By Fall 2018 M-VETS Student-Advisor Tyler Whidby
Many veterans are told by Vocational Rehabilitation counselors that they are not eligible for Chapter 31 Vocational Rehabilitation services because 12 years or more has passed since the disabled veteran separated from the military. While this is an important fact, it is often an incorrect reason for a benefits denial when applied to many situations. There are many reasons why a veteran may retain eligibility to begin or continue Vocational Rehabilitation well beyond 12 years from their separation from the military.
What is the law?
The Basic Entitlement to Vocational Rehabilitation Benefits and Services provides that an individual meets the basic entitlement criteria for vocational rehabilitation benefits and services if:
(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.[1]
Merely meeting the basic requirements for eligibility is not enough to guarantee Vocational Rehabilitation services. When initially applying for Vocational Rehabilitation services these basic eligibility requirements are subject to a “Basic Period of Eligibility.”[2] The regulations provide that for the purposes of Vocational Rehabilitation, “the term basic period of eligibility means the 12-year period beginning on the date of a veteran’s discharge….”[3]
Many veterans, and some counselors, stop there. There is a fallacy that a hard cut-off for Vocational Rehabilitation services exists 12 years after discharge. This is not the case. 38 CFR § 21.42 plainly states that “[t]he basic period of eligibility does not run as long as any of the following reasons prevents the veteran from commencing or continuing a vocational rehabilitation program.”[4]
The first and most common reason the Basic Period of Eligibility may be longer than 12 years from discharge is that a qualifying compensable service-connected disability was not established.[5] No matter the date of discharge, if the veteran does not have a qualifying disability—20% or 10% with a serious employment handicap—“[t]he basic period of eligibility does not commence until the day VA notifies a veteran of a rating determination by VA that the veteran has a qualifying compensable service-connected disability under §21.40.”[6] The basic period of eligibility runs 12 years from the date the veteran received such notice.[7]
The second reason the Basic Period of Eligibility may be longer than 12 years from discharge is if a veteran is ineligible for Vocational Rehabilitation services due to their Character of Discharge.[8] The regulations states that “[t}he basic period of eligibility does not commence until the veteran meets the requirement of a discharge or release under conditions other than dishonorable.”[9] Instead of being calculated form the date of discharge, a veteran who successfully upgrades their character of discharge has a basic period of eligibility of 12 years beginning when “[a]n appropriate authority changes the character of discharge or release; or VA determines that the discharge or release was under conditions other than dishonorable or that the discharge or release was, but no longer is, a bar to benefits.”
The Basic Period of Eligibility may also be longer than 12 years from discharge is if the veteran was unable to commence or continue their participation in Vocational Rehabilitation due to a medical condition.[10] The regulation states that “[t]he basic period of eligibility does not run during any period when a veteran’s participation in a vocational rehabilitation program is determined to be infeasible for 30 days or more because of any medical condition(s) of the veteran, including the disabling effects of chronic alcoholism (see paragraphs (c)(2) through (c)(5) of this section).”[11] The Board of Veterans Appeals has specifically held that the medical disability prohibiting participation in the Vocational Rehabilitation program need not be a service-connected disability.[12] If a physical impairment or mental condition—including alcoholism—prevented the veteran from being able to begin or continue in their rehabilitation then the 12 year clock from when they were notified of a qualifying disability stops.[13]
But that’s not the eligibility determination. When the veteran has a Serious Employment Handicap, the 12-year time limit can be completely waived.[14] If the veteran is found to have an employment handicap, even after the 12-year period of basic eligibility has expired, it must be determined whether he has a serious employment handicap and may be authorized an extension of the period of eligibility.[15] Critically, under 38 C.F.R. § 21.52, for each individual who is found to have an employment handicap, a Counseling Psychologist or Vocational Rehabilitation Counselor must make a separate determination of whether the individual has a serious employment handicap.[16]
The applicable law states that a veteran who has been found to have an employment handicap shall also be considered to have a serious employment handicap if, in pertinent part, he has a service-connected disability rated at 50% or more.[17] However, a rating of 50% is not required. The statute defines a ‘serious employment handicap’ as a significant impairment, resulting in substantial part from a service-connected disability rated at 10 percent or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests. [18]
Indeed, a serious employment handicap will be found if the veteran has a neuropsychiatric service-connected disability rated at 30% or more[19] or if the veteran’s service-connected disability has been rated at 30 or 40 percent disabling, and
(1) the veteran has a prior history of poor adjustment in training and employment, and special efforts will be needed if he is to be rehabilitated; or
(2) the veteran’s situation presents special problems due to non-service-connected disability, family pressures, etc., and a number of special and supportive services are needed to effect rehabilitation.[20]
The Board of Veterans Appeals has further held that, “while a serious employment handicap is not usually found if the veteran’s service-connected disability is rated less than 30 percent disabling, a finding of serious employment handicap may be made if the veteran’s service-connected disability has caused periods of unemployment or unstable work history, or the veteran had demonstrated a pattern of maladaptive behavior which is shown by a history of withdrawal from society or continuing dependence on Government income support programs.[21]
After obtaining a finding of a serious employment handicap, the basic period of eligibility of a veteran with a serious employment handicap may be extended beyond 12 years when the veteran’s employment and particular handicap necessitate an extension as necessary to pursue a vocational rehabilitation program under the following conditions:
(a) The basic period of eligibility may be extended when the veteran has not previously been rehabilitated to the point of employability.
