Veteranclaims’s Blog

December 30, 2017

Single Judge Application; VR&E; email; cynicism and condescension; 38 C.F.R. § 21.197(e) (2017); 38 C.F.R. § 21.362(b)(1) (2017); 38 C.F.R. § 21.362(b)(3); 38 C.F.R. § 21.364(b)(3) (2017);

Filed under: Uncategorized — veteranclaims @ 12:30 am

Excerpt from decision below:

“On May 3, 2012, a VA official sent an e-mail to the appellant’s counselor stating that the appellant was “on the phone,” declining to “deal with” either his counselor “any more” or the rehabilitation officer “whom he thinks will only side with you. The veteran has some issues and I listened to him rant and rave for 20 minutes.” R. at 126. The counselor responded “[y]es, he rants and raves every time he pops in over here also. Sorry you had to go through that.” Id. The official
replied, “I hear this out of some veteran every day. He told me I was incompetent because I was siding with what [the officer] told him needs to be done and that [she] was siding with you. So we are all incompetent. . . . He’ll be okay but he reallllly should not call anyone incompetent.”1 Id.”

1 The level of cynicism and condescension in the official’s e-mail is startling and, it should go without saying, unacceptable.

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“The appellant argues that the Board erred by failing to adequately consider whether VA fulfilled its responsibilities under three of those regulations.
The first requires the case manager to “maintain contact with the veteran during
interruption and . . . arrange for appropriate medical or other services the veteran needs to be able to enter or reenter a rehabilitation program or a program of employment services.” 38 C.F.R. § 21.197(e) (2017). The second requires VA to “make a reasonable effort to inform the veteran and assure his or her understanding of . . . services and assistance which may be provided . . . to
help the veteran maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process.” 38 C.F.R. § 21.362(b)(1) (2017). It further requires VA to inform the participating veteran about the “specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific
responsibility for satisfactory conduct and cooperation.” 38 C.F.R. § 21.362(b)(3). Finally, the
3
third describes actions that program staff should take when the veteran’s “unsatisfactory conduct and cooperation” cause the program to be interrupted. 38 C.F.R. § 21.364(b)(3) (2017).”

=========================

 

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-0153
JERONNIMO ROWE, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: The appellant, Jeronnimo Rowe, appeals through counsel an October 7, 2015, Board of Veterans’ Appeals (Board) decision in which the Board concluded that VA did not err when it discontinued his vocational rehabilitation and employment benefits. Record (R.) at 5-11. This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision and remand the matter on appeal for further proceedings consistent with this decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from May 1977 until December 1991.
R. at 295. In August 2011, he filed an application for vocational rehabilitation benefits. R. at 110.
In December 2011, the VA regional office (RO) granted his application. R. at 150.
In the spring of 2012, the appellant enrolled in classes at Central Carolina Community
College. R. at 81-82. He apparently expected VA to reimburse him for the cost of attending those
classes. On May 30, 2012, however, the RO “interrupted” his participation in the vocational
2
rehabilitation program. R. at 130. His program counselor explained that he had “refuse[d] to talk
with me or meet with me and you have not provided a credit transfer evaluation, from the school
and signed by a school advisor, into the curriculum that you wish to pursue.” Id.
On July 5, 2012, the RO discontinued the appellant’s participation in the program effective
immediately. R. at 89. The RO explained that it determined that discontinuance was warranted
“because of your failure to provide requested items necessary to develop a rehabilitation plan
toward employment; and thus not completing your evaluation.” Id. The RO further found that the
appellant had been “unwilling to meet with or talk to your counselor so that your concerns could
be addressed and discussed.” Id.
In an August 2013 hearing before the Board, the appellant asserted that in early 2012 his
counselor told him that he was approved to attend community college classes and that VA would
reimburse him for the cost of classes. R. at 1062, 1065, 1067. The appellant stated that his
counselor stopped responding to his inquiries and that VA refused to assign him a new counselor.
R. at 1070.
On October 7, 2015, the Board issued the decision presently under review. R. at 5-11.

