Citation Nr: 21039788 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-11 105 DATE: July 1, 2021 ORDER The appeal of the discontinuance of Vocational Rehabilitation and Employment (VR&E) benefits under the provisions of Chapter 31, Title 38, United States Code (Chapter 31), is denied. FINDINGS OF FACT 1. The Veteran was found entitled to VR&E benefits with a serious employment handicap in April 2017, but a feasibility determination was deferred pending an extended evaluation. 2. In August 2017, a Vocational Rehabilitation Counselor (VRC) determined that the Veteran's participation in the extended evaluation would entail a work experience of 20 to 25 hours per week, during which VR&E staff would be able to monitor her progress, identify and work to overcome any barriers to her ability to work, and gather information to be able to make a feasibility determination. 3. The Veteran declined to participate in extended evaluation as developed by the VRC prior to her case being placed in "discontinued" status. 4. The necessity of an extended evaluation to determine the feasibility of the achievement of a vocational goal precludes retroactive induction in a VR&E program. CONCLUSION OF LAW 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 CONCLUSION The Veteran served on active duty from November 1984 to May 1993. This case was previously before the Board in January 2020, at which time the Board denied the claim on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Joint Motion for Remand (Joint Motion), the Veteran and the Secretary of VA (parties) determined that the Board's January 2020 decision should be vacated as the Board did not provide adequate reasons or bases for its determinations, and the matter was remanded for readjudication consistent with the Joint Motion. The Board shall address the Joint Motion below. The Board notes that in June 2020, VA changed the name of the Vocational Rehabilitation and Employment program to the Veteran Readiness and Employment program. However, as the matter on appeal pertains as to whether the discontinuation of the VR&E program was proper during a timeframe prior to June 2020, the Board has not recharacterized the issue. Thus, the matter is characterized as it appears on the first page of this decision. In September 2019, the Veteran testified at a Board hearing via videoconference before the undersigned. A transcript of the hearing is of record. The Veteran contends that the discontinuation of her participation in the VR&E program was not proper as her vocational goal was feasible. She also asserts that she should be awarded retroactive induction into the VR&E program to help her pay for the education. The intended purpose of VA vocational rehabilitation services is to enable service-connected disabled veterans to achieve maximum independence in daily living and, to the maximum extent feasible, become employable and obtain and maintain suitable employment. 38 U.S.C. § 3100; 38 C.F.R. § 21.70. 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. In each case in which a veteran has either an employment handicap or serious employment handicap, the 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), 3106(a); 38 C.F.R. §§ 21.50, 21.53. 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) a 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). The phrase "achievement of a vocational goal is reasonably feasible" means the effects of a veteran's disabilities (service and nonservice-connected), when considered in relation to his circumstances, do not prevent him or her from successfully pursuing a vocational rehabilitation program and successfully becoming gainfully employed in an occupation consistent with a veteran's abilities, aptitudes, and interests. 38 C.F.R. § 21.35(h). In contrast, the phrase "achievement of a vocational goal is not currently reasonably feasible" means the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances at the time of the determination: (i) prevent the veteran from successfully achieving a vocational goal at that time; or, (ii) are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. Id. A VA counseling psychologist (CP) or a VRC determines whether achievement of a vocational goal is reasonably feasible. 38 C.F.R. § 21.53(g). VA must determine the feasibility of achieving the vocational goal sought in each case in which a veteran has a serious employment handicap. 38 C.F.R. § 21.53(a). In making the determination as to the feasibility of a vocational goal, VA must offer the veteran an initial evaluation under the provisions of 38 C.F.R. § 21.50. However, where such determination cannot be made on the basis of information developed during the initial evaluation, an extended evaluation is required. See 38 C.F.R. § 21.57. The determination of the reasonable feasibility of a veteran achieving a vocational goal must be made at the earliest time possible during an extended evaluation, but not later than the end of the period of evaluation. Any reasonable doubt as to feasibility will be resolved in the veteran's favor. 38 C.F.R. § 21.57(c)(1). A CP or VRC are responsible for determining the need for a period of extended evaluation. 38 C.F.R. § 21.57(d). Additionally, a variety of situations may arise in the course of a rehabilitation program in which a temporary suspension of the program is warranted, and the veteran's case is thereby assigned an "interrupted" status. 