Citation Nr: 21077004 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 12-04 874A DATE: December 28, 2021 ORDER Interruption of Veteran Readiness and Employment (VR&E) benefits under the provisions of Chapter 31, Title 38, United States Code, was proper; the appeal is denied. Discontinuance of VR&E benefits under the provisions of Chapter 31, Title 38, United States Code, was proper; the appeal is denied. FINDINGS OF FACT 1. The Veteran did not maintain satisfactory conduct and cooperation by missing appointments, insistence that VA provide training at a facility of his choosing and at a location of his choice, inclusive of transportation and lodging, combined with his insistence that training occur only during summer months, being unable or unwilling to benefit from the guidance provided by various counselors to whom he had been assigned, and showing a consistent pattern of aggressive and disrespectful speech and behaviors, which were outside the scope of acceptable behaviors in a workplace setting. 2. VA made reasonable efforts to assist the Veteran in rectifying his unsatisfactory cooperation, including rescheduling missed appointments, and by twice placing him in an interrupted status. 3. There are no mitigating circumstances that would allow the Veteran to remain in an interrupted status. CONCLUSIONS OF LAW 1. The interruption of VR&E services was proper. 38 U.S.C. §§ 3100, 3101, 3102, 3107, 3111, 5107(b); 38 C.F.R. §§ 21.197, 21.198, 21.420. 2. The discontinuance of VR&E benefits under Chapter 31 was proper. 38 U.S.C. §§ 3104, 3107; 38 C.F.R. §§ 21.57, 21.70, 21.80, 21.86, 21.180, 21.197, 21.198, 21.362, 21.364. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1979 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 administrative decision of the VA Regional Office (RO) in Louisville, Kentucky. In May 2016, the Veteran testified at a hearing conducted before the undersigned. A transcript of the hearing has been associated with the claims file. In July 2018, the Board issued an appeal affirming the discontinuance of the Veteran's VR&E benefits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. This case was previously before the Board in August 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. The Veteran had been represented by an attorney; in correspondence dated September 2021, he revoked the attorney's power of attorney (and did not designate another representative) after the certification of this appeal. The record reflects that written notice was provided to both the private attorney and the Board. In correspondence dated in October 2021, the attorney acknowledged the revocation by way of a letter captioned "Notice of Terminated Client Relationship." As there is no indication that the Veteran is seeking new representation in this matter, the Veteran's apparent wish to proceed pro se will be honored. 38 C.F.R. § 20.1304. 1. The appeal of the interruption of VR&E benefits under the provisions of Chapter 31, Title 38, United States Code. 2. The appeal of the discontinuance of VR&E benefits under the provisions of Chapter 31, Title 38, United States Code. The Veteran contends that the interruption and discontinuance of his VR&E Chapter 31 benefits was improper. The goal of a vocational rehabilitation program is to evaluate and improve the Veteran's ability to achieve a vocational goal; provide services to qualify for suitable employment; enable the veteran to achieve maximum independence in daily living; and, enable the veteran to become employed in a suitable occupation and to maintain suitable employment. 38 C.F.R. § 21.70(a). The successful development and implementation of a program of rehabilitation services requires the full and effective participation of the Veteran in the rehabilitation process. 38 C.F.R. § 21.362(a). The Veteran is responsible for satisfactory conduct and cooperation in developing and implementing a program of rehabilitation service under Chapter 31. 38 C.F.R. § 21.362(a)(1). A Veteran being provided services under Chapter 31 must cooperate with VA staff in carrying out the initial evaluation and developing a rehabilitation plan. 38 C.F.R. § 21.362(c)(1)). The Veteran must conform to procedures established by VA governing pursuit of a rehabilitation plan including enrollment and reenrollment in a course. 38 C.F.R. § 21.362(c)(4)(i). The purpose of "interrupted" status 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. See 38 C.F.R. § 21.197(a). Assignment to "interrupted" status is required except in limited circumstances to assure that all appropriate actions have been taken to help the veteran continue in his or her program before discontinuing benefits and services. 38 C.F.R. § 21.197(c)(4). A veteran in "interrupted" status may be assigned to his prior status or other appropriate status if he reports for entrance or reentrance into the prescribed program at the time and place scheduled for the resumption of the rehabilitation program. 38 C.F.R. § 21.197(d)(1). Reasons for assignment to "interrupted" status include, but are not limited to, any of the following: the Veteran does not initiate or continue the rehabilitation process, and is not entitled to be placed on authorized absence under 38 C.F.R. §§ 21.340-21.350; the Veteran's conduct or cooperation becomes unsatisfactory; or the Veteran cannot continue the program because the necessary training and rehabilitation services are unavailable. Under 38 C.F.R. § 21.197(c)(4), a Veteran's case shall be assigned to "interrupted" status prior to discontinuance and assignment to discontinued status in all cases except as provided in 38 C.F.R. § 21.182(d) and upon the Veteran's death. If VA determines that a Veteran has failed to maintain satisfactory conduct or cooperation, VA may, after determining that all reasonable counseling efforts have been made and are not found reasonably likely to be effective, discontinue services and assistance to the Veteran, unless the case manager determines that mitigating circumstances exist. 