BVA9503202 DOCKET NO. 93-05 587 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the veteran's vocational rehabilitation benefits under Chapter 31, Title 38, United States Code were properly discontinued effective July 7, 1992, to include the issue of whether his entitlement to receive such benefits should be reinstated. (Entitlement to increased evaluations for low back strain and bilateral foot disorder is the subject of a separate action by the Board.) REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran served on active duty from October 1974 to October 1976 and from January 1978 to January 1980. He has been represented throughout his appeal by AMVETS. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an administrative decision of July 1992, by a Vocational Rehabilitation Specialist at the Waco, Texas Regional Office (RO), which discontinued the veteran's Chapter 31 benefits effective July 7, 1992. The notice of disagreement with this determination was received in July 1992. The statement of the case was issued in October 1992. The substantive appeal (VA Form 1-9) was received in October 1992. The appeal was received at the Board in March 1993. REMAND The veteran contends, in effect, that his service-connected disorders prevented him from pursuing his vocational rehabilitation program. The veteran indicates that he underwent surgery on his service-connected flat feet during the time he was enrolled in school, and he was required to use a wheelchair for an extended period of time. The veteran further maintains that because his school was not equipped for students in wheelchairs, he was unable to attend classes for approximately 90 days; as a result, he received failing grades in his courses and was unable to continue his program. In addition, the service representative argues that there has been no attempt to determine whether or not the veteran could have attended classes although he was confined to a wheelchair. The representative further argues that mitigating circumstances should have considered been prior to discontinuing the veteran's participation in the vocational rehabilitation program. The issue of whether vocational rehabilitation was properly discontinued, as well as whether the veteran is entitled to reinstatement of rehabilitation benefits under Chapter 31, is inextricably intertwined with the issues of entitlement to increased ratings for low back strain and bilateral foot disorder which are also before the Board on appeal. In a separate action, the Board is remanding the increased rating issues for further development and consideration, including procurement of the records of the veteran's reported foot surgery and re-evaluation of his service-connected low back and foot disorders. Because of the interrelatedness of the issues on appeal, the veteran's Chapter 31 claim should be re-evaluated following completion of the action taken in the adjudication division regarding the veteran's disabilities. In this regard we note that it has previously been determined that the veteran's basic period of eligibility for Chapter 31 expired in January 1993 and that he did not have a serious employment handicap. The Board also notes that in his October 1992 substantive appeal on the Chapter 31 issue, the veteran requested a hearing at the RO. A handwritten notation, apparently by RO personnel, on the appeal form reflects that a hearing was held on December 16, 1992. However, the transcript of that hearing shows that the only issues about which testimony was given were the issues pertaining to the evaluation of the veteran's service-connected back and foot disorders. It is thus unclear from the current record whether the veteran still wishes to appear at a hearing and present testimony concerning his Chapter 31 claim. In light of the foregoing, 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), and to ensure due process of law, the Board finds that further development is necessary prior to appellate disposition of the claim for continued Chapter 31 benefits. Accordingly, this case is hereby REMANDED to the RO for the following actions: 1. After the adjudication division has completed the actions specified in the separate remand action in this appeal, the Vocational Rehabilitation and Counseling (VR&C) staff should again review the record, including any new evidence developed and actions taken by the RO, and again consider the veteran's claim for continued Chapter 31 benefits. The provisions of 38 C.F.R. § 21.364 should be considered, along with the contention that there were mitigating circumstances involved in the veteran's failure to pursue his program of training. If necessary, contact should be made with El Centro College in Dallas, Texas, regarding that school's accessibility for students in wheelchairs. The questions of whether the veteran has a serious employment handicap and whether he is entitled to an extended period of eligibility should also be considered. 2. In conjunction with review of the veteran's Chapter 31 claim, the veteran should be given the opportunity to clarify whether he also wishes to appear for a hearing on this issue. A hearing should be scheduled if requested. In the event the decision remains adverse to the veteran, he and his representative should be afforded a supplemental statement of the case, containing a discussion of any new evidence and all applicable law and regulations, as well as reasons and bases for the decision. An opportunity to respond should be given. The case (including the veteran's claims folder and all associated folders containing VR&C records) should then be returned to the Board for further appellate consideration. 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 further develop the record and to accord the veteran due process of law. (CONTINUED ON NEXT PAGE) 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) (1993).