Wing v. West

11 Vet. App. 98, 1998 U.S. Vet. App. LEXIS 182, 1998 WL 78028
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 25, 1998
DocketNo. 96-94,
StatusPublished
Cited by3 cases

This text of 11 Vet. App. 98 (Wing v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wing v. West, 11 Vet. App. 98, 1998 U.S. Vet. App. LEXIS 182, 1998 WL 78028 (Cal. 1998).

Opinion

KRAMER, Judge:

The appellant, Daniel M. Wing, appeals an October 12, 1995, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to vocational rehabilitation training pursuant to chapter 31 of title 38, United States Code. Record (R.) at 4-17. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will vacate the decision of the BVA and remand the matter for further proceedings.

I. RELEVANT BACKGROUND

The appellant served on active duty as an officer in the U.S. Air Force from July 1979 to July 1987. R. at 22. In May 1989, a VA regional office (RO) granted service connection for a movement disorder with multiple somatic complaints. R. at 88-90. The RO assigned a 100% disability rating for the movement disorder, effective July 21, 1987. R. at 84. In July 1989, the appellant applied for vocational rehabilitation benefits to assist him “in obtaining a doctorate’s degree in optometry, with a minor in pharmacy.” R. at 92. In evaluating his claim, the VA counseling psychologist assigned to the appellant opined that because of the appellant’s advanced degrees, experience, and basic skills, additional training was not necessary in order for the appellant to obtain suitable employment. R. at 108. In a December 1989 discussion, the appellant and his designated VA counseling psychologist discussed the appellant’s ability to perform his then current job as a college and education programs counselor at Fort Drum. R. at 110. During this discussion the appellant declined to travel to Syracuse, New York, for an additional medical evaluation of his disability; to submit a position description of his job; and to submit records to support his claim that he could not adequately perform his current job, on the grounds he had not been employed long enough for such records to have been developed; and declined assistance seeking new employment. R. at 110, 126-27. The RO denied the appellant’s claim in January 1990 (R. at 112), and the appellant filed a Notice of Disagreement (R. at 125). The appellant testified before the Board in September 1991. R. at 189. In November 1991, the Board remanded his claim for aptitude and psychological testing as well as a psychiatric examination. R. at 216. The Board’s decision instructed that if the claim could not be granted following the completion of these developments, it should be returned to the BVA for further appellate consideration. Id.

Upon remand, the RO sent the appellant a one-page letter stating,

The Board has determined that additional testing services be offered to you to evaluate your vocational situation. It was recommended that areas of consideration be a psychiatric evaluation, aptitude testing and psychological evaluations. Additional information concerning your current situation as well as a position description from your previous job at Fort Drum should be included.

R. at 219 (emphasis added). The letter gave the appellant the choice of checking one of these two statements: “I do wish to have additional evaluation procedures and provide the additional information requested” or “I do not wish to take part in the evaluations and request that my case be returned to the [BVA].” Id. Upon receipt of this letter, the appellant checked the line indicating that he wanted his claim returned to the BVA for further adjudication, and he returned the letter to the RO. R. at 256. The RO then returned the case to the BVA. R. at 287. In an October 12, 1995, decision, the Board determined that the appellant had not met the [100]*100criteria for chapter 31 vocational rehabilitation training and that VA was not required to-provide the appellant with any further assistance because his failure to undergo the offered testing constituted lack of cooperation. R. at 5. The decision of the Board included the following statement:

The Board recognizes the veteran’s argument that his counseling psychologist failed to provide detailed information regarding the requested examinations. However, it must be emphasized that in the Board’s November 1991 remand, it was specifically indicated that aptitude tests and psychiatric examination were necessary for the purpose of determining the veteran’s eligibility for Chapter 31 benefits, as well as the feasibility regarding completion of his vocational goals. The Board notes that the veteran has declined to cooperate, and thus further services were appropriately declined.

R. at 16.

II. ANALYSIS

A. Relevant Regulations

Three “basic requirements” for eligibility for chapter 31 vocational rehabilitation training are set out in 38 C.F.R. § 21.1(b) (1997). 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.F.R. § 21.40(a)) and an employment handicap (38 C.F.R. § 21.40(b)). Under § 21.40(a), the qualifying service-connected disability requirement is satisfied by “a service-connected disability of 20 percent or more which is ... compensable under 38 U.S.C. chapter 11.” 38 C.F.R. § 21.40(a)(1). An employment handicap is “an impairment of the veteran’s ability to prepare for, obtain, or retain employment consistent with the veteran’s abilities, aptitudes, and interests.” 38 C.F.R. § 21.51(b) (1997). “The veteran’s service-connected disability need not be the sole or primary cause of the employment handicap but it must materially contribute to the impairment.” 38 C.F.R. § 21.51(c)(2). The second requirement under § 21.1(b) is that the services necessary for training and rehabilitation must be identified by VA and the veteran. 38 C.F.R. § 21.1(b)(2). The third requirement is that VA and the veteran must develop a written plan describing the veteran’s employment goals and the program through which those goals will be achieved. 38 C.F.R. § 21.1(b)(3).

A veteran seeking chapter 31 vocational rehabilitation training will be assigned a specific case status. See 38 C.F.R. § 21.180(a) (1997). The initial case status is “applicant” status. Once the existence of a qualifying service connected disability is established under § 21.40(a), an “initial evaluation” is scheduled. 38 C.F.R. § 21.50(a) (1997).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hilkert v. West
12 Vet. App. 145 (Veterans Claims, 1999)
Pacheco v. West
12 Vet. App. 36 (Veterans Claims, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
11 Vet. App. 98, 1998 U.S. Vet. App. LEXIS 182, 1998 WL 78028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wing-v-west-cavc-1998.