Citation Nr: 0001151
Decision Date: 01/13/00	Archive Date: 09/08/00

DOCKET NO. 96-42 097               DATE JAN 18, 2000

On appeal from the Department of Veterans Affairs Regional Office
in Waco, Texas

THE ISSUE

Whether the veteran is entitled to vocational rehabilitation
services provided under chapter 31, title 38, United States Code.

REPRESENTATION

Appellant represented by: Kenneth M. Carpenter, Attorney

INTRODUCTION

The veteran had active military service from January 1942 to
December 1944.

The veteran brought a timely appeal to the United States Court of
Appeals for Veterans Claims (formerly, the United States Court of
Veterans Appeals, hereinafter the Court) from a November 18, 1997,
Board decision that denied entitlement to vocational rehabilitation
training. The Court vacated the Board's

decision and remanded the case to the Board for another decision,
taking into consideration matters raised in its order.

In May 1999, the Board advised the appellant of the right to submit
additional evidence or argument. Additional written argument was
received from the appellant's attorney in August 1999.

The intertwined issue of the veteran's current eligibility for a
program of vocational rehabilitation services is discussed further
in the remand portion of this decision.

FINDING OF FACT

The veteran's PTSD rated 50 percent disabling is the principal
disability that results in impairment of his ability to prepare
for, obtain, or retain employment consistent with his abilities,
aptitudes, and interests.

CONCLUSION OF LAW

The criteria for entitlement to vocational rehabilitation services
have been met. 38 U.S.C.A. 3201, 5107 (West 1991); 38 C.F.R. 21.40,
21.51 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The record shows that the RO in January 1945 after review the
veteran's service medical records granted service connection for
manic depressive psychosis and rated it 50 percent from December
1944. It was determined that a vocational handicap existed under
Pub. L. 16 and he was advised of eligibility. He entered vocational
training in late 1945 but this was interrupted in June 1946 and
June 1947. His rating was reduced gradually to 30 percent in late
1946 and to 10 percent in 1960. During this period he reported work
in a machine shop and as a general

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machine worker through early 1948. He then worked in the aircraft
industry and in engineering work until 1960. VA records notes that
he attended a university from November 1945 to June 1947.

The veteran filed a claim for increase in early 1990 when VA
hospitalized him for atrial fibrillation. At the time he was
working as a night security guard. He complained in May 1990 that
he could not keep a steady job because of a worsening psychiatric
disability he identified as post-traumatic stress disorder (PTSD).
He also asserted that atrial fibrillation should be service
connected on a secondary basis, but a VA examiner in 1990 concluded
otherwise. Thus, the RO in late 1990 continued the 10 percent
rating for manic depressive psychosis and denied service connection
for atrial fibrillation. After notice was issued the next
correspondence from the veteran was a claim for increase in late
1992.

After variously dated VA medical records were reviewed, the RO in
October 1992 continued the 10 percent rating. The veteran was
issued written notice in October 1992 and he was next heard from in
May 1995. He claimed service connection for PTSD and reported
current VA treatment. The record received showed hospitalization in
late 1993 for rectal bleeding and outpatient psychiatric treatment
from late 1993 for PTSD. The mental hygiene clinic reports note he
worked part- time at Wal-Mart and was requesting job training
assistance, desiring a job with more hours since his spouse's
death. He was described as not handicapped and as having job
skills, but as fairly incapacitated from PTSD. He was to contact
AARP for additional job training and information on other job
programs.

The veteran in July 1995 provided a 12-page statement of work
history and personal history. On a VA psychiatric examination in
October 1995 it was reported that he was employed in security work
from 1981 to 1990 and had been unable to work since, apparently
from physical and mental problems. He said that he would like to be
able to finish college. The examiner found that the overall picture
was certainly compatible with an old chronic-PTSD aggravated
increasing pain and debility. The diagnosis was PTSD, chronic,
moderate with much anxiety and depressive content.

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The examiner suspected a rather marked incapacity for employment or
social adaptation.

