Citation Nr: 1101572 Decision Date: 01/13/11 Archive Date: 01/20/11
DOCKET NO. 09-15 130A ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an additional (extension beyond 48 months) vocational rehabilitation benefits under Chapter 31, Title 38, United States Code.
(The issue of entitlement to waiver of overpayment is the subject of a separate decision under a different docket number.)
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
S. Finn, Associate Counsel
INTRODUCTION
The Veteran served on active military duty from July 2001 to May 2004.
This appeal to the Board of Veterans' Appeals (Board) is from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied the Veteran's claim.
In August 2008, the Veteran requested that the jurisdiction of her claim be transferred to Pittsburgh, Pennsylvania, RO.
The Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge at the RO in January 2010 and a copy of the hearing transcript is of record.
FINDINGS OF FACT
1. Service connection is in effect for migraine headaches rated as 30 percent disabling and tendon inflammation rated as 10 percent disabling.
2. The Veteran has a serious employment handicap.
CONCLUSION OF LAW
The applicable criteria for additional (in excess of 48 months) Chapter 31 vocational rehabilitation training have been met. 38 U.S.C.A. § 3105 (West 2002); 38 C.F.R. §§ 21.70; 21.44, 21.78 (2010), as amended by Federal Register, Vol. 75, No. 12 (Jan. 20, 2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminarily, the Board is granting the Veteran's claim. As such, no discussion of VA's duties to notify and assist is necessary.
The Veteran requested an extension of her vocational rehabilitation benefits under Chapter 31 due, in part, to her difficulty with her service-connected migraines that resulted in her inability to maintain full-time enrollment. (See January 2007 Written Statement).
Generally, neither the basic period of entitlement which may be authorized for a program of rehabilitation under Chapter 31 alone, nor a combination of entitlement under Chapter 31 alone, nor a combination of entitlement under Chapter 31 and other programs listed in 38 C.F.R. § 21.4020 shall exceed 48 months.
A Chapter 31 rehabilitation program for a veteran may be extended beyond 48 months when it is established that he experiences either an employment handicap or a serious employment handicap. 38 U.S.C.A. § 3105; 38 C.F.R. § 21.78. (Emphasis added).
A rehabilitation program for a veteran with an "employment handicap" may only be extended beyond the 48 months when, in part, 1) the veteran's service-connected disability has worsened to the point that he or she was unable to perform the duties of the occupation for which training had been provided; 2) when the previously completed training was found to be unsuitable because of the veteran's abilities and employment handicap; and 3) the veteran previously used education benefit entitlement under other programs administered to be provided under Chapter 31which the veteran needs to become employable will result in more than 48 months being used under all VA education programs, under these conditions the number of months necessary to complete the program may be authorized under Chapter 31, provided that the length of the extension will not result in authorization of more than 48 months under Chapter 31 alone. 38 C.F.R. § 21.78(b)(1), (2), and (3).
A "serious employment handicap" is defined as a significant impairment of a veteran's ability to prepare for, obtain, or retain employment consistent with such veteran's abilities, aptitudes and interests. See 38 C.F.R. §§ 21.35(g), 21.52(b).
Specifically, the duration of a rehabilitation program for a veteran with a serious employment handicap may be extended beyond 48 months under Chapter 31 for the number of months necessary to complete a rehabilitation program under the following conditions: (1) To enable the veteran to complete a period of rehabilitation to the point of employability; (2) To provide an extended evaluation in cases in which the total period needed for an extended evaluation and for rehabilitation to the point of employability would exceed 48 months; (3) To provide a program of independent living services, including cases in which achievement of a vocational goal becomes feasible during or following a program of independent living services. 38 C.F.R. § 21.78(c).
All extensions of a rehabilitation program beyond 48 months of total entitlement under all Department of Veterans Affairs programs require the approval of a counseling psychologist and concurrence of the Vocational Rehabilitation and Employment Officer (VR&E officer). See 38 C.F.R. § 21.78(d).
The Board notes that the provisions relating to the establishment of extension of the basic period of eligibility for a veteran with a serious employment handicap was amended, effective February 19, 2010. See Federal Register, Vol. 75, No. 12 (Jan. 20, 2010). As set forth in the Federal Register, the revised provisions were made effective February 19, 2010, and apply to any claim pending on February 19, 2010. Because the Veteran's claim was pending before the Board on February 19, 2010, but had not yet been decided at that juncture, the amended provisions are for consideration in this case.
