BVA9503191 DOCKET NO. 89-14 177 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. (The issue of whether the veteran's countable income is excessive for receipt of nonservice-connected pension benefits is the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from March 1968 to March 1971. This matter came to the Board of Veterans' Appeals (Board) originally on appeal from an April 1988 determination by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA), denying the veteran's claim seeking entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. He was notified of this determination in June 1988 and filed a notice of disagreement that same month. In October 1990, the Board remanded the case to the RO for additional development of the record. The case is once again before Board for appellate review. By letter mailed to the veteran in November 1994, he was advised that the tape of his hearing before the Board in August 1990 had been misplaced and that he was entitled to an additional hearing. However, the letter was returned because the veteran was no longer residing at the address of record. A Report of Contact dated December 24, 1994, reflects that the RO was contacted by telephone in order to obtain the veteran's current address. At that time, the RO reported that there was no current address on record for the veteran. The Board will therefore proceed with appellate consideration of the veteran's appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially contend that the attainment of a vocational goal by the veteran is feasible, and that he should, therefore, be entitled to vocational rehabilitation training under Chapter 31, Title 38, United States Code. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim seeking entitlement to vocational rehabilitation training under Chapter 31, Title 38, United States Code. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's vocational rehabilitation counselor and a vocational rehabilitation panel have concluded that due to the veteran's nonservice-connected psychiatric disorder and his failure to cooperate with medical requirements at the VA Medical Center (VAMC), achievement of a vocational goal by the veteran was not reasonably feasible. 3. Medical evidence in the veteran's counseling file overwhelmingly reflects that the symptomatology due to his psychiatric disability makes achieving a vocational goal infeasible at this time. CONCLUSION OF LAW Inasmuch as the attainment of a vocational goal is infeasible, beyond any reasonable doubt, vocational rehabilitation training under Chapter 31, Title 38, United States Code, is not warranted. 38 U.S.C.A. §§ 3100, 3101, 3106, 5107 (West 1991); 38 C.F.R. § 21.53 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION We note that we have found that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. Additionally, we find that the RO has obtained all relevant evidence in regard to his claim and that no further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a). The VA shall determine the reasonable feasibility of achieving a vocational goal in each case in which a veteran has either an employment handicap or a serious employment handicap. The term "vocational goal" means a gainful employment status consistent with the veteran's abilities, aptitudes and interests. 38 U.S.C.A. §§ 3101, 3106 (West 1991), 38 C.F.R. § 21.53 (1993). As pertinent to the present appeal, the legal criteria governing the determination of feasibility for the attainment of a vocational goal by a veteran is predicated on the veteran's physical and mental disabilities permitting training for a goal to begin within a reasonable period of time. Achievement of a vocational goal is reasonably feasible for a veteran when vocational goals have been met and a veteran either possesses or will be provided services to develop the necessary educational skills and a background to pursue vocational goals. 38 C.F.R. § 21.53. VA is not required to provide rehabilitation services when the achievement of a vocational goal is not found feasible after compelling evidence establishes that the achievement of a vocational goal is not currently reasonably feasible beyond any reasonable doubt and the vocational rehabilitation panel has considered the case. 38 C.F.R. § 21.53(e)(2). Review of the evidentiary record reflects that the veteran has established service connection for residuals of dislocation of the left shoulder disorder, evaluated as 10 percent disabling. As well, he has nonservice-connected disabilities that include low back strain, schizophrenia and pes planus. Pursuant to a May 1987 claim for Chapter 31 vocational rehabilitation training, the veteran initially met with a VA counseling psychologist in July 1987. At that time, the veteran was determined to be eligible for Chapter 31 vocational rehabilitation benefits. The determination of feasibility was deferred pending further receipt of the veteran's VA medical records pertaining to treatment received by him for his psychiatric disability. In September 1987, following a review of the veteran's medical records from 1984 through 1986, his counseling psychologist concluded that the veteran's feasibility could not be determined at that time. It was pointed out that the veteran had been hospitalized on several different occasions, including a period of two years, for symptoms attributable to his chronic schizophrenia. Therefore, it was recommended that he complete at least three months of incentive therapy assignment and two months in a rehabilitation program prior to a determination of whether attainment of a vocational goal was feasible. In March 1988, the veteran was again evaluated, and the counseling psychologist again determined that he was eligible for Chapter 31 vocational rehabilitation training. However, the veteran reported that he had been asked to leave the VA Domiciliary because he refused to participate in various self- help and therapy groups. He stated that he wanted to substitute completion of a quarter at Sinclair Community College for the therapy programs. He noted that had attended college from January 4 to March 4, 1988, at which time he had to terminate his classes because of his "housing situation was unstable." The counselor noted that successful completion of a college quarter was not sufficient evidence that a vocational goal was feasible and recommended that the veteran participate in some type of volunteer assignment, as well as ongoing individual and/or group therapy. In April 1988, a vocational rehabilitation panel of the RO agreed with the counselor's assessment and concluded that due to the symptoms attributable to the veteran's psychiatric disorder and his refusal to participate in therapeutic programming while residing in a VAMC domiciliary, as well as his refusal to cooperate with the treatment recommendations for his psychiatric disability, attainment by him of a vocational goal at that time was not reasonably feasible. It was noted that he withdrew from school during the last seven terms he attended, passing no courses. In accord with the Board's October 1990 remand, the veteran was accorded a special VA psychiatric examination in February 1991. Data recorded for clinical purposes indicated that the veteran had been hospitalized on three separate occasions at a VAMC because of symptoms attributable to his psychiatric disorder. The veteran reported that his psychiatric symptoms included mood swings and auditory hallucinations. He stated that he was receiving ongoing outpatient psychiatric treatment, including medications. He was reported to be receiving Social Security disability benefits. Regular use of illegal drugs was admitted by the veteran. On mental status examination, the veteran's thought process was noted to be loose and disorganized. His responses were evasive, irrelevant and nonspecific. During the examination, the veteran remained very guarded and distant. He exhibited inappropriate behavior, frequently asking questions that distracted from the evaluation. The veteran was alert and oriented, but exhibited poor comprehension and attention span. He was considered to have average intelligence based on his vocabulary. His insight was described as poor in reference to the severity of his psychiatric disability. The relevant diagnosis was chronic, undifferentiated type, schizophrenia. The examining psychiatrist concluded that the veteran was chronically mentally ill and exhibited signs and symptoms of thought and mood disorders. It was indicated that he was functioning poorly with significant limitation in the community. It was further noted that while his judgment was fair, his insight was poor and that he would benefit from a guardian. The psychiatrist recommended that the veteran continue to comply with outpatient treatment appointments and take prescribed medications. In January 1992, the question of the veteran's feasibility for training was again considered by the RO's vocational rehabilitation panel, at which time it was again noted that unless there was a change in his situation, the finding of infeasibility would be confirmed. It was noted that the veteran has a tendency in the past not to cooperate with evaluation. Further evaluation was recommended and, accordingly, he was evaluated by another counseling psychologist in April 1992. At that time the veteran agreed to cooperate with further psychiatric evaluation. The veteran also explained that he felt persecuted because he serves God, that he was neither employed nor attending school, and that he believed that the decision on infeasibility resulted from bias against him. During the interview he was described as polite, appropriate in behavior, cooperative and serious. On VA psychiatric examinations, conducted in August and September 1992 for the purpose of determining feasibility for training, the veteran was described as defensive, guarded, and paranoid, displaying mild grandiose thinking. He denied auditory hallucinations, but occasionally stared into space, seeming to be preoccupied. He admitted to mental telepathy and distrust of people. He was cooperative, oriented in three spheres, and not overtly psychotic at the time of the interview. The diagnosis was schizophrenic paranoid disorder. On the latter evaluation, it was noted that the veteran reported that his mind raced and he had trouble sleeping. He denied current symptoms. The assessment was rule out unspecified schizophrenia. The Board agrees with the vocational rehabilitation panel and the counseling psychologists that attainment by the veteran of a vocational goal is not reasonably feasible at this time. The purpose of vocational rehabilitation training under Chapter 31 is to enable a veteran to become employable and maintain suitable employment. 38 U.S.C.A. § 3100. The severity of the veteran's schizophrenia and his continued refusal to participate in incentive therapy programs, eliminate any realistic possibility of the veteran successfully completing a training program and obtaining suitable employment. We emphasize, in this regard, that the veteran's psychiatric illness is not service-connected; he has established service-connection solely for a left shoulder disability which has been found to interfere with normal employability to only a minimal degree. The evidence establishes beyond any reasonable doubt that the attainment of a vocational goal by the veteran is, at this time, infeasible. However, the possibility of improvement in the veteran's behavior and attitude cannot be ruled out, especially if he takes advantage of the incentive therapy programs available to him, in addition to the outpatient treatment that he is currently receiving. We would emphasize, therefore, that the RO's finding of infeasibility is temporary and such may be reevaluated at a later time. In conclusion, we find that the preponderance of the evidence is against the veteran's claim seeking entitlement to Chapter 31 vocational rehabilitation benefits. In reaching this decision, the Board has considered the doctrine of giving the benefit of the doubt to the veteran but does not find that the evidence is approximately balanced such as to warrant its application. ORDER Accordingly, the appeal is denied. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.