38 C.F.R. § 21.364(a). In any case in which services and assistance have been discontinued, VA may institute such services and assistance only if the counseling psychologist determines that the unsatisfactory conduct or cooperation of such veteran will not be likely to recur and the rehabilitation program which the veteran proposes to pursue (whether the same or revised) is suitable to such veteran's abilities, aptitudes and interest. 38 C.F.R. § 21.364(a)(1), (2). When the case manager determines that the Veteran's conduct and/or cooperation are not in conformity with 38 C.F.R. § 21.362(c), the case manager will (1) discuss the situation with the Veteran; (2) arrange for services (particularly counseling services which may assist in resolving the problems which led to the unsatisfactory conduct or cooperation); and (3) interrupt the program to allow for more intense efforts, if unsatisfactory conduct and cooperation persist. If a reasonable effort to remedy the situation is unsuccessful during the period in which the program is interrupted, the Veteran's case will be continued and assigned to "discontinued" status unless mitigating circumstances are found. 38 C.F.R. § 21.364(b). In 38 C.F.R. § 21.364, VA regulations note that the veteran will not be placed in discontinued status if mitigating circumstances are found. When mitigating circumstances exist the case may be continued in interrupted status until VA staff determines the veteran may be reentered into the same or a different program because the veteran's conduct and cooperation will be satisfactory, or if a plan has been developed, to enable the veteran to reenter and try to maintain satisfactory conduct and cooperation. Mitigating circumstances include: (i) the effects of the veteran's service-and nonservice-connected condition(s), (ii) family or financial problems which have led the veteran to unsatisfactory conduct or cooperation, or (iii) other circumstances beyond the veteran's control. See 38 C.F.R. § 21.364(b). 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 this case, the Veteran's basic eligibility for VR&E benefits is not in dispute. A June 2006 counseling record indicates the Veteran may have been interested in heavy equipment, auto body, or auto paint training. A narrative report indicates that the counselor could not determine whether the Veteran could achieve a vocational goal. In October 2006, Veteran and the VA counselor agreed to a plan to determine his "feasibility to participate in further vocational planning." In May 2007, VA informed Veteran that he needed to participate in a Functional Capacity Evaluation (FCE), which the Veteran at first refused. Later in February 2008 he accepted and underwent an FCE. The Veteran underwent the FCE in February 2008. In response to the counselor's offer of an opportunity to "attend one semester of training at a local school under an extended evaluation plan," the Veteran responded by stating that the counselor should never contact him again. A signed VA Rehabilitation Plan indicates that the Veteran was to attend the program in Washington and that the time period of the service was January 2009 to June 2009. The services to be provided were to be academic instruction, tuition, fees, books, required supplies, subsistence allowance plus medical/dental benefits as needed. A subsequent e-mail communication indicated that the school is based in several states and that the counselor spoke with the Veteran. The Veteran was noted to select Ohio. However, the counselor noted that choosing the school is only one part and that insuring it meets VA standards is another. No approval would be done until information was reviewed. Notes from June and July 2009 indicate that the Veteran did not attend his scheduled appointments with his counselor. In July 2009, the Veteran submitted a letter stating that he would not attend training during the winter. A November 2009 e-mail states that the admissions representative at Associated Training Services of Ohio (ATS Ohio) was having difficulty contacting the Veteran regarding his application because his phone number was no longer valid. In August 2010, the Veteran informed VA that he would not "start training now anyway" because he would not participate in cold weather training. The Veteran's rehabilitation plan was first interrupted in September 2010 after the Veteran reported that he was not going to start training at that time as he would not participate in any cold weather training. An e-mail from that same month indicated that the Veteran reiterated his desire not to participate in colder weather training. A November 2010 note indicates that the Veteran was informed that VA would pay for lodging, travel, and expenses associated with attending heavy equipment school, and that he was told to contact his counselor once the school has a start date in the spring. A January 2011 notes states that the ATS Ohio location was no longer a VA vendor. The counselors in Ohio had reported only negative comments and experiences with the school. The Veteran was informed, and he reported that he was going to research other schools and possibly look at culinary programs. Thereafter, in March 2011 the Veteran was contacted and was offered an appointment to see a counselor at the Fort Campbell Education Center in April. However, he stated that it would be a waste of time at the moment since he had not found anything of interest. He indicated that he would contact the counselor once he got additional information. In April 2011 the Veteran reported that he did not want to attend a school nearby, and he goes to the state website to find programs. The Veteran was informed that Southside Virginia Community College offered the heavy equipment program, and that the counselor was waiting on them to respond. The Veteran became angry and stated that he was going to attend a school he chose not what was suggested. The Veteran was informed that he needed to locate a school closer to his home area due to regulations