What is VA Vocational Rehabilitation and Training Benefits

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.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How Effective Date Affects VA Original and Re-opened Disability Compensation Claims

The determination of the effective date for an original claim or a reopened claim is governed by 38 U.S.C. section 5110(a), which provides: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service.  See 38 C.F.R. § 3.400.  “Generally, effective dates of compensation awards are attached to the date of receipt of the application for benefits, and no earlier.”  Sharp v. Shinseki, 23 Vet. App. 267, 273 (2009) (citing 38 U.S.C. § 5110(a)).  Significantly, “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.”  Lalonde v. West, 12 Vet. App. 377, 382 (1999); seeBrannon v. West, 12 Vet. App. 32, 35 (1998) (the “mere presence of medical evidence does not establish the intent on the part of a veteran to seek service connection for a condition.”).

The effective date may also be the date on which entitlement to the benefit arose, if later than the date of the claim.  38 C.F.R. § 3.400(o).  A challenge to a decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of the decision, commencing with the timely filing of a Notice of Disagreement.  38 U.S.C. § 7105.  The NOD must be in writing and filed within one year “from the date of mailing of notice of the result of initial review or determination.”  38 U.S.C. § 7105(b)(1).  Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992).  Alternatively, if the decision assigning an effective date has become final, a claimant may only pursue one of the statutory exceptions to challenge the finality of that decision.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (same).

However, in Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), the Court held that claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision.  The Court reasoned that to allow such claims would vitiate the rule of finality. Id. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a freestanding claim for an earlier effective date is not one of the recognized statutory exceptions to finality.  See DeLisio v. Shinseki, 25 Vet. App. 45, 51 (“[A]n effective date generally can be no earlier than the date of the claim.”); Canady v. Nicholson, 20 Vet. App. 393, 398 (2006) (holding that a “proper effective date is a finding of fact” reviewed under the “clearly erroneous” standard).

A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (“When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.”); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (“Board is required to search the record to determine whether it is factually ascertainable that in the one year prior to the application there was an increase in disability.”); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997) (noting that the general rule applies unless it is factually ascertainable that the increase occurred within the year preceding the filing of the claim); see also Scott v. Brown, 7 Vet. App. 184, 189 (1994) (under the terms of section 5110(b)(2), the effective date is either the date of the claim or “some date in the preceding year if it were ascertainable that the disability had increased in severity during that time”).

In other words, the actual increase in disability must have occurred during the one-year period immediately preceding the date of the claim; any evidence demonstrating an increase earlier than the one-year period is not a basis for an effective date earlier than the date of the claim.  The Board’s determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).

There are only two ways to establish an earlier effective date after a decision has become final:  (1) by establishing a “Clear and Unmistakable Error” was made or (2) by submitting official service department records that existed, but were not considered, in a decision.  See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.156(c); 20.1403.  As discussed elsewhere in this Knowledge Book, CUE is a “very specific and rare kind of error” that has special pleading requirements.  Section 3.156(c), however, is fairly straightforward.  If VA or a claimant discovers a service department record, such as a service record, service medical record, or unit report or log, and it is relevant to a previous decision, VA must reconsider that decision.  If reconsideration of the claim with the newly found record results in an award, the effective date of that award is the date that the originally denied claim was submitted, no matter how far back.  38 C.F.R. § 3.156(c)(3).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency