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Court Wins

Court Remands Board Decision to Deny Vocational Rehabilitation and Employment Benefits

Robert Chisholm

May 10, 2021

Updated: February 14, 2024


Summary of the Case

The Veteran served on active duty in the U.S. Marine Corps from August 1989 to March 1992.  The record reflects that she receives benefits for acquired flat foot, as well as non-service-connected pension.  VA first approved the Veteran’s request for vocational rehabilitation and employment (VR&E) services in December 2008.  She applied for these services again in December 2011, and while VA determined that she had a serious employment handicap, the Veteran was ultimately denied VR&E benefits due to her non-service-connected mental health disabilities.

In October 2012, the Veteran filed the present request for VR&E services.  On a November 2012 VA Form 28-1902w, Rehabilitation Needs Inventory, she asked for VA’s assistance in finishing her college degree in sociology and obtaining employment.  Although VA again expressed doubts about the Veteran’s ability to meet these vocational goals, her request was finally approved.  However, in October 2013, a vocational rehabilitation panel (VRP) reviewed the Veteran’s case and concluded she had not complied with any of the treatment recommendations and had not been following the objectives of her IEEP, including providing documentation of treatment and attendance at NA meetings.  The VRP unanimously concluded that it was not feasible for her to pursue a vocational goal at that time and terminated her VR&E services.

Veteran Appeals Denial of VR&E Services to the Board

The Veteran proceeded to appeal this decision to the Board of Veterans’ Appeals.  The Board remanded her claim several times, ordering the RO to obtain the Veteran’s private treatment records and other documentation evidencing her private mental health treatments.  Finally, in April 2019, the Board confirmed the termination of her VR&E services.  The Veteran sought the help of CCK to file an appeal with the CAVC.

Court Agrees with CCK’s Arguments

During the appeal to the Court of Appeals for Veterans Claims, CCK made numerous arguments highlighting the Board’s failure to ensure that VA adequately assisted the Veteran or complied with the regulatory procedures that govern VR&E participation.  Specifically, we pointed out that at some point during the Veteran’s evaluation for participation in vocational rehabilitation she was told that she could take a summer college course.  If able to successfully complete this course, the Veteran was told she would then be considered for a semester of coursework as a means of evaluation.  However, despite the Veteran’s successful completion of the course, VA took away the full semester option and instead presented her with two other options, neither of which she felt was appropriate based on her level of education and prior work experience.

Some of CCK’s arguments stemmed from these facts, and others from various other procedural irregularities.  The Court agreed that the Board erred by failing to consider a regulation that directs VR&E staff to “provide assistance which may be authorized under Chapter 31, or for which arrangements may be made under other programs to enable the veteran to maintain satisfactory conduct and cooperation.”  It also concluded that the Board failed to address the Veteran’s argument that the options offered to her were not appropriate.

The Court further agreed that the Board did not adequately consider whether VA followed the proper procedures for placing the Veteran into “interrupted” and “discontinued” status, including whether her mental health condition was a mitigating circumstance that would require VA to keep her in interrupted status in order to provide increased assistance.  In reference to the Board’s prejudice, the Veteran’s Law Judge said the following:

“Under the circumstances of this case, where the Board failed to (1) make necessary factual findings and provide analysis regarding multiple potentially applicable regulations or (2) evaluate all evidence pertaining to the appellant’s entitlement to continued VR&E services, the Court is simply unable to conclude that the Board’s errors are harmless.”

Ultimately, the Court vacated the Board’s decision and remanded the matter for further proceedings consistent with its decision.  To learn more about CCK’s arguments and the Court’s ruling, please refer to the full decision.

About the Author

Bio photo of Robert Chisholm

Robert is a Founding Partner of CCK Law. His law practice focuses on representing disabled veterans in the United States Court of Appeals for Veterans Claims and before the Department of Veterans Affairs. As a veterans lawyer Robert has been representing disabled veterans since 1990. During his extensive career, Robert has successfully represented veterans before the Board of Veterans Appeals, Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Federal Circuit.

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