M28C.IV.B.1 M28C.IV.B.1 Evaluation Process

1.01 Roles and Responsibilities

(Change Date July 2, 2014)

Before a claimant can receive services from the Veteran Readiness and Employment (VR&E) program, a Vocational Rehabilitation Counselor (VRC) must make a determination as to whether he or she is entitled to services based on a comprehensive initial evaluation in accordance with 38 United States Code (U.S.C.) 3102, 38 Code of Federal Regulations (CFR) 21.40, and 38 CFR 21.50. There must be an official entitlement determination on all claims for VR&E services unless the claimant does not attend the initial evaluation.

In accordance with 38 U.S.C. 3106 and 38 CFR 21.50, the VRC is required to determine whether it is currently reasonably feasible for the claimant to obtain and maintain suitable employment after entitlement to VR&E services has been established.

a. Veteran Readiness and Employment Officer

(Change Date August 15, 2013)

The Veteran Readiness and Employment (VR&E) Officer is responsible for the management of all VR&E initial evaluation activities, which includes providing guidance and direction to VR&E staff and oversight of VR&E decisions for entitlement to services. The VR&E Officer’s concurrence is required for decisions related to several aspects of entitlement determinations as outlined in this chapter.

b. Vocational Rehabilitation Counselor

(Change Date July 2, 2014)

The Vocational Rehabilitation Counselor (VRC) must ensure that the claimant participates and understands of the initial evaluation process during the comprehensive one-on-one initial interview.

To accomplish this, the VRC must:

Obtain information needed to make the entitlement determination, including Employment Handicap (EH) and Serious Employment Handicap (SEH); and to determine current reasonable feasibility for achievement of a vocational goal. The VRC uses the information obtained in VAF 28-1902w, Information for Veteran Readiness and Employment Entitlement Determination, medical records, intake interview, and other relevant records, when making the entitlement determination and feasibility decision.

Conduct and/or coordinate necessary vocational evaluations, an extended evaluations, and assessment of independent living (IL) needs, as appropriate.

Document and justify the decision-making process.

c. Contract Counselor

(Change Date July 2, 2014)

The VRC may use a contract counselor for some elements of the comprehensive initial evaluation in order to expedite the process. The contract counselor conducts activities relating to initial or vocational evaluations under the direction of the assigned VRC.

The role of the contract counselor is limited to the development of information necessary for the VRC to make an entitlement determination and rehabilitation planning decisions. The contract counselor cannot make eligibility, entitlement, or feasibility decisions. In addition, the contract counselor cannot develop or sign a rehabilitation plan, authorize or deny a benefit, process payments, or take any adverse action. The VRC is responsible for each of these actions.

d. Employment Coordinator

(Change Date August 15, 2013)

The Employment Coordinator (EC) may assist the VRC and the claimant in the development of the rehabilitation plan by providing labor market, employment, salary, job-specific, and other information related to the successful employment of the Chapter 31 program participants. In addition, the EC assists claimants in the use of the Job Resource Lab (JRL).

e. Claimant

(Change Date July 17, 2024)

In accordance with 38 CFR 21.362, the claimant must cooperate with the VRC in completing the comprehensive evaluation, which includes attending the Chapter 31 orientation, and fully participating in the evaluation process and rehabilitation planning activities. The claimant's Power of Attorney (POA) or third party, if present, must not be the sole contributor during the meeting, as outlined in M28C.III.C.1 and M28C.IV.B.1.

Refer to M28C.V.A.2.01.a.3 for more information on third-party and POA attendance.

1.02 Comprehensive Initial Evaluation and Entitlement Determination

a. Criteria for Comprehensive Initial Evaluation

(Change Date February 19, 2019)

In accordance with 38 CFR 21.40 and 38 CFR 21.50, a comprehensive initial evaluation must be provided to all eligible claimants who file a formal application for vocational rehabilitation services and meet one of the following criteria:

1. Claimants with a Service-Connected Disability (SCD)

(Change Date August 15, 2013)

Claimants with a SCD of 20 percent or greater under 38 U.S.C. Chapter 11 who incurred or aggravated the disability(ies) in active military service on or after September 16, 1940, may receive a comprehensive evaluation.

