Citation Nr: 0001680 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 93-21 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active military service from March 1974 to March 1978 and from June 1980 to July 1987. He has been represented throughout his appeal by the Disabled American Veterans. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a determination of December 1992 by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran has since moved to within the jurisdiction of the Denver, Colorado, RO. In July 1995 and August 1998, the Board remanded this case to the RO. REMAND In the initial RO decision, it was determined that the veteran's service-connected disability did not have the requisite rating under the law and regulation in effect at that time. Thus, the veteran's claim for Chapter 31 benefits was denied based on law and regulation which have since been revised, as noted in the July 1995 remand decision. Thereafter, in August 1994, the veteran reported for a counseling session. In August 1994, it was determined that the veteran did not have a "serious employment handicap." This denial appears to be under the revised law and regulation. However, consideration of Davenport v. Brown, 7 Vet. App. 476 (1995) was not undertaken at that time. It appears from the record that documentation of this determination was not of record at the time of the two Board remand decisions. In the July 1995 remand decision, the Board pointed out that the revised law and regulation were for application (as noted, the August 1994 determination does not appear to have been of record at that time). In addition, consideration of Davenport was requested. In response, the RO requested on multiple occasions that the veteran submit information pertaining to his claim and schedule a counseling appointment, but the veteran failed to respond to all correspondence from the RO. In October 1995, the veteran was informed that his claim had been suspended. Accordingly, in a supplemental statement of the case, issued in July 1997, the RO confirmed and continued the denial of the veteran's claim on the new basis that he had failed to cooperate with the RO. The RO cited 38 C.F.R. § 21.100. In the August 1998 remand decision, the Board noted that the veteran's claim had not been considered pursuant to Davenport and that the aforementioned correspondence from the RO to the veteran was not of record. The Board also acknowledged the veteran's duty to cooperate with the RO. In response, the aforementioned correspondence was associated with the claims file. The RO also again attempted to schedule a counseling appointment with the veteran. The veteran did not respond. As such, in November 1998, he was informed that his claim for vocational rehabilitation had been suspended and that his case had been placed in "discontinued" status. In a subsequent June 1999 supplemental statement of the case, the RO again referred to 38 C.F.R. § 21.100 and indicated that counseling was required in order to proceed with the veteran's claim, but stated that the veteran was unresponsive to all attempts to initiate counseling. Pertinent VA regulations provide that a veteran seeking chapter 31 vocational rehabilitation training will be assigned a specific case status. See 38 C.F.R. § 21.180(a). The initial case status is "applicant" status. Once the existence of a qualifying service-connected disability is established under § 21.40(a), an "initial evaluation" is scheduled. 38 C.F.R. § 21.50(a). If the veteran attends the appointment for an initial evaluation the veteran progresses to "evaluation and planning status." See 38 C.F.R. § 21.180(e)(1)-(4). During evaluation and planning status, it is determined whether the veteran has an employment handicap under § 21.40(b) and whether achievement of a vocational goal is feasible. See 38 C.F.R. §§ 21.184(a)(1), 21.50. When a decision concerning achievement of a vocational goal cannot be made during the initial evaluation, 38 C.F.R. § 21.57 provides for an extended evaluation, and the veteran's case may be assigned to "extended evaluation status." 38 C.F.R. § 21.57(a), see 38 C.F.R. § 21.188. Both §§ 21.50 and 21.57 are contained in part 21, subpart A, title 38, Code of Federal Regulations, under a subheading "Initial and Extended Evaluations." Section 21.50(e) states: 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(e). Additionally, 38 C.F.R. § 21.184(c)(2)(iii) allows for termination of evaluation and planning status if the veteran fails to cooperate. Although 38 C.F.R. § 21.57 does not contain a specific provision concerning the veteran's cooperation, 38 C.F.R. § 21.188(d)(i)-(iii) allows for termination of extended evaluation status in the event the veteran fails to participate in an extended evaluation. A subheading of Part 21, subpart A, of 38 C.F.R. entitled "Conduct and Cooperation," includes two especially pertinent sections: 38 C.F.R. § 21.362 states that the VA shall make a reasonable effort to inform the veteran and assure his understanding of the specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation" 38 C.F.R. § 21.364 provides that if the VA determines that a veteran has failed to maintain satisfactory conduct or cooperation, VA may, after determining that all reasonable counseling efforts have been made and are found not reasonably likely to be effective, discontinue services and assistance to the veteran. 38 C.F.R. § 21.364(a); see McRae v. Brown, 9 Vet. App. 229, 233-34 (1996). If a veteran fails to comply with the "Conduct and Cooperation" provisions, the veteran may be moved from "evaluation and planning" status or "extended evaluation" status to, first, "interrupted" status with suspension of services, and then to "discontinued" status where services to the veteran may be terminated. See 38 C.F.R. §§ 21.197-.198. This process also applies to decisions to suspend services under § 21.50(e) supra. See 38 C.F.R. § 21.197(b)(1). The purpose of assignment to interrupted status is to assure that all appropriate actions have been taken to help the veteran continue in his or her program before discontinuing benefits and services. Finally, whenever a veteran's status is changed, the veteran must be fully informed of that fact by a letter that states the reasons for the change in status, 38 C.F.R. § 21.180(d), and be afforded prior notification of any adverse action, 38 C.F.R. § 21.420(d). In this case, as noted, the veteran was first placed in "suspended (interrupted)" status and then was placed in "discontinued" status. A review of the November 1998 notification letter shows that the veteran was notified that he could appeal that action. However, the Board finds that since the denial of the veteran's initial claim for Chapter 31 benefits has been confirmed and continued based on his lack of cooperation, this issue is in fact incorporated into his current appeal since the RO is no longer denying the claim based on whether or not a serious employment handicap exists, but upon the veteran's failure to respond to VA correspondence. It is apparent that the RO finds that a determination regarding whether or not a serious employment handicap exists with consideration of Davenport cannot be undertaken without cooperation from the veteran. In a recent decision, Wing v. West, 11 Vet. App 98 (1998), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), emphasized the necessity of thoroughly notifying the veteran of the status of his claim and any changes thereto. It appears from the historical review as set forth above, that the veteran's claim falls within the directives of Wing. However, a review of the most recent supplemental statement of the case does not cite all of the pertinent law and regulations with regard to the current reason for the denial of the veteran's claim. As noted, the only cited regulation was 38 C.F.R. § 21.100. The Board notes that in circumstances where the Board determine that a claimant has been prejudiced by a deficiency in the statement of the case, the Board should remand the case to the RO pursuant to 38 C.F.R. § 19.9, specifying the action to be taken. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this case, in order to afford the veteran the opportunity to submit argument and evidence with regard to the current denial of his claim, this case must be remanded to initially provide him with the substance of the applicable regulations. Thus, the RO should review the veteran's claim and provide him with the following regulations: 38 C.F.R. §§ 21.50, 21.180, 21.184, 21.188, 21.197, 21.198, 21.362, 21.364, 21.420. In the review of the claim, the RO should address what explanation of the purpose of the initial evaluation was provided to the veteran and how the veteran was informed of the suspension of the initial evaluation, the reasons for the suspension, and the steps necessary to resume the initial evaluation per 38 C.F.R. § 1.50(e); how the veteran was informed of his responsibility for satisfactory conduct and cooperation per 38 C.F.R. § 21.362(b); what reasonable counseling efforts have been made per38 C.F.R. § 21.364(a); what change in status had been made per 38 C.F.R. § 21.180- .198; what notification of any such change he had received per 38 C.F.R. §§ 21.180(d), 21.420; and the applicability of any actions taken under that provision 38 C.F.R. § 21.198(b). In the event that the veteran's claim is reactivated, consideration of Davenport should be undertaken. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instructions completely. Accordingly, this matter is Remanded for the following action: In the event that the veteran's claim is reactivated, consideration of Davenport should be undertaken. Otherwise, the RO should review the veteran's claim and should address what explanation of the purpose of the initial evaluation was provided to the veteran and how the veteran was informed of the suspension of the initial evaluation, the reasons for the suspension, and the steps necessary to resume the initial evaluation per 38 C.F.R. § 21.50(e); how the veteran was informed of his responsibility for satisfactory conduct and cooperation per 38 C.F.R. § 21.362(b); what reasonable counseling efforts have been made per38 C.F.R. § 21.364(a); what change in status had been made per 38 C.F.R. § 21.180-198; what notification of any such change he had received per 38 C.F.R. §§ 21.180(d), 21.420; and the applicability of any actions taken under that provision 38 C.F.R. § 21.198(b). If the action taken is adverse, the veteran 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 to include 38 C.F.R. §§ 21.50, 21.180, 21.184, 21.188, 21.197, 21.198, 21.362, 21.364, 21.420. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. 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. N. R. ROBIN 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).