Citation Nr: 0000440 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 97-11 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether the 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: The American Legion ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from January 1960 to January 1963 and from February 1964 to February 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 1996 decision by the Counseling Psychologist in the Vocational Rehabilitation and Counseling Division of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in November 1996. A statement of the case was issued in February 1997. The veteran's substantive appeal was received in February 1997. In November 1997, the RO remanded this matter for further development. REMAND The provisions of Chapter 31, Title 38, United States Code 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). Basic entitlement to Chapter 31 benefits requires that the veteran have a service-connected disability that is rated 20 percent disabling or more, and be found by the VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102 (West 1991 & Supp. 1999); 38 C.F.R. § 21.40 (1999). The VA shall determine the reasonable feasibility of achieving a vocational goal in each case in which a veteran is eligible to receive Chapter 31 benefits. 38 U.S.C.A. §§ 3101, 3106 (West 1991 & Supp. 1999); 38 C.F.R. § 21.53 (1999). The term "vocational goal" means a gainful employment status consistent with the veteran's abilities, aptitudes and interests. Id. In this case, the RO has determined that the veteran is basically eligible for Chapter 31 benefits, but has denied vocational rehabilitation and training based on a finding that the veteran's vocational goal is not reasonably feasible. 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) (1999). Achievement of a vocational goal is not currently reasonably feasible if effects of the veteran's service-connected and nonservice-connected disabilities, when considered in relation to the veteran's circumstances at the time of the determination, prevent the veteran from successfully achieving a vocational goal at that time; or are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. 38 C.F.R. § 21.35(h)(3) (1999). A review of the record reveals that in October 1994, the veteran filed a claim for Chapter 31 vocational rehabilitation training. In December 1994 and January 1995, the veteran met with a counselor (under contract with VA) for what appears to be an initial counseling session. At that time, the veteran reported that he had not held a formal job since 1976, and that he had engaged, intermittently, in odd jobs and furniture building as his health and help permitted. During the evaluation, the veteran expressed an interest in law, sales, and craftwork, and ultimately, after testing and interviewing the veteran, and considering his circumstances (i.e. past employment, education, disabilities, etc), the counselor came to the conclusion that the veteran had a serious employment handicap and would be unlikely to be successful in obtaining and maintaining full-time competitive employment with or without additional training; as such, it was found that training and employment was not feasible. The veteran had a counseling session with a VA Counseling Psychologist (CP) in November 1995, the report of which indicates that based on the session and the January 1995 evaluation, it was determined by the CP that an employment handicap existed, and that the veteran did have a serious employment handicap. The CP noted that feasibility could not be determined at that time, and developed, with the veteran, an Individualized Extended Evaluation Plan (IEEP). As such, the veteran participated in a work exploration program at Santa Fe Community College (Santa Fe) in April 1996. The vocational evaluation report indicates that based on the veteran's aptitude, work experience and interests (most of these things were arrived at by a series of tests), the following types of employment were most appropriate for the him: furniture sales, used car sales, parking attendant, and car deliverer. It was recommended that if these were not viable options due to the veteran's rural location or lack of turnover in specified areas, he should consider setting up a legitimate retail furniture business. Regarding a career in drafting, it was noted that such was possible, but that the veteran complained of arthritis in his hands. It was further noted that while he performed assessments (vocational aptitude tests) administered during the evaluation without complaint, drafting may no longer be a feasible option if the arthritis continued to progress. The veteran also noted that he was interested in being a lawyer or a pilot, or working in investigations. In concluding the evaluation report, the evaluation supervisor noted that the veteran needed to become more responsible in making an appropriate career decision in light of his forte. A Special Report of Training (VA Form 28-1905d) dated in April 1996 notes the findings made by the evaluation supervisor at Santa Fe, and noted that VA would most likely not pay for a furniture business. Records reflect that in the months following his evaluation, the veteran received dental and vision care as recommended by the evaluation supervisor and VA. A October 1996 Special Report of Training indicates that the veteran was contacted regarding his dental treatment, and was informed that his file would be closed. The veteran expressed concern about this and indicated that he wanted training to become a lawyer or pilot. He was essentially told that pursuing either occupation was not feasible. It was noted that the veteran had previously indicated that he was not interested in training but was going to pursue furniture sales on his own but wanted help getting dental treatment (a May 1996 report indicates that the veteran wanted VA to help finance a furniture business). Drafting was discussed, but it was again noted that his arthritis may not make that a suitable recommendation. Finally, the report notes that the veteran was informed that the CP with VR&C would make the final decision regarding feasibility. In November 1996, the CP determined that based upon