The purposes of the VA Vocational Rehabilitation (“Voc Rehab”) program are to help veterans with service-connected conditions become gainfully employed, maintain that employment, and achieve independence in daily living. The Voc Rehab program is implemented in Chapter 31 of Title 38 of the Code of Federal Regulations, so the benefits are sometimes referred to as “Chapter 31” benefits. The program includes several different services and benefits to help an eligible veteran achieve his or her rehabilitation goal. Services include vocational and personal counseling, education and training, financial aid, job assistance, and, if needed, medical and dental treatment. Program services generally are available for up to 48 months, but can be extended under certain instances.
Basic entitlement for Voc Rehab requires 1) a veteran with an award of monthly VA compensation or 2) a service member awaiting discharge from the service with a condition which will likely be awarded monthly VA compensation. In addition, a Voc Rehab claimant generally
- Must have served on or after September 16, 1940; and
- Must have service-connected conditions that are schedular rated at least 20% disabling (10% if VA determines a “serious employment handicap” exists); and
- Needs Voc Rehab to overcome an employment handicap; and
- It has been less than 12 years since VA notified the claimant of his or her qualification for Voc Rehab benefits.
The 12 year eligibility period can be extended if certain conditions prevented the claimant from participating in the program or if a serious employment handicap exists.
A veteran who is eligible for an evaluation under Chapter 31 must first apply for Voc Rehab services using VA Form 28-1900 [http://www.va.gov/vaforms/form_detail.asp?FormNo=28-1900]. An eligible applicant will receive an appointment with a Voc Rehab counselor who will determine if an employment handicap exists as a result of the veteran’s service connected condition. If an employment handicap is established, a plan to address the veteran’s unique rehabilitation and employment needs will be developed.
Under the Voc Rehab program, VA will pay training costs, tuition and fees, books, supplies, equipment, and special services needed by the veteran. While in training, VA will also pay a monthly “subsistence allowance” to help with living expenses. For veterans with service-connected disabilities so severe that they cannot immediately get back to work, the program will try to improve his or her ability to live as independently as possible.
Chapter 31 of title 38, United States Code, provides for the training and rehabilitation of veterans with service-connected disabilities. “The purposes of [chapter 31 benefits] are to provide for all services and assistance necessary 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. § 3100. 38 U.S.C. section 3101 refers to a VA “vocational rehabilitation program” and defines that rehabilitation program. Additionally, 38 U.S.C. section 3104 provides in pertinent part: “Services and assistance which the Secretary may provide under this chapter, pursuant to regulations which the Secretary shall prescribe, include … [p]lacement services to effect suitable placement in employment, and postplacement services to attempt to insure satisfactory adjustment in employment.” 38 U.S.C. § 3104(a)(5).
Under VA regulation, the term rehabilitation program “includes, when appropriate: (1) A vocational rehabilitation program (see paragraph (i) of this section); … or (3) A program of employment services for employable veterans who are prior participants in Department of Veterans Affairs or state-federal vocational rehabilitation programs.” 38 C.F.R. § 21.35(f). Further, 38 C.F.R. section 21.35(i) restates the definition of “vocational rehabilitation program” in the same terms as already defined in 38 U.S.C. § 3101(9)(A)(ii). Cottle v. Principi, 14 Vet. App. 329, 332-33 (2001).
The statutory purpose of vocational rehabilitation programs is “to enable veterans with service-connected disabilities … to the maximum extent feasible, to become employable and to obtain and maintain suitable employment.” 38 U.S.C. § 3100; see also 38 C.F.R. § 21.1 (same). Thus, the very fact of a veteran’s participation in a rehabilitation program, the objective of which is to become employable, is evidence that the veteran is presently unemployable.
[A] veteran’s participation in an activity carried out under this section [entitled “Therapeutic and rehabilitative activities”] … may [not] be considered as a basis for the denial or discontinuance of a rating of total disability for purposes of compensation or pension based on the veteran’s inability to secure or follow a substantially gainful occupation as a result of disability.
38 U.S.C. § 1718(f)(1). A plain reading of the statute reveals that the Board may not properly consider an appellant’s participation in a vocational rehabilitation program as evidence of employability. Thus, the interim evaluations from a vocational rehabilitation program are both irrelevant and immaterial to evaluating employability because they do not logically establish employability in the periods in which they are rendered; they only point to the strength of an expectation of future employability.
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