Citation Nr: A21020387 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 211128-200842 DATE: December 22, 2021 ORDER Entitlement to additional Veteran Readiness and Employment (VR&E) benefits, to include an extension in the duration of a VR&E program beyond 48 months, is granted. FINDING OF FACT The Veteran has a serious employment handicap and requires additional education or training to become employable and to obtain and maintain suitable employment. CONCLUSION OF LAW The criteria for additional education benefits under a VR&E program, including an extension in duration beyond 48 months, have been met. 38 U.S.C. §§ 3105, 3695; 38 C.F.R. §§ 21.70, 21.78. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the United States Navy from May 1965 to June 1992. This appeal to the Board of Veterans' Appeals (Board) is from an October 6, 2021 letter of determination by the Department of Veterans Affairs (VA) denying VR&E benefits. The Veteran timely appealed that decision to the Board by submitting a November 2021 Decision Review Request: Board Appeal (Notice of Disagreement) and requested "direct review" of the evidence that the Agency of Original Jurisdiction (AOJ) considered. Entitlement to additional VR&E benefits, to include an extension in the duration of a VR&E program beyond 48 months. Background The Veteran is seeking to complete a program of training in Paralegal studies or Criminal Justice. He ultimately wishes to return to work. The Veteran was evaluated by a Vocational Rehabilitation Counselor (VRC) in June 2019. In the corresponding counseling report, the VRC noted that the Veteran had previously utilized VR&E and/or VA education benefit programs prior to his current participation in the VR&E program. The VRC noted that the Veteran had only two months and five days of entitlement remaining. The VRC evaluated the Veteran's experience, transferrable skills, and education and the impact of his service-connected and nonservice-connected disabilities on his ability to obtain and maintain suitable employment that was consistent with his aptitudes, abilities, and interests. Thereafter, the VRC determined that the Veteran's service-connected disabilities contributed to vocational impairment, which he had not overcome. See 38 C.F.R. § 21.51. The VRC determined the Veteran met the criteria for an employment handicap as well as a serious employment handicap. See 38 C.F.R. §§ 21.51, 21.52. However, the VRC determined that further assessment was needed to determine the feasibility of the Veteran's vocational goal. Thus, the Veteran was placed on an Individualized Extended Evaluation Plan (IEEP) to ascertain the current feasibility of achieving the goal of becoming a paralegal. The Veteran's vocational goal was subsequently deemed to be reasonably feasible, and he was placed on an Individualized Written Rehabilitation Plan (IWRP) and Individualized Employment Assistance Plan (IEAP). See 38 C.F.R. § 21.53. Specifically, it was determined that the Veteran would complete a program of paralegal studies and then obtain and maintain employment as a paralegal (which was deemed suitable in light of his service-connected disabilities as well as his aptitudes, abilities, and interests). In a June 2021 correspondence, the Veteran indicated that he was unable to complete the Paralegal studies program because his wife experienced an unforeseen medical emergency and because he had to care for her. He claimed that he had difficulty with the course examination when he finally returned and that he ultimately dropped the course so that he would not incur a failing grade. He also expressed an interest in pursuing Criminal Justice coursework in the future as an alternative to Paralegal studies. In an August 4, 2021 notice letter to the Veteran, the VRC proposed to discontinue his program of VR&E services for "failure to progress." In an August 13, 2021 correspondence, the Veteran indicated that he disagreed with the VRC's proposal to discontinue his VR&E program. He asserted that he had to suspend his coursework because of his various medical and health conditions. In an October 6, 2021 letter of determination, the VRC indicated that he was not approving the Veteran's request for an entitlement extension pursuant to 38 U.S.C. § 3105 and 38 C.F.R. § 21.78. In support of this decision, the VRC indicated that the Veteran's program had been extended and that VA had provided tuition, fees, books, a computer, and a subsistence allowance to assist the Veteran for 58 months but that it would not be extended beyond 58 months because the Veteran had failed to make progress with his current program. The current appeal ensued. Analysis The purpose of training and rehabilitation benefits provided in Chapter 31 is 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 U.S.C. § 3100. Generally, a Veteran is entitled to a program of vocational rehabilitation if he has a service-connected disability that is rated 20 percent disabling or more and is determined by VA to need rehabilitation because of an employment handicap. 38 U.S.C. § 3.102; 38 C.F.R. § 21.40. Initially, the Board observes the Veteran's basic entitlement to VR&E services is not at issue. Rather the issue before the Board is whether the Veteran is entitled to an extension of his rehabilitation program under Chapter 31 for the number of months necessary to complete that program. Neither the basic period of entitlement which may be authorized for a program of rehabilitation under Chapter 31 alone, nor a combination of entitlement of Chapter 31 and other programs listed in § 21.4020 shall exceed 48 months. 38 C.F.R. § 21.78(a). However, the duration of a rehabilitation program for a veteran with a serious employment handicap may be extended beyond 48 months under Chapter 31 for the number of months necessary to complete a rehabilitation program to enable the veteran to complete a period of rehabilitation to the point of employability. See 38 C.F.R. § 21.78(c). Given that the Veteran has a serious employment handicap, the question before the Board is whether the Veteran still requires a program of rehabilitation in order to obtain and maintain suitable employment. Following a review of the record, and resolving all doubt in the Veteran's favor, the Board concludes that additional VR&E services, to include an extension in the duration of a VR&E program beyond 48 months, is warranted. Significantly, in finding the Veteran has a serious employment handicap at the June 2019 evaluation, the VRC specifically determined that the Veteran lacks sufficient education/training for suitable employment consistent with his aptitudes, abilities, and interests. See June 2019 Narrative Report. After the Veteran was afforded an extended evaluation, the VRC determined that his vocational goal of completing a paralegal studies program and becoming a paralegal was reasonably feasible. See March 2020 Narrative Report. As stated above, the duration of a rehabilitation program for a veteran with a serious employment handicap may be extended beyond 48 months under Chapter 31 for the number of months necessary to complete a rehabilitation program to enable the veteran to complete a period of rehabilitation to the point of employability. See 38 C.F.R. § 21.78(c). In this case the Veteran's VR&E program was discontinued for "failure to progress." However, the Veteran has indicated that his wife experienced an unforeseen medical emergency and that he focused on taking care of her rather than on his coursework. He also indicated that, when he returned his attention to his coursework, he had difficulty passing the course examinations, so he dropped the course so that he would not incur a failing grade. Under these circumstances, it the Board finds it reasonable to grant the Veteran an extended period of time to complete his training program in Paralegal studies or, if approved by the VRC, a program in Criminal Justice studies. Furthermore, the Veteran has indicated that he is willing to participate in a rehabilitation program and take the necessary steps to complete the program and return to work. In sum, the evidence demonstrates that the Veteran has a serious employment handicap, and he is unlikely to obtain suitable employment based on experience alone in light of his current level of education. As such, the Board finds that the Veteran is entitled to additional education benefits under a VR&E program, including an extension in the duration of a vocational rehabilitation program beyond 48 months in order to complete the program to the point of employability. The appeal is therefore granted. 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.