. The Veteran wanted to pursue an MBA and law school. The evidence of record indicates that he was encouraged to gain work experience. Following a meeting with the VRC, an agreement was made in November 2016 stating that if he was accepted into law school for the Fall 2017 term, VR&E would support this endeavor. The agreement also stated that if the Veteran successfully participated in a nonpaid work experience (NPWE) over at least 4 to 6 months, VR&E would reimburse him for the MBA. As the Veteran successfully completed NPWE, his MBA expenses were reimbursed, even though he did not complete the program. In October 2017, the Veteran submitted evidence that he was admitted to the online Master of Legal Studies program beginning in January 2018. The Master of Legal Studies program did not meet the criteria agreed upon by the VRC and the Veteran in the November 2016 meeting. The program did not begin in the Fall of 2017. The degree program is also a master’s degree program, which does not require a LSAT, rather than a Juris Doctor degree. The Veteran’s LSAT was reimbursed by VR&E benefits indicating he intended to enroll in a Juris Doctor program. After review of all the evidence of record, the Board finds that the denial of additional education to pursue the Master of Legal Studies degree through the VR&E program was warranted. VA will generally select courses of study and training. 38 C.F.R. § 21.120(b). Only those courses approved by VA will be utilized to provide training and rehabilitation services under Chapter 31. 38 C.F.R. § 21.292. In a November 2017 Administrative review, the VREO noted that the proposed Master of Law program was online despite the Veteran’s demonstrated lack of success in online programs and in graduate school education. The Veteran previously unsuccessfully attempted to complete an MBA and unsuccessfully attempted to complete a bachelor’s degree online. The Veteran’s IWRP has a vocational goal of employment in the area of legal studies or a related field, and the Veteran successfully completed a bachelor’s degree in Political Science, a related field. The Veteran’s IWRP did not include a goal of law school; however, the November 2016 agreement did provide that if he was accepted into law school for the Fall 2017 term, VR&E would support this endeavor. The agreement did not extend to a Master of Legal Studies program. The VREO also noted that the Veteran had not been competitively employed since 2004, and consequently demonstrated experience of work was in his best interest. The Veteran has not presented persuasive evidence to show that the additional education of a Master of Legal Studies degree is needed to achieve the vocational goal articulated in the IWRP of employment in the area of legal studies or a related field. The Veteran submitted a November 2017 email exchange with the online law school indicating the degree is a stepping stone to a Juris Doctor (JD) degree, but the evidence of record does not show that a Master of Legal Studies or JD degree is required to achieve employment in the area of legal studies. Given the Veteran’s educational and work history, and as the proposed program of a Master of Legal Studies beginning in the January 2018 term did not meet the requirements of the November 2016 agreement, the Board finds that denial of additional training for the Master of Legal Studies degree was proper. “Interrupted” Status The Veteran has appealed the October 2017 decision that effectively denied additional education benefits for a Master of Legal Studies degree and placed him on “interrupted” status and proposed a discontinuance in VR&E program. As noted above, the Veteran’s VR&E program was not discontinued until September 2019. The discontinuance in September 2019 is a separately appealable issue. 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. See 38 C.F.R. § 21.197(a). Assignment to “interrupted” status is required except in limited circumstances 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(c)(4). A veteran in “interrupted” status may be assigned to his prior status or other appropriate status if he reports for entrance or reentrance into the prescribed program at the time and place scheduled for the resumption of the rehabilitation program. 38 C.F.R. § 21.197(d)(1). Reasons for assignment to “interrupted” status include, but are not limited to, any of the following: the Veteran does not initiate or continue the rehabilitation process, and is not entitled to be placed on authorized absence under 38 C.F.R. §§ 21.340-21.350; the Veteran’s conduct or cooperation becomes unsatisfactory; or the Veteran cannot continue the program because the necessary training and rehabilitation services are unavailable. Under 38 C.F.R. § 21.197(c)(4), a Veteran’s case shall be assigned to “interrupted” status prior to discontinuance and assignment to discontinued status in all cases except as provided in 38 C.F.R. § 21.182(d) and upon the Veteran’s death. The October 2017 letter stated that the Veteran’s participation in the VR&E program would be discontinued due to maximum rehabilitation gain (MRG). In this case, the October 2017 letter did not clearly state that the Veteran’s case was being placed in “interrupted” status. Instead, the October 2017 letter indicated the VRC was proposing that the Veteran’s case would be closed. The evidence of record does not show that the Veteran’s case had previously been placed on “interrupted” status. The letter specifically stated that this action means that you will no longer be entitled to receive services and assistance under the VR&E program. Therefore, the letter only addressed the proposed discontinuance of benefits. The Veteran was never notified that his VR&E program was “interrupted” or how the interruption would affect his benefits under the program. Due process requires that VA provide prior notification of an adverse action. In this case, the Board finds that proper procedure was not followed. Although the January 2019 SOC stated that the Veteran’s case was placed on “interrupted” status, this fact was not clear from the October 2017 letter. Instead, it appeared the Veteran’s case was being discontinued, prior to being placed on “interrupted” status. As noted above, a Veteran’s case must be assigned to “interrupted” status prior to discontinuance except as provided in 38 C.F.R. § 21.182(d), which provides for the transfer of terminated cases, and upon the Veteran’s death. 38 C.F.R. § 21.197(c)(4). Neither of the exceptions apply here. In addition to the lack of notice to the Veteran of the action, the Board finds that the criteria for assigning the Veteran’s case to “interrupted” status were not met. The regulations provide that in each case, VA first must determine that the Veteran will be able to return to a rehabilitation program or a program of employment services following the resolution of the situation causing the interruption. This determination will be documented in the Veteran’s record. 38 C.F.R. § 21.197. The Veteran’s record does not show that VA determined whether the Veteran would be able to return to the rehabilitation program or employment services. A case is assigned to “interrupted” status when VA determines that a suspension of services being provided is necessary; and either (1) a definite date of resumption of the program is established; or (2) 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 this case, the Veteran did not provide a definite or approximate date for resumption of the program. Further, 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. In a November 2017 letter, sent within 30 days of the letter, the Veteran requested to meet informally with a supervising counselor about his case, but it does not appear that his VRC followed up, indicating that she did not properly remain in contact with the Veteran. Based on a thorough review of the evidence of record, the Board finds that the Veteran’s case was not properly assigned to “interrupted” status prior to the proposed discontinuance of benefits. The Veteran was not notified that his case was being placed on “interrupted” status prior to the proposed discontinuance and the regulatory requirements for assigning the Veteran’s case to “interrupted” status were not met. A case cannot be discontinued until after assignment to interrupted status. Accordingly, the claim is granted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.