Citation Nr: 20007767 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 19-26 130 DATE: January 30, 2020 ORDER Entitlement to additional vocational rehabilitation and employment (VR&E) benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code, to include a change in the long-range goal, is denied. FINDINGS OF FACT 1. The Veteran signed and entered into an Individualized Written Rehabilitation Plan (IWRP) in January 2015 with a program goal of obtaining and maintaining employment as a Financial Analyst or a closely-related occupation. 2. The Veteran’s IWRP indicated that he would complete a Bachelor of Science (BS) degree in Business Management; that he would complete a Master’s degree in Business Administration (MBA) “[a]s entitlement permits;” and that he would coordinate with a case manager to develop an Individualized Employment Assistance Plan (IEAP) and begin working with an employment coordinator on job search activities. 3. The Veteran obtained a Bachelor’s degree in business management, which would allow him to obtain employment in a suitable occupation; however, he did not develop an IEAP as required by his IWRP; he declined participation in employment services; he declined a referral for career services or the Disabled Veterans’ Outreach Program (DVOP); and he decided not to pursue his MBA or actively pursue employment. 4. Due to an increase in the Veteran’s disability rating, he was found to have a serious employment handicap (SEH). This finding made him eligible for an extension of entitlement if he chose to pursue further education. 5. After being assigned a new VRC, the Veteran was supposed to work with that Vocational Rehabilitation Counselor (VRC) to redevelop his IWRP to include the goal of obtaining an MBA. It appears that the Veteran did not respond to the VRC’s attempts to contact him about redeveloping his IWRP and the VRC sent the Veteran adequate notice that his case would be closed if he did not respond. 6. The Veteran’s case was interrupted and then discontinued on the basis that the Veteran had achieved Maximum Rehabilitation Gain (MRG) status. 7. The Board finds that achievement of the current program goal of obtaining employment in the field of business administration and management remains reasonably feasible; rehabilitation would not be more likely if the long-range goal is changed from obtaining an MBA to obtaining a PhD in Management. 8. The preponderance of the evidence demonstrates that the Veteran’s VR&E case was properly discontinued. CONCLUSION OF LAW The criteria for additional VR&E benefits, to include changing the Veteran’s long-range goal, have not been met. 38 U.S.C. §§ 3107, 3108, 3111; 38 C.F.R. §§ 21.94, 21.198. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Unites States Marine Corps from October 2008 to October 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2016 and June 2018 administrative decisions issued by Vocational Rehabilitation Counselors (VRCs) at the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran seeks additional VR&E benefits to pursue a Master’s degree in Business Administration or, alternatively, a Ph.D. in Management. See January 2015 IWRP; October 2016 “Disability Update Request for Boston VR&E” statement. Background Historically, the Veteran applied for VR&E benefits in June 2014. This was the Veteran’s second application for VR&E services. The Veteran was found to be entitled to VR&E benefits with an employment handicap (EH) in July 2014. The Veteran agreed to a plan of services in January 2015 with a goal of obtaining employment as a Financial Analyst or a closely related occupation in Budget Management Systems Analysis. Objectives of the plan included completing a BS degree in Business Management at Salem State College and then completing an MBA if he had enough entitlement remaining. In April 2016, the Veteran had a supervisory meeting with his VRC. Due to an increase in the Veteran’s disability rating, he was found to have a serious employment handicap (SEH). This finding made him eligible for an extension of entitlement if he chose to pursue further education. The Veteran completed his BS in Business Management in May 2016. Thereafter, the Veteran met with his VRC again in September 2016. During that meeting, he apparently declined participation in employment services, he declined a referral for career services or the Disabled Veterans’ Outreach Program (DVOP), and he decided not to pursue his MBA. According to the VRC, the Veteran requested that his case be closed. The VRC explained to the Veteran that his case would be closed on the basis that he had achieved MRG status as he was considered “employable” with his Bachelor’s degree. As a result of this meeting, an IEAP was never developed, and the Veteran was never placed in “Job Ready” status. On September 29, 2016, the VRC sent the Veteran a “MRG closure” letter. This administrative decision indicated that the Veteran’s circumstances had improved because he had completed his Bachelor’s degree at Salem State University. The letter also indicated that the Veteran’s case had been interrupted and would be discontinued if he was unwilling to pursue the services outlined in his rehabilitation plan. On October 7, 2016, the filed a notice of disagreement (NOD) contesting the October 2016 administrative decision. The Veteran also requested the opportunity to work with a new VRC and indicated that he wished to pursue an MBA. On October 11, 2016, the Veteran file another NOD and provided a “Disability Update Request for Boston VR&E” statement indicating that he wanted to work with a new VRC and that he wished to pursue a PhD in Management “as opposed to an MBA online.” After several unsuccessful attempts to contact the Veteran, a Vocational Rehabilitation and Employment Officer (VREO) spoke with the Veteran by phone on January 27, 2017. He told the VREO that he was still interested in furthering his education, but he insisted on