The RO in October 1995 rated the veteran's psychiatric disability,
now diagnosed as PTSD, 50 percent from May 1995. Atrial
fibrillation was listed on the rating sheet as a nonservice-
connected disability. The RO in November 1995 notified the veteran
of the rating determination. He filed an application for VA
Vocational rehabilitation assistance in January 1996 noting that he
had previously received VA vocational rehabilitation assistance in
1946 and 1947. He requested assistance or services to attend
college or vocational school.

The veteran received an initial VA vocational rehabilitation
assessment in February 1996. He provided a resume showing
engineering and teaching experience, work in sales, programming and
security. He expressed an interest in completing college and in a
computer science degree.

The narrative report of the counseling record discussed the
veteran's eligibility for vocational rehabilitation under chapter
31. His history was thoroughly reviewed from the standpoint of work
experience and education. The report noted the 50 percent rating
for PTSD and the VA examiner's opinion as to the extent of
impairment. The rating criteria then in effect that corresponded to
the 50 percent rating were also noted. It was the conclusion of the
reporter that most would determine that the evidence on file did
indicate that the veteran had in impairment of employability that
was a direct result of his service-connected disability. It was
felt that this disabling condition could be overcome as was
indicated by the veteran's resume and employment history. It
appeared that he had overcome the limitations imposed by the
disability as he had worked steadily and reliably to earn a Social
Security retirement income for approximately the previous 12 years.

The counseling psychologist felt that the veteran had sufficient
skills to perform part-time and limited time employment without
further training. It was stated that by having those skills the
reporter was bound to determine that his disability condition did
not cause an employment handicap, which prevents his seeking,

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obtaining or maintaining vocations, which he had previously
practiced. It was felt that he was unemployed for reasons of his
own and chose to pursue college training rather than employment.

It was also noted that the veteran's eligibility termination date
for vocational rehabilitation was in January 1957. In conclusion it
was determined that he had no employment handicap and that his
eligibility termination date was January 9, 1957.

The veteran was advised of the determination by letter dated in
February 1996 from the VA Vocational Rehabilitation & Counseling
Officer.

Criteria

The purposes of this program are to provide to eligible veterans
with compensable service-connected disabilities all services and
assistance necessary to enable them to achieve maximum independence
in daily living and, to the maximum extent feasible, to become
employable and to obtain and maintain suitable employment. (b)
Basic requirements. Before a service-disabled veteran may receive
training and rehabilitation services under Chapter 31, Title 38
U.S.C., three basic requirements must be met:

(1) The Department of Veterans Affairs must first find that the
veteran has basic entitlement to services as prescribed by Sec.
21.40.

(2) The services necessary for training and rehabilitation must be
identified by the Department of Veterans Affairs and the veteran.

(3) An individual written plan must be developed by the Department
of Veterans Affairs and the veteran describing the goals of the
program and the means through which these goals will be achieved.
38 C.F.R. 21.1.

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The term "employment handicap" means an impairment of a veteran's
ability to prepare for, obtain, or retain employment consistent
with such veteran's abilities, aptitudes, and interests. 38 C.F.R.
21.35.

Eligibility for initial evaluation. VA shall provide an initial
evaluation to each individual who applies for benefits under
chapter 31 if the individual's compensable service-connected
disability meets one of the conditions contained in Sec. 21.40(a).

An initial evaluation will be provided to each individual who meets
the conditions of paragraph (a) of this section to: (1) Determine
the existence of an employment handicap; (2) Determine the basic
twelve-year period of eligibility; (3) Determine whether an
employment handicap shall be considered a serious employment
handicap; (4) Determine whether the basic twelve-year period of
eligibility is extended for a veteran with a serious employment
handicap; (5) Determine as expeditiously is possible, without
extended evaluation, whether achievement of a vocational goal is
currently reasonably feasible. (6) Evaluate the ability of the
veteran to live and function independently within the veteran's
family and community; (7) Determine if the veteran is eligible for
employment services under Sec. 21.47; (8) Develop information
necessary to plan an individual program for a veteran found
eligible and entitled to services under Chapter 31; and (9) Assist
a veteran who is found ineligible for assistance under Chapter 31
to identify other resources and programs for which he or she may be
eligible.

