Citation Nr: 21061435 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-21 545 DATE: October 4, 2021 ORDER Discontinuance of Veteran Readiness and Employment (VR&E) benefits under the provisions of Chapter 31, Title 38, United States Code, was not proper; restoration of services is granted. FINDINGS OF FACT 1. The Veteran was found basically entitled to VR&E benefits with a serious employment handicap in November 2012, but a feasibility determination and preparation of an Individualized Written Rehabilitation Plan (IWRP) were deferred pending extended evaluation. 2. The change of the Veteran's participation in the VR&E program to "discontinued" status was determined without a mandatory intermediate finding that her participation was first "interrupted." CONCLUSION OF LAW The discontinuance of VA VR&E benefits under Chapter 31, Title 38, United States Code, was not proper. 38 U.S.C. § 3111; 38 C.F.R. §§ 21.197, 21.198, 21.362, 21.364, 21.4265. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1989 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 determination issued by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota. In August 2014, the Veteran testified at a Board hearing before a Veterans Law Judge sitting in St. Paul. A transcript of that hearing has been associated with the record. In January 2016 and February 2018, the Board remanded the Veteran's case to the agency of original jurisdiction for additional development. The Board denied the appeal in April 2019. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 memorandum decision, the Court vacated the Board's decision and remanded the matter for readjudication. In July 2021, the Board wrote the Veteran and her representative to inform them that the Veterans Law Judge who conducted the hearing in August 2014 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing, but declined. The propriety of the discontinuance of VR&E benefits under the provisions of Chapter 31, Title 38, United States Code The Veteran contends that her VR&E services were improperly interrupted and discontinued and, therefore, her benefits should be restored. The provisions of Chapter 31 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 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). VA and the veteran must 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). Generally, a veteran seeking Chapter 31 vocational rehabilitation training will initially be assigned a specific case status of "applicant" and if he or she attends the appointment for an initial evaluation progresses to "evaluation and planning status." See 38 C.F.R. § 21.180. During evaluation and planning status it is determined whether the veteran has an employment handicap and whether achievement of a vocational goal is feasible, and a plan is developed. See 38 C.F.R. § 21.184. When a decision concerning achievement of a vocational goal cannot be made during the initial evaluation the veteran may be assigned to "extended evaluation status" and extended evaluation status is continued whenever a veteran is receiving rehabilitation services prescribed in the individualized extended evaluation plan (IEEP). 38 C.F.R. § 21.188. If a veteran completes "evaluation and planning status" he or she moves to "rehabilitation to the point of employability" status, from there to "employment services" status, and from there to "rehabilitated" status. See 38 C.F.R. §§ 21.190, 21.194, 21.196. The successful development and implementation of a program of rehabilitation services require the full and effective participation of the veteran in the rehabilitation process: (1) The veteran is responsible for satisfactory conduct and cooperation in developing and implementing a program of rehabilitation services under Chapter 31; (2) the staff is responsible for insuring satisfactory conduct and cooperation on the veteran's part; and (3) VA staff shall take required action when the Veteran's conduct and cooperation are not satisfactory. 38 C.F.R. § 21.362(a). VA shall make a reasonable effort to inform the veteran and assure his or her understanding of: (1) the services and assistance which may be provided under Chapter 31 to help the veteran maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process, especially counseling services; (2) other services which VR&E staff can assist the veteran in securing through non-VA programs; and (3) the specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation. 38 C.F.R. § 21.362(b). A veteran requesting or being provided services under Chapter 31 must: (1) cooperate with VA staff in carrying out the initial evaluation and developing a rehabilitation plan; (2) arrange a schedule which allows him or her to devote the time needed to attain the goals of the rehabilitation plan; (3) seek the assistance of VA staff, as necessary, to resolve problems which affect attainment of the goals of the rehabilitation plan; (4) conform to procedures established by VA governing pursuit of a rehabilitation plan including: (i) Enrollment and reenrollment in a course; (ii) changing the rate at which a course is pursued; (iii) requesting a leave of absence; (iv) requesting medical care and treatment; (v) securing supplies; and (vi) other applicable procedures; and (5) conform to the rules and regulations of the training or rehabilitation facility at which services are being provided. 38 C.F.R. § 21.362(c). VA may suspend the initial evaluation process, 38 C.F.R. § 21.50(d), terminate evaluation and planning status, 38 C.F.R. § 21.184(c)(2), or terminate extended evaluation status, 38 C.F.R. § 21.188(d), if the veteran fails to cooperate. See 38 C.F.R. § 21.364(a). However, VA is required to "[p]rovide assistance which may be authorized under Chapter 31, or for which arrangements may be made under other programs[,] to enable the veteran to maintain satisfactory conduct and cooperation." 