2. Service Member Awaiting Discharge

(Change Date July 2, 2014)

Service members awaiting discharge from active military service, who are hospitalized or receiving outpatient medical care, services, or treatment for a disability that VA will likely determine to be an SCD may receive a comprehensive evaluation. The Service member must request a memorandum rating verifying that his or her SCD rating will likely be 10 percent or higher and submitted an application on or after March 31, 1981 and before November 1, 1990; and 20 percent or higher for claimants who submitted an application on or after November 1, 1990.

In addition, Department of Veterans Affairs (VA) must have determined that the medical facility providing the hospitalization, care, service, or treatment is under contract or agreement with the VA. Whenever possible, hospitalized Service members should be provided an evaluation at the facility where they are receiving medical treatment.

3. Veterans who first applied after March 31, 1981, and before November 1, 1990.

A Veteran who meets the criteria below will be provided a comprehensive evaluation:

• a) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11;
• b) Originally applied for assistance under 38 U.S.C. chapter 31 after March 31, 1981, and before November 1, 1990; and

c) Is determined by VA to be in need of rehabilitation because of an employment handicap.

4. Entitlement Under National Defense Authorization Act

(Change Date October 1, 2018)

As a result of the enactment of Public Law (Pub. L.) 110-181, which was amended by Pub. L. 115-251, a Service member who is awaiting discharge and has incurred a serious illness or injury occurred in the line of duty rendering him or her unfit for duty is determined eligible and automatically entitled to Chapter 31 services. This is without regard to a VA SCD rating, memorandum rating, or a determination of an EH. To establish automatic entitlement, the Service member must complete VAF 28-1900, Application for Veteran Readiness and Employment for Claimants with Service-Connected Disabilities, provide the required qualifying documentation, and attend the initial evaluation while he or she are on active duty.

Although entitlement is automatic, the VRC must still provide the Service member with a comprehensive evaluation to identify and document the necessary rehabilitation services that correspond to his or her identified needs.

For comprehensive evaluations of claimants automatically entitled under NDAA, the VRC must conduct the following assessments for plan development and service provision:

• Identify the vocational impairments to employability to assess the needed rehabilitation services
• Determine SEH
• Determine feasibility of the claimant's achievement of a vocational goal

b. Criteria for Entitlement Determination

(Change Date July 11, 2017)

There must be an official entitlement determination on all claims for Chapter 31 benefits if the claimant attends the initial evaluation with the VRC. The VRC must process the entitlement determination as follows:

1. Claimant Fails to Attend Initial Evaluation

(Change Date October 1, 2020)

If the claimant fails to report for the initial evaluation, the VRC must send Vocational Rehabilitation (VR) letter VR-15, Missed Appointment-10-day Letter, and discontinue the claim if a response is not received after 10 calendar days. However, if the claimant contacts the VR&E division to report that he or she is not interested in pursuing the claim, the VRC must document the contact in an electronic case note and may proceed with disallowance; there is no need to wait for the 10-day period to expire. The VRC is not required to make an entitlement determination or complete VAF 28-1902b, Counseling Record-Narrative Report, in these instance. The claimant must be notified of the decision to close the case using VR-87, Disallowance - No Show for Initial Evaluation. A copy of the letter must be placed in the claimant’s VR&E record.

2. Claimant Attends Initial Evaluation

(Change Date October 1, 2020)

If the claimant attends orientation and/or initial intake evaluation appointment, but indicates he or she is not interested in participating in services, the claimant may withdraw his or her application, refer to M28C.IV.A.1.11 for additional information.

If the claimant does not pursue VR&E services following a notice of a positive entitlement decision, the VRC must provide due process prior discontinuing the case. Refer to M28C.III.C.1 for more information on due process.

c. Severance of Service-Connection or Reduction to a Non-compensable Rating

(Change Date August 15, 2013)

If a claimant receives a rating action proposing severance of service-connection, reduction to a non-compensable rating or zero percent, and his or her initial evaluation has not begun or is in process, all processes relating to the determination of entitlement must be immediately terminated. In accordance with 38 CFR 21.48 and 38 CFR 3.105, if the proposed rating action becomes final, his or her Chapter 31 claim must be disallowed.

d. Initial Evaluation for Sensitive Level Claimant

(Change Date June 13, 2019)

All applicants requesting Chapter 31 benefits, including sensitive level claimants such as Veteran VA employees working in a Regional Office (RO), are required to meet with a VRC to complete a comprehensive initial evaluation. Due to the sensitive nature of the counseling process, these evaluations must not be completed at the RO where the applicant is employed. The policy for completing an initial evaluation for a sensitive level claimant who is a employed at the RO or a relative of an RO employee is as follows:

A comprehensive evaluation will be conducted and an entitlement decision will be made at the designated alternate RO. Refer to Appendix T for list of Alternate ROs. When transferring cases to alternate ROs, consideration must be given to required travel and other factors that could delay or disrupt the evaluation process. The case transfer is completed electronically by following guidance outlined in M28C.III.A.2 .