The initial evaluation shall include consideration of. (1) The
handicapping effects of the veteran's service-connected disability
on employability and independence in daily living; (2) The
veteran's residual physical and mental capabilities which
contribute to employability and independence in daily living; (3)
The veteran's ability to function independently in family and
community; (4) Prior assessments of employability by a counseling
psychologist; (5) Assessments authorized to provide additional
information necessary for initial evaluation; and (6) The veteran's
personal history including: (i) Education and training; (ii)
Employment; (iii) Nonservice-connected disability (ies), and (iv)
Family and community adjustment.

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All determinations regarding service requirements for basic
entitlement and, the beginning and ending dates of a veteran's
basic twelve-year period of eligibility shall be made by
appropriate staff of the Adjudication Division. (2) all other
determinations, including extension of the basic twelve-year period
because of serious employment handicap, and entitlement to
assistance under Chapter 31 shall be made by appropriate staff of
the Vocational Rehabilitation and Counseling Division.

The cooperation of the veteran is essential to an initial
evaluation. The purpose of the initial evaluation and the steps in
the process shall be explained to the veteran and his or her
Cooperation requested. If the veteran does not cooperate in the
initiation or completion of the initial evaluation the counseling
psychologist shall make a reasonable effort through counseling to
secure the veteran's cooperation. If the veteran's cooperation
cannot be secured, the counseling psychologist shall suspend the
initial evaluation until such time as the veteran cooperates. The
veteran will be informed of any suspension of the initial
evaluation, the reasons for this action, and the steps necessary to
resume the evaluation. 38 C.F.R. 21.50.

The proper determination of employment handicap is a critical
decision for rehabilitation planning and program accountability. To
the extent possible, necessary information shall be developed in
the course of initial evaluation and the significance of the
information under paragraphs (d) and (e) of this Section for
determining employment handicap shown in each case.

The term employment handicap means an impairment of the veteran.'s
ability to prepare for, obtain, or retain employment consistent
with the veteran's abilities, aptitudes, and interests.

Components of an employment handicap include: (1) Impairment. This
term means the restrictions on employability caused by: (i) The
veteran's service and nonservice-connected disabilities; (ii)
Deficiencies in education and training; (iii) Negative attitudes
toward the disabled; and (iv) Other pertinent factors.

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The veteran's service-connected disability need not be the sole or
primary cause of the employment handicap but it must materially
contribute to the impairment described in paragraph (c)(1) of this
section. Therefore its effects must be identifiable, measurable, or
observable.

Nonservice-connected disability. This term includes all physical
and mental disabilities which have not been found to be service-
connected by the Department of Veterans Affairs, including
alcoholism and drug abuse. The effects of alcoholism and drug abuse
are to be considered in the same manner as other nonservice-
connected disabilities in evaluating restrictions on employability.
When the manifestations of alcoholism, drug abuse or other
nonservice-connected disabilities raise questions as to the
reasonable feasibility of a vocational goal for a veteran otherwise
entitled to assistance under Chapter 31 such questions will be
resolved under provisions of Sec. 21.53.

(4) Consistency with abilities, aptitudes, and interests. The
Following points should be considered to determine if the veteran's
training and employment are consistent with his or her abilities,
aptitudes and interests: (i) A finding that a veteran is employed
in an occupation which is consistent with his or her abilities,
aptitudes and interests may not be made if the occupation does not
require reasonably developed skills except under conditions
described in paragraphs (e) (2) and (3), of this section; (ii) The
veteran's residual capacities, as well as limitations arising from
the veteran's service and nonservice-connected disabilities are
relevant; (iii) Evidence of the consistency of interests with
training and employment may be based on: (A) The veteran's
statements to a Department of Veterans Affairs counseling
psychologist during initial evaluation or subsequent reevaluation;
(B) The veteran's history of participation in specific activities;
or (C) Information developed by the Department of Veterans Affairs
through use of interest inventories.

