Citation Nr: 20021627 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-37 624 DATE: March 26, 2020 ORDER Discontinuance of vocational rehabilitation and employment (VR&E) services based on a negative feasibility determination was proper; the appeal is denied. FINDING OF FACT The Veteran is service connected for bipolar disorder with psychotic features, rated at 100 percent disabling; a vocational goal is not reasonably feasible due to the symptoms and severity of the psychiatric disability. CONCLUSION OF LAW The discontinuance of VR&E services based on a negative feasibility determination was proper. 38 U.S.C. § 3101; 38 C.F.R. §§ 21.35(g), 21.40, 21.53, 21.57, 21.198. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service in the United States Navy from April 1985 to December 1985. This matter comes before the Board of Veterans’ Appeals on appeal from an administrative decision issued by a Vocational Rehabilitation Counselor (VRC) at a Department of Veterans Affairs (VA) Regional Office (RO). When the Veteran filed her substantive appeal to the Board, she requested the opportunity to testify at a “Central Office” hearing before the Board. The Veteran was then scheduled to testify at a Board hearing in February 2015. Subsequently, she contacted VA and asked to reschedule that hearing. The Veteran’s Board hearing was rescheduled to be held in January 2019. However, she did not show for that hearing or provide a “good cause” explanation for missing the hearing. Accordingly, the Veteran’s request for a Board hearing in connection with the claim on appeal is deemed withdrawn. Claims involving VR&E services are governed by Chapter 31; all applicable notice and assistance have been provided in this case. VR&E Legal Criteria The provisions of Chapter 31, Title 38, United States Code 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 C.F.R. § 21.1. For a veteran with 10 percent disability, basic entitlement to Chapter 31 benefits requires that the veteran be found by VA to be in need of rehabilitation because of a serious employment handicap. 38 C.F.R. § 21.40(b). A 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 retrain employment consistent with such veteran’s abilities, aptitudes, and interests. 38 U.S.C. § 3101(7); 38 C.F.R. § 21.35(g). For a veteran with 20 percent disability or more, basic entitlement to Chapter 31 benefits requires that the veteran be found by VA to be in need of rehabilitation because of an employment handicap. 38 C.F.R. § 21.40(b). An employment handicap means an impairment, resulting in substantial part from a service-connected disability rated at 20 percent or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests. 38 U.S.C. § 3101(7); 38 C.F.R. § 21.35(g). In each case in which a veteran has either an employment handicap or serious employment handicap, VA must determine the reasonable feasibility of achieving a vocational goal. 38 C.F.R. § 21.53(a). A vocational goal is defined as gainful employment consistent with a veteran's abilities, aptitudes, and interests. 38 U.S.C. § 3101(8). In order to find that the achievement of a particular vocational goal is reasonably feasible, the facts must show that the effects of a veteran’s service-connected and nonservice-connected disabilities, when considered in relation to his or her circumstances, do not prevent successful pursuit of a vocational rehabilitation program and successful employment. 38 C.F.R. § 21.35(h)(2). A vocational goal is reasonably feasible when the following criteria are met: (1) a vocational goal must be identified; (2) a veteran’s physical and mental conditions must permit training to begin within a reasonable period; and (3) the veteran must possess the necessary educational skills and background to pursue the goal or will be provided services by VA to develop such necessary educational skills as part of the program. 38 C.F.R. § 21.53(d). Achievement of a vocational goal is not currently reasonably feasible if the effects of the veteran’s disability (service and nonservice-connected), when considered in relation to his circumstances, prevent him from successfully achieving a vocational goal, or are expected to worsen within the time period needed to achieve the goal, thereby making achievement not reasonably feasible. 38 C.F.R. § 21.35(h)(3). A VA counseling psychologist (CP) or a Vocational Rehabilitation Counselor (VRC) determines whether achievement of a vocational goal is reasonably feasible. 38 C.F.R. § 21.53(g). VA must determine the feasibility of achieving the vocational goal sought in each case in which a veteran has a serious employment handicap. 38 C.F.R. § 21.53(a). In making the determination as to the feasibility of a vocational goal, VA must offer the veteran an initial evaluation under the provisions of 38 C.F.R. § 21.50. However, where such determination cannot be made on the basis of information developed during the initial evaluation, an extended evaluation is required. See 38 C.F.R. § 21.57. The determination of the reasonable feasibility of a veteran achieving a vocational goal must be made at the earliest time possible during an extended evaluation, but not later than the end of the period of evaluation. Any reasonable doubt as to feasibility will be resolved in the veteran’s favor. 38 C.F.R. § 21.57(c)(1). A veteran’s case will be discontinued and assigned to discontinued status when the veteran declines to initiate or continue the rehabilitation process and does not furnish an acceptable reason for his or her failure to do so following the assignment to interrupted status. 