38 C.F.R. § 21.197(a). In each case, VA must first determine that the veteran will be able to return to a rehabilitation program or a program of employment services following resolution of the situation causing the interruption. Id. Assignment to "interrupted" status is made when VA determines that a suspension of services being provided is necessary; and either a definite date for resumption of the program is established or 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). 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). It is the responsibility of VA to ensure it has made reasonable efforts to inform the veteran and assure understanding of the services and assistance that may be provided under Chapter 31 to help him or her maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process, especially counseling services; other services VR&E staff can assist in securing through non-VA programs; and the specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation. 38 C.F.R. § 21.362(b). One of the reasons an "extended evaluation" status will be terminated is if, following notification of necessary arrangements to begin an extended evaluation, the date the extended evaluation begins, and instructions as to the next steps to be taken; (i) the veteran fails to report and does not respond to follow up contact by the case manager, or the veteran declines or refuses to enter the program; (ii) Declines or refuses to enter the program; or (iii) Defers induction for a period exceeding 30 days beyond the scheduled date of induction except where the deferment is due to illness or other sufficient reason." 38 C.F.R. § 21.188(d)(1). Following a thorough review of the evidence of record, the Board finds that the discontinuance of VR&E benefits under Chapter 31 was proper. The reasons follow. Initially, the Board notes that the Veteran's basic eligibility for vocational rehabilitation benefits is not at issue as she has service-connected disabilities compensable at 20 percent or more and is in need of rehabilitation to overcome an employment handicap. Specifically, the record shows that service connection has been established for intervertebral disc syndrome (IVDS) of the cervical spine; migraines; a psychiatric disability that includes posttraumatic stress disorder (PTSD), undifferentiated somatoform disorder, and major depressive disorder (MDD); peroneal nerve palsy; surgical scars; and, cystic acne. The combined disability rating for all of the Veteran's service-connected disabilities has been 90 percent since April 22, 2016. Moreover, the April 2017 Counseling Record-Narrative Report (Counseling Record) reflects that the Veteran was found to have a serious employment handicap by a VRC. She therefore meets the basic eligibility requirements for vocational rehabilitation benefits. This April 2017 Counseling Record also reflects that the Veteran reported that she had completed an Associate of Arts (AA) degree in Liberal Fine Arts and an AA in English in July 2016. She was enrolled in a Bachelor of Arts (BA) degree program in English with an expected graduation date of May 2017. The report showed that she had a pattern of interest in writing and her resume, which was associated with the claims file in July 2017, indicated that she was a free-lance writer. The Veteran was most interested in Poetic Therapy and said that she would have more credibility in her field if she had a Master's degree. The state vocational rehabilitation program where the Veteran resides had approved her Master's program. The Veteran stated that she was prepared to attend a Master's program and could not work and go to school at the same time. She agreed to meet with the Disabled Veterans' Outreach Program (DVOP) and look into the labor market for self-employment, if she chose that for herself. She understood that VA's VR&E program was not supporting the goal of a Master's degree, and that determining a suitable vocational goal was the next step. The April 2017 Counseling Record further reflects that the Veteran had not had consistent full-time employment since 1993. Her health had deteriorated in the past few years and it was not certain what work she could perform that was within her limits or if work was precluded based on her service-connected disabilities. The VRC recommended that VA and the Veteran pursue a work evaluation to determine accommodations and work tolerance prior to providing any further services. Feasibility to achieve a vocational goal was undetermined at that time. The April 2017 Counseling Record also discussed the impact of an October 2016 letter from the Veteran's VA physician, "Dr. T.W," in which this doctor of osteopathy indicated that the Veteran was unable to work more than 10 hours per week on a consistent basis due to her medical conditions. The physician noted that the Veteran suffered from cervical spine arthritis and hand numbness and the physician was "not sure what sort of recovery to expect; there may be none, in which case this continues to affect her engagement in gainful employment." The physician stated that a certificate in Poetic Therapy coupled with a graduate degree would allow her to pursue gainful employment within the limits imposed by her medical condition. The Board notes that this doctor authored similar letters discussing the impact of the Veteran's disabilities on her ability to work 10 to 15 hours per week on a consistent basis in January 2014 and April 2014. Based on the October 2016 VA physician's letter, the VRC noted in the April 2017 Counseling Record that additional evaluation of the Veteran's abilities was