(b) The basic period of eligibility may be extended when the veteran was previously declared rehabilitated to the point of employability, under the VA vocational rehabilitation program, but either:
(1) the veteran’s service-connected disability or disabilities have worsened to the extent that he is unable to perform the duties of the occupation in which he is trained, or in a related occupation; or
(2) the occupation in which the veteran was rehabilitated to the point of employability is not presently suitable in view of the veteran’s current employment handicap and capabilities (the finding of unsuitability must be based upon objective evidence developed in the course of reconsideration which shows that the nature or extent of the veteran’s employment handicap and his or her capabilities are significantly different than were previously found.) or;
(3) occupational requirements have changed and additional services are needed to help the veteran continue in the occupation in which he or she was trained or in a related field. [22]
What does this mean?
A counselor statement that a veteran is not within the basic period for eligibility may be improper and insufficient for the denial of Vocational Rehabilitation services. Determining entitlement to services is complex and requires an in-depth evaluation of all aspects of a veteran circumstances and record.
The 12-year time limit does not start until:
- the veteran receives a disability rating of at least 20% or the veteran receives a 10% rating with a Serious Employment Handicap
AND
- the character of discharge is no longer a bar to benefits
AND
- the veteran is mentally and physically able to participate in Vocational Rehabilitation.
The primary reasons for denial of a claim due to the basic period of eligibility relate to the 12-year calculations. It is necessary to ensure the counselor is using the date of notification of a qualifying disability. This may be complicated by veterans who filed disability claims many years after separating from military service or when a veteran obtained their qualifying disability rating subsequent to other rating decisions. However, a qualifying disability must be a disability rating of at least 20% or a 10% rating with a Serious Employment Handicap and the veteran must have been properly notified of this rating.
In the case of veterans who have successfully obtained discharge upgrades or other changes to their character of discharge, the 12-year calculation utilizes the date of the change in the character of discharge. In these cases, it matters neither when the veteran separated from the service nor when a disability rating was awarded. The applicable law clearly states that the 12-year eligibility period does not begin for these veterans until they become eligible for services.
The third way in which the 12-year clock is stopped is when a veteran is the mentally and physically able to participate in Vocational Rehabilitation. A veteran who can show that ANY medical or mental condition—including alcoholism—would have prevented their participation in Vocational Rehabilitation for any 30-day period may retain eligibility beyond 12 years from being notified of a qualifying disability.
Finally, should a veteran qualify for services but require time beyond the 12-year eligibility period to complete their rehabilitation, it is necessary to determine if a serious employment handicap exists. Despite what many veterans and counselors believe, a disability rating of 50% is not required. Any employment handicap, from a service-connected disability rated at 10% or more, of a veteran’s ability to prepare for, obtain, or retain employment consistent with such veteran’s abilities, aptitudes, and interests is a serious employment handicap. A veteran seeking a finding of a serious employment handicap must relate their service-connected disability, rated at least 10%, to an inability to obtain or maintain employment in which they have abilities, aptitudes, and interests (remember these three words!). A finding of a serious employment handicap results prevents the 12-year period of entitlement from ending.
While counselors may not consider all the ways to get in and stay in Vocational Rehabilitation, there are many arguments a veteran should use to ensure their entitlement to Vocational Rehabilitation. Ensure that each exception is checked for applicability to the veteran. Do not assume that the Vocational Rehabilitation counselor has gone through each of these possibilities when the veteran is told they are outside the basic period of eligibility for Chapter 31 Vocational Rehabilitation services.
[1] 38 CFR § 21.40, Basic Entitlement To Vocational Rehabilitation Benefits And Services.
[2] 38 CFR § 21.41, Basic Period Of Eligibility.
[3] 38 CFR § 21.41(a)
[4] 38 CFR § 21.42
[5] See 38 CFR § 21.42(a)
[6] Id
[7] Bd. Vet. App. 0838805 (Nov. 10, 2008)
[8] 38 CFR § 21.42(b)
[9] Id.
[10] 38 CFR §21.42(c)
[11] Id; Bd. Vet. App. 9731114 (Sept. 11, 1997)
[12] Bd. Vet. App. 0022736 (Aug. 28, 2000)
[13] Id.; see 38 C.F.R. § 21.52(e); Bd. Vet. App. 9410483 (1994)
[14] See 38 U.S.C.A. § 3101; 38 C.F.R. § 21.44; Bd. Vet. App. 9402538 (1994)
[15] Id.
[16] Bd. Vet. App. 1731945 (Aug. 8, 2017)
[17] 38 C.F.R. § 21.52(c)
[18] 38 U.S.C.A. § 3101(7); Bd. Vet. App. 0427591 (Oct. 5, 2004)
[19] Id.
[20] 38 C.F.R. § 21.52(d)
[21] 38 C.F.R. § 21.52(e); Bd. Vet. App. 0107462 (Mar. 13, 2001); Bd. Vet. App. 9410483 (1994)
[22] 38 C.F.R. § 21.44; Bd. Vet. App. 9731114 (Sept. 11, 1997)