If the sensitive level claimant is unable to make the trip to the alternate RO due to his or her disability or other life circumstances, the Alternate RO could use Tele-counseling to meet with the claimant to conduct the initial evaluation. If the claimant is unable or unwilling to use Tele-counseling, the Alternate RO must work with the employing RO to utilize contracting. If a National contract exists, the employing RO will procure the contracted services. If there is no National contract in place, the RO will locally procure this service with the assistance of a contract specialist as outlined in M28C.V.B.3

After the sensitive level claimant’s evaluation and entitlement decision is completed at the alternate RO, and the claimant is found entitled to services, the case will remain at the alternate RO to develop and implement a rehabilitation plan.

All case management services through case closure will be completed by the alternate RO, with the exceptions of the following:

• Non-Paid Work Experience (NPWE) cases, including those hired at the RO of jurisdiction
• Work study claimants
• Sensitive Level cases that are or will be placed in Job Ready status during FY2019

This policy also applies to cases where the VR&E Officer determines a conflict of interest may exist if the claimant's record remains at the RO of jurisdiction.

The case manager must follow the procedures for intraregional transfer of cases outlined in M28C.III.A.2.

1.03 Comprehensive Approach to the Evaluation

(Change Date July 2, 2014)

A VRC or contract counselor may conduct some elements of the initial evaluation; however, only a VRC may determine a claimant's entitlement to Chapter 31 benefits. The VRC must gather pertinent information from all relevant sources to thoroughly understand the claimant’s ability to obtain and maintain suitable employment.

A comprehensive evaluation for a claimant must include, but is not limited to the following activities:

• Development and analysis of information necessary to determine the claimant’s physical, mental, social, personal, and employment circumstances
• Determination of the functional limitations of the claimant's SCD and NSCD condition(s) that affect his or her ability to obtain and maintain suitable employment
• Assessment of other life circumstances
• Determination of claimant’s entitlement to Chapter 31 program, including EH and SEH determinations in accordance with 38 U.S.C. §3106
• Evaluation of the claimant's ability to obtain and maintain suitable employment and/or increase the claimant's independence in daily living in accordance with 38 U.S.C. §3109
• Assessment of claimant’s vocational skills and needs
• Identification of barriers that may impact the claimant's employability
• Determination of compatibility of claimant's service-connected disabilities with the work requirements of his or her own business
• Referral to other resources and programs for which he or she may qualify, if the claimant is determined not entitled to vocational rehabilitation services

The evidence developed during the initial evaluation will be the basis for determining a need for vocational rehabilitation services and assistance. The existence or non-existence of the vocational impairment, and the contribution or non-contribution of service-connected disability to the vocational impairment, must be clearly explained as part of the outcome of the comprehensive evaluation.

a. Tools for Initial Evaluation

(Change Date December 21, 2018)

During the initial evaluation, the VRC must take a thorough and extensive approach for collecting, reviewing, and analyzing the extent and effects of a claimant’s SCD or Non-Service-Connected Disability (NSCD) condition(s) indicated in his or her life history data, such as work history, education, training, family, and community adjustment. If available, the VRC may use the following tools to assist with the completion of the initial evaluation:

• Previous evaluation of abilities, aptitudes, and interests
• Results of vocational and/or psychological assessments
• Results of evaluations and reevaluations by a medical consultant
• Recommendations obtained from the Vocational Rehabilitation Panel (VRP)
• Information obtained from VA Health Administration (VHA) and/or the claimant’s private medical records
• Information obtained from State vocational rehabilitation counselors
• Current and previous VAF 28-1902w

Written authorization must be obtained from the claimant or legal guardian prior to requesting information from sources other than the claimant or VA, using VAF 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA).

