Citation Nr: 21005261 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-27 535A DATE: February 1, 2021 ORDER Discontinuance of Vocational Rehabilitation and Employment (VR&E) benefits under the provisions of Chapter 31, Title 38, United States Code, was not proper; restoration of services is granted. Entitlement to VR&E services under Chapter 31, Title 38, United States Code is dismissed. FINDINGS OF FACT 1. The change of the Veteran’s participation in the VR&E program to “discontinued” status was determined without a mandatory intermediate finding that his participation was first “interrupted.” 2. In light of the Board’s decision regarding discontinuance of vocational rehabilitation services, the matter of basic entitlement for such services under Title 38, Chapter 31 is rendered moot, and there is no question of legal or factual error appropriate for appellate consideration. CONCLUSIONS OF LAW 1. The discontinuance of VA Vocational Rehabilitation and Employment 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. 2. The September 2014 claim seeking entitlement for VA Vocational Rehabilitation services under Title 38, Chapter 31 is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 1966 to September 1969, including service in the Republic of Vietnam from March 1967 to March 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2014 and November 2014 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. In April 2019, the Board denied the Veteran’s claim of entitlement to VR&E services under Chapter 31, Title 38, United States Code. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2020, 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 action consistent with the terms of the JMR. 1. The appeal of the discontinuance of VR&E benefits under the provisions of Chapter 31, Title 38, United States Code. The Veteran asserts that the August 2019 discontinuance of VR&E services was improper, and that he should be reinstated. In the July 2020 JMR, the Court stated that the Board did not address the regulatory provisions of 38 C.F.R. § 21.197(c)(4), which provides the Veteran’s claim first be placed in “interrupted” status. 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 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. 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. In April 2014, the Veteran attended a VR&E program orientation, and the vocational rehabilitation counselor (VRC) determined that he had an employment handicap and was entitled to receive VR&E services under Chapter 31. The Veteran’s case was placed in evaluation and planning status and the VRC requested additional information in developing a vocational goal. On the Notes from Counseling and Next steps form (VA Form 28-8606) signed by the Veteran on the same day of the initial evaluation, the Veteran agreed to the following action items: (1) research different vocations to come to a general vocational goal by May 23, 2014, (2) attend job fairs, (3) keep all medical/mental health appointments to minimize barriers while in the Chapter 31 program, (4) contact the VRC with any questions or concerns, and report the status of the tasks at least once every four weeks. The Veteran did not complete any action items by May 23, 2014. In May 2014, the VRC sent a letter to the Veteran noting that he had not been motivated to participate in the vocational rehabilitation program and advising the Veteran that he needed to complete action item 1 on the signed VA Form 28-8606 within 30 days of the letter if he wanted to continue in the program. Later in May 2014, the Veteran called the VRC to clarify what was expected of him and was counseled that he needed to finalize a vocational goal by the close of business on June 23, 2014 or his case would be discontinued. In June 2014, another VA Form 28-8606 was prepared with the stated proposed long range goal of employment as a tax preparer or in a related field that outlined the following action items to be completed by July 20, 2014: (1) provide the VRC information on employer job openings in the proposed employment goal or related field by researching 4 job openings using various methods to obtain information on benefits for the proposed employment goal; (2) review training information for proposed program via internet and other information gathering sources and provide VRC with findings/documents; (3) keep all medical/mental health appointments to minimize barriers while in the Chapter 31 program; (4) contact the VRC/case manager with any questions or concerns and report the status of the tasks completed at least once every two weeks; (5) provide a copy of prior training facility unofficial transcripts to the VRC; and (6) obtain a primary care physician through VA. In the date action completed column on the form, the VRC wrote that the Veteran provided information on a total of two job openings in August 2014 and obtained a primary care physician in June 2014. In July 2014, the VRC again wrote the Veteran noting that he had not been motivated to participate in the vocational rehabilitation program and advising the Veteran that he needed to provide training information for certification as an Enrolled Agent/Tax Preparer within 30 days or his case would be discontinued. Later in July 2014, the Veteran wrote a letter to the VRC wherein he acknowledged that he had been asked to provide a choice of path to facilitate vocational rehabilitation for some and wanted him to provide a choice due by July 31, 2014 due to the time-constraints of the vocational rehabilitation program. He explained that he had not settled on a vocational choice but would choose tax preparation if a choice had to be made that day, given the interest shown by a half dozen or more H&R block franchises. In August 2014, the VRC met with the Veteran, confirmed that he had chosen the vocational goal of tax preparer, and advised the Veteran that his case cannot be kept open without his participation. The VRC reiterated that the Veteran needed to provide training information for certification as a tax preparer/enrolled agent to include specific class start/end dates and training facility information. Later that month (i.e., August 2014), the RO notified the Veteran that his case had been discontinued effective August 27, 2014. The RO explained that the Veteran had not given adequate focus to complete the program or he was unable to benefit from rehabilitation services despite VA’s best efforts. The RO advised the Veteran that he was no longer entitled to receive VR&E services and would have to reapply and meet the eligibility and entitlement criteria if he needed services after the discontinuance was effectuated. 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. Significantly, the VRC’s May 2014 and July 2014 letters indicated that the Veteran’s case would be discontinued if additional information was not provided. However, neither letter clearly state that the Veteran’s case was being placed in “interrupted” status. Moreover, in May 2014 and August 2014 conversations with the Veteran, the VRC only addressed the discontinuance of benefits without the receipt of additional information. The Veteran was never notified that his VR&E program was “interrupted” or how the interruption would affect his benefits under the program. The Court in Wing v. West, 11 Vet. App 98 (1998) emphasized the necessity of thoroughly notifying the veteran of the status of his claim and any changes thereto. Therefore, VA’s placement of the Veteran’s case into “discontinued” status was improper as he did not receive notice that his case was placed on “interrupted” status. As such, the Veteran’s VR&E services were improperly discontinued in August 2014. In light of the discussion above, the Board finds it was not proper to discontinue the Veteran’s VR&E claim. Any remaining reasonable doubt is resolved in the Veteran’s favor, and the Board finds the appeal in this matter must be granted. 2. Entitlement to VR&E services under Chapter 31, Title 38, United States Code The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary, and may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. §§ 7104, 7105(d)(5). As explained in the findings of fact, the Board’s finding that discontinuance of the Veteran’s vocational rehabilitation services was improper renders the matter of entitlement for such services in the September 2014 application moot, as his case should revert back to its status prior to discontinuance in August 2014. Therefore, there are no more questions of factual or legal error that remain for appellate consideration, and that matter must be dismissed. STEVEN D. REISS 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.