Citation Nr: 21005697 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-11 982 DATE: February 2, 2021 REMANDED Entitlement to Vocational Rehabilitation and Employment (VR&E) services, to include other than employment services, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from July 1968 to November 1969; the Veteran’s discharge status is honorable for VA purposes. He is a Vietnam Era Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 letter of determination issued by the Department of Veterans Affairs (VA). The Veteran requested a hearing before the Board on his March 25, 2015, VA Form 9, perfecting his appeal before the Board. The Veteran, however, withdrew his request for a hearing in May 2016 written communication. The Veteran claims entitlement to retroactive VR&E benefits for training purposes. Although the Board sincerely regrets any delay that this may cause, further development is necessary prior to adjudicating this claim. As an initial matter, it is unclear as to whether the entire VR&E file has been associated with the electronic claims file. Notably, the Veteran reported that he had been approved for an alternative program for VR&E, but there is no evidence in the file of such a program or such an allowance for participation. Additionally, the Vocational Rehabilitation Counselor (VRC) denied additional training and employment services because they found that the Veteran was not feasible for any employment; the VRC stated that this finding was based upon a “[thorough] assessment of [the Veteran’s] current aptitudes and recent training.” Yet, the file does not reveal the specific evaluation and assessment by which the VRC determined this feasibility. As such, upon remand, any outstanding VR&E records should be obtained and associated with the file. 38 C.F.R. § 21.33(c). Moreover, while the VRC found that any employment goal was not feasible for the Veteran due to his disabilities, evidence indicates that the Veteran had improvement in his lumbar spine disability. While the Veteran’s lumbar spine disability is not a service-connected disability, this limitation was considered by the VRC in the feasibility assessment, as is allowable by relevant regulations. 38 C.F.R. § 21.53(d); see Counseling Record Narrative, dated March 2014, April 2013. Specifically, the Veteran underwent lumbar spine surgery in 2016, and the Veteran’s function improved after this surgery. See Private Treatment Records, dated May 2016. This change in function may have improved the Veteran’s function to the point of feasibility. As this was a private provider, it is unclear whether the Veteran was receiving such care at the time of the January 2015 decision, and whether it was possible to determine whether such treatment would render an employment goal feasible within a reasonable period. 38 C.F.R. § 21.53(d). As such, the Veteran should be reassessed by a VRC to determine feasibility of a vocational goal and whether any participation in VR&E, to include retroactive benefits, is warranted. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's service-connected disabilities and the significant nonservice-connected disabilities, notably his back, at the time of the Veteran's pursuit of additional training. The AOJ should specifically focus on treatment for his psychiatric disability and his lumbar spine disability, to include treatment by any private orthopedic surgeons and from Saint Vincent’s Infirmary in the years 2014-2016. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. All attempts to communicate with the Veteran and obtain these records should be associated with the file, to include any negative responses thereof. The AOJ should also obtain any outstanding VA treatment records from the period on appeal. 2. The AOJ should ensure that the entire VR&E file has been associated with the electronic claims file. The AOJ should contact the Veteran to afford him the opportunity to provide any outstanding VR&E records, to include participation in the alternate program as described by the Veteran in December 2014. All attempts to obtain and associate these records should be clearly documented in the file, to include any negative responses. Once it is determined that all available records have been obtained and associated with the file, the AOJ should make a formal finding of completeness. 3. Following completion of the above, 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 a VRC that has not previously evaluated the Veteran, nor has afforded an opinion as to the feasibility and employability of the Veteran. It is noted that the Veteran was, at the time of his application for VR&E services, service connected for posttraumatic stress disorder, rated as 50 percent disabling. The evaluation should include: (a.) Any clinically indicated medical evidence and retroactive opinions for service-connected or other significant nonservice-connected disabilities considered by the VRC; and (b.) Evaluation by an appropriate vocational rehabilitation counselor to determine: 1. Whether the achievement of employment, at the time of the January 2015 denial of VR&E services, was reasonably feasible under 38 C.F.R. § 21.53; 2. Whether, at the time of January 2015 denial of VR&E services, the Veteran had an employment handicap and a serious employment handicap; and 3. Whether the achievement of the employment goal was reasonably feasible, at the time of the January 2015 denial, under 38 C.F.R. § 21.53, and warranted. 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 additional training 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 current status of the labor market in the Veteran's chosen field. 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. ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.