the veteran's disabilities it was not reasonably feasible for him to benefit from the vocational rehabilitation program. It was noted that the evidence showed that the veteran's multiple disabilities significantly impaired his employability, that he lived in a small community with limited employment opportunities, and that he had no history of regular employment since 1976 (the decision letter actually states 1996 as the date of previous regular employment, but this appears to have been a typographical error). Pursuant to the November 1997 Board remand, a Chapter 31 vocational counseling and exploration was conducted by the Associated Rehabilitation Clinic (under contract with VA). Appointments began in December 1997 and the process was completed in March 1998. The evaluation report indicates that the veteran continued to be self employed as a peddler of handmade furniture. During the initial interview the veteran expressed an interest in drafting. During the second meeting, the veteran expressed an interest in becoming a paralegal. It was determined that these were not reasonable goals, as training programs for drafting would require long commutes, and the legal market was limited and would require two to three years of training (and the veteran was then 56 years of age). The veteran also noted interest in becoming a correctional officer, but admitted that he was probably unable to meet the physical aspects of the job. The specialist reviewed a list of job openings acquired from the Disabled Veterans Outreach Program (DVOP) and discussed 70 jobs with the veteran. A computer programming job appealed to the veteran, but it was noted that he had no experience in this area, complained of arthritis in his hands, and was unable to type. However, it was noted that it appeared that the veteran preferred to remain self employed but acquire rehabilitation funding to assist in this endeavor. The specialist, noting her impression that the VR&C did not provide self employment services unless a veteran was homebound, stated that resolution as to the veteran's desire to pursue vocational rehabilitation benefits and identification of a feasible vocational goal was not found. She pointed out that the veteran did not want to go to school, did not demonstrate the salesmanship skills necessary to continue his furniture sales with a commercial employer, and did not want to commute long distances to work. Further, the specialist noted that the veteran was interested in higher paying jobs but he did not possess the skills for such jobs. In the summary portion of the report, the specialist concluded that due to limitations the veteran imposes on the types of work he wants to pursue, his level of social skills, his desire to work where he lives, the amount he wants to be paid, in conjunction with limitations imposed by his disability, there did not appear to be any appropriate goals that the veteran could pursue. The specialist agreed with the previous ruling of unfeasibility. However, the Board points out that it does not appear that consideration was given to the dictates of 38 C.F.R. § 21.257 (1999). Under this regulation, it is noted that rehabilitation of the veteran may be achieved through self- employment in a small business, if the veteran's access to the normal channels for suitable employment in the public or private sector is limited because of his or her disability or other circumstances in the veteran's situation warrant consideration of self-employment as an additional option. If such is that case, VA staff will conduct a comprehensive survey and analysis of the feasibility of self-employment prior to authorization of a rehabilitation plan leading to self-employment. The survey and plan shall include: (1) An analysis of the economic viability of the proposed small business plan; (2) A cost analysis which specifies the amount and type of assistance, if any, which VA would be committed to furnish; (3) Provision for development of a market for the veteran's services during the period of rehabilitation to the point of employability, and/ or employment services; (4) A suitable occupational objective in which employment can normally be secured in the public or private sector; (5) Training necessary for the operation of a successful small business; (6) Availability of non-VA financing, including the veteran's financial resources, local banks and other sources; (7) Coordination with the Small Business Administration to secure special consideration under section 8 of the Small Business Act, as amended; and (8) The location of the site selected for the business and the cost of the site, if any. 38 C.F.R. § 21.257(b) (1999). Given the veteran's desire to remain or become self-employed in the furniture making business, as noted in the evaluation reports discussed above, consideration should be given to the dictates of 38 C.F.R. § 21.257 (1999). As such, this matter is remanded for the following action: 1. The veteran's vocational rehabilitation and counseling records, as well as his claims folders should be forwarded to the Vocational Rehabilitation and Counseling Division of the RO for a determination of whether rehabilitation may be achieved through self employment in a small business, specifically in the furniture business. The dictates of 38 C.F.R. § 21.257 (1999) should be followed in making this written determination. 2. If the determination remains adverse to the veteran, he should be sent a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991) which contains a summary of the relevant evidence, citations of the applicable laws and regulations and the reasons for the decision. The veteran and his representative should then be afforded the requisite time to respond. Thereafter, in accordance with proper appellate procedures, the case, including the veteran's VA claims folder and Chapter 31 vocational rehabilitation and counseling folder, should be returned to the Board for further appellate review. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until he receives further notice. 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 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. D. C. Spickler Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).