VRC’s are encouraged to make referrals, as needed, for labor market information and other resources from the DOL-sponsored State Agencies, if information is not accessible to the VRC from other sources.

b. Previous Chapter 31 Program Participant

(Change Date May 4, 2022)

If a claimant is a previous Chapter 31 program participant, the VRC must review the claimant’s previous VR&E record, Veterans Benefits Management System (VBMS), Corporate WINRS (CWINRS), and SHARE for current and historical information.

The VRC must conduct a comprehensive evaluation to determine if there are changes in the claimant's circumstances that will justify approval of additional vocational rehabilitation services. The VRC must document the decision on VAF 28-1902b, Counseling Record - Narrative Report.

1. Rehabilitated

The VRC must determine if the decision of rehabilitation will be set aside and additional services may be granted. The decision must be documented and justified in accordance with the provisions under 38 CFR 21.284.

The determination for a previously rehabilitated case must be concurred by the VR&E Officer if the case was closed within one year from the date of closure.

2. Discontinued with Maximum Rehabilitation Gain (MRG)

The VRC must determine if the reasons for prior discontinuance have been removed and if the claimant is entitled to Chapter 31 benefits. The decision must be documented and justified in accordance with the provisions of 38 CFR 21.198(c).

The determination for a previously discontinued case with an MRG must be concurred by the VR&E Officer if the case was closed within one year from the date of closure and the claimant meets the criteria outlined in 38 CFR 21.198(d).

3. Discontinued due to Unsatisfactory Conduct or Cooperation

The VRC must determine if the unsatisfactory conduct or cooperation under the provision of 38 CFR 21.364(b) has been resolved and will not likely recur, and the same or revised rehabilitation program is considered suitable. The decision must be documented and justified in accordance with the provision of 38 CFR 21.364(a).

4. Limited Employment Assistance under 38 U.S.C. 3117

The VRC must determine if the claimant meets the criteria for limited employment services as stated in 38 U.S.C. 3117.

The following conditions must be met to be eligible:

The Veteran must have a service-connected disability rating of 10% or more.

The Veteran must be determined employable in a suitable occupation.

The Veteran must have participated in a vocational rehabilitation program under Chapter 31 or a similar program under the Rehabilitation Act of 1973 as amended.

If the claimant does not meet the criteria for limited employment assistance, the claimant must be informed that her or she is not entitled to Chapter 31 benefits using letter VR-58 and VAF 20-0998. The VRC must provide the claimant with written notification on the day the decision is made, and a copy of this notification must be placed in the claimant's VR&E record.

c. Medical Treatment, Care, and Services to Claimants

(Change Date April 2, 2015)

In accordance with 38 CFR 21.240(a), a claimant shall be furnished medical treatment, care, and services which VA determines are necessary to develop, carry out, and complete the claimant’s rehabilitation plan. Referrals for medical services may be made to facilities over which VA has direct jurisdiction, except as authorized on a contract or fee basis under the provisions of 38 U.S.C. 17 by VHA or under the Foreign Medical Program as outlined in M28C.V.C.1 .

VR&E cannot pay VHA for any services provided to claimants by a VAMC or other VHA facility. For more information on medical treatment and services, refer to M28C.V.A.4.

d. Role of the Medical Consultant

1. When to Use a Medical Consultant

(Change Date August 15, 2013)

During the initial evaluation, the VRC may request a VAMC medical consultation for an opinion regarding the extent of the claimant’s disability, the extent and nature of the limitations, medical impact on the occupation(s) being considered for the claimant, the possible need for adjustment or modification to a program of services, and other issues of concern.

2. How the Medical Consultant May Provide Services

(Change Date August 15, 2013)

The medical consultant may provide services in a variety of ways including reviewing the claimant’s records and discussing the claimant’s limitations, treatment plans, prognosis, and overall physical and mental health with the VRC.

3. Referrals for Medical Consultation

(Change Date August 15, 2013)

Referrals for medical consultations should provide adequate information to allow the consultant to address the referral issue. Refer to M28C.V.A.4 for complete procedural guidance on the referral process.

