Citation Nr: A23027704 Decision Date: 10/05/23 Archive Date: 10/05/23 DOCKET NO. 211201-202131 DATE: October 5, 2023 REMANDED The issue of whether discontinuance of Veteran Readiness and Employment (VR&E) benefits under 38 U.S.C. Chapter 31, Title 38 of the United States Code was proper, to include whether achievement of the stated vocational goal is reasonably feasible, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to November 1980. He appeals a September 2021 determination letter by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) and requested the Board of Veterans' Appeals (Board) conduct a direct review of the evidence considered by the AOJ. Under the direct docket, the Board will consider the same record as that before the AOJ at the time of the September 2021 determination letter. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after the September 2021 determination letter. Id. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Remand is permitted only to correct a pre-decisional error or for any other error the correction of which raises a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802. Based on the discussion below, the Board finds remand is warranted to correct pre-decisional duty to assist errors. The intended purpose of VA vocational rehabilitation services is to enable service-connected disabled veterans to achieve maximum independence in daily living and, to the maximum extent feasible, become employable and obtain and maintain suitable employment. 38 U.S.C. § 3100; 38 C.F.R. § 21.70. The central inquiry in the instant case is whether achievement of the Veteran's desired vocational goal is "reasonably feasible." 38 C.F.R. §§ 21.35(h), 21.50(b)(3), 21.53(d). In each case in which a veteran has either an employment handicap or serious employment handicap, VA must determine the reasonable feasibility of achieving a vocational goal. 38 C.F.R. § 21.53(a). A "vocational goal" is defined as gainful employment consistent with a veteran's abilities, aptitudes, and interests. 38 U.S.C. §§ 3101(8), 3106(a); 38 C.F.R. §§ 21.50, 21.53. A vocational goal is "reasonably feasible" when the following criteria are met: (1) a vocational goal must be identified; (2) a veteran's physical and mental conditions must permit training to begin within a reasonable period; and (3) a veteran must possess the necessary educational skills and background to pursue the goal, or will be provided services by VA to develop such necessary educational skills as part of the program. 38 C.F.R. § 21.53(d). The phrase "achievement of a vocational goal is reasonably feasible" means the effects of a veteran's disabilities (service and nonservice-connected), when considered in relation to his circumstances, do not prevent him or her from successfully pursuing a vocational rehabilitation program and successfully becoming gainfully employed in an occupation consistent with a veteran's abilities, aptitudes, and interests. 38 C.F.R. § 21.35(h). In contrast, the phrase "achievement of a vocational goal is not currently reasonably feasible" means the effects of the veteran's disabilities (service and nonservice-connected), when considered in relation to the veteran's circumstances at the time of the determination: (i) prevent the veteran from successfully achieving a vocational goal at that time; or, (ii) are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. Id. The Veteran reapplied for VR&E services in September 2020. He requested VR&E assistance with the self-employment goal to open a school and then teach as an esthetician and barber. See March 2021 VRC Counseling Record. He reported that he opened and ran a previous barber and esthetician school in West Virginia from 2016 to 2019, but he has no Florida licensing or certification to currently open a new school. Id. In March 2021, the Veteran was found entitled to VR&E services due to his serious employment handicap, but feasibility to achieve a vocational goal could not be determined. An April 2021 letter form the Veteran's vocational rehabilitation counselor (VRC) stated she could not currently determine feasibility and further evaluation was needed, such as vocational testing. At some point between April 2021 and September 2021, the Veteran's VRC changed. There is no VR&E record from the April 2021 VRC letter and a September 2021 letter from the Veteran's new VRC indicating that achievement of a vocational goal was not reasonably feasible. The Veteran contends that this finding of infeasibility was not proper, and that the Veteran was capable of pursuing employment at that time. See November 2021 VA Form 10182 and corresponding letter. First, the record reflects the Veteran receives his medical treatment through VA, but there are no medical records uploaded for the entire appeal period. As the Veteran's service-connected conditions play a significant role in his ability to potentially achieve a vocational goal, these medical records are relevant and should be uploaded to his file on remand. See 38 C.F.R. § 3.159(c). Second, as noted above, there are no relevant VR&E records from the April 2021 VRC letter, noting a feasibility determination could not be determined until further evaluation and testing was conducted, to the September 2021 VRC letter determining the Veteran's vocational goal was not reasonably feasible. Additionally, the Veteran's March 2021 VA Form 28-1902w (Rehabilitation Needs Inventory) is unviewable. Id. The record reflects that further development was conducted as the Veteran reported that he was asked to volunteer at a barber school for 90 days, and the September 2021 VRC letter notes the Veteran volunteered at a facility. See November 2021 Veteran letter. Thus, a pre-decisional duty to assist error was made by the AOJ not uploading any VR&E records from April 2021, to include any correspondence between the Veteran and VR&E, further evaluations, and his 90-day volunteer work. To determine the reasonable feasibility of achieving a vocational goal, the Veteran's abilities, aptitudes, and interests must be established and the Veteran must possess the necessary educational skills and background to pursue the vocational goal or will be provided services to develop such necessary educational skills as part of the program. The missing VR&E records are vital to the Veteran's claim. Finally, the Board finds the September 2021 VRC determination letter inadequate. The September 2021 VRC letter stated the Veteran's goal was not reasonably feasible, in part, because he lacked the licensure to operate a business or work in the cosmetology field in Florida, but the Board notes VR&E assistance can include assisting veterans with licensing and certification. See 38 C.F.R. § 21.120. Importantly, the VRC did not appear to review any of the Veteran's relevant medical records as they are not on file for the appeal period, and she did not provide an adequate explanation of how the Veteran's various disabilities would prevent him from succeeding in his goal of running and teaching at an esthetician and barber school. Instead, she noted the Veteran has "a history of falls as well as chronic fatigue due to pain in [his] shoulders and back," and noted that his neuropathy will increase with operating a successful business. The VRC mentions nothing about the Veteran's current symptoms. See September 2021 VRC determination letter. Additionally, a finding that achievement of a vocational goal is infeasible without a period of extended evaluation requires compelling evidence to establish infeasibility beyond any reasonable doubt. See 38 C.F.R. § 21.53(e)(2). There is no evidence the Veteran received an extended evaluation as the VR&E record is missing from April 2021 to September 2021. As such, the Board finds the VRC feasibility determination inadequate, and remand is warranted to afford the Veteran a new evaluation by a VRC to assess the feasibility of pursuing self-employment for teaching and/or running an esthetician/barber school. The matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2020 to September 2021 and associate them with the claims file. 2. Ensure the entire VR&E folder, to include (a) the March 2021 RNI, (b) all records from April 2021 through September 2021, and (c) all correspondence between VR&E and the Veteran has been scanned and associated with the electronic claims file. (Continued on the next page) ? 3. After the development of #1-2 above is complete, have a VRC provide the Veteran a new evaluation that ascertains the limitations caused by his service-connected disabilities and their effect on his ability to obtain or maintain employment consistent with his abilities, aptitudes, and interests. The VRC should consider and address the Veteran's request to obtain self-employment running and/or teaching esthetician and barber skills and, if necessary, determine whether the Veteran warrants an extension in his entitlement to achieve his vocational goal. The VRC's feasibility assessment should consider and address the Veteran's lay statements. If the VRC continues to find that the Veteran's vocational goal is not currently reasonably feasible, the VRC must describe in sufficient detail how the Veteran's service and nonservice-connected disabilities prevent the veteran from successfully achieving a vocational goal at that time; or, are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bona, J.F. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.