38 C.F.R. § 21.362(d)(2). Where VA determines that a veteran has failed to maintain satisfactory conduct or cooperation, the veteran's status may be changed first to "interrupted" status, the purpose of which 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); see 38 C.F.R. § 21.197(c)(2). "A veteran's case may be interrupted and assigned to interrupted status," as relevant to the Veteran's case, "prior to discontinuance and assignment to discontinued status." 38 C.F.R. § 21.197(c)(4). Under this subsection, "[t]he 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." Id. The final stage of the VR&E process is "discontinued status," the purpose of which is "to identify situations in which termination of all services and benefits received under Chapter 31 is necessary." 38 C.F.R. § 21.198(a). VA may "discontinue the veteran's case and assign the case to discontinued status following assignment to interrupted status" for reasons including, as relevant to the Veteran's case, "[u]nsatisfactory conduct and cooperation." 38 C.F.R. § 21.198(b)(2); see 38 U.S.C. § 3111. Whenever a veteran's status is changed, the veteran must be fully informed of that fact by a letter that states the reasons for the change in status, 38 C.F.R. § 21.180(d), and be afforded prior notification of any adverse action. 38 C.F.R. § 21.420(d). In the present case, the Veteran's basic eligibility for VR&E benefits is not in dispute. The Veteran's vocational rehabilitation counselor (VRC) determined the Veteran to have a serious employment handicap but concluded that the feasibility of a vocational goal could not then be determined. Therefore, while the VRC found that the Veteran had basic entitlement to VR&E benefits, because she had a serious employment handicap, extended evaluation was required to determine the feasibility of a vocational goal. In April 2013, the Veteran signed and entered into an Individualized Extended Evaluation Plan (IEEP), with a stated goal to determine whether the achievement of a vocational goal was reasonably feasible. The IEEP contained six objectives. The first objective was continued sobriety and participation in Addictive Disorders Treatment Program (ADTP) classes and/or Narcotics Anonymous (NA) meetings, and noted services provided included addiction recovery counseling and related services provided by the VA Medical Center (VAMC) in Minneapolis. Second, participation in a program of vocational evaluation. Third, obtaining "necessary counseling and supportive services necessary to stabilize [her] personal issues[,] which will facilitate further vocational preparation and career planning." Fourth, after completing the IEEP, "return[ing] to counseling to discuss progress and determine feasibility." Fifth, maintaining abstinence from drugs and alcohol. Finally, "[m]aintain[ing] physical and mental health that allows for full participation and progress during IEEP." The IEEP outlined other requirements as well, such as attendance at all scheduled medical and mental health appointments; compliance with all treatment recommendations, including medications; compliance with rules and regulations outlined in school catalogs; and maintenance of at least a 3.0 grade point average (GPA). A case note dated April 18, 2013, the same day as the IEEP, reflects the VRC's "serious concerns" regarding the Veteran's ability to follow through on her IEEP because her mental health conditions "could very well interfere with employment and/or rehabilitation." The counselor further wrote that the Veteran did not agree with her treatment providers at the VA medical center and refused to see her psychiatrist. At a May 2013 meeting, the vocational rehabilitation counselor referred the Veteran for a mental health evaluation and "work hardening" and evaluation. See May 2013 case note. At that time, the Veteran requested to take one summer class. The VRC authorized one course to test the waters and evaluate the Veteran's ability to succeed in a training environment. The Veteran was informed that if the single summer course was successful, the VRC would consider authorizing a full-time course load in the fall semester. The Veteran was informed that her mental health would be monitored and addressed accordingly in the event that there were changes that would impact her functioning and participation. The Veteran indicated an awareness that if stability in her mental and physical status could not be demonstrated, feasibility would not be found, and she would be offered independent living services. In June 2013, the VRC noted a recent record in the Veteran's VAMC medical chart regarding the Veteran's request to change medications, and noting that the Veteran had a "long history" of attempting to dictate the treatment and prescriptions of her medical providers. That same month, the VRC was contacted by the Veteran's former psychiatrist at the Minneapolis VAMC, who informed the VRC that the Veteran had not received services there since February 2013 due to noncompliance and issues with staff. The VA psychiatrist could not comment on the Veteran's ability to work/feasibility for goal, but indicated the Veteran was welcome to return to therapy and treatment, but must follow medical center guidelines/rules. The VRC spoke with the Veteran by telephone in August 2013, at which time the Veteran requested to go to school in the fall. The VRC noted the Veteran had yet to provide documentation of ongoing and continuous mental health treatment, nor had she provided evidence that she had been attending NA regularly. The Veteran stated that she had not been able to obtain counseling because she had issues finding a mental health counselor. The VRC counseled the Veteran that treatment should have been ongoing as of the date she signed the IEEP. Later in August 2013, the Veteran submitted a statement from a private mental health counselor at Metro Psychology Support Services to the effect that she had been