38 C.F.R. § 21.40

Basic entitlement to vocational rehabilitation benefits and services

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An individual meets the basic entitlement criteria for vocational rehabilitation benefits and services under this subpart if VA determines that he or she meets the requirements of paragraph (a), (b), (c), or (d) of this section. For other requirements affecting the provision of vocational rehabilitation benefits and services, see §§ 21.41 through 21.46 (period of eligibility), § 21.53 (reasonable feasibility of achieving a vocational goal), and §§ 21.70 through 21.79 (months of entitlement).

(a) Veterans with at least 20 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated 20 percent or more under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

(3) Is determined by VA to be in need of rehabilitation because of an employment handicap.

(b) Veterans with 10 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

(3) Is determined by VA to be in need of rehabilitation because of a serious employment handicap.

(c) Servicemembers awaiting discharge. The individual is a servicemember who, while waiting for discharge from the active military, naval, or air service, is hospitalized, or receiving outpatient medical care, services, or treatment, for a disability that VA will likely determine to be service-connected. In addition, VA must have determined that:

(1) The hospital or other medical facility providing the hospitalization, care, service, or treatment is doing so under contract or agreement with the Secretary concerned, or is under the jurisdiction of the Secretary of Veterans Affairs or the Secretary concerned;

(2) The individual is in need of rehabilitation because of an employment handicap; and

(3) The individual has a disability or combination or disabilities that will likely be:

(i) At least 10 percent compensable under 38 U.S.C. chapter 11 and he or she originally applied for assistance under 38 U.S.C. chapter 31 after March 31, 1981, and before November 1, 1990; or

(ii) At least 20 percent compensable under 38 U.S.C. chapter 11 and he or she originally applied for assistance under 38 U.S.C. chapter 31 on or after November 1, 1990.

(d) Exception for veterans who first applied after March 31, 1981, and before November 1, 1990. The individual is a veteran who:

(1) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11;

(2) Originally applied for assistance under 38 U.S.C. chapter 31 after March 31, 1981, and before November 1, 1990; and

(3) Is determined by VA to be in need of rehabilitation because of an employment handicap.

(Authority: 38 U.S.C. ch. 11, 3102, 3103, 3106; sec. 8021(b), Pub. L. 101-508, 104 Stat. 1388-347; sec. 404(b), Pub. L. 102-568, 106 Stat. 4338, as amended by sec. 602, Pub. L. 103-446, 108 Stat. 4671) [75 FR 3164, Jan. 20, 2010]

Notes of Decisions

Cited in 6 cases, 1995–2016 · leading case: Davenport v. Brown, 7 Vet. App. 476 (Vet. App. 1995).

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Davenport v. Brown, 7 Vet. App. 476 (Vet. App. 1995). · cites it 2× “Regulations When the appellant filed his claim, 38 C.F.R. § 21.40 provided that a veteran was entitled to chapter 31 vocational rehabilitation benefits if the veteran “has a service-connected disability which is, or but for the receipt of retired pay, would be, compensable under…”

Wing v. West, 11 Vet. App. 98 (Vet. App. 1998). · cites it 4× “The first requirement is that of a basic entitlement to services under 38 C.F.R. § 21.40 (1997). Section 21.40 requires that the veteran have both a qualifying service-connected disability ( 38 C.”

Kandik v. Brown, 9 Vet. App. 434 (Vet. App. 1996). · cites it 2× “§ 3102 and 38 C.F.R. § 21.40 (1995). The statute in effect when the appellant filed his VR claim in June 1979 provided as follows: Every veteran who is in need of vocational rehabilitation on account of a service-connected disability which is, or but for the receipt or…”

10 36 152 (Board of Vet. App. 2016). · cites it 2× “§ 3102 ; 38 C.F.R. § 21.40 . Turning to the specific facts of the Veteran's claim, the Board observes that his basic eligibility for vocational rehabilitation benefits is not at issue.”

Ebert v. Nicholson, 180 F. App'x 924 (Fed. Cir. 2006). “Ebert alleges that he was entitled to vocational benefits under 38 C.F.R. § 21.40 . In support of this contention, he argues that the tribunals below erred by failing to consider his interests in determining whether or not he was entitled to benefits as required by 38 C.”

Tyrone A. Andrews v. Eric K. Shinseki, 26 Vet. App. 193 (Vet. App. 2013). “§ 3102 ; 38 C.F.R. § 21.40 (2012). Once VA has determined that a veteran is entitled to receive such benefits, the veteran will work with a vocational rehabilitation counselor to develop an individualized written rehabilitation plan (IWRP), which includes an evaluation of the…”

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