(d) Determining extent of impairment. The extent of the veterans
impairment shall be assessed through consideration of factors
described in paragraph (c)(1) of this section:

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(e) Material contribution of service-connected disability to the
impairment. A finding that the veteran's service-connected
disability materially contributes to his or her impairment to
employment will be made by assessing the following factors: (1)
Preparation for employment. The service-connected condition
adversely affects the veteran's current ability to prepare for
employment in one or more fields which would otherwise be
consistent with the veteran's abilities, aptitudes, and interests.
An adverse effect is demonstrated when the physical or
psychological results of the service-connected condition: (i)
impair the veteran's ability to train; (ii) Prevent or impede
access to training facilities; or (iii) Diminish the veteran's
motivation and ability to mobilize his or her energies for
education or training.

(2) Obtaining employment. The service-connected condition places
the veteran at a competitive disadvantage with similarly
circumstanced nondisabled persons in obtaining employment. A
veteran without reasonably developed specific job skills shall be
considered to be at a competitive disadvantage unless evidence of
record shows a history of current, stable, continuing employment.

(3) Retaining employment. The physical or psychological effects of
a service- connected condition adversely affect the veteran's
ability to maintain employment which requires reasonably developed
skills. This criterion is not met if a veteran though lacking
reasonably developed skills, has a history of continuing, stable
employment.

(f) Determination of employment handicap. The counseling
psychologist may find the veteran has an employment handicap. (1)
An employment handicap which entitles the veteran to assistance
under this program exists when all of the following conditions are
met: (i) The veteran has an impairment of employability; this
includes veterans who are qualified for suitable employment, but do
not obtain or retain such employment for reasons not within their
control; (ii) The veteran's service-connected disability materially
contributes to the impairment of employability; (iii) The veteran
has not overcome the effects of the impairment of

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employability through employment in an occupation consistent with
his or her pattern of abilities, aptitudes and interests.

(2) An employment handicap does not exist when any of the Following
conditions is present: (i) The veteran's employability is not
impaired; this includes veterans who are qualified for suitable
employment, but do not obtain or retain such employment for reasons
within their control; (ii) The veteran's employability is impaired,
but his or her service-connected disability does not materially
contribute to the impairment of employability. (iii) The veteran
has overcome the effects of the impairment of employability through
employment in an occupation consistent with his or her pattern of
abilities, aptitudes and interests, and is successfully maintaining
such employment.

(g) Eligibility for employment assistance. If a veteran is not
found to have an employment handicap a separate determination of
his or her eligibility for employment assistance will be made under
provisions of Sec. 21.47.

(h) Responsibility for determinations. The determination of an
employment handicap and eligibility for employment assistance may
only be made by a counseling psychologist in the Vocational
Rehabilitation and Counseling Division. 38 C.F.R. 21.51.

A veteran or serviceperson shall be entitled to a program of
rehabilitation services under 38 U.S.C. chapter 31 if all of the
following conditions are met: (a) Service- connected disability.
(1) The veteran has a service-connected disability of 20 percent or
more which is, or but for the receipt of retired pay would be,
compensable under 38 U.S.C. chapter 11, and which was incurred or
aggravated in service on or after September 16, 1940; or (2) A
serviceperson is hospitalized for a service-connected disability in
a hospital over which the Secretary concerned has charge pending
discharge or release from active military, naval or air service and
is suffering from a disability which will likely be compensable It
a rate of 20 percent or more under 38 U.S. C. Chapter 11; or (3) A
veteran or serviceperson, as described in paragraphs (a)(1) and (2)
of this section, has a service-connected

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disability which is compensable or is likely to be compensable at
less than 20 percent, if the individual filed an original
application for Chapter 31 before November 1, 1990.

(b) Employment handicap. The veteran or serviceperson is determined
to be in need of rehabilitation to overcome an employment handicap.
38 C.F.R. 21.40.

Basic period of eligibility. A veteran having basic entitlement may
be provided a program of rehabilitative services during the twelve-
year period following discharge. The beginning date of the twelve-
year period is the day of the veteran's discharge or release from
his or her last period of active military, naval, or air service
and the ending date is twelve years from the discharge or release
date, unless the beginning date is deferred or the ending date is
deferred or extended as provided in Secs. 21.42, 21.44, and 21.45.
38 C.F.R. 21.41.

