BVA9507418 DOCKET NO. 90-49 576 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether 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. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from February 1975 May 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1989 decision by a Department of Veterans Affairs (VA) Counseling Psychologist in the Vocational Rehabilitation and Counseling Division of the Portland, Oregon, Regional Office (RO). The notice of disagreement was received in February 1990. The statement of the case was sent to the veteran in June 1990. The substantive appeal was received in October 1990. In September 1991 and October 1993 decisions, the Board remanded this case to the RO for further development. In a July 1993 rating decision, entitlement to an increased rating for low back injury, with low back strain, radiculopathy and postoperative decompression laminectomy L3, L4, L5, was denied and entitlement to an increased rating of 10 percent for service-connected stress fractures of the left and right feet os calcis with fibrositis and plantar fasciitis, was granted. The veteran was notified of the rating decision and of his procedural and appellate rights. Since a notice of disagreement has not been received as to the issues of an increased rating for service-connected back disability, service-connected right foot disability, and/or service-connected left foot disability, none of those issues is in appellate status. 38 U.S.C.A. § 7105 (West 1991). REMAND In December 1989, it was determined by a vocational rehabilitation panel that the veteran needed to undergo pain management treatment for his service-connected back disability. Since the veteran declined to undergo VA pain management treatment, the counseling psychologist determined that he was infeasible for rehabilitation under a Chapter 31 vocational rehabilitation program. The Board notes that the counseling psychologist did not consider a specific vocational goal, rather, the veteran was found to be infeasible for rehabilitation in general. Thereafter, in the Board's September 1991 remand decision, the Board pointed out that 38 C.F.R. § 21.53(e)(2) (1994) states that "a finding that achievement of a vocational goal without a period of extended evaluation requires compelling evidence which establishes infeasibility beyond any reasonable doubt." The Board noted that the veteran's failure to attend and receive treatment at the VA pain management clinic was not compelling evidence establishing infeasibility beyond a reasonable doubt. The Board instructed the RO to obtain and consider the medical records of the veteran's private physician who treated him for his service-connected back disability. The veteran's medical records of his private physician and of VA facilities were obtained. The Board observes that the veteran was treated at a VA facility in November 1989. At that time, he expressed that his vocational goal was to become an elementary or middle school history teacher. The examiner noted that the veteran appeared to have the motivation and sufficient ability to successfully complete training for that vocational goal. The veteran completed two intelligence tests and scored in the normal to high range. The records reflect that the examiner told the veteran that intellectually he had the ability to complete a college degree. The veteran reported that he was being treated by a private physician who operated a pain clinic and related that he was handling his pain satisfactorily. The examiner therefore determined that a referral to another pain clinic would not be beneficial. A subsequent September 1991 medical record revealed that the veteran was employed in the real estate field. A January 1992 VA record indicated that further back surgery was not advised at that time. The veteran's private medical records revealed that he has been treated by James E. Dunn of the Pacific Spine and Pain Center on a regular basis since 1985. In a letter dated in February 1994, Dr. Dunn indicated that the veteran had been treated by him since January 1985 for postoperative laminectomy syndrome and chronic pain syndrome. The veteran's claim for vocational rehabilitation training has been continuously denied on the basis that the veteran resists participation in a VA pain management clinic. In the November 1994 supplemental statement of the case, the counseling psychologist acknowledged that the veteran has been treated by Dr. Dunn for many years, but found that the treatment consisted primarily of medication which had failed in the past. The counseling psychologist pointed out that pain management has been recommended by prior VA examiners in 1984 and in 1985 and by the vocational rehabilitation panel, including a VA examiner, in 1989. Therefore, the counseling psychologist determined that since the veteran had refused to participate in VA pain management, he was found to be uncooperative in the completion of his initial evaluation. The Board has reviewed the current evidence of record. Although the veteran declined participation in a VA pain management clinic, he receives regular treatment from a private physician which includes treatment for chronic pain syndrome. Further, although VA examiners in 1984 and 1985 advised that he participate in a pain management clinic, the veteran was advised in 1989 by a VA examiner that participation in a pain clinic was unnecessary as he was being treated for pain by his private examiner. Further, as noted above, that examiner determined that the veteran had the aptitude and motivation to fulfill his vocational goal to be a teacher at that time. Subsequently, it was noted that the veteran was employed in the real estate field. In light of the records which were added to the record subsequent to the Board's last remand in October 1993, the Board still finds that the veteran's failure to attend a VA pain management clinic is not compelling evidence establishing infeasibility beyond a reasonable doubt. Therefore, the Board finds that the question which currently needs to be resolved is whether the veteran has a vocational goal that meets the criteria for feasibility. Under 38 C.F.R. § 21.53(d) (1994), the criteria for 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. Under the circumstances of this case, additional development is necessary in order to fulfill the VA's duty to assist. Accordingly, this matter is REMANDED for the following action: The veteran's case should be reevaluated by a counseling psychologist when the veteran should state his vocational goal. The counseling psychologist should determine whether the veteran's vocational goal is reasonably feasible under 38 C.F.R. § 21.53 (1994). The RO should readjudicate the veteran's claim for Chapter 31, vocational rehabilitation benefits. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. No action is required of the veteran until further notice. The Board expresses no opinion, either factual or legal, as to the ultimate determination warranted in this case pending completion of the requested development. E. M. KRENZER 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).