attending weekly two-hour counseling sessions since March 2013. In an undated memorandum, the VRC recounted a September 2013 meeting with the Veteran. The VRC counseled the Veteran that the foregoing was not considered substantial documentation and an assessment could not be made without sufficient evidence. The VRC provided the Veteran options to continue with evaluation and assessment: Attend Veteran's Upward Bound program for the remainder of the fall semester or participate in a non-paid work experience (NPWE) program, working 30-40 hours per week. The counselor informed the Veteran that, if she were successful in either program, then there was a strong possibility that she could attend school full-time for the spring semester. The Veteran declined both options. The VRC referred the Veteran's case to a Vocational Rehabilitation Panel (VRP), questioning feasibility due to her non-compliance and unrealistic expectations for employment. The VRP reviewed the Veteran's case in October 2013 and concluded she had not complied with any of the treatment recommendations and had not been following the objectives of her IEEP, including providing documentation of treatment and attendance at NA meetings. The VRP unanimously concluded that it was not feasible for the Veteran to pursue a vocational goal at that time. The panel directed that if the Veteran wanted to resume VR&E services, she had to agree, among other things, to "[r]efrain from seeing any mental health providers outside of the Minneapolis VA system." An October 2013 VA counseling narrative report reflects that a VA psychiatrist "declined the [Veteran's] need for" a psychological evaluation because she had been evaluated in January 2013 and "the recommendations remain[ed] the same." The psychiatrist stated that the Veteran was not allowed to use VA mental health treatment services "unless she agrees to the programs recommended for her." The report further reflects that the Veteran's VR&E services were "terminated due to [her] refusal to cooperate in the program and meet the objectives stated in her IEEP." In an October 2013 letter, the VRC advised the Veteran that the VR&E services she had requested were denied and that the decision would become final in 30 days unless she submitted new evidence. The VRC further wrote: "After carefully reviewing the evidence, I have determined that it is not reasonable to expect you to be able to train for or get a suitable job at this time." Finally, the VRC stated: "The severity of your service-connected and non-service[-]connected disabilities has significantly limited your ability to obtain and maintain employment. Due to the fact that you did not follow the objectives stated in your IEEP, we have determined that pursuit of a vocational goal is not feasible at this time." In December 2013, he VRC advised the Veteran that her VR&E services were being discontinued. The Veteran filed a notice of disagreement with that decision and subsequently appealed to the Board. In August 2014, the Veteran submitted a letter from C.C., Ph.D, from Park Nicollet Melrose Center which indicates that she had worked with the Veteran since May 2012 "in various settings" and that she had strong communication skills, was a strong advocate, and accomplished tasks. A letter from S.M., a social worker, reflects that she had been seeing the Veteran since January 2014 and that the Veteran had the emotional and cognitive capacity to meet a vocational goal. An August 2014 letter from D.R., Ph.D., reflects that the Veteran completed eating disorder treatment in the fall of 2013. In a November 2016 supplemental statement of the case (SSOC), the AOJ indicated that it had obtained medical records from private treatment providers, but confirmed the termination of VR&E services on the basis that the Veteran had violated her IEEP by refusing to participate in either Veterans Upward Bound or an NPWE and by discontinuing VA treatment and seeking outside mental health services. In an April 2019 decision, the Board confirmed the termination of the Veteran's VR&E services, finding that the VRC and the VRP "properly discharged their duties both prior and subsequent to placing the Veteran's case in 'interrupted' status," and that the assignment of the discontinued status was proper. The Veteran made several arguments to the Court in March 2020 and August 2020 briefs. First, she argued that VA failed to enable her to maintain satisfactory conduct and cooperation because (1) the VRC offered only an NPWE or enrollment in Veterans Upward Bound, options that "were entirely inappropriate" for her; (2) "rather than encouraging [her] to continue with her private healthcare and assisting [her] in developing further documentation, VA dismissed this evidence and concluded that [she] had been entirely non-compliant" with her IEEP; and (3) the vocational rehabilitation counselor rejected her evidence of attendance at NA meetings and did not attempt to obtain any other documentation. She also alleged that "VA unilaterally changed [the] expectations" of her IEEP when the vocational rehabilitation counselor limited her options to an NPWE or Veterans Upward Bound. Finally, she has contended that the Board erred in concluding that VA followed proper procedureincluding providing the necessary noticebefore it placed her case in interrupted status and, subsequently, discontinued status. In February 2021, the Veteran underwent a mental health assessment with a private psychiatrist, Dr. C.L.C. Following a thorough evaluation, and summary of the Veteran's mental health history, the private provider opined that the Veteran appeared stable with regard to her current mental health symptoms. She further stated that if the Veteran was able to manage her depressive symptoms effectively, she would likely be able to attend post-secondary schooling (ideally at a college or university) and seek employment after receiving her