The basic twelve-year period of eligibility does not begin to run
if the veteran was prevented from beginning or continuing a
vocational rehabilitation program for one of the following reasons:
(a) Qualifying compensable service-connected disability
established. The basic twelve-year period shall not begin to run
until the veteran establishes the existence of a compensable
service-connected disability described in Sec. 21.40(a). When the
veteran establishes the existence of a compensable service-
connected disability described in Sec. 21.40(a), the basic twelve-
year period begins on the day the Department of Veterans Affairs
notifies the veteran of this. The ending date is twelve years from
the beginning date.

Medical condition prevents initiation or continuation. (1) The
basic 12-year period of eligibility shall not begin to run or
continue to run during any period of 30 days or more in which the
veteran's participation in vocational rehabilitation is infeasible
because of the veteran's medical condition, which condition may
include the disabling effects of chronic alcoholism, subject to
paragraph (c)(5) of this section. The 12-year period shall begin or
resume when it is feasible for the veteran to participate in a
vocational rehabilitation program, as that term is defined in Sec.
21.35. 38 C.F.R. 21.42.

The basic period of eligibility of a veteran with a serious
employment handicap may be extended when the veteran's employment
and particular handicap necessitate an extension as necessary to
pursue a vocational rehabilitation program under the following
conditions: (a) Not rehabilitated to the point of employability.
The basic period of eligibility may be extended when the veteran
has not previously been rehabilitated to the point of
employability. (b) Rehabilitated to the point of employability. The
veteran was previously declared rehabilitated to the point of
employability, under the Department of Veterans Affairs vocational
rehabilitation program, but either: (1) The veteran's service-
connected disability or disabilities have worsened to the extent
that he or she is unable to perform the duties of the occupation in
which he or she is trained, or in a related occupation; or

(2) The occupation in which the veteran was rehabilitated to the
point of employability is not presently suitable in view of the
veteran's current employment handicap and capabilities. (The
finding of unsuitability must be based upon objective evidence
developed in the course of reconsideration which. shows that the
nature or extent of the veteran's employment handicap and his or
her capabilities are significantly different than were previously
found.) or;

(3) Occupational requirements have changed and additional services
are needed to help the veteran continue in the occupation in which
he or she was trained or in a related field. 38 C.F.R. 21.44.

The period of eligibility for a veteran to pursue a program of
independent living services may be extended beyond the basic
twelve-year period under the following conditions: (a) The
veteran's medical condition (service and nonservice- connected
disabilities) is so severe that achievement of a vocational goal is
not currently reasonably feasible, or (b) the extension is
necessary to ensure that he or she will achieve maximum
independence in daily living. 38 C.F.R. 21.45.

Providing employment services to veterans eligible for a
rehabilitation program under chapter 31. Each veteran, other than
one found in need of a program of

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independent living services and assistance, who is otherwise
currently eligible for and entitled to participate in a program of
rehabilitation under chapter 31 may receive employment services.
Included are those veterans who: (1) Have completed a program of
rehabilitation services under chapter 31 and been declared
rehabilitated to the point of employability;

(2) Have not completed a period of rehabilitation to the point of
employability under chapter 31, but: (i) Have elected to secure
employment without completing the period of rehabilitation to the
point of employability; and (ii) Are employable; or (3) Have never
received services for rehabilitation to the point of employability
under chapter:31 if they: (i) Are employable or employed in a
suitable occupation; (ii) Have an employment handicap or a serious
employment handicap; and (iii) Need employment services to secure
and/or maintain suitable employment.

(b) Veteran previously participated in a VA vocational
rehabilitation program or a similar program under the
Rehabilitation Act of 1973, as amended. A veteran who at some time
in the past has participated in a vocational rehabilitation program
under chapter 31 or a similar program under the Rehabilitation Act
of 1973 as amended, and is employable is eligible for employment
services under the following conditions even though he or she is
ineligible for any other assistance under chapter 31:

(1) The veteran is employable in a suitable occupation.