38 C.F.R. § 21.198(b)(1). A veteran’s case will be discontinued and assigned to discontinued status when his or her conduct or cooperation becomes unsatisfactory. 38 C.F.R. § 21.198(b)(2). Background The Veteran’s case was previously discontinued on October 3, 2006 for administrative reasons. She reapplied for Chapter 31 VR&E services on June 5, 2007. Subsequently, the Veteran was placed into Individualized Extended Evaluation Plans (IEEPs) on two separate occasions: August 7, 2007 and August 2, 2011. The first IEEP began in August 2007 and an Individualized Written Rehabilitation Plan (IWRP) was later developed on January 24, 2008 for an occupational goal of “Teacher.” Training objectives were identified and found to support the Veteran’s completion of her Bachelor’s degree at Bridgewater State College. VR&E benefits included her tuition/fees, books, supplies, and state licensure examination and teaching certification. However, prior to completion of her degree, the Veteran experienced difficulties with the school and she was administratively dismissed/barred from returning to the school for the Fall 2008 semester. The VRC determined that the Veteran’s health, particularly her service-connected psychiatric disorder, significantly contributed to her problems with school that led to her eventual dismissal. As a result of the school’s action, the Veteran’s case was placed in “Interrupted” status on October 7, 2008. Attempts by the VRC and CP to engage with the Veteran were unsuccessful. In early 2009, the Veteran’s case was presented before a Vocational Rehabilitation Panel (VRP) for a determination of feasibility for employment. The panel determined that employment for the Veteran was “not feasible.” Attempts to meet with the Veteran to discuss the VRP determination were not successful. The Veteran repeatedly declined or was a “no show” for her scheduled appointments. In early 2010, the Veteran agreed to meet with her VRC to discuss her Chapter 31 program of services. Between the months of May 2010 and August 2011, meetings and other means of communication (emails, faxes, and phone calls) were conducted to assist the Veteran with her return to the VR&E program. The development of another IEEP began in August 2011. The IEEP objectives addressed (1) the need for the Veteran to maintain her mental health treatment and medication and (2) the requirement that the Veteran maintain passing grades for the Fall 2011 semester at a new school (University of Massachusetts Boston). The Veteran successfully completed the IEEP objectives and a new IWRP was developed on December 28, 2011 for the occupational goal of “Teacher.” Training objectives were identified and found to support the Veteran’s completion of her Bachelor’s degree at the University of Massachusetts Boston. VR&E benefits included her tuition/fees, books, supplies, and state licensure examination and teaching certification. However, the Veteran encountered difficulties with the university starting in the Fall 2012 semester, and as a result, school and civil charges were brought against the Veteran. This situation resulted in her suspension from the university, effective the Spring 2013 semester, and ending in June 2014. The VRC determined that the Veteran’s health, particularly her service-connected psychiatric disorder, significantly contributed to her problems with school that led to her eventual suspension. As a result of the school’s action, the Veteran’s case was placed in “Interrupted” status again on January 29, 2013. During the period from January 2013 to April 2013, appointments were attempted/scheduled to discuss the situation with the Veteran. However, these attempted appointments were unsuccessful. Furthermore, the Veteran was involuntarily hospitalized for several days. After discharge from the VA hospital, the Veteran stopped all treatment with her VA Medical Center (VAMC) medical team. In March 2013, the Veteran’s case was presented before another VRP for a determination of feasibility for employment. The panel determined that the Veteran did not meet the criteria to be considered “feasible” for employment. The VRP report stated, “The panel unanimously agrees that this Veteran is not able to obtain or maintain employment nor does she appear feasible to benefit from training. The panel believes that the Veteran has no Independent Living needs. The panel highly encourages the Veteran to engage in medical adherence to treatment on a consistent basis.” The Veteran was notified and reminded on May 28, 2013 that her case would remain in “Interrupted” status. Further attempts to meet with the Veteran in order to discuss the VRP determination were unsuccessful. The Veteran repeatedly declined or was a “no show” for her scheduled appointments. On May 6, 2014, the Veteran reapplied for VR&E benefits. On July 1, 2014, the RO sent the Veteran an appointment letter scheduling an initial evaluation to determine entitlement to Chapter 31 VR&E benefits and services. On July 29, 2014, the Veteran met with a VRC at the Regional Office to begin her vocational assessment. The purpose of the meeting was to develop information about the Veteran’s work, military, education, and training history, as well as her personal background, disability conditions, and the impact of her