II. ANALYSIS
VA’s vocational rehabilitation and employment benefits program is heavily regulated. The appellant argues that the Board erred by failing to adequately consider whether VA fulfilled its responsibilities under three of those regulations.
The first requires the case manager to “maintain contact with the veteran during interruption and . . . arrange for appropriate medical or other services the veteran needs to be able to enter or reenter a rehabilitation program or a program of employment services.” 38 C.F.R. § 21.197(e) (2017). The second requires VA to “make a reasonable effort to inform the veteran and assure his or her understanding of . . . services and assistance which may be provided . . . to help the veteran maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process.” 38 C.F.R. § 21.362(b)(1) (2017). It further requires VA to inform the participating veteran about the “specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation.” 38 C.F.R. § 21.362(b)(3). Finally, the
3
third describes actions that program staff should take when the veteran’s “unsatisfactory conduct and cooperation” cause the program to be interrupted. 38 C.F.R. § 21.364(b)(3) (2017).
It is difficult to discern what took place between the appellant and program staff during the
period between January 2012 and July 2012. As will be discussed in greater detail below, VA
employees (and the Secretary on appeal) portrayed the appellant as uncooperative and belligerent,
while the appellant described VA employees as unresponsive and unprofessional. The Board did
not find any of the persons involved to be not credible. Consequently, reconstructing the facts
necessary to resolve this case is a difficult task indeed.
VA informed the appellant that it had scheduled an initial meeting with his rehabilitation
counselor for January 12, 2012. R. at 50. A March 2013 Statement of the Case indicates that VA
also sent a letter to the appellant “listing the next steps that must be done, in order to develop a
plan of services.” Id.
The appellant asserted that on December 28, 2011, he called his counselor to inform her
that he had to register for classes on January 5, 2012, and ask whether he should meet with her before then. R. at 43-44. “There was no reply by phone or letter.” Id.
According to the March 2013 Statement of the Case, however, the counselor called the appellant to explain that his enrollment in training was premature, as he had not [completed] vocational exploration process. It was further explained that the vocational exploration would help to determine a suitable vocational goal for him so that a plan toward employment could be developed. [He] indicated that he already had a plan and knew what he wanted to do and that he did not have time to do tasks he felt were irrelevant because he had been out of work too long. Counselor went on to explain that [VA] cannot sponsor him for school until there is a plan in place and issue the authorization to the school. R. at 65-66.
The appellant stated that he kept his January 12, 2012, appointment and gave his
coordinator “receipts from school. She accepted these receipts.” R. at 45. He asserted that she did not inform him that his classes “were unauthorized and no plan was in place.” Id.
At his Board hearing, the appellant stated that he told his counselor that no credit transfer report was necessary because he had no prior credits eligible for transfer. R. at 1064. “[S]he accepted that.” Id. She then “said I was approved” to attend classes. Id. He asserted that he brought his class schedule to her “and she accepted them and said you’re good to go.” R. at 1065.
4
He interpreted that to mean that VA approved his decision to enroll in classes. He brought his counselor the receipt from the school, and the counselor said “we’ll reimburse you.” R. at 1067.
He asserted that he was going to ask her detailed questions, but she responded “you’re good to go. . . . Somebody will get in contact with you from the [RO] and tell you this – all this other vital information.” Id.
In February 2013, the appellant’s counselor wrote that she asked him “to meet with an advisor at the school that he wanted to attend and to obtain a credit transfer evaluation into the  curriculum that he wanted to pursue.” R. at 116. According to the March 2013 Statement of the Case, “[h]is appointment was rescheduled for [January 19, 2012,] to allow him time to secure [a credit transfer evaluation], however, he did not keep the . . . appointment.” R. at 66. The appellant
has asserted that “no Jan[uary] 19 app[ointmen]t was made at any time.” Id.
The appellant stated that he noticed other veterans were receiving educational stipends and contacted VA to determine why he was not. R. at 1069. He said his counselor would not return telephone calls. Id. He became “disenchanted” with her and requested a new counselor. R. at 1070. VA officials refused. Id. He further asserted that he was “never asked to provide a transfer credit evaluation because I had no credits to transfer, which is verified under summary of evidences.” R. at 44.