working with a new VRC. The VREO explained to the Veteran that his entitlement had been extended because his prior VRC had documented the existence of a SEH. The VREO also told the Veteran that he would need to have his rehabilitation plan redeveloped. According to the VREO, “[the Veteran] appeared to understand this, but his affect was very flat, and [the] VREO at times had to confirm that he was still on the phone.” The VREO told the Veteran that he would be able to work with a new VRC and that he or she would be contacting the Veteran to schedule an appointment. The Veteran’s case was transferred to a new VRC in February 2018. After reviewing the Veteran’s case, the new VRC opined that the Veteran had a marketable degree and was considered “employable.” The VRC noted that an Employment Coordinator had concurred with that assessment. The VRC also noted that, despite having completed his Bachelor’s degree, the Veteran had not been in contact with the VRC or Employment Coordinator to verify whether he was working or actively pursuing employment opportunities on his own. The VRC indicated that the Veteran’s VR&E program had funded his tuition, books, fees, supplies, and a laptop computer to assist him in completing his degree and had provided him with case management, vocational guidance, and counseling to help him reach his employment goal. The VRC recommended discontinuing the Veteran’s program on the basis that (1) the Veteran had completed all or some of the planned services leading toward a vocational goal and is currently employable for a suitable job; (2) the services provided by VR&E enable the Veteran to qualify for suitable employment, yet the case does not meet the criteria for closure as “rehabilitated” in accordance with 38 C.F.R. § 21.283; and (3) this includes instances where the Veteran has chosen to remain in the same unsuitable position that led to the finding of entitlement in the first place. On June 13, 2018, the VRC sent the Veteran a “MRG closure” letter. This administrative decision indicated that the Veteran’s circumstances had improved because he had completed his Bachelor’s degree at Salem State University. The letter also indicated that the Veteran’s case had been interrupted on September 29, 2016 and would be discontinued if he was unwilling to pursue the services outlined in his rehabilitation plan. On July 23, 2018, the VRC sent the Veteran a letter indicating the following: Effective the date of this letter, your vocational rehabilitation program is being discontinued. We have determined that you may have achieved the maximum rehabilitation gain at this time. We advised you of our intent to take this action in a letter dated June 13, 2018. Either we have not received a response from you, or in a recent contact with you we discussed our reasons for closing your case. In June 2019, a VREO sent the Veteran a statement of the case (SOC). The VREO noted that, following the Veteran’s request for a new VRC, the new VRC attempted to contact the Veteran to redevelop his IWRP for graduate school but that the VRC did not hear back from the Veteran. The VREO indicated that the Veteran’s case was closed due to a lack of response received from the Veteran. The VREO further opined that the VRC correctly determined that additional training is not necessary to enable the Veteran to qualify for, obtain, and retain suitable employment in his occupational objective and that the Veteran has the education and skills to secure gainful employment in a variety of occupations within the Business field that are consistent with his vocational goal, should he choose to do so. In August 2019, the Veteran filed a substantive appeal to the Board (VA Form 9). He indicated that he was still interested in pursuing his “graduates [sic] degree” and that he had to take off time from school to help his family with “restoring their home.” He claimed that he was only hoping to file for an “interrupted status” and that he was unaware that his case would be closed. Change in Long-Range Program Goal Initially, the Board will consider whether a change in the Veteran’s long-range goal is warranted. A change in the statement of a long-range goal may only be made following a reevaluation of the Veteran’s rehabilitation program by the VRC. 38 C.F.R. § 21.94(b). A change may be made when: (1) achievement of the current goal(s) is no longer reasonably feasible; or (2) the veteran’s circumstances have changed or new information has been developed which makes rehabilitation more likely if a different long-range goal is established; and (3) the veteran fully participates and concurs in the change. Following a review of the Veteran’s claims file in its entirety, the Board concludes that a preponderance of the evidence weighs against a change in the Veteran’s long-range program goal to one of pursuing a PhD in Management. In this regard, the Veteran asserted in an October 2016 “Disability Update Request for Boston VR&E” statement that he wished to pursue an online PhD in Management “as opposed to an MBA online.” The Veteran may be better suited to take online classes due to his service-connected disabilities (rather than attending classes in person). However, he has not demonstrated how obtaining a PhD in Management will enable him to overcome his SEH. The Board emphasizes that the purpose of Chapter 31 VR&E services is not to provide the claimant with whatever level of career training the he chooses should his interests or career objectives change. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. 