necessary in order to assess the 10 hours per week limitation and in what capacity the Veteran was more limited or less limited. In an April 2017 letter, the Veteran was notified that she met the qualifying criteria for VR&E services. The letter stated that VA may need additional information to determine if it is reasonably possible of the Veteran to work and what the specific vocational goal should be. The letter stated that if the VRC was not sure if she can work, even as a result of VR&E services, the VRC may ask her to participate in a series of activities to answer that question. A separate April 2017 letter notified the Veteran that the VRC had arranged an appointment to meet with her to continue her evaluation for VR&E benefits; however, the record shows that the Veteran did not show up for this appointment. In correspondence between the Veteran and the VRC, including in a May 2017 electronic mail (email), the Veteran stated that she understood that she was eligible for VA Vocational Rehabilitation, but that the goal was employment. She understood that VR&E could not support graduate school for her, but that she and the VRC discussed a potential opportunity to support her by creating a business plan and moving toward employment. In the email, the Veteran stated that she believed that creating a business plan prior to obtaining the skill sets that she needed for employment was premature. She also stated that she did not think she could realistically attend graduate school and secure work at the same time. In a letter, dated May 25, 2017, the VRC notified the Veteran that her VR&E program had been "interrupted" effective the date of the letter because she had elected to return to school on her own. She was notified that if she did not contact the VRC within 30 days from the date of the letter requesting that her case remain open, VA may discontinue the program. In an August 2017 letter, the VRC notified the Veteran that VA had stopped action on her VR&E case effective the date of the letter because it was uncertain whether achievement of a vocational rehabilitation goal was feasible and she was undecided about participated in further evaluation. The VRC noted that as discussed at the August 11, 2017, meeting, participating in the evaluation would entail a work experience of 20 to 25 hours per week during which time VR&E staff would monitor her progress, identify and work to overcome any barriers to her ability to work, and gather information to be able to make a feasibility determination. The letter stated that if the Veteran did not contact VR&E within 30 days to move forward with the evaluation process, VA would discontinue her case. In a subsequent August 2017 letter, the Veteran requested an administrative review. She also sought retroactive induction for financial support during her time at school between the Summer of 2012 and the Spring of 2017. In a letter dated September 11, 2017, the VRC notified the Veteran that her VR&E program was being discontinued the date of the letter. In the September 2017 decision on appeal, the Veteran was informed that an administrative review had been completed and her case remained discontinued at that time. The September 2017 administrative review shows that the VR&E Officer (VREO) agreed that the VRC's initial assessment that feasibility of achievement of a vocational goal cannot be determined was correct. The number and severity of the Veteran's disabilities, her unstable work history and long periods of unemployment, and her ongoing receipt of Social Security disability benefits due to her inability to work were noted to raise doubt as to whether it is currently reasonably feasible for her to achieve a vocational goal. The VREO concurred with the VRC's determination that in order to move forward with VR&E services, the Veteran would need to participate in a work evaluation to assess feasibility. The September 2017 decision noted that the Veteran continued to decline to participate in such an evaluation. In October 2017, the Veteran filed a notice of disagreement (NOD) over the September 2017 denial of services. She stated that she believed that she should be awarded retroactive induction to the VR&E program under 38 C.F.R. § 21.282 to help her pay for the education that she has already paid for and attained. She stated that she believed that she was a "feasible" candidate even considering her limited scope of work. The Board notes that in order to qualify for retroactive induction into a VR&E program, the Veteran would have to meet certain criteria. Specifically, retroactive induction into a rehabilitation program may be authorized for a past period under a claim for vocational rehabilitation benefits when all of the following conditions are met: (1) The past period is within (i) A period under §21.40(c) during which a servicemember was awaiting discharge for disability; or (ii) A period of eligibility under §§21.41 through 21.44 or 38 U.S.C. § 3103. (2) The individual was entitled to disability compensation under 38 U.S.C. Chapter 11 during the period or would likely have been entitled to that compensation but for active-duty service. (3) The individual met the criteria for entitlement to vocational rehabilitation benefits and services under 38 U.S.C. Chapter 31 in effect during the period. (4) VA determines that the individual's training and other rehabilitation services received during the period were reasonably needed to achieve the goals and objectives identified for the individual