According to the March 2013 Statement of the Case, on February 7, 2012, the appellant
left several messages on counselor’s voice mail stating his disagreement with the
need to provide requested vocational exploration information. He later appeared at
the Counselor’s office, at which time he stated that he just wanted to quit school
and the . . . program because his medications kept him awake and he could not
concentrate or focus on school work.
R. at 66.
In response to the Statement of the Case, the appellant asserted that “I never said I wanted
to quit school and I never discussed my medications. I have never had problems with my
medications keeping me awake.” R. at 45.
According to the March 2013 Statement of the Case, on April 27, 2012, the appellant met
with a vocational “officer regarding his desire to have his plan developed and tuition paid.” R. at
66. It is unclear what transpired during that meeting. His counselor later stated that she had “not
been informed of the nature of his visit.” R. at 119. When she attempted to call the appellant, he
“said to give him someone else.” Id.
5
An April 30, 2012, e-mail from the appellant’s counselor indicates that she received a
“rehabilitation evaluation . . . that his lawyer had him to participate in.” R. at 127. She also had
received an incomplete “registration advising form.” Id.
On May 3, 2012, a VA official sent an e-mail to the appellant’s counselor stating that the
appellant was “on the phone,” declining to “deal with” either his counselor “any more” or the
rehabilitation officer “whom he thinks will only side with you. The veteran has some issues and I
listened to him rant and rave for 20 minutes.” R. at 126. The counselor responded “[y]es, he rants
and raves every time he pops in over here also. Sorry you had to go through that.” Id. The official
replied, “I hear this out of some veteran every day. He told me I was incompetent because I was
siding with what [the officer] told him needs to be done and that [she] was siding with you. So we
are all incompetent. . . . He’ll be okay but he reallllly should not call anyone incompetent.”1 Id.
According to VA records, in the month prior to the counselor’s decision to interrupt the
appellant’s participation in the vocational rehabilitation program, he refused to speak to his
counselor on multiple occasions. R. at 118. The vocational officer left him a voicemail in May
2012. The appellant stated that she never discussed the “issues listed in the Statement of the Case”
or informed him that he “was uncooperative or failed to provide information.”2 Id.
An e-mail written by a VA supervisor reveals that the appellant visited the supervisor’s
office on about June 20, 2012. R. at 116-17. The supervisor stated that she instructed him “to
send me a copy of his placement test results and transfer credit evaluation.” R. at 116. No one
informed his counselor about either that meeting or a meeting that he apparently had with the
vocational officer at about the same time. R. at 117.
On July 3, 2012, the appellant spoke to a fifth VA employee. R. at 124. He refused to
speak to his counselor. The employee “informed [him] that I would submit his inquiry to our
supervisor as well as his counselor and someone would return his call by [close of business] today.” Id. There is no indication that anyone ever returned his call. Two days later, his counselor issued the notice of discontinuance.
1 The level of cynicism and condescension in the official’s e-mail is startling and, it should go without saying, unacceptable.
2 The Statement of the Case that the appellant alleges contains inaccuracies was issued by the two officials
with whom the appellant had troubled dealings. R. at 72. The notices of interruption and discontinuance were issued
by his counselor.
6
The manner in which the Board compiled and reviewed this information is deficient for a
number of reasons. The Board committed three overarching errors that tainted its entire analysis.
First, the Board did not move through the regulatory scheme put in place to ensure that the
vocational rehabilitation program functions effectively and fairly in any sort of systematic way.
Instead, its analysis contains large blocks of factual findings that, the Board seemed to assume,
supply information sufficient for the reader of its decision to agree that VA fulfilled its
responsibilities. Absent a more pointed application of factual findings to the applicable regulatory
criteria, it is difficult for the Court and the appellant to determine whether VA staff acted in a
legally correct manner.
