Citation Nr: 21028495 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-27 409 DATE: May 11, 2021 ORDER A change in the Veteran's Individualized Written Rehabilitation Plan (IWRP) under Chapter 31 of Title 38 of the United States Code (Chapter 31), to include tutorial services and fees associated with the Law School Admissions Test (LSAT), is denied. Discontinuance of Vocational Rehabilitation and Employment (VR&E) benefits under the provisions of Chapter 31, Title 38, United States Code, was proper; the appeal is denied. FINDINGS OF FACT 1. In January 2013, the Veteran signed and entered into an Individualized Extended Evaluation Plan (IEEP) for the goal of obtaining and maintaining entry level employment in the occupational goal of other occupations in law and jurisprudence. The IEEP included test prep costs and costs associated with taking the LSAT. 2. In January 2013, Department of Veterans Affairs (VA) proceeded to pay the costs associated with a Princeton Review LSAT prep course. 3. In June 2013, after being accepted into Taft University, the Veteran signed a new IEEP with the goal of obtaining and maintaining entry level employment in the occupational goal of other occupations in law and jurisprudence. 4. In May 2015, the Veteran entered into an IWRP with the goal of obtaining and maintaining entry level employment in the occupational goal of other occupations in law and jurisprudence, to include completing the requirements of a Juris Doctor program and successfully passing the Baby Bar Exam by 2015. 5. While participating in his IWRP, the Veteran failed the Baby Bar Exam three times, resulting in his dismissal from Taft University. 6. The preponderance of the evidence demonstrates the Veteran has failed to progress in his VR&E program and his VR&E case was properly discontinued. There are no mitigating circumstances that would allow the Veteran to remain in interrupted status. CONCLUSIONS OF LAW 1. The criteria for a change in the IWRP under the provisions of Chapter 31, Title 38, United States Code, are not met. 38 U.S.C. §§ 3100, 3101; 38 C.F.R. §§ 21.1, 21.53, 21.80, 21.84, 21.92, 21.94. 2. The discontinuance of VA VR&E benefits under Chapter 31, Title 38, United States Code, was proper. 38 U.S.C. §§ 3104, 3107; 38 C.F.R. §§ 21.70, 21.80, 21.86, 21.180, 21.197, 21.198. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to June 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2015 and February 2016 decisions issued by the VR &E Division of a Department of Veterans Affairs (VA) Regional Office. In June 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. In March 2018 and July 2020, the Board remanded the case for additional development and it now returns for further appellate review. Upon review, the Board finds that there has been substantial compliance with the prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a change in the Veteran's IWRP under Chapter 31, to include tutorial services and fees associated with the LSAT. The Veteran seeks to change his IWRP to include tutorial services and fees associated with the LSAT. The provisions of Chapter 31, Title 38, United States Code 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). An IWRP will be developed for each veteran eligible for rehabilitation services under Chapter 31. The plan is intended to assist in: (1) providing a structure which allows vocational rehabilitation and counseling staff to translate the findings made in the course of the initial evaluation into specific rehabilitation goals and objectives; (2) monitoring a veteran's progress in achieving the rehabilitation goals established in the plan; (3) assuring the timeliness of assistance by VA staff in providing services specified in the plan; and (4) evaluating the effectiveness of the planning and delivery of rehabilitation services by the vocational rehabilitation and counseling staff. 38 C.F.R. § 21.80. The purposes of the IWRP are to: (1) identify goals and objectives to be achieved by the veteran during the period of rehabilitation services that will lead to the point of employability; (2) plan for placement of the veteran in the occupational field for which training and other services will be provided; and (3) specify the key services needed by the veteran to achieve the goals and objectives of the plan. 38 C.F.R. § 21.84. The terms and conditions of the plan must be approved and agreed to by a counseling psychologist, a vocational rehabilitation specialist, and a veteran. A vocational rehabilitation specialist or counseling psychologist designated as case manager has the primary role in carrying out VA responsibility for implementation of the plan. A counseling psychologist has the primary responsibility for the preparation of plans. 