Citation Nr: 21063670 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-37 712 DATE: October 15, 2021 REMANDED Entitlement to Veteran Readiness and Employment (VR&E) services, other than employment services, to include retroactive induction into a VR&E program, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2006 to September 2011. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2016 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Newark, New Jersey. In July 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to VR&E services, other than employment services, to include retroactive induction into a VR&E program, is remanded. The Veteran seeks entitlement to VR&E benefits, seeking reimbursement for educational expenses incurred while pursuing a master's degree program at University of Pennsylvania, Wharton School of Business, beginning in the fall 2011 semester. In essence, he is seeking retroactive induction into a VR&E program for that period of education. Retroactive induction into a rehabilitation program may be authorized for a past period under a claim for vocational rehabilitation benefits when all of the following conditions are met: (1) The past period is within - (i) A period under § 21.40(c) during which a service member was awaiting discharge for disability; or (ii) A period of eligibility under §§ 21.41 through 21.44 or 38 U.S.C. 3103. (2) The individual was entitled to disability compensation under 38 U.S.C. chapter 11 during the period or would likely have been entitled to that compensation but for active-duty service. (3) The individual met the criteria for entitlement to vocational rehabilitation benefits and services under 38 U.S.C. Chapter 31 in effect during the period. (4) VA determines that the individual's training and other rehabilitation services received during the period were reasonably needed to achieve the goals and objectives identified for the individual and may be included in the plan developed for the individual (see §§ 21.80 through 21.88, and §§ 21.92 through 21.98). (5) VA has recouped any benefits that it paid the individual for education or training pursued under any VA education program during any portion of the period. (6) An initial evaluation was completed under § 21.50. (7) A period of extended evaluation is not needed to be able to determine the reasonable feasibility of the achievement of a vocational goal. 38 C.F.R. § 21.282 (effective February 19, 2010). In June 2015, the RO sent a memorandum to the VR&E Director requesting approval of retroactive induction for the Veteran's educational program. In November 2015, the VR&E Director, based on review of the claims file, denied the claim because (1) the RO did not justify that the Veteran has an employment handicap or explain how the service-connected disabilities impair his ability to obtain employment; (2) did not perform an assessment to determine the Veteran's potential for employment utilizing his current education; and (3) did not make a determination that the Veteran would have been entitled to VR&E benefits in 2011 pursuant to 38 C.F.R. § 21.282. Upon review of the file, the Board finds deficiencies in the January 2015 vocational rehabilitation evaluation. First, the vocational rehabilitation counselor (VRC) made no finding, either in the January 2015 VRC report or the June 2015 memorandum, that the Veteran met the criteria for entitlement to vocational rehabilitation benefits under 38 U.S.C. Chapter 31 in effect during the requested retroactive period. 38 C.F.R. § 21.282(c)(3). Additionally, the VRC did not make any findings whether the educational services the Veteran began receiving in 2011 were reasonably needed to achieve the Veteran's identified vocational goals and objectives. 38 C.F.R. § 21.282(c)(4). Finally, the VRC marked that the Veteran's vocational goal was reasonably feasible and stated that documentation supports this finding. However, the VRC did not specify the documentation used or discuss how such documents support her feasibility finding. Given the deficiencies noted above, a remand is warranted to afford the Veteran a new evaluation, particularly to obtain a determination whether the Veteran met the criteria for entitlement to VR&E services under 38 U.S.C. Chapter 31 beginning in 2011. The matters are REMANDED for the following action: 1. Ensure the entire paper vocational rehabilitation and employment folder has been scanned and associated with the electronic claims file. 2. After the foregoing development has been completed to the extent possible, arrange for the Veteran to be afforded a vocational rehabilitation opinion that ascertains the limitations caused by his service-connected disabilities and their effect on his ability to perform employment consistent with his interests, aptitudes, and abilities. If possible, the VRC providing this evaluation should be the VRC who evaluated the Veteran in January 2015. It is noted that the Veteran is service connected for posttraumatic stress disorder (PTSD), rated 50 percent disabling; residuals of a traumatic brain injury (TBI), rated 10 percent disabling; and bilateral eustachian tube dysfunction, rated noncompensable. The evaluation should determine the Veteran's eligibility and entitlement for VR&E benefits. This evaluation should include: (a.) Any clinically indicated medical examinations and testing for the service-connected disabilities; and (b.) Evaluation by an appropriate vocational rehabilitation counselor to determine: 1. Whether the achievement of employment, considering only the possession of a bachelor's degree in history, at the time of the initiation of the Veteran's graduate education in 2011, was reasonably feasible under 38 C.F.R. § 21.53; 2. Whether, at the time of the Veteran's initiation of graduate education in 2011, the Veteran had an employment handicap and a serious employment handicap as determined in accordance with 38 C.F.R. § 21.51 and 38 C.F.R. § 21.52; 3. Whether the achievement of the employment goal as expressed by the Veteran was reasonably feasible, at the time of the initiation of his graduate education in 2011, under 38 C.F.R. § 21.53; and 4. Whether the Veteran's obtaining a Master of Business Administration beginning in 2011, was necessary for suitable employment, and was warranted in accord with 38 C.F.R. § 21.94. The evaluation should specifically address whether the Veteran's aptitudes and abilities are consistent with both his existing education and transferrable skills and the degree requirements and skills of his proposed career and educational changes. The need for an advanced degree should be specifically discussed, considering the evidence of record, to include the Veteran's lay statements and objective evidence, his employability relative to non-disabled individuals, and the Veteran's service-connected disabilities, particularly his PTSD and TBI and his state of mind contemporaneous in time to 2011. The evaluation should consider the Veteran's July 2021 testimony regarding his limitations that existed at that time. A thorough rationale, with specificity in supporting statements and evidence for all opinions afforded, considering all of the evidence of record, would be of significant assistance to the Board. 3. 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 his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI 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.