(2) The veteran has filed a claim for vocational rehabilitation or
employment assistance;

(3) The veteran meets the criteria for eligibility described in
Sec. 21.40(a); and

(4) The veteran has an employment handicap or serious employment
handicap; and

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(5) The veteran: (i) Completed a vocational rehabilitation program
under 38 U.S.C. ch. 31 or participated in such a program for at
least 90 days on or after September 16, 1940; or (ii.) Completed a
vocational rehabilitation program under the Rehabilitation Act of
1973 after September 26, 1975, or participated in such a program
which included at least 90 days of postsecondary education or
vocational training.

(c) Veteran never received vocational rehabilitation services from
the Department of Veterans Affairs or under the Rehabilitation Act
of 1973. If a veteran is currently ineligible under chapter 31
because he or she does not have an employment handicap, and has
never before participated in a vocational rehabilitation program
under chapter 31 or under the Rehabilitation Act of 1973, no
employment assistance may now be provided to the veteran under
chapter 31.

(d) Duration of period of employment assistance. The periods during
which employment assistance may be provided are not subject to
limitations on periods of eligibility for -vocational
rehabilitation provided in Secs. 21.41 through 21.45 of this part,
but entitlement to such assistance is, as provided in Sec. 21.73 of
this part, limited to 18 total months of assistance. 38 C.F.R.
21.47.

Analysis

The Board observes that the argument on behalf of the appellant has
focused upon the existence of an employment handicap to establish
entitlement to VA vocational rehabilitation services. Before a
service-disabled veteran may receive training and rehabilitation
services basic requirements that must be met include basic
entitlement to services. The veteran meet the element of service
connected disability rated at least 20 percent disabling. He must
also establish the existence of art employment handicap. Initially
the Board finds the claim well grounded as the veteran meets basic
entitlement criteria. He had also provided evidence of a goal and
a means of achieving it. See Kandik v. Brown, 9 Vet. App. 434, 438
(1996).

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The term employment handicap contemplates an impairment of the
veteran's ability to prepare for, obtain, or retain employment
consistent with the veteran's abilities, aptitudes, and interests.
The Board is persuaded that he currently has such a handicap. It
would appear the service-connected psychiatric disorder now rated
50 percent and other disabilities noted in the record would result
in restrictions on employability. Indeed, it cannot be argued
reasonably the considerable impairment contemplated in the current
rating would not, alone, result in such restrictions. The veteran
apparently had some college level training after service and worked
for a significant time: in the aircraft industry. Now, however, it
would appear that he has been able to work only in less technical
or demanding work. What he had been able to do years ago is not
necessarily indicative of what he is able to do now, particularly
with the significant increase in his psychiatric disability. It
appears that the counseling evaluation tended to give significant
weight to past achievements that were accomplished when the
psychiatric disability was less of a factor. The rating was
gradually reduced over a period of years and remained 10 percent
until recently when It was increased to 50 percent

An employment handicap exists as in cannot reasonably be disputed
that the veteran has an impairment of employability that is a
result of the psychiatric disability. At the present time it is not
shown that he has overcome the effects of the impairment of
employability through employment in an occupation consistent with
his or her pattern of abilities, aptitudes and interests. Here, the
Board must observe that by regulation a psychiatric disability
rated at least 30 percent would establish a serious employment
handicap. So it is difficult to argue that a higher rated
psychiatric disability would not establish, at a minimum, an
employment handicap. 38 C.F.R. 21.52.

In summary, having reviewed the counseling record in the context of
the entire evidentiary record, the Board does find the evidence
establishes that the veteran's employability is impaired currently
on account of service-connected disability and that the veteran has
at this time overcome the effects of the impairment of
employability through employment in an occupation consistent with
his or her pattern of abilities, aptitudes and interests, and is
successfully maintaining such

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employment. See Davenport v. Brown, 7 Vet. App. 476, 486 (1995).
The present level of psychiatric impairment under the former
criteria contemplated considerable impairment. Under the current
rating scheme, the 50 percent rating (contemplates reduced
reliability and productivity and difficulty in establishing and
maintaining effective work relationships. The VA examiner in 1995
suspected a rather marked incapacity for employment.