38 C.F.R. § 21.92. A veteran, a counseling psychologist, or a vocational rehabilitation specialist may request a change in the plan at any time. 38 C.F.R. § 21.94(a). A change in the statement of a long-range goal, however, may only be made following a reevaluation of a veteran's rehabilitation program by a counseling psychologist or vocational rehabilitation counselor. A change may be made when: (1) achievement of the current goal is no longer reasonably feasible; or (2) a veteran's circumstances have changed or new information has been developed which makes rehabilitation more likely if a different long-range goal is established; and (3) a veteran fully participates and concurs in the change. 38 C.F.R. § 21.94(b). A change in intermediate objectives or services provided under the plan may be made by the case manager when such change is necessary to carry out the statement of long-range goals. 38 C.F.R. § 21.94(c). In each case in which a veteran has either an employment handicap or serious employment handicap, VA must determine the reasonable feasibility of achieving a vocational goal. 38 C.F.R. § 21.53(a). A vocational goal is defined as gainful employment consistent with a veteran's abilities, aptitudes, and interests. 38 U.S.C. § 3101(8). A vocational goal is reasonably feasible when the following criteria are met: (1) a vocational goal must be identified; (2) a veteran's physical and mental conditions must permit training to begin within a reasonable period; and (3) the veteran must possess the necessary educational skills and background to pursue the goal or will be provided services by VA to develop such necessary educational skills as part of the program. 38 C.F.R. § 21.53(d). In this case, the Veteran was found entitled to VR&E benefits in September 2010. The Veteran requested a paralegal course leading to a law degree such that he could gain financial independence and a job in federal or state office. See October 2010 Rehabilitation Needs Inventory (RNI). Following an October 2010 evaluation by a Vocational Rehabilitation Counselor (VRC), in which the VRC found the Veteran has an employment handicap and serious employment handicap, the Veteran agreed to a December 2010 IEEP. The goal of that plan was to determine the feasibility of further vocational training. The tentative training goal was paralegal, and the Veteran was approved to attend Solano Community College. Subsequently, an April 2012 IWRP was developed. The goal of this IWRP was to obtain and maintain entry level employment in the occupational goal of other occupations in law and jurisprudence. In pursuit of the program goal, the IWRP approved academic instruction at University of Phoenix, Fairfield. Following college level training at Solano Community College from 2011 to 2012, and University of Phoenix from 2012 to 2013, the Veteran's plan was changed in January 2013 to an IEEP. The program goal was the same as the April 2012 IWRP. Objective two of the IEEP included participation in the LSAT Test Prep by Princeton Review. Objective two further reflects that the Veteran was to take the LSAT by September 2013. The IEEP included test prep costs and costs associated with taking the LSAT. During the development of the January 2013 IEEP, the Veteran expressed frustration to a VR&E officer in VA's assistance with achieving his vocational goal. In January 2013, the VR&E officer sent correspondence to the Veteran indicating that law school training would be authorized provided he passed the LSAT and gained admission to a quality law school. Specifically, the officer stated that mail order and correspondence or 3rd/4th tier programs are not identified as suitable to a quality education and positive employment. In compliance with the agreed upon January 2013 plan, evidence of record indicates VA proceeded to pay the costs, totaling $2,159.00, associated with a Princeton Review LSAT prep course. See January 2013 Request for and Receipt of Supplies. In March 2013, the Veteran's enrollment in a Princeton Review course ended. The Veteran indicated that the course was dissolved after another student withdrew from the class. See March 2013 email; see also June 2016 hearing testimony at p. 7. The Veteran requested to participate in a Kaplan LSAT review course. Id. However, other evidence of record indicates that the Veteran was not passing the Princeton Review course. See, e.g., December 2015 determination letter; November 2020 Supplemental Statement of the Case (SSOC). Thereafter, the Veteran reported that he was accepted to Taft University, an unaccredited, private, and online law school in California. Nevertheless, a new IEEP was ultimately agreed upon in June 2013. The program goal remained obtaining and maintaining entry level employment in the occupational goal of other occupations in law and jurisprudence. The IEEP authorized attendance at Taft University, indicating in objective two that, in order to determine cognitive and physical stamina for law school course work, the Veteran will successfully complete one semester at Taft University. Pursuant to his IEEP, the Veteran continued coursework at Taft University. However, because Taft University is a distance learning program, the State Bar of California requires all students earning law degrees online to take the California Baby Bar Exam (First Year Law Students Examination). Upon entering the second academic