with intraregional training/travel. He was informed that VA needed to make sure the training program offered a quality of service and it was difficult to gather this from schools the VA is not familiar with especially so far away. The Veteran was noted to be very rude and became loud and hung up on the counselor. It was noted that the Veteran had a history of cursing in e-mails and on the phone and that he was verbally abusive to all staff and very disrespectful. In a later April 2011 counseling note, the Veteran indicated that he was going to contact a particular individual whom he believed had the authority to dictate what happened in his case. An attempt was made to engage the Veteran in a discussion regarding VRC's role in providing guidance, feasibility to achieve vocational goal, and adjustment counseling through the VA Medical Center. The note indicates that he was not interested in engaging in that discussion. The Veteran was advised that feasibility to achieve a vocational goal was a concern and that his case would be placed in an interrupted status and then moved toward closure, unless he demonstrated some willingness to participate in mental health counseling and further evaluation. The Veteran's vocational program was again placed in an interrupted status in April 2011 due to his insistence that VA provide training at a facility of his choosing and at a location of his choice, inclusive of transportation and lodging, combined with his insistence that training occur only during summer months. The Veteran was noted to be unable or unwilling to benefit from the guidance provided by various counselors to whom he had been assigned. The Veteran was reported to show a consistent pattern of aggressive and disrespectful speech and behaviors, which were outside the scope of acceptable behaviors in a workplace setting. The Veteran was informed that, if he wanted to continue his program, he must contact the VRC and demonstrate a willingness to participate in mental health counseling and further evaluation. Later in May 2011, the Veteran disagreed with the interruption. He argued that VA has delayed his education, that VA failed to pay for the heavy equipment schooling that he received in Washington and, therefore, he was unable to finish, and that VA counselors were prejudiced. He continued to disregard the mental health counseling, stating that VRC J.L. called him "as if she is some kind of doctor" and making statements about an anger problem. He went on to say he is a grown man, and no one is going to disrespect him and talk to him like he is a kid. A May 2011 letter informed the Veteran that his rehabilitation program was discontinued effective May 28, 2011, because he had been "unable or unwilling to effectively engage in counseling, or follow the guidance provided to develop a plan of services." The Veteran subsequently filed a notice of disagreement (NOD). He continued to argue that VA has delayed his education, that VA failed to pay for schooling, and that VA counselors were prejudiced. He also disagreed with the need to participate in mental health counseling. Based on what has transpired, the Board finds the interruption and discontinuance of the Veteran's VR&E benefits was proper as the evidence of record documents that he had failed to maintain satisfactory conduct and cooperation. Following a restriction of the time that the Veteran was willing to train, his program was placed in an interrupted status. The Veteran was notified as to the reasons for the interruption. The Veteran's program was again placed in an interrupted status in April 2011 based upon insistence of where and when he would receive training and based upon a consistent pattern of aggressive and disrespectful speech and behaviors. The Veteran was again notified as to the reasons for the interruption. Pursuant to 38 C.F.R. § 21.364(b)(2), the RO offered to arrange for mental health consultation to determine whether he would "benefit from services to improve anger management and increase coping skills." However, the Veteran has consistently declined interest in participating in mental health counseling and further evaluations. See April 2011 counseling note (stating that Veteran was not interested in discussing adjustment counseling); see also May 2011 and January 2012 NOD. Thereafter, the Veteran's vocational rehabilitation program was discontinued. The Board has considered whether any mitigating circumstances exist, including health concerns and/or family problems, to allow the Veteran to remain in interrupted status. The purpose of interrupted status 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). A Veteran's case will be assigned to interrupted status when either (i) a definite date for resumption of the program is established; or (ii) the evidence indicates the Veteran will be able to resume the program at some future date, which can be approximately established. 38 C.F.R. § 21.197(b)(2). Here, though, the Board finds there are no mitigating circumstances that would allow the Veteran to remain in interrupted status. The Veteran has repeatedly denied a mental health condition. Despite being encouraged by VA as well as the Court in its November 2017 memorandum decision, he has also repeatedly refused VA's offers of counseling services through the VA Medical Center. Given the Veteran's lengthy history of an unwillingness to undergo counseling, VA cannot reasonably approximate a future date at which the Veteran would be able to resume his rehabilitation program, thereby impeding the temporary purpose of interrupted status. The evidence shows the AOJ complied with the relevant regulations, and there are no mitigating circumstances allowing the Veteran to remain in interrupted status. Therefore, interruption and discontinuance of his VR&E benefits under the provisions of Chapter 31, Title 38, of the United States Code, was justified, and his appeal concerning this is denied. M. C. GRAHAM 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.