The Board's decision that the veteran has established basic
entitlement to a program of vocational rehabilitation services
addresses the issue remanded by the Court and briefed by
appellant's attorney. However, the intertwined issue of basic
eligibility cannot be overlooked. This was mentioned in the
counseling records, but additional development as discussed below
is felt to be necessary for an informed determination.

ORDER

The veteran having established basic entitlement to vocational
rehabilitation services provided under chapter 31, title 3 8,
United States Code, the appeal is granted to this extent.

REMAND

The appellant 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 mu.st 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,

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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.

As noted previously, the veteran has established basic entitlement
to vocational rehabilitation services. However, the intertwined
issue of eligibility for vocational rehabilitation services must be
addressed before there is any obligation to expend additional
vocational rehabilitation resources.

It was apparently assumed that the veteran met the eligibility
criteria for vocational rehabilitation assistance in 1995. However,
he had previously used entitlement after service in the late 1940's
having met the eligibility criteria at the time.

The regulations provide under section 21.41 that a veteran having
basic entitlement may be provided a program of rehabilitative
services during the twelve-year period following discharge. The
beginning date of the twelve-year period is the day of the
veteran's discharge or release from his or her last period of
active military, naval, or air service and the ending date is
twelve years from the discharge or release date, unless the
beginning date is deferred or the ending date is deferred or
extended as provided in Secs. 21.42, 21.44, and 21.45.

All determinations regarding service requirements for basic
entitlement and, the beginning and ending dates of a veteran's
basic twelve-year period of eligibility shall be made by
appropriate staff of the Adjudication Division. This element was
apparently not completed in 1995.

The initial period of eligibility may be extended in certain
circumstances and the veteran may also be eligible for other
assistance but the determinations necessary to establish
entitlement or eligibility must be made by staff of the Vocational
Rehabilitation and Counseling Division.

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The veteran was enrolled in a VA vocational rehabilitation training
program beginning in November 1945 when his psychiatric disability
was railed 50 percent; training was interrupted in 1946 and 1947.
It is noted in the counselling report that his eligibility period
for rehabilitative services concluded in December 1957. However,
the staff person who completed the interview apparently did not
have complete information regarding the veteran's earlier training
program.

To insure due process, the case is remanded for the following
action:

1. The RO should advise the veteran and his attorney of the
opportunity to submit any additional evidence or argument on the
matter of eligibility for VA vocational rehabilitation services.

2. The staff of the Adjudication Division and Vocational
Rehabilitation and Counseling Division show review the matter of
the veteran's eligibility for vocational rehabilitation services in
accordance with the eligibility criteria as set forth, for example,
in 38 C.F.R. 21.41, 21.42, 21.44, 21.50(d) and 21.186.

3. The appropriate staff personnel should also review and associate
with the claims folder any records available from the veteran's
initial period of vocational rehabilitation training so that the
current eligibility review might discuss the significance to the
current claim of interrupted or discontinued training status (38
C.F.R. 21.197 and 21.198) in 1946 and 1947 and the veteran's
current eligibility to any vocational rehabilitation services.

4. Thereafter, the RO should review the claims file to insure that
all of the requested development has been

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completed and ensure that it is in complete compliance with the
directives of this remand. If not, the RO should implement
corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998).

5. After undertaking any development deemed essential in addition
to that specified above, the RO should adjudicate the intertwined
issue of the veteran's eligibility for a program of vocational
rehabilitation services.

If the benefit is not granted, the RO should issue a supplemental
statement of the case. The applicable period of time for a response
should be afforded. Thereafter, the case should be returned to the
Board for appellate review, if otherwise in order. By this remand
the Board intimates no opinion as to any final outcome warranted.
The veteran need take no action until he is notified.

Mark J. Swiatek
Acting Member, Board of Veterans' Appeals

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