Citation Nr: 22014486 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-06 235 DATE: March 14, 2022 ORDER Discontinuance of Vocational Rehabilitation and Employment (VR&E) services based on a negative feasibility determination was proper; the appeal is denied. FINDINGS OF FACT 1. The Veteran was found entitled to VR&E benefits with a serious employment handicap in October 2014, but a feasibility determination was deferred pending an extended evaluation. 2. In December 2014, February 2015, and April 2015, the Veteran unsuccessfully participated in an extended evaluation, including at several different worksites and in various work capacities. The goal of the extended evaluation was to allow VR&E staff to monitor his progress, identify and work to overcome any barriers to his ability to work, and gather information to be able to make a feasibility determination. 3. As determined by a Vocational Rehabilitation Counselor (VRC) in May 2015, a vocational goal was not reasonably feasible due to the Veteran's inability to successfully complete a period of work adjustment. CONCLUSION OF LAW The discontinuance of VR&E services based on a negative feasibility determination was proper. 38 U.S.C. §§ 3101, 3104, 3107; 38 C.F.R. §§ 21.35(g), (h), 21.40, 21.53, 21.57, 21.70, 21.84, 21.86, 21.180, 21.198, 21.362, 21.364. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1979 to September 1982 and from February 1997 to August 1997. This case was previously before the Board in October 2019, 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 a July 2021 Memorandum Decision, the Court vacated the Board's October 2019 decision and remanded the case for further action consistent with its decision. In particular, the Court determined that the Board's decision should be vacated, as the Board did not provide an adequate statement of reasons or bases for determining that the discontinuance of VR&E services was proper. The Board shall address the findings within the Memorandum Decision 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. The Veteran contends that the discontinuation of his participation in the VR&E program, which occurred in May 2015, was not proper, as his vocational goal of being a hotel event planner was feasible. Alternatively, as noted in the January 2022 statement by his representative, he asserts that since VA determined that his stated vocational goal of being an event planner was not feasible in May 2015, he was entitled to independent living services and assistance under 38 U.S.C. Chapter 31 (Chapter 31) due to his service-connected and nonservice-connected disabilities, which constituted a serious employment handicap. 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, 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)(2). 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. 38 C.F.R. § 21.35(h)(3). 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). A veteran's case will be discontinued and assigned to discontinued status when the veteran declines to initiate or continue the rehabilitation process and does not furnish an acceptable reason for his or her failure to do so following the assignment to interrupted status. 38 C.F.R. § 21.198(b)(1). A veteran's case will be discontinued and assigned to discontinued status when his or her conduct or cooperation becomes unsatisfactory. 38 C.F.R. § 21.198(b)(2). 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). The Secretary may conduct programs of independent living services for severely handicapped persons. 38 U.S.C. § 3120(a). The Secretary may also provide a program of independent living services and assistance under this section only to a veteran who has a serious employment handicap resulting in substantial part from a service-connected disability, and it has been determined that the achievement of a vocational goal is not currently feasible. 38 U.S.C. § 3120(b). However, regardless of whether the veteran has a serious employment handicap, entitlement to independent living services is precluded if the veteran does not have a service-connected disability rated at 20 percent or more. See 38 U.S.C. § 3102(1)(A)(i). The purpose of independent living services is to assist eligible veterans whose ability to function independently in family, community, or employment, is so limited by the severity of disability (service and non-service connected) that vocational or rehabilitation services need to be appreciably more extensive than for less disabled veterans. 38 C.F.R. § 21.160(a). The term independence in daily living means the ability of a veteran, without the services of others or with a reduced level of the services of others to live and function within the veteran's family or community. 38 C.F.R. § 21.160(b). Independent living services may be furnished: (1) As part of a program to achieve rehabilitation to the point of employability; (2) As part of an extended evaluation to determine the current reasonable feasibility of achieving a vocational goal; (3) Incidental to a program of employment services; or (4) As a program of rehabilitation services for eligible veterans for whom achievement of a vocational goal is not currently reasonably feasible. This program of rehabilitation services may be furnished to help the veteran: (i) Function more independently in the family and community without the assistance of others or a reduced level of the assistance of others; (ii) Become reasonably feasible for a vocational rehabilitation program; or (iii) Become reasonably feasible for extended evaluation. 