38 C.F.R. § 21.70. Using Chapter 31 benefits for tuition, books, fees, supplies, and a laptop computer, the Veteran successfully completed his Bachelor’s degree in Business Management from Salem State University. The Veteran is commended for this accomplishment. Nevertheless, two VRCs and a VREO evaluated the Veteran’s case and found that he has the education and skills to secure gainful employment in a variety of occupations within the Business field that are consistent with his vocational goal, should he choose to do so. As such, the Board concludes that the initial program goal of obtaining an MBA degree (after completing a Bachelor’s degree in Business Management) and employment in the field of business administration or management remains feasible. In that regard, there have been no changes in the Veteran’s circumstances or development of new information that would establish that “rehabilitation” would be more likely if the long-range goal were to be changed to include obtaining a PhD in Management. Discontinued Status Pursuant to 38 C.F.R. § 21.198(b)(1), VA will discontinue the veteran’s case and assign the case to discontinued status following assignment to interrupted status for reasons including but not limited to the veteran declining to continue the rehabilitated process. If a veteran does not continue the rehabilitation process and does not furnish an acceptable reason for his or her failure to do so following assignment to interrupted status, the veteran’s case will be discontinued and assigned to discontinued status. Id. The concept of MRG provides a comprehensive representation of the positive impact of the rehabilitation process for Veterans who are unable or unwilling to complete planned services and achieve a fully successful outcome as defined by VA regulations. A Veteran has reached MRG when VR&E is able to measure substantial improvement in the Veteran’s circumstances that is directly attributable to services provided by VR&E. See M28R, Part V, Section A, Chapter 7.05a. A determination that a Veteran has reached MRG can only be made when all of the following criteria are met: 1. The Veteran has received services under an IWRP or an IEAP. 2. The Veteran is unable or unwilling to continue services toward completion of a vocational goal despite VR&E efforts to motivate or provide further services. 3. The Veteran has received written notification of interruption and pending discontinuance. 4. Direct contact has been established with the Veteran within 90 days prior to closure or information about the Veteran's current circumstances has been verified within 120 days prior to closure. 5. The Veteran has received significant and measurable gain from the services provided under Chapter 31. See M28R, Part V, Section A, Chapter 7.05b. In light of the evidence discussed above, the Board finds the determination to discontinue the Veteran’s VR&E program based on achievement of MRG was proper. In this regard, the Veteran received services under an IWRP, and he obtained his Bachelor’s degree in Business Management. He declined participating in employment services and indicated that he wished to pursue an MBA. Due to an increase in the Veteran’s disability rating, he was found to have a SEH. This finding made him eligible for an extension of entitlement if he chose to pursue further education. After being assigned a new VRC, the Veteran was supposed to work with that VRC to redevelop his IWRP to include the goal of obtaining an MBA. It appears that the Veteran did not respond to the VRC’s attempts to contact him about redeveloping his IWRP. The VRC interpreted the Veteran’s lack of communication to demonstrate that he was unable or unwilling to continue services toward completion of a vocational goal despite VR&E efforts to motivate or provide further services. The VRC sent the Veteran adequate notice that his case had been interrupted and would be closed if he did not respond and the VRC discontinued the Veteran’s Chapter 31 benefits, effective July 23, 2018. The Board finds there are no mitigating circumstances that would allow the Veteran to remain in interrupted status. See generally 38 C.F.R. § 21.197. The Board has considered the Veteran’s assertions that he is still interested in pursuing his MBA (which the Board encourages) and that he had to take off time from school to help his family with restoring their home. The Board does not wish to penalize the Veteran for taking time to address important family obligations. However, the Veteran’s IWRP indicates that the “Veteran will provide the Case Manager with…any special needs to assist in successfully completing the rehabilitation plan.” It logically follows that the VRC had reasonable expectations that the Veteran would apprise her of any special needs to successfully complete his rehabilitation plan and that the Veteran failed to properly communicate his needs to the VRC in a timely manner. It remains unclear why the Veteran did not reach out to the VRC and explain his circumstances. Surely, if the Veteran had taken such action, the VRC would have worked with him to place his case in “interrupted” status until he returned to program to complete his MBA. Also, the Board observes that the Veteran’s reason for being non-responsive to the VRC was that he was attending to family/personal matter. His non-responsiveness had nothing to do with his service-connected disabilities or his SEH. He had the ability to contact the VA, but did not. As stated above, the Board does not believe the Veteran has provided adequate reasons for not updating his VRC regarding his status – especially when he had been notified of the potential ramifications of being non-responsive on several prior occasions. The evidence shows that the VRCs and VREO complied with the relevant rules and regulations, and there are no mitigating circumstances present to allow the Veteran’s case to remain in “interrupted” status. The VRC properly closed the case on the basis that the Veteran had achieved MRG 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. As a final matter, the Board observes that the discontinuance of the Veteran’s VR&E program does not prevent him from reapplying for VR&E benefits at a future date. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael L. Marcum, 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.