4. Documenting the Medical Consultation

(Change Date August 15, 2013)

The VRC must use one or more of the following methods to document the need and results of a medical consultation:

• VAF 28-8861, Request for Medical Services-Chapter 31
• Electronic medical notes, such as Compensation and Pension Records Interchange (CAPRI)
• Electronic case note

5. Consideration of the Medical Consultant’s Recommendations

(Change Date August 15, 2013)

The VRC must review and carefully consider the recommendations of the medical consultant, but the VRC has ultimate responsibility for making the entitlement and rehabilitation planning decisions. The VRC will consider the information obtained through medical consultation with all other information obtained throughout the evaluation to make sound decisions regarding the claimant’s rehabilitation.

e. Medical Opinion on Functional Limitations and Capabilities

(Change Date August 15, 2013)

The VRC will occasionally need additional medical information to determine the extent of a claimant's functional capabilities and/or limitations. Additionally, medical support for a claimant’s ability to perform certain essential duties of an occupation may be needed as part of the vocational exploration and rehabilitation planning.

1. Requesting a Medical Opinion Related to Functional Limitations

(Change date August 15, 2013)

VRCs have professional knowledge of disability conditions which equip them with the ability to ascertain functional limitation information required of the initial evaluation by reviewing the claimant's medical records and/or disability rating. However, if the VRC is unable to determine the extent of the functional limitations related to a disability condition or multiple conditions, a medical consultation may be required with the claimant’s treating physician, physician assistant, or nurse practitioner. This may be a VA or non-VA healthcare provider, although the claimant’s documented consent, using VAF 21-4142, is needed before consulting non-VA healthcare providers.

2. Requesting a Medical Opinion Related to Specific Capabilities

(Change date August 15, 2013)

A VRC may need an additional assessment of a claimant's specific capabilities related to the essential duties of an occupation being considered as part of rehabilitation planning. Alternatively, if the claimant's specific capabilities are unclear with regards to cognitive or physical functioning, the VRC may need general information about the claimant's capabilities to determine which types of occupations will be suitable based on the claimant's abilities.

When asking a treatment provider for this information, VAF 28-8861 or an electronic CAPRI referral is used. VAF 21-4142, signed by the claimant, is used when requesting information from a non-VA provider. In the Comments section of VAF-28-8861 or item 12 of VAF 21-4142, only information specifically needed in the evaluation is requested, but VRCs should not specify the means by which the treatment provider will assess the claimant for the needed information. In some cases, treatment providers will be able to provide the requested information based on existing medical treatment records. In other cases, the treatment provider may conduct an assessment or refer out to a specialist for specific assessments.

When requesting general information about capabilities, the VRC should be clear about the need. If a specific concern is present, the VRC should indicate what the identified concern is and ask the treatment provider for specific information and recommendations.

Examples of the type of information a VRC may request in a medical opinion include:

Functional limitations and capabilities that need to be identified as they relate to a specific employment goal.

Whether the proposed employment goal is unrealistic due to physical or cognitive limitations.

Any physical disabilities that may impact desired employment opportunities.

Any necessary workplace accommodations.

Whether the claimant meets or exceeds the physical requirements of the occupation.

Whether the claimant is fit to return to work based on his or her current physical or cognitive limitations.

Whether the claimant is currently engaged in treatment that is expected to improve his or her functional capacity.

Whether the claimant may have reduced work tolerance (RWT) and thus, have a reduced attendance requirement, which may only be authorized by a physician, physician assistant, or nurse practitioner. Refer to M28C.IV.C.2 for information on RWT.

3. Sources of Information to Define Occupational Requirements

(Change date August 15, 2013)

When requesting information about specific capabilities related to an occupation being explored during the evaluation, the VRC should indicate what the specific physical requirements are and whether the claimant can perform those physical requirements. An outline of the functional requirements of the occupation should be obtained from a documented source such as the Occupational Outlook Handbook (OOH), Dictionary of Occupational Titles (DOT), Occupational Information Network (O*NET), etc. This information should be cited on the request.

A list of the occupational requirements should be documented for the provider, allowing space on the referral form for him or her to indicate if the claimant can perform, cannot perform, or can perform with assistive devices. Alternatively, if the VRC and claimant are considering several occupations with differing requirements, the VRC may ask the treatment provider what level of functioning the claimant can perform in a certain category. For example, if asking about a claimant’s ability to lift, the VRC may ask the treatment provider if the claimant is able to lift light, medium, or heavy weight defined in pounds according to strength ratings at Sedentary strength level: U.S. Bureau of Labor Statistics.

4. Specialized Assessments

(Change date August 15, 2013)

In some cases, treatment providers may refer out for specialized assessments such as neuropsychological assessments or functional capacity evaluations. In these cases, the treatment provider may refer to a provider within the VHA system or refer to a private provider under the VHA fee basis program.