In pertinent part, § 21.44 Extension of the basic period of eligibility for a veteran with a serious employment handicap provides, in part, (a) Conditions for extension. A Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) may extend the basic period of eligibility of a veteran with a serious employment handicap when the veteran's current employment handicap and need for rehabilitation service and assistance necessitate an extension when the veteran has not been rehabilitated to the point of employability. Further, section (b) provides that, for a veteran with a serious employment handicap, CP or VRC may extend the basic period of eligibility for such additional period as the CP and VRC determines is needed for the veteran to accomplish the purpose of his or her individualized rehabilitation program. Id.
The record reflects that the Veteran has utilized 30 months and 22 days of Chapter 30 benefits to complete her Associates Degree and utilized11 months and 20 days under the Chapter 31 program. The Veteran had 5 months and 18 days of remaining entitlement effective July 2007. Veteran's anticipated completion date was December 2009 with 14 courses remaining until the completion of her Bachelors of Science in Pre-Primary School Education. (See June 2007; October 2007; February 2008 Narrative Reports from VRC Counselor).
In June 2007, the Veteran's VRC, T. C., requested on behalf of the Veteran an extension beyond 48 months for all VA programs as the Chapter 31 benefits would not be exceeded beyond the 48 months under 38 C.F.R. § 21.78(b)(3). Specifically, the Veteran requested a waiver of 12 months of Chapter 30 benefits.
Her request was approved on October 25, 2007 by the VR&E supervisor, but the approval was sent back by the VR&E officer. The VR&E officer found that the Chapter 30 program was contributing to her current plan under Chapter 31. She stated that further development was needed before prior training could be set aside. There was a handwritten note that if the Chapter 30 benefits contributed to the Chapter 31 objective then the waiver would not be granted.
In February 2008, the VRC counselor submitted another request for an extension. The new extension request did not ask for Chapter 30 benefits to be set aside, but was based solely on a finding that the Veteran had a serious employment handicap due to the incapacitating episodes of her migraine condition that caused her to miss work and school. The counselor noted that the Veteran was unable to secure suitable employment without a Bachelors Degree and requested an extension of 12 months for completion of the training program. The Veteran's anticipated completion date was December 2009 with 14 courses needed in order to obtain her degree. (See WINRS case notes dated from August 2005 to February 2008).
However, the Veteran requested that her file to be transferred to the RO in Pittsburg, Pennsylvania and her status was interrupted as of August 13, 2008. A final decision on the extension request was not rendered by the Virginia RO.
The RO in Pittsburg, Pennsylvania denied the Veteran request for an extension because her transfer of schools would have resulted in material loss of credit and advised her to research other options to allow her to graduate in a more reasonable time frame. He advised her to explore other liberal schools such as University of Phoenix.
The Veteran testified, in part, that she is attending the University of Phoenix because the institution accepted more of her transferred credits. She further stated that she needs about 48 more credits, which would require a 12 to 18 month extension. (See January 2010 Hearing Transcript p.p. 5-6).
The Board finds code section 21.78(c)(1)-serious employment handicap may be extended beyond 48 months under Chapter 31to enable the Veteran to complete a period of rehabilitation to the point of employability-applicable in the instant case, along with the amended criteria of section 21.44(a) and (b). Here, the prior VRC counselor found that the Veteran had a serious employment handicap and needed an extension of the 48 month period in order to complete the purpose of her individualized rehabilitation program, i.e., employment as a teacher. The RO in Pittsburg, Pennsylvania did not address the finding of a serious employment handicap by the RO in Virginia. Therefore, the finding of a serious employment handicap by the Virginia RO still stands. Accordingly, the Board finds that the Veteran is entitled to additional vocational rehabilitation benefits under Chapter 31.
This determination is consistent with the goals of the vocational rehabilitation program which is to, in part, provide the Veteran services needed to qualify for suitable employment and enable the Veteran to become employed in a suitable occupation. 38 C.F.R. § 21.70.
ORDER
An additional (extension beyond 48 months) vocational rehabilitation benefits under Chapter 31, Title 38, United States Code is granted.
____________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs