Citation Nr: 0005395 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-08 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Whether achievement of a vocational goal is reasonably feasible for purposes of entitlement to further vocational rehabilitation and training under Chapter 31, Title 38, United States Code. REPRESENTATION Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had active service from January 1964 to January 1967 and from June 1971 to July 1989. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 1996 decision by the Department of Veterans Affairs (VA) Vocational Rehabilitation and Counseling Division (VR&C) of the Washington, D.C. Regional Office (RO), which found the veteran to be an infeasible candidate for further vocational rehabilitation training. The veteran requested and was scheduled to appear at a hearing before a Member of the Board in Washington, D.C. in October 1998. The veteran failed to report to the hearing. FINDINGS OF FACT 1. The veteran's service-connected disabilities, including myofascial pain syndrome with tension headaches, cervical spondylosis with limitation of motion, allergic or vasomotor rhinitis, right hip degenerative joint disease, benign idiopathic hematuria, status post traumatic right corneal scar, and tinea pedis, and his nonservice-connected disabilities, including the osteoma, bone tumor of the skull, probable right ischemic lacuna with slight paralysis of the left eye and face, depression, and hypertension, do not permit training to begin within a reasonable period; thus, achievement of a vocational goal is infeasible at this time. 2. The evidence demonstrates that the veteran's disabilities currently prevent him from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with his abilities, aptitudes and interests. CONCLUSION OF LAW The criteria for finding that achievement of the veteran's vocational goal is reasonably feasible for purposes of entitlement to vocational rehabilitation and training under Chapter 31, Title 38, United States Code have not been met. 38 U.S.C.A. §§ 3100, 3101 (West 1991); 38 C.F.R. §§ 21.35, 21.53, 21.198, 21.362, 21.364 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The record indicates that the veteran currently is in receipt of a combined 80 percent evaluation for myofascial pain syndrome with tension headaches, cervical spondylosis with limitation of motion, allergic or vasomotor rhinitis, right hip degenerative joint disease, benign idiopathic hematuria, status post traumatic right corneal scar, and tinea pedis. The veteran has also been granted individual unemployability. In an August 1992 counseling evaluation for vocational rehabilitation, the counseling psychologist determined that the veteran had an impairment of employability and that his impairment was caused by the effects of his service-connected and nonservice-connected conditions, that the veteran had an employment handicap, albeit not a serious employment handicap, and that achievement of a vocational goal was currently reasonably feasible. It was noted that the veteran resided overseas and thus continued counseling might be difficult. The veteran began school in August 1992. In February 1993, the school advised the RO that the veteran had received an "I" in one class and a "F" grade in another. In a March 1993 VA Report of Contact, the veteran advised that he did not do well due to medical and financial problems. He was advised to "sit out" a term until the issues were resolved. The record shows that the veteran was paid Chapter 31 vocational rehabilitation benefits beginning in August 1992 to March 1993. In a January 1994 letter, the veteran advised that his continuous headaches, knee, and hip disabilities made it impossible for him to continue his current vocational rehabilitation program and requested re-evaluation for a different Chapter 31 vocational rehabilitation program. Subsequent documentation indicates that several attempts were made to evaluate the veteran to determine his feasibility for a different Chapter 31 program to no avail until the summer of 1996, when the veteran returned to Washington. In a July 1996 Report of Contact, the veteran indicated that he had several strokes and that his doctor had advised him to stop working. In support of this statement, the veteran submitted private physician's reports. In a March 1996 private medical report, the veteran's physician related that it was his opinion that the veteran was not able to work now due to his further degenerative changes of the cervical spine, headaches, small hypdense lesion near the brain, and ischemic lacuna. In a January 1998 Hearing officer decision the veteran's claim for a total rating for compensation purposes based on individual unemployability was granted. It was also found that basic eligibility for Dependents' Educational Assistance was established as the evidence showed that the veteran currently had a total service-connected disability, permanent in nature. The provisions of Chapter 31 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 U.S.C.A. § 3100 (West 1991). As noted, in August 1992, a VA counseling psychologist initially determined that the veteran had an employment handicap as a result of his service-connected disabilities, and achievement of a vocational goal was reasonably feasible under Chapter 31. Thus, he was awarded Chapter 31 vocational benefits beginning in August 1992. In July 1996, a VA counseling psychologist found that because of his multiple disability conditions and limitations imposed by his service-connected disabilities, achievement of a vocational goal was not feasible at that time. The provisions of Chapter 31 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 U.S.C.A. § 3100 (West 1991). In order to find that the achievement of a particular vocational goal is reasonably feasible, the facts must show that the effects of the veteran's disabilities, when considered in relation to his circumstances, do not prevent successful pursuit of a vocational rehabilitation program and successful employment. 38 C.F.R. §§ 21.35, 21.53(d). The criteria of feasibility are: (1) a vocational goal must be identified; (2) the 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. 38 C.F.R. § 21.53(d). When the VA finds that the provisions of 38 C.F.R. § 21.53(d) are not met, but VA has not determined that achievement of a vocational goal is not currently reasonably feasible, VA shall provide services contained in 38 C.F.R. § 21.35(i)(1)(i) as appropriate. A finding that achievement of a vocational goal is infeasible without a period of extended evaluation requires compelling evidence which establishes infeasibility beyond any reasonable doubt. 38 C.F.R. § 21.53(e)(1), (2); see also 38 C.F.R. § 21.57 (1999). As noted, three criteria must be met to show feasibility. In this case, the second of the three criteria has not been met; that is, the veteran's disabilities do not permit training to begin within a reasonable period. 38 C.F.R. § 21.53(d). The Board observes that the veteran's physician, in a March 1996 report, indicated that the veteran was unable to work, a conclusion reached by both the counseling psychologist and by the veteran himself, as indicated in the July 1996 VA Report of Contact. In January 1998, it was found by the RO that the veteran's unemployability as the result of his service- connected disabilities was permanent. In sum, although the Board appreciates that the veteran wants to be trained for employment, his disabilities are of such severity that they currently prevent him from successfully pursuing a vocational rehabilitation program and successful employment. In light of the Board's extensive review of the medical evidence, the Board finds that the medical evidence establishes that the veteran is unable to handle the physical stresses of any employment due to conditions which continue to deteriorate. Accordingly, the Board finds that the veteran's disabilities do not permit training to begin within a reasonable period; thus, achievement of a vocational goal is infeasible at this time. 38 C.F.R. § 21.53(d). As noted above, a finding that achievement of a vocational goal is infeasible without a period of extended evaluation requires compelling evidence, which establishes infeasibility beyond any reasonable doubt. The essentially same standard applies when it is determined that a veteran has a change in status from feasible to infeasible. The Board finds that there is compelling evidence which establishes the infeasibility of achievement of a vocational goal by the veteran beyond any reasonable doubt. This same evidence justifies the conclusion that there has been a change in status and that a veteran who previously established feasibility status is now infeasible. The veteran's physicians have determined that medical evidence establishes that the veteran's numerous disabilities are currently incapacitating. The veteran's physicians have presented evidence indicating that the veteran cervical rotation was painfully restricted, that he suffered from recurrent infections of the upper respiratory passages and allergic rhinitis, that he experienced chronic daily headaches, opined that he was unable to endure any stresses that training or employment might place on him at this time. As such, the Board finds that there is compelling medical evidence which establishes that achievement of a vocational goal by the veteran is infeasible beyond any reasonable doubt. In light of the foregoing, the Board concludes that the criteria for finding that achievement of the veteran's vocational goal is reasonably feasible for purposes of entitlement to vocational rehabilitation and training under Chapter 31, Title 38, United States Code have not been met and are no longer met. ORDER Entitlement to a program of vocational rehabilitation and training under the terms and conditions of Chapter 31, Title 38, United States Code is denied. REMAND The Board observes that the veteran had claimed reimbursement of medical expenses for treatment received overseas while a Chapter 31 vocational rehabilitation participant. In a February 1997 letter, the VA Federal Medical Program (FMP) Office in Denver, Colorado denied the veteran claim for reimbursement of medical expenses for medical treatment the veteran received from August 1992 to July 1996. The veteran filed a notice of disagreement in March 1997. It does appear from the record that the FMP Office has issued a statement of the case on this issue. The United States Court of Appeals for Veterans Claims (Court) has directed that where a veteran has submitted a timely notice of disagreement with an adverse decision and the RO did not subsequently issue a statement of the case addressing the issue, the Board should remand the issue to the RO for issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this issue is REMANDED for the following: The FMP Office should issue a statement of the case to the veteran and his representative addressing the issue of reimbursement of medical expenses for medical treatment the veteran received from August 1992 to July 1996. This should include all applicable law and regulations, including eligibility requirements for payment of medical services of those veterans residing overseas. After completion of the above, and after the veteran has been given the opportunity to respond thereto, the claims file should be returned to the Board for further appellate decision, if in order. However, issues should not be certified to the Board unless all applicable appellate procedures are followed, including the completion of the appeal. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. H. N. SCHWARTZ Member, Board of Veterans' Appeals