Next, the Board also did not acknowledge that, by April 2012, the relationship between the
appellant, his counselor, and the vocational officer had become toxic. It made little effort to
separate fact from fiction and made no credibility findings. It should have taken into account the
fact that, during that all-important period between interruption and discontinuance, the appellant’s
relationship with his counselor was utterly dysfunctional and his counselor seemed to be at best
marginally aware of attempts that the appellant made to communicate with other VA officials.
Finally, it seems as though the Board conflated two distinct issues raised by this case. The
appellant seems to assert both that he should have been reimbursed for classes that he took while
an active participant in the vocational rehabilitation program and that his participation should not
have been discontinued. The Board’s failure to distinguish between these two threads of the
appellant’s argument gives its decision a circular quality. It essentially found that no
reimbursement is necessary because of the discontinuance and that the discontinuance was proper
because the appellant did not take the necessary steps to obtain reimbursement.
The Board also made three specific errors. First, the Board found that the appellant “did
not clearly indicate at the August 2013 Board hearing that his enrollment . . . was approved by his”
counselor. R. at 8. He certainly did. That finding is clearly erroneous. On remand, the Board
should more carefully discuss the appellant’s apparently credible contention that his counselor led
him to believe that VA would reimburse him for his college courses, that she reneged on that
promise and became unresponsive when he challenged her, and that supervisors refused to assign
another counselor to him or otherwise take effective steps to resolve the dispute.3 The Board
3 The Board seemed to simply accept the counselor’s account of what occurred here without making
credibility determinations, taking into account the acrimony apparent in the record, or otherwise explaining its
7
should be aware that the appellant’s view is that he tried for months to find some VA official to
listen to his complaints and received inadequate responses.
Next, the Board “acknowledge[d]” the appellant’s assertion that a credit transfer evaluation
was not necessary, but then concluded that “[w]ithout . . . the transfer credit evaluation, a plan
could not be developed.” R at 9. Why not? The Board did not explain. The Board should have
more thoroughly reviewed the information that the appellant did submit and his contention that he
supplied all information necessary to craft a plan and approve his reimbursement request. In
particular, it should discuss the appellant’s assertion (again, apparently credible) that none of his
prior college classes or military education credits could transfer and that he provided his counselor
with information showing that he had taken an entrance examination at Central Carolina
Community College and “was taking a remedial class.” R. at 1077.
Finally, the Board concluded that the appellant “did not respond to the interrupt letter sent
in May 2012 giving him 30 days to contact his Counselor.” R. at 10. As noted above, VA e-mails
reveal that he contacted VA officials at least three times during the 30 days prior to the date the
counselor issued the discontinuance letter. Two days before the counselor issued the letter, a VA
employee promised the appellant that he would receive a phone call later the same day. There is
no indication that the employee followed through on that promise. The Board should carefully
review these facts on remand.
The Court need not at this time address any other arguments that the appellant has raised.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow
decision preserves for the appellant an opportunity to argue those claimed errors before the Board
at the readjudication, and, of course, before this Court in an appeal, should the Board rule against
him [or her]”). On remand, the appellant is free to submit additional evidence and argument on the
remanded matter, and the Board is required to consider any such relevant evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-
73 (1999) (per curiam order). The Court has held that “[a] remand is meant to entail a critical
examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring
the Secretary to provide for “expeditious treatment” of claims remanded by the Court).
conclusion.
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III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s October 7, 2015, decision is VACATED and the matter on appeal is REMANDED for
further proceedings consistent with this decision.
DATED: December 28, 2017
Copies to:
Mark C. Pitts, Esq.
VA General Counsel (027)

 

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