and may be included in the plan developed for the individual (see 38 C.F.R. §§ 21.80 through 21.88, and §§21.92 through 21.96). (5) VA has recouped any benefits that it paid the individual for education or training pursued under any VA education program during any portion of the period. (6) An initial evaluation was completed under 38 C.F.R. § 21.50. (7) A period of extended evaluation is not needed to be able to determine the reasonable feasibility of the achievement of a vocational goal. See 38 C.F.R. § 21.282(c). The effective date for retroactive induction is the date when all the entitlement conditions set forth above are met. 38 C.F.R. § 21.282(d). The record reflects that in the February 2018 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) confirmed the denial of her claim as she declined the evaluation to determine feasibility of her vocational goal. In the February 2018 Substantive Appeal to the Board (VA Form 9), the Veteran stated that the only feasibility evaluation offered to her was one that would require her to work a 20-hour workweek and she was not medically able to do so. She stated that at the August 2017 meeting, she was told that she needed to achieve a feasible vocational goal and work at least 20 hours per week to prove she was employable. She stated that she did not refuse or decline this evaluation, but was told that this was the only evaluation available to her. She further stated that she believed that the requirement for her to participate in the extended evaluation that included a work experience of 20 hours per week, which was beyond her ability to do as she was able to work approximately 10 hours per week, was established because the VRC did not want her to be able to benefit from an retroactive induction into a VR&E program. Similarly, at the September 2019 Board hearing, the Veteran testified that she was physically unable to work 20 hours, and was told that she needed to work 20 hours to prove her employability. She indicated she believes the requirement that she participate in the extended evaluation for 20 hours a week was arbitrary and not found in VA regulations. Given this evidence, the Board finds that discontinuance of the Veteran's VR&E benefits under Chapter 31 was proper. The Board has reviewed the assessments made by the VRC and VREO that the feasibility of achieving the Veteran's vocational goal could not be determined at the time of the initial evaluation and finds that their determinations are supported by the evidence of record. As previously noted in its January 2020 decision, the Veteran has many service- connected disabilities, which are rated as 90 percent disabling. As Dr. T.W noted in the October 2016 letter, the prospect of a recovery of the Veteran's cervical spine arthritis and hand numbness symptoms was uncertain or not possible, which would affect her ability to be gainfully employed at that time and in the future. The Board acknowledges the Veteran's assertion that her vocational goal is feasible because she was working as a part-time, hourly writing instructor. However, in the September 2017 administrative review, the VREO found that this employment was limited in scope and duration with no set schedule or permanence. Social Security Administration (SSA) records also showed that she was receiving Social Security disability benefits due to her disorders of muscle ligament and fascia and migraines, and such records indicated that she had not held a full-time position since 1993. The overall evidence of record supports the finding that feasibility of a vocational goal could not be determined during the Veteran's April 2017 initial evaluation. Consistent with VA regulations, when the feasibility of the Veteran's vocational goal could not be determined during the initial evaluation because she has a serious employment handicap, an extended evaluation was required. See 38 C.F.R. §§ 21.57, 21.184, 21.188. Thus, in August 2017, the VRC determined that the Veteran's participation in the extended evaluation would entail a work experience of 20 to 25 hours per week, during which VR&E staff would be able to monitor her progress, identify and work to overcome any barriers to her ability to work, and gather information to be able to make a feasibility determination. In numerous statements throughout the appeal, including in the February 2018 VA Form 9, the September 2019 Board hearing testimony, and an October 2020 statement, the Veteran asserts that she did not decline to participate in all extended evaluations. Rather, she declined to participate in this extended evaluation offered by the VRC because it would require her to work more than 10 hours a week and she was not physically able to do so. Furthermore, in the October 2020 Joint Motion, the parties noted that the Board failed to address the Veteran's assertions that she was unable to physically work more than 10 hours a week and that the requirement to participate in an extended evaluation that lasted 20 to 25 hours per week was arbitrary where the regulations do not indicate such a requirement when it denied the claim on appeal in January 2020. To the extent that the Veteran contends that she did not decline to participate in the extended evaluation, but was precluded from participating in this evaluation due to not being able to physically work more than 10 hours per week, the Board notes that the VRC is the responsible party for determining when and in what context the extended evaluation should occur. As noted above, a CP or VRC are responsible for determining the need for a period of extended evaluation. 