A VRC may not request such a specialized assessment, as it is within the purview of the medical provider to determine when such specialized assessments are necessary to address the VRC's specific concerns or questions.

f. Assessments and Measurements

(Change Date September 23, 2022)

The assessment of a claimant’s interests, aptitudes, and abilities is critically important to the determinations of employment handicap and serious employment handicap. A quality evaluation that includes objective data from tests is necessary to develop an understanding of a person’s interests, aptitudes, and abilities. The VRC and VR&E Officer must determine the appropriate assessment(s) for each claimant. Each Regional Office will need to go through the appropriate channels to procure assessment tools utilizing local General Operating Expense (GOE) funds.

Interests, as related to occupational suitability and applied in VR&E, relate to a pattern or grouping of interests rather than an isolated statement expressing or disavowing interest in a particular occupation. Individuals demonstrate a pattern of interests over time. Many life activities reveal or evidence interest patterns. These activities may be evident in the use of leisure time, pursuit of education, employment, reading habits, and informal contacts with vocational activities. Interest inventories and other standardized assessment tools provide information regarding interest patterns and preferences useful in determining the suitability of currently or previously held occupations as well as those to be considered as suitable goals of vocational rehabilitation programs. The VRC will develop information on interest patterns and consider it with other factors such as abilities, aptitudes, personality characteristics, physical limitations, situational conditions, occupational opportunities, and other relevant information.

1. Purpose of Standardized Assessments

(Change Date August 15, 2013)

Assessments and measurements are used to provide further information regarding a claimant’s aptitudes, interests, abilities, temperament, personality, and current level of psychological functioning.

Results of standardized assessments provide, in combination with other information, a foundation for vocational exploration, determination of the suitability of current employment or a proposed vocational goal and the identification of rehabilitation needs.

2. Use of Assessments and Measurements

(Change Date August 15, 2013)

When assessing interests, abilities, and aptitudes, it is generally accepted that past performance and demonstrated interests are predictors of future performance. However, when existing information is insufficient and/or contradictory, the VRC should use standardized assessments of aptitude or ability to ensure the evaluation is comprehensive.

3. Assessment Selection

(Change Date August 15, 2013)

When selecting assessments for claimants, the VR&E Officer must ensure the following:

Selected assessments are suitable.

Sufficient referral information is provided to the third party providers to ensure that appropriate assessments are utilized.

Assessments are appropriate for persons with disability(ies), cultural diversities.

The norm group of the selected assessments is standardized and includes members of the population to which the claimant belongs.

4. Vocational Assessments for Claimants with Special Needs

(Change Date March 31, 2014)

Standard assessments may not be adequate for claimants with special needs as a result of their disability conditions or age. A specialized assessment may be required in exploring a suitable vocational goal. The VRC must certify that specialized testing is required for the specific claimant due to his/her disabilities or other needs. This certification must be documented in VAF 28-1902n, Section 2, Observations from Aptitude Testing and Abilities.

5. Recommended Alternatives for Standard Vocational Evaluations

(Change Date March 31, 2014)

The VRC must refer the claimant to Veterans Health Administration (VHA) for specialized vocational assessment services. VHA is the primary resource for the provision of vocational evaluation services under the Chapter 31 program for claimants with special needs. The VRC will use the VAF 28-8861, Request for Medical Services – Chapter 31 to submit the referral.

National Contract Information on the use of the National Contract vs. local contracting activities can be found in M28C.V.B.3. In the event that the required vocational assessment services are not available through VHA, the VRC may refer the claimant to a contractor counselor. The VRC must ensure that the national contracting procedures are closely followed. Refer to M28C.V.B.3 for more information on contracting.

State Vocational Rehabilitation or Other Community Resources- If specialized vocational assessments are not available through VHA or a contract counselor, the VRC may explore vocational assessment services offered by State Vocational Rehabilitation offices. Refer to M28C.V.B.3 for more information on contracting. In addition, the specialized testing may be procured from other community resources. However, prior to the procurement of services, the VRC must certify that the requested vocational assessment services are not available through VHA or a contract counselor and that the specialized testing is required for the specific claimant due to his/her disability, age, or other needs. A VA contract specialist must provide assistance in the process for purchasing vocational assessment services to ensure that appropriate procurement procedures are followed. Refer to M28C.V.B.3 for contracting procedures.