service-connected psychiatric disorder on her employability. After the vocational assessment, the VRC found that the Veteran has a serious employment handicap and determined that the Veteran was entitled to VR&E services pending a separate determination regarding the Veteran’s feasibility for employment. On August 12, 2014, the RO received a duplicate VR&E benefit application from the Veteran with a letter attached (see VA Form 28-1900). On August 15, 2014, the VRC reviewed the Veteran’s letter and was concerned about the Veteran’s well-being and mental health. The VRC contacted the Veteran’s current VA psychiatrist by phone nad by email to inform him of the content of the letter. The VRC also reviewed the available VA medical records and the Veteran’s VR&E record. The VRC ultimately concluded that it was not reasonable to expect that the Veteran would be able to train or obtain a suitable job due to her mental health condition. The VRC determined that employment was “infeasible” for the Veteran at this time. On August 18, 2014, the RO sent the Veteran a “discontinuance” letter indicating that VA could not provide her with VR&E services. In September 2014, the Veteran submitted a notice of disagreement (NOD) in response to the finding of infeasibility for employment. In October 2014, the VRC and a Vocational Rehabilitation and Employment Officer (VREO) prepared a Statement of the Case. The VRC and VREO continued the denial of VR&E benefits on the basis that, “Even with multiple attempts to support this Veteran during her program of services, the Veteran’s service-connected bipolar disorder [has] continued to be a barrier that [cannot] be overcome.” The VRC/VREO noted that the Veteran would initially comply with her mental health treatment and medication requirements for a short period of time but would then become non-compliant. The VRC/VREO noted that the Veteran’s refusal to participate in receiving VA treatment and her behavior of declining or missing scheduled appointments represented a repeat of her past practice of avoidance and non-participation with her program of services. The VRC/VREO also indicated that the Veteran’s refusal to participate in VA treatment for her service-connected bipolar disorder made it impossible to determine her current mental health status and the impact of that disability on her ability to obtain and maintain suitable employment consistent with her aptitudes, interests, and abilities. The VRC/VREO concluded that employment remained “infeasible” for this Veteran. In October 2014, the Veteran filed a substantive appeal to the Board via VA Form 9. VR&E Analysis The Veteran seeks VR&E services to obtain gainful employment as a teacher. After review of all the evidence of record, the Board finds that discontinuance of vocational rehabilitation and employment (VR&E) services based on a negative feasibility determination was proper in this case. The Veteran’s only service-connected disability – bipolar disorder with psychotic features – is rated 100 percent disabling from June 26, 1996. Historically, the Veteran has repeatedly applied for VR&E services and either failed to follow through with evaluation for services or determined to be infeasible for a vocational goal. After the Veteran filed the most recent May 2014 application for vocational rehabilitation, the VRC met with the Veteran and determined that a vocational was not reasonably feasible due to the Veteran’s educational history showing that her service-connected bipolar disorder with psychotic features significantly contributed to her inability to complete her Bachelor’s degree and that her continued non-compliance with receiving VA treatment and medication would create difficulties with achieving her training objectives. The Veteran has not presented any persuasive or credible evidence to show that, contrary to the VRC’s determination, achievement of a vocational goal may be reasonably feasible in this case. The VRC and VREO also determined that the Veteran was not in need of any Independent Living services under the VR&E program. In consideration of the foregoing, the Board finds that discontinuance of VR&E services based on the negative feasibility determination was proper in this case. The Board has considered all of the Veteran’s statements and assertions. In that regard, this decision does not imply that the Veteran is not having problems with her service-connected psychiatric disorder. If she were not having problems with this disability, there would be no basis for the Veteran to receive compensation. The Board acknowledges that the Veteran’s service-connected psychiatric disorder will impact her ability to maintain suitable employment and will cause problems both at work and at home. However, the only question before the Board at this time is whether the Veteran meets the standards for entitlement to Chapter 31 VR&E benefits, nothing more. Finally, the Board has considered the benefit of the doubt doctrine but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, after consideration of all the evidence, the Board agrees with the prior determinations made by the VRC and the VREO. The evidence of record preponderates against the claim, and the Board concludes that the Veteran is not entitled to VR&E benefits under Chapter 31 because her vocational goal is not currently reasonably feasible. The claim on appeal is denied. 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.