38 C.F.R. § 21.160(c). The services which may be authorized as part of an Individualized Independent Living Plan (IILP) include: (1) any appropriate service which may be authorized for a vocational rehabilitation program as that term is defined in § 21.35(i) except for a course of educational training as described in § 21.120; and (2) independent living services offered by approved independent living centers and programs which are determined to be necessary to carry out the Veteran's plan including: (i) evaluation of independent living potential; (ii) training in independent living skills; (iii) attendant care; (iv) health maintenance programs; and (v) identifying appropriate housing accommodations. See 38 C.F.R. § 21.160(d). A program of independent living services and assistance is approved when: (1) VA determines that achievement of a vocational goal is not currently reasonably feasible; (2) VA determines that the Veteran's independence in daily living can be improved, and the gains made can reasonably be expected to continue following completion of the program; (3) all steps required by §§ 21.90 and 21.92 of this part for the development and preparation of an IILP have been completed; and (4) the VR&E officer concurs in the IILP. See 38 C.F.R. § 21.162(a). According to VA's General Counsel, VA has both the authority and the responsibility to provide all services and assistance deemed necessary on the facts of a particular case to enable an eligible veteran participating in an independent living program to live and function independently in his family and community without, or with a reduced level of, services from others. VAOPGCPREC 6-2001. It was further noted that the operative word as to this matter was "necessary," and independent living services (to include services that may have a recreational component) provided to the veteran must be "vital" to achieving the independent living program goal, not merely desirable or helpful. Id. Following a thorough review of the evidence of record, the Board finds that the discontinuance of VR&E services in May 2015 under Chapter 31 was proper, and that the Veteran did not qualify for entitlement to a program of independent living services at that time. The reasons follow. Initially, the Board notes that the Veteran's basic eligibility for vocational rehabilitation benefits is not at issue as he had service-connected disabilities compensable at 10 percent at the time that he applied for VR&E services in October 2014, and he was in need of rehabilitation to overcome a serious employment handicap. Specifically, the Veteran's left knee patellofemoral syndrome with chondromalacia and degenerative joint disease (DJD) of the patella femoral joint was rated as 10 percent disabling, and his right knee patellofemoral pain was rated as noncompensable (zero percent) in May 2015. Furthermore, at that time, the Veteran had a nonservice-connected psychiatric disability and additional non-service connected physical disabilities. The Board notes, however, that service connection has been established for these disabilities since the time that VR&E services were discontinued in May 2015. Specifically, the record shows that the Veteran was granted service connection for: posttraumatic stress disorder (PTSD) with unspecified bipolar and related disorder since December 30, 2019, rated as 50 percent disabling, and as 70 percent disabling since October 7, 2021; a left shoulder disability, rated as 20 percent disabling since October 7, 2021; a right shoulder disability, rated as 20 percent disabling since February 1, 2022; patellofemoral pain syndrome of the right knee, rated as 10 percent disabling since August 14, 2015; a left shoulder scar, rated as noncompensable since October 7, 2021; and, a right shoulder scar, rated as noncompensable since February 1, 2022. Currently, the combined disability rating for the Veteran's service-connected disabilities is 90 percent since February 1, 2022. Moreover, the Board notes that a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) has been assigned since October 7, 2021. Historically, the record shows that the Veteran has attempted to receive VR&E benefits on several occasions. For example, a VR&E program was discontinued in July 2014 because the Veteran did not complete the next steps assigned by the VRC for further development of rehabilitation services after an extended evaluation, to include a work adjustment program, which was prescribed by the VRC. The VRC determined that an extended evaluation was necessary, as the feasibility of the Veteran's stated vocational goal could not be ascertained during the initial evaluation. The Veteran filed the current claim of entitlement to VR&E program services in October 2014. In a statement from that month, the Veteran noted that he had researched careers as a social worker, general manager in hospitality management, and event planner, and wrote that he believed that event planning was the best overall fit for him. Following an initial evaluation, the VRC determined that feasibility for achievement of a vocational goal was unclear due to the Veteran's inconsistent work history and the severity of his physical and mental disorders. Specifically, the initial evaluation showed that the Veteran had completed 48 credit hours toward a degree in event planning. However, he had a serious employment handicap and was entitled to level 3 services due to severe impairments due to medical/psychiatric conditions, i.e., the Veteran required an intensive level of services, which required frequent contact due to multiple rehabilitation needs. The VRC and the Veteran agreed that the Veteran would participate in services to evaluate his ability to work at a competitive level. Thus, the Veteran participated in a community-based work adjustment program with a nonprofit organization in December 2014; however, the following month, this program was interrupted after the VRC received multiple reports of behaviors that were not conducive to the workplace. Specifically, the weekly reports from this organization showed the Veteran's pattern of tardiness, lack of motivation, and making inappropriate comments to the case manager. The record shows that when the VRC discussed the reasons why the program was interrupted with the Veteran, he wrote the Veteran demonstrated an unwillingness to