6. Circumstances in which Vocational Assessment May be Waived

(Change Date July 2, 2014)

All eligible claimants are entitled to vocational services including a vocational assessment that assists in identifying employment that is consistent with their pattern of abilities, aptitudes, and interests. However, a vocational assessment may be waived in specific circumstances, such as:

• Claimants who completed vocational testing within the last three years through Chapter 31 or Chapter 36 services
• Claimants with the most severe disabilities who are unable to participate in vocational assessment
• Claimants who have submitted a copy of a transcript which may be used in lieu of standardized tests to assess their aptitudes and abilities

If the results of previous vocational assessments are used, the VRC must ensure the vocational assessment report is obtained and included in the claimant’s VR&E record. The vocational assessment report should include a summary of findings and assessments administered. The report should not include raw scores, answer sheets, copies of actual test or computerized printouts.

In addition, the VRC must use his/her professional judgment in determining whether previous assessment results are usable or if additional vocational assessments are needed.

The VRC must clearly document the rationale for waiving vocational assessment for claimants on VAF 28-1902n, Section 2, Observations from Aptitude Testing and Abilities.

7. Documenting Assessment Results

(Change Date August 15, 2013)

All assessment results must be documented using the following:

VAF 28-1902b, When a claimant is determined not entitled, the VR&E Counselor must document any interest and aptitude assessment results to support the justification for the decision when a claimant has overcome the effects of the vocational impairment.

VAF 28-1902n, Counseling Record – Narrative Report (Supplemental Sheet) Must be used to document the vocational exploration and planning after the claimant is determined entitled to Veteran Readiness and Employment (VR&E) services and all decisions made during plan development. Item #1 must include transferable skills analysis and Item #2 must include the items cited below.

The VRC must describe the following:

• Assessment(s) used
• Results of the assessment(s) and

Vocational significance of the results.

g. Contract Services

(Change Date August 15, 2013)

To expedite the initial evaluation process, the VRC may use the services of a contractor. The VRC must contact the applicant prior to any contractor involvement to inform the claimant that he or she is being referred to a contractor and the purpose for referral using VR-05, Appointment-Ch31 Assessment with Contractor or VR-06, Appointment–After Ch31 Assessment with Contractor, as appropriate. Additionally, the case manager must obtain the claimant’s signature on VAF 3288, Request for and Consent to Release Information from Individual’s Record.

The VRC must ensure that referrals for services are made to contractors with expertise in the needed area. Services should not be requested which are outside the scope of the contract. For more information on contracting activities, see M28C.V.B.3.

h. Impact of Medical Marijuana or Legalized Recreational Marijuana

(Change Date October 1, 2020)

A claimant’s use of medical marijuana or legalized recreational marijuana must not prevent a claimant from receiving a program of vocational rehabilitation services. If the claimant meets the basic entitlement criteria outlined in 38 CFR 21.40, he or she will be provided services under the VR&E program. Although basic entitlement is not affected, the VRC must consider the impact of the use of medical or legalized recreational marijuana on the feasibility of a vocational goal.

The following are considerations when developing a rehabilitation plan impacted by medical or legalized recreational marijuana:

• (1) Claimants using Medical Marijuana or Legalized Recreational Marijuana

The VRC must consider the suitability of a vocational goal when developing a plan of services for a claimant participating in state medical marijuana program or legalized recreational marijuana as use of marijuana may pose a safety risk in some occupations. It may also prevent a claimant from obtaining employment in certain vocational goals.

Veterans using medical marijuana in a state where it has been legalized may be provided vocationally oriented services, including retraining and job placement, if a suitable vocational goal is identified.

During case management, the VRC must monitor the claimant’s continued use of medical marijuana, compliance with other prescribed treatments, and stability of treatment for other underlying conditions. As with all phases of the VR&E program, the VRC must ensure that suitability of the vocational goal or feasibility for achievement of a vocational goal is reevaluated when the need occurs.

(2) Prohibition of Plan Development for an Employment Goal in Marijuana Industry

The VRC must not develop a rehabilitation plan with the stated goal of preparing and obtaining employment in the marijuana industry. This includes positions in cultivating, distributing, dispensing, or selling marijuana.