38 C.F.R. § 21.57(d). The Board considers it significant that the VRC, who has extensive specialized training in vocational rehabilitation, determined that the scope of the Veteran's work would be evaluated based on the 20 to 25 hour per week extended evaluation. As discussed by the Veteran in the February 2018 VA Form 9, the VRC knew the Veteran's physical and mental limitations, to include the 10-hour per week on a consistent basis limitation mentioned in the October 2016 letter from Dr. T.W. In fact, the VRC cited to this letter in the April 2017 Counseling Record. Nonetheless, the VRC determined that the Veteran's participation in the extended evaluation would entail a work experience of 20 to 25 hours per week, which the Board affords high probative value due to the VRC's review of the Veteran's VR&E and medical treatment records, and assessments of her aptitude, abilities, and interests, as well as the VRC's reliance on her own expertise, knowledge, and training. Furthermore, the Board notes that the VREO concurred in the VRC's determination that the Veteran's extended evaluation should entail a work experience of 20 to 25 hours per week. The Veteran also contends that the requirement to participate in an extended evaluation that lasted 20 to 25 hours per week was arbitrary and that VA regulations do not indicate such a requirement. In the October 2020 statement, she explained in detail that VA regulations allow for a rate of pursuit at a quarter, half, three-quarter, and full-time basis for an extended evaluation, and that if she were offered the extended evaluation at the quarter-time, which would entail less than 10 hours per week, she would have participated in the extended evaluation. See 38 C.F.R. §§ 21.79, 21.310. Moreover, the October 2020 Joint Motion noted that the Board did not explain in its prior decision how it weighed the Veteran's VA primary physician's opinion that she was unable to work more than 10 hours in its determination that the discontinuance was supported by the evidence. While the Board acknowledges that an extended evaluation at the quarter-time rate was a possibility under the regulations, the Board affords the VRC's determination that the Veteran should participate in such an evaluation at the 20 to 25 hours per week rate great probative value. The VRC is an individual with extensive specialized training in vocational rehabilitation, to include determining whether a vocational goal was feasible based on the Veteran's unique set of circumstances. Similarly, in weighing the October 2016 letter from Dr. T.W. against the overall evidence of record, including the VRC's determination that the Veteran should participate in the extended evaluation as was fashioned by the VRC, and supported by the VREO, the Board determines that the VRC's determination that the Veteran was able to participate in such an extended evaluation is of greater probative weight due to the VRC's training, knowledge, experience, and review of the Veteran's medical and vocational records. Overall, the record shows that the VRC, as well as the VREO, properly discharged their duties both prior and subsequent to placing the Veteran's case in "interrupted" status. These officials discussed the situation with the Veteran on several occasions, each time informing her of what was required, specifically the need and the scope of an extended evaluation. They made reasonable efforts to inform the Veteran of the requirements and her responsibilities in the process of developing and implementing a program of rehabilitation services. The cooperation of the Veteran was necessary to determine the feasibility of employment. As feasibility could not be determined during the initial evaluation, she needed to attend an extended evaluation as fashioned by the VRC. The April 2017 Counseling Report specifically noted that additional evaluation of abilities was necessary to assess the limitation of 10 hours per week and in what capacity the Veteran was more or less limited. The Board has explained above its reasons and bases for determining that the discontinuance of the VR&E benefits under Chapter 31 was proper in the Veteran's case. Nonetheless, the Board notes that even if the evidence showed that discontinuance was not proper, and that the Veteran should have been granted and offered an extended evaluation at the quarter-time or approximately 10 hours per week rate, the Veteran's stated goal of receiving VR&E benefits to pay for school through a retroactive induction could not be granted. In order for the Veteran to qualify for a retroactive induction, she would have to meet certain criteria, which appear to be exacting, and the record shows that she does not meet at least one of the criteria. Specifically, the necessity of an extended evaluation to determine the feasibility of the achievement of a vocational goal precludes retroactive induction in a VR&E program. See 38 C.F.R. § 21.282(c)(7). In sum, based on a thorough review of the evidence of record, the Board finds that an extended evaluation was required to determine whether employment was feasible. The Veteran did not participate in such an evaluation as determined and prescribed by the VRC. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application, and the Board finds that moving the Veteran's case to "interrupted" status and discontinuing the case was proper. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.