accept feedback from the VRC. In response to these circumstances, the VRC initially made a negative feasibility determination but later rescinded the determination to provide the Veteran with another opportunity to demonstrate feasibility to achieve a vocational goal. Accordingly, a second worksite was developed for the Veteran with the intention that his behavior would improve and that there would be no recurrences of the behaviors that were not conducive to the workplace. In February 2015, the Veteran interviewed with a human resources (HR) director at a hotel, and the interview went well. However, the HR director stated that the Veteran would not be able to interact directly with guests because he had missing teeth. The HR director stated her willingness to allow the Veteran to perform kitchen preparation work, set-up for banquets, and shine glasses for weddings and other duties associated with banquet/wedding set-up; however, the VRC determined that kitchen assistance and banquet/wedding set-up would likely aggravate the service-connected knee disabilities, as the Veteran would be required to stand more than 30 minutes at a time. While it was alternatively suggested by the job coach that the Veteran work with the hotel event planner and to help plan activities for seniors, working in this setting was not approved at this job site because the HR director had indicated that the Veteran's appearance (i.e., missing teeth) did not provide for direct interaction with guests. Based on these developments, the Veteran was provided with another worksite in April 2015. In this role, he worked in a customer service/clerical setting for a community-based work adjustment and assessment; however, approximately one month later, the case worker at the worksite terminated the Veteran from the program due to his below-average motivation and initiative, failure to maintain appropriate interpersonal behaviors, and inability to accept supervision well. Various e-mails and reports between the job coach, the VRC, and the staff at the worksite showed that the Veteran was resistant to working with a job coach and was not agreeable to her delegating duties to him, raised his voice to the job coach on several occasions, exhibited threatening behavior, and became extremely defensive and combative when receiving constructive criticism. Furthermore, it was documented that the Veteran was unwilling to discuss the circumstances and the assertions noted in the e-mails and reports from the second work adjustment assignment with the VRC; thus, the Veteran's case was interrupted. Subsequently, in May 2015, the VRC made a negative feasibility determination based on the information gathered during the extended evaluation period. The VRC explained that the Veteran had displayed a pattern of maladaptive behaviors that were not conducive to competitive employment and was unable or unwilling to accept supervision from assigned staff. In the narrative report, the VRC documented that the Veteran lacked the ability to cooperate with others, was not able to accept criticism or feedback at any level, was not able to remain professional or communicate effectively with others in a consistent manner, and was not able to show sound judgment in a consistent manner. The VRC noted that the Veteran had not given his consent for VR&E staff to work with his mental health provider, which made it difficult to distinguish between the stability of his mental health condition and difficult personality traits. The VRC wrote that, without the input from the Veteran's mental health providers, his behavior was being characterized as difficult and uncooperative. The VRC added that, given the interactions and the recent performance of the Veteran, it appeared that his mental health disorder was severe in nature and a significant barrier in his ability to work in any capacity, and concluded it was not feasible for the Veteran to benefit from a program to design to return him to gainful employment. The Veteran was notified of this negative feasibility determination and the fact that his VR&E program was interrupted by a May 2015 letter. This letter also informed the Veteran that he was not eligible for individualized independent living services because he did not have a service-connected disability rated at 20 percent or more (this was prior to the award of additional compensation benefits). In the October 2019 decision, the Board wrote that although the Veteran has asserted that his completion of 48 credit hours in event planning from a community college from August 2012 to December 2014 shows that it is feasible for him to achieve a vocational goal, it found this evidence did not sufficiently establish feasibility because it did not address the Veteran's pattern of behaviors in the workplace that was demonstrated after the Veteran completed the credit hours. The Board further noted that although the Veteran had stated his interest to work in event planning, the Veteran's appearance at the time that the feasibility determination was made, as well as his functional limitations due to service-connected disabilities, precluded event planning as a vocational goal at that time. Additionally, the Board explained that the VRC made a negative feasibility determination due a pattern of maladaptive behaviors demonstrated by the Veteran at two, different worksites during the extended evaluation period. In the July 2021 Memorandum Decision, the Court determined that the Board provided an inadequate statement of reasons or bases for its determination that the discontinuance of VR&E services was proper. The Court noted that the Veteran was attempting to pursue a vocational goal of an event planner, and that he was provided with one interview, in which the HR person opined that Veteran should not interact with guests because of his missing teeth. The Court determined that this one opinion did not answer the question of whether the Veteran's