degree. Although VA staff may, under the law, place a veteran's case in interrupted status at any time if it is deemed that they have become uncooperative or otherwise have unsatisfactory conduct with respect to their rehabilitation program, the language of 38 C.F.R. § 21.364(b), specifically subsections (1) and (2), indicate that case managers who determine that the Veteran's conduct or cooperation are not satisfactory must discuss the situation with the Veteran and arrange for services, particularly counseling services, which may assist in resolving the problems leading to unsatisfactory conduct. Here, the Board finds that it may be true that the VRC attempted to discuss the situation with the Veteran on numerous occasions, each time informing her of the steps and documentation necessary to determine feasibility, as well as made a referral to attend Upward Bound or participating in NPWE in September 2013. However, the Veteran declined both options, explaining that both programs would be setting her up for failure. See Veteran statement received June 2014. Thereafter, prior to the alleged interruption of her program in October 2013, the VRC provided no further substantive discussion with the Veteran or the resulting consequences, nor did she offer other services (particularly counseling services) to try and resolve the root of the problem. Rather, the VRC referred the matter to a VRP for a feasibility determination. 38 C.F.R. §§ 21.362(d)(2), 21.364(b)(2). The Board observes that a referral was sent to the Minneapolis VAMC for a psychological evaluation. See October 2013 VA counseling narrative report. However, it was the VAMC doctor, not the Veteran, who declined a psychological evaluation because a prior evaluation had been done in January 2013, the recommendations remained the same, and the Veteran allegedly refused to comply with those recommendations. Id. The Board also acknowledges the VRP findings that the Veteran must participate in mental health treatment and refrain from seeing any mental health providers outside of the Minneapolis VA system. However, the VRP's findings do not address the fact that the Veteran ceased treatment with the VAMC prior to her IEEP because she felt like she was "receiving inadequate care," in part, because of her transgender identity. See, e.g., November 2012 Counseling Record-Narrative Report. The record also shows that the Veteran was "not allowed to use the VAMC" unless she followed their specific recommendations. As noted above, VA regulations require that whenever a veteran's status is changed, prior to any adverse action, the veteran must be fully informed of that fact by a letter that states the reasons for the change in status. 38 C.F.R. §§ 21.180(d), 21.420(d). Following review of the claims file, the evidence of record does not show that the Veteran's case had previously been placed on "interrupted" status. The record shows that the Veteran's case was purportedly interrupted in an October 2013 letter. See August 2018 SSOC (indicating that the Veteran's case was placed into interrupted status on October 30, 2013). However, the October 2013 letter only purported to notify the Veteran that her request for VR&E services had been denied due to her failure to comply with her IEEP and that the decision would become final in 30 days unless she provided new evidence. This letter in no way states that the Veteran's case was being placed in interrupted status. Moreover, in an October 29, 2013 case note, the VRC simply stated that she would contact the Veteran to inform her that she would be pursuing case closure due to infeasibility. The Veteran was never notified that her VR&E program was "interrupted" or how the interruption would affect her benefits under 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 this case, there is no evidence that the AOJ provided any assistance or properly remained in contact with the Veteran after the October 2013 letter. Finally, even assuming the October 2013 letter could reasonably be interpreted as an interruption notice, 38 C.F.R. § 21.364(b)(3) provides that interruption of the program is meant to "allow for more intense efforts, if the unsatisfactory conduct and cooperation persist," and that only after a "reasonable effort to remedy the situation is unsuccessful during the period in which the program is interrupted" will the Veteran's case be discontinued. As noted, the AOJ was aware that the Veteran ceased treatment with the VAMC because she felt she was receiving inadequate care in part because of her transgender identity, and she was not allowed to use the VAMC unless she followed their specific recommendations. Nonetheless, the AOJ failed to recognize the effects the Veteran's service-connected and non-service-connected disabilities, particularly her gender dysphoria and transition, and her difficulties finding appropriate medical resources. As discussing the situation with the Veteran and arranging for appropriate services (including, but not limited to, review and redevelopment of the rehabilitation plan, if appropriate) to assist in resolving problems leading to unsatisfactory conduct or cooperation were not conducted, there is no reason to believe that discontinuance in this case was proper. The Court in Wing v. West, 11 Vet. App. 98 (1998), emphasized the necessity of thoroughly notifying the veteran of the status of her claim and any changes thereto. Here, VA's placement of the Veteran's case into "discontinued" status was improper as she did not receive notice that her case was 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. As such, the Veteran's VR&E services were improperly discontinued in December 2013. In light of the discussion above, the Board finds that it was not proper to discontinue the Veteran's VR&E claim. Any remaining reasonable doubt is resolved in the Veteran's favor. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.