BVA9504512 DOCKET NO. 91-44 825 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the veteran is entitled to an extended period of eligibility for vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran had active military service from January 1971 to November 1972. He is represented by The American Legion. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a decision of March 1990, by the Houston, Texas Regional Office (RO), which determined that the veteran did not have an employment handicap and, therefore, did not need to pursue a program of additional vocational rehabilitation training pursuant to Chapter 31, Title 38, United States Code. The appeal was received at the Board in October 1991. In February 1992, the Board remanded the case to the RO for further development. Following the requested development, the case was received back at the Board in February 1993. By a decision of April 1993, the Board held that the evidence of record established that the veteran had an employment handicap. However, it was determined that, since the veteran's initial period of eligibility under Chapter 31 had expired, he was only entitled to an extended period of eligibility under Chapter 31 if he was determined to be in need of such an extension because of a "serious employment handicap." Therefore, the Board remanded the case for further development; specifically, the RO was directed to schedule the veteran for an examination and, after reviewing all of the relevant evidence, to determine whether the veteran was entitled to an extended period of eligibility under Chapter 31 because of a "serious employment handicap." A Department of Veterans Affairs (VA) compensation examination was conducted in October 1993. A rating action of January 1994 confirmed the evaluations previously assigned for the veteran's service-connected disabilities. A supplemental statement of the case was issued in August 1994. The appeal was received back at the Board in December 1994. REMAND The record reflects that when the case was last before the Board in April 1993, it was remanded to the RO with specific instructions to afford the veteran a VA compensation examination, reevaluate the service-connected disabilities, and to determine whether the veteran was entitled to an extended period of eligibility under Chapter 31 because of a "serious employment handicap" in accordance with the criteria found at 38 C.F.R. § 21.52 (1993). However, after carefully reviewing the record, the Board notes that while the veteran was afforded a VA compensation examination in October 1993, and his service-connected disabilities were reevaluated, no further action was taken in response to the April 1993 Board decision and remand. Significantly, the August 1994 supplemental statement of the case stated that "since a favorable decision on an employment handicap was not rendered in this case, and still cannot be rendered as the veteran's service-connected disability rating is confirmed as being stable and hence does not provide new and material information regarding further debilitating effects from the conditions rated as service- connected, the decision regarding an employment handicap remains of record." It was further stated that it was a "non-sequitur" to then apply the provisions of 38 C.F.R. § 21.52. The Board finds such reasoning to be fallacious. It would be a nonsequitur only if it had not already been determined by the Board that an employment handicap did, in fact, exist. In view of the Board decision of April 1993 which determined that the veteran had an employment handicap, and in keeping with VA's duty to assist the veteran in the development of facts pertaining to his claim, 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993), this case must again be REMANDED to the RO for the following actions: 1. The RO should review the veteran's claim under all applicable law and regulations and determine whether the veteran is determined to have a serious employment handicap under the provisions of 38 C.F.R. § 21.52 (1993). Thereafter, the RO should determine whether the veteran is entitled to additional vocational rehabilitation training. 2. In the event the determination remains adverse to the veteran, both he and his representative should be furnished with a supplemental statement of the case containing a recitation of the pertinent evidence, applicable law and regulations and reasons for the decision. An opportunity to respond should thereafter be given. After the above actions have been accomplished, the case should be returned to the Board for further appellate determination, if otherwise in order. No action is required of the veteran until he receives further notice. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to accord the veteran due process of law. D. C. SPICKLER 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).