Citation Nr: 21003215 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-04 773 DATE: January 21, 2021 REMANDED Entitlement to reentrance into a vocational rehabilitation and employment (VR&E) program under the provisions of Chapter 31, Title 38, United States Code, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1990 to July 1991, to include service in Southwest Asia. She also had service in the Army National Guard, to include a period of active duty for training from March 1988 to July 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2012 determination issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in January 2015, when it was remanded to the agency of original jurisdiction (AOJ) for due process development. In January 2014, the Veteran requested a hearing before the Board. The January 2015 remand directed the AOJ to schedule a hearing. She failed to report for scheduled hearings in March 2015 and June 2015, without explanation, and has not requested a new hearing. Her hearing request is, therefore, deemed withdrawn. 38 C.F.R. § 20.704(d). Entitlement to reentrance into a VR&E program is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford her every possible consideration. The purpose of VA’s rehabilitation program is to provide for services and assistance necessary to enable veterans with service-connected disabilities to achieve independence in daily living and, to the extent possible, to become employable and to obtain and maintain suitable employment. 38 U.S.C. § 3101; 38 C.F.R. § 21.70. The Veteran’s interests and capabilities must be considered when determining “suitable employment.” See, e.g., 38 C.F.R. § 21.50(c). 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), 3106(a); 38 C.F.R. §§ 21.50, 21.53. 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) a 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). Historically, in an unappealed December 2002 determination, the Veteran was determined to be rehabilitated after achieving the goals outlined in her Individualized Written Rehabilitation Plan (IWRP). The December 2002 rehabilitation determination letter notified the Veteran that she could apply to reenter a VR&E program if her service-connected disabilities and other impairments worsened or she was no longer able to do the job. The Veteran has since submitted an application for additional VR&E benefits, seeking reentrance into the VR&E program for additional education to obtain a less demanding position. In November 2012, her Vocational Rehabilitation Counselor (VRC) determined her case should remain closed. The VRC determined that there had been no significant change in the Veteran’s disabilities at the time of evaluation and that her condition had not worsened to the extent that she could not perform the duties of her current position without further accommodation. See November 2012 Counseling Narrative (VA Form 28-1902b). Since the evaluation in November 2012, the Veteran has been granted service connection for fibromyalgia, evaluated as 40 percent disabling. See December 2018 rating decision. Additionally, her service-connected posttraumatic stress disorder (PTSD) has been assigned an increased rating of 50 percent, service-connected headaches assigned an increased rating of 30 percent, and peripheral neuropathy of the bilateral lower extremities assigned an increased rating of 20 percent for each lower extremity. In short, it appears that the November 2012 evaluation was based on a picture of the Veteran’s service-connected disabilities that has substantially changed in intervening years. In light of the changes that have occurred since the Veteran’s case was last reviewed by a vocational rehabilitation specialist, the Board finds that an additional functional capacity evaluation would be beneficial. This matter is REMANDED for the following action: 1. Ensure the entire VR&E folder has been scanned and associated with the electronic claims file. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange for the Veteran to be afforded a vocational rehabilitation evaluation for purposes of assessing the current limitations caused by her service-connected disabilities and their effects on her ability to obtain and maintain suitable employment. It is noted that the Veteran is currently service connected for PTSD, rated as 50 percent disabling; fibromyalgia, rated as 40 percent disabling; headaches, rated as 30 percent disabling; right lower extremity peripheral neuropathy, rated as 20 percent disabling; and left lower extremity peripheral neuropathy, rated as 20 percent disabling. The evaluation should include: (a.) Any clinically indicated medical examinations and testing pertaining to the service-connected disabilities; and (b.) Evaluation by an appropriate vocational rehabilitation counselor to determine: i. Whether the achievement of employment by the Veteran pursuant to her current education, work experience, and transferable skills are reasonably feasible under 38 C.F.R. § 21.53; and ii. Whether the achievement of the vocational rehabilitation goal as expressed by the Veteran is reasonably feasible under 38 C.F.R. § 21.53. The evaluation should specifically address whether the Veteran’s service-connected disabilities have worsened to the extent that their effects now preclude her from performing the duties of the occupation for which she was found rehabilitated or whether the occupation for which she previously was found rehabilitated under Chapter 31 is unsuitable on the basis of her specific employment handicap and capabilities. The evaluation should also address whether the Veteran’s aptitudes and abilities are consistent with her proposed vocational goal. A thorough rationale for all opinions afforded, considering all of the evidence of record, would be of significant assistance to the Board. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.