year, the Veteran was informed that he must complete the Baby Bar Exam within three attempts. See February 2015 email from Taft University record department. The email specifically noted that the June 2015 examination would be the second attempt, and the October 2015 examination would be his final attempt. Thereafter, a new IWRP was developed in May 2015. This plan specifically notes under objective two that the Veteran will complete the requirements of a Juris Doctor program and successfully pass the Baby Bar Exam by 2015. The evidence of record indicates the Veteran failed the Baby Bar Exam in June 2015 and October 2015. Such outcomes constituted three failures of the examination. As a result, the Veteran contacted his VRC and requested his IWRP plan be changed to include tutorial services and fees associated with the LSAT. See December 15, 2015 email. The Veteran indicated that the LSAT late registration deadline was December 30, 2015, and administration of the test was February 8, 2016. Id. In a December 22, 2015, determination letter, the VRC denied the Veteran's request to change his IWRP. The VRC noted that VA has provided multiple services, including LSAT prep courses, Baby Bar Exam reviews, computers and related peripherals, and supplies, in support of the Veteran's pursuit of a Juris Doctor. The VRC noted that the services totaled $103,811.98. The VRC noted that VA has exhausted all resources, services, and counseling efforts to help the Veteran achieve his vocational goal. At the time, there was still no significant progress towards his vocation goal. As such, the vocational goal of lawyer, requiring a Juris Doctor, is no longer suitable and further training cannot be justified. The letter instructed the Veteran that, if he disagrees with the decision, he can request an administrative review or appeal the decision. Specifically, the letter stated that he cannot ask for an administrative review after receipt of an appeal. Subsequently, in a January 7, 2016 letter, Taft University dismissed the Veteran as a student. The Director of Student Services noted that, as of December 2015, the Veteran had not passed the First Year Law Students Examination. The letter further indicated that the Veteran was aware that failure to pass the examination within three attempts would result in dismissal from the program. In a Notice of Disagreement (VA Form 21-0958) dated January 8, 2016, and received by VA on January 20, 2016, the Veteran expressed disagreement with the denial of a change in his IWRP. The VA Form 21-0958 does not reflect a request for administrative review. In a January 25, 2016 email, the Veteran formally requested administrative review. However, such request is untimely as he previously submitted a VA Form 21-0958. At the June 2016 Board hearing, the Veteran continued to assert his entitlement to a change in his program goal, to include LSAT services following failure of the Baby Bar Exam. In September 2017, the Veteran reapplied to the VR&E program. In his September 2017 RNI, he continued to request employment as a lawyer. He was subsequently afforded a VRC evaluation on September 27, 2017. The VRC noted the Veteran continued to have an employment handicap and serious employment handicap. However, the VRC found that achievement of a vocational goal is not currently reasonably feasible as his medical condition is not stable, and his selected vocational goal is not consistent with his interest, aptitude, skills, and abilities. Based upon a review of the totality of the evidence, the Board finds that the preponderance of the evidence weighs against allowing a change in the Veteran's VR&E program and providing additional VR&E services in the form of further tutorial services and fees associated with the LSAT. In this case, VA was providing the requested assistance in regard to an LSAT course, pursuant to the January 2013 IEEP. As noted above, the Veteran then requested a change in his plan to allow him to attend Taft University, which did not require the LSAT. VA continued to support the Veteran, including books, supplies, writing workshops, and Baby Bar Exam tutoring. Nevertheless, the Veteran failed the Baby Bar Exam three times, resulting in his dismissal from Taft University. Additionally, the Veteran's VRC has indicated on several occasions that the Veteran's vocational goal of lawyer is no longer feasible. In light of the fact that he failed the Baby Bar Exam three times, the December 2015 letter noted the vocational goal of lawyer, requiring a Juris Doctorate, is no longer suitable and further training cannot be justified as all resources, services, and counseling efforts to help the Veteran achieve his vocational goal. Additionally, the September 2017 VRC evaluation reflected that the vocational goal is not currently reasonably feasible as his medical condition is not stable, and his selected vocational goal is not consistent with his interest, aptitude, skills, and abilities. Furthermore, there have been no changes in the Veteran's circumstances or development of new information that would establish rehabilitation would be more likely if the services were to be changed to include further tutorial services and fees associated with the LSAT. While the Board appreciates that the Veteran wants to optimize his employment opportunities by pursing a Juris Doctor, the purpose of VR&E services is to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the extent feasible, to become employable and to obtain and maintain suitable employment. It is imperative that the Veteran understands that the purpose of Chapter 31 VA vocational rehabilitation services is not to provide the participant with whatever level of career training he or she chooses. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment, given the nature of a veteran's particular disabilities. 38 U.S.C. § 3100; 38 C.F.R. § 21.70. The Board observes that, in light of the fact that he failed the Baby Bar Exam three times, it is unlikely that he will be able to successfully pursue an occupation as a lawyer were he to complete the LSAT, and thus such vocational goal is indeed inconsistent with his aptitude and abilities, and is not reasonably feasible. As such, a change in IWRP is not necessary to carry out the vocational goals. Upon consideration of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to a change in the IWRP, to include further tutorial services and fees associated with the LSAT. For these reasons, the appeal is denied. 2. Propriety of the discontinuance of VR&E benefits under the provisions of Chapter 31. The Veteran also challenges a February 2016 determination by the VR&E office discontinuing his vocational rehabilitation program. The vocational rehabilitation program was discontinued due to a failure to progress in a program (such as outlined in the IWRP). The Veteran's argument essentially amounts to a disagreement with his case being placed in "discontinued" status. 38 C.F.R. § 21.198. 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). 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 situations where termination of all services and benefits received under Chapter 31 is necessary, the veteran's case is assigned a "discontinued" status. 38 C.F.R. § 21.198(a). VA will discontinue a veteran's case and assign the case to discontinued status following assignment to interrupted status for a variety of reasons to include "failure to progress." 38 C.F.R. § 21.198(b)(6). Failure to progress in a program is shown where there is a continuing lack of application by the veteran unrelated to any personal or other problems, or the veteran is unable to benefit from rehabilitation services despite the best efforts of VA and the veteran. Id. In light of the evidence discussed above, the Board finds the determination to discontinue the Veteran's VR&E program based on a failure to progress was proper. In this regard, the Veteran received services under multiple rehabilitation plans, most recently a May 2015 IWRP with respect to his program goal of obtaining and maintaining entry level employment in the occupational goal of other occupations in law and jurisprudence. Further, the preponderance of the evidence establishes that the Veteran has failed to progress toward completion of his vocational goal, and VA has provided numerous services and resources to help in achieving his vocational goal. As noted above, VA approved the requested assistance in regard to an LSAT course, pursuant to the January 2013 IEEP, and after the Veteran requested a change in his plan to allow him to attend Taft University, which did not require the LSAT, VA continued to support the Veteran, including books, supplies, writing workshops, and Baby Bar Exam tutoring. Furthermore, the Veteran received proper notice regarding possible discontinuance. In January 2016, VA notified the Veteran of an intent to discontinue his vocational rehabilitation program, which it did in February 2016, because the Veteran had failed to progress in his vocational rehabilitation plan. See January 2016 VR-16 Interruption Letter; February 2016 VR-36 Discontinuance Letter. The January 2016 Interruption Letter and February 2016 Discontinuance Letter were mailed to the Veteran's address on file; neither correspondence was returned as undeliverable. The VRC was in direct contact with the Veteran on numerous occasions within the 30 days prior to closure. Finally, the Veteran received significant and measurable gain from the services he has been provided through the VR&E program, including books, supplies, writing workshops, and tutoring. Further, the Board finds there are no mitigating circumstances that would allow the Veteran to remain in interrupted status. See generally 38 C.F.R. § 21.197. Therefore, the evidence shows that the AOJ complied with the relevant rules and regulations, and there are no mitigating circumstances present to allow the Veteran to remain in interrupted status. Consequently, discontinuance of VR&E benefits under the provisions of Chapter 31 was proper, and the Veteran's appeal is denied. A. JAEGER 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.