service-connected and nonservice-connected disabilities, when considered in relation to his circumstances, prevented his successful pursuit of a vocational rehabilitation program and successful employment under 38 C.F.R. § 21.35(h)(2). Additionally, the Court concluded that the Board failed to explain how the Veteran's maladaptive behavior was a reason for a negative feasibility determination given that the regulation did not mention maladaptive behavior as a factor in determining when a vocational goal is reasonably feasible. See 38 C.F.R. § 21.53(d). The Board has considered the July 2021 Memorandum Decision and its reasons for finding that the Board provided inadequate reasons and bases for its determination that the discontinuance of VR&E services was proper. The evidence of record does not show that the VRC's May 2015 negative feasibility determination was based solely on the opinion of one HR person, who noted that the Veteran should not interact with guests due to his appearance. Rather, the VRC made a negative feasibility determination due a pattern of behaviors demonstrated by the Veteran at the two, other worksites during the extended evaluation period. Specifically, the Veteran's extended evaluation at the first worksite was interrupted in January 2015 after the VRC received multiple weekly reports of behaviors that were not conducive to the workplace. Likewise, the Veteran's program at the worksite in April 2015 was terminated due to such circumstances as his below-average motivation and initiative, failure to maintain appropriate interpersonal behaviors, and inability to accept supervision well. The Board affords the VRC's determination 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. The VRC determined that the Veteran's behavior at the worksites, which were characterized as maladaptive by the VRC, showed that he was not able to successfully complete a period of work adjustment. In other words, it was not the Board who determined that the Veteran exhibited maladaptive behavior. The Board has also considered the Court's requirement that the Board must explain how the Veteran's maladaptive behavior was a reason for a negative feasibility determination given that 38 C.F.R. § 21.53(d) does not mention maladaptive behavior as a factor in determining when a vocational goal is reasonably feasible. To that end, the Board notes that this regulation requires that the Veteran's physical and mental conditions permit training to begin within a reasonable period. See 38 C.F.R. § 21.53(d)(2). The record shows that the VRC concluded that the Veteran exhibited maladaptive, difficult, and uncooperative behavior; however, as noted in the May 2015 determination, the VRC made this conclusion because the Veteran had not given his consent for VR&E staff to work with his mental health provider, which made it difficult to distinguish between the stability of the Veteran's mental health condition and difficult personality traits. It is reasonable to conclude that the Veteran's maladaptive behavior was a symptom of his mental health condition. The Board's conclusion is supported by the record, which shows that the Veteran had symptoms of, and treatment for, a mental health disorder at the time of the May 2015 determination. In fact, the VRC noted such a mental disorder in the October 2014 initial evaluation. The Board further notes that service connection for a psychiatric disability, namely, PTSD with unspecified bipolar and related disorder was granted after May 2015 and that this disability is currently rated as 70 percent disabling. Thus, the Board concludes that the Veteran's maladaptive behavior was a symptom of his mental condition, which did not permit training to begin within a reasonable period, as the Veteran was unable to successfully complete the extended evaluation, to include a period of work adjustment. Overall, the Veteran has not presented evidence to show that, contrary to the VRC's determination, achievement of a vocational goal was reasonably feasible at that time. As noted above, the VRC made the negative feasibility determination based on feedback provided from community-based work adjustment site managers, a job coach, and the VRC's own interactions with the Veteran when attempting to discuss the reasons for his termination from worksites. Furthermore, the VRC determined that the Veteran's VR&E program should be discontinued, in part, because the Veteran declined to give his consent for VR&E staff to work with his mental health provider and had demonstrated behaviors that were difficult and uncooperative. This determination is supported by VA regulations regarding discontinuance of a program when a veteran's conduct or cooperation becomes unsatisfactory. 38 C.F.R. § 21.198(b)(2). The Board finds that the description provided by the VRC as to the behavior exhibited by the Veteran falls constitutes unsatisfactory conduct. Accordingly, the Board finds that discontinuance of VR&E services based on the negative feasibility determination was proper in May 2015, and the appeal is denied. Regarding the Veteran's assertion that he was entitled to independent living services and assistance under Chapter 31 in May 2015, the Board determines that this entitlement is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Regardless of whether the Veteran had a serious employment handicap, entitlement to independent living services was precluded because the Veteran, at that time, did not have a service-connected disability rated at 20 percent or more in May 2015. See 38 U.S.C. § 3102(1)(A)(i). The Veteran's only service-connected disabilities at the time were for his left and right knee disabilities, and the combined disability rating was 10 percent in May 2015. Therefore, as a matter of law, the Veteran was not entitled to a program of independent living services and assistance under Chapter 31 at that time. A. P. SIMPSON 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.