(3) Marijuana as a Schedule I Drug

Marijuana is classified as a Schedule I drug under the Controlled Substance Act (CSA), Title 21 USC 801. State laws authorizing the use of Schedule I drugs, such as marijuana, even when characterized as medicine, are contrary to federal laws.

i. Duty to Assist

(Change Date August 15, 2013)

The VRC has a legal duty to assist the claimant in developing evidence to support his or her claim for vocational rehabilitation benefits and services when evidence of record is insufficient. Examples of evidence include medical treatment records, employer evaluations, and records of prior training. For more information on duty to assist, refer to 38 CFR 21.33.

j. Entitlement to Other VA Education Benefits

(Change Date June 4, 2021)

Claimants may have a number of other VA education benefits available for use, which gives them eligibility and entitlement to more than one education benefit. When a claimant applies for the Chapter 31 program, the VRC must review the claimant's eligibility for other education benefits is addressed to ensure that the claimant is provided appropriate guidance in utilizing his or her benefits in the most advantageous manner. Appendix AX, Chapter 31 and Chapter 33 Benefits Comparison may be used to assist with benefits counseling.

During the initial evaluation, the VRC must determine if the claimant is eligible for, is in receipt of another VA education benefit. A review of Long Term Solution (LTS), Share, and/or Veterans Information Systems (VIS), may assist the VRC in determining the claimant’s eligibility to another VA education benefit.

The claimant may opt to apply for Post 9/11 GI Bill education benefits while pursuing an entitlement determination for VR&E services. VA Education Service will complete a review of the claimant’s eligibility for Post 9/11 GI Bill benefits and send the claimant a Certificate of Eligibility (COE).

The COE lists the following information:

• Remaining benefits (months and days) available under the Post 9/11 GI Bill,
• Delimiting date, if applicable, and

Percentage of benefits the claimant is entitled to and the service information used to calculate that percentage.

This information is useful when assisting the claimant in making an informed decision about the use of his or her VA benefits.

Effective April 1, 2021, Education Service will no longer count entitlement used under Chapter 31 against a claimant's 48 months of entitlement available under two or more VA education programs in accordance with 38 U.S.C. 3695(a), commonly referred to as the 48-month rule.

During the period of December 10, 2015 through September 21, 2016, Education Service issued an advisory to the Regional Processing Offices regarding interpretation of the 48-month rule. As a result, claims processed during this time period do not to reflect or deduct Chapter 31 entitlement use from remaining entitlement (48-month rule). VA was instructed to honor the COEs, and awards processed during that period.

1. Election Required if Eligible Under More than One Chapter

(Change Date December 27, 2012)

When a claimant has entitlement to more than one education benefit, the claimant must elect which benefit to receive, in accordance with 38 U.S.C. 3322 and 38 CFR 21.21. Under no circumstance can a claimant receive payment from one of the education benefits listed in section 1.03.k of this chapter while receiving Chapter 31 subsistence allowance. A claimant also may not receive assistance under section 510 of title 10 or provisions of the Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561) concurrently with VA education assistance, per 38 U.S.C. 3322.

If the claimant is determined entitled to Chapter 31 and is eligible for, is in receipt of, another VA education benefit, such as Chapter 33, the VRC must complete the following actions:

If the claimant is entitled to Chapter 31 benefits and services, but does not elect Chapter 31, the VRC must document the entitlement determination on VAF 28-1902b and provide due process given the claimant elected not to pursue their Chapter 31 claim.

If the claimant elects to continue under Chapter 31, the VRC should proceed with the evaluation and planning.

If a claimant is entitled to both a Chapter 31 subsistence allowance and Post 9/11 GI Bill Chapter 33 educational assistance, the claimant must make an initial election of benefits as outlined in M28C.IV.C.2.04.

2. Prior Training as Part of a Rehabilitation Program

(Change Date December 27, 2012)

When developing the Individualized Written Rehabilitation Plan (IWRP), the VRC must evaluate any prior training the claimant possesses to ensure that the claimant is taking full advantage of past experience in accordance with 38 CFR 21.21(b). To the extent possible, the utilization of prior training may reduce the amount of remaining training required and lead to employability in an expedient manner. Refer to M28C.IV.C.2.03.h and M28C.V.B.6.02 regarding retroactive inductions.

k. VA Education Benefits

(Change Date December 27, 2012)

38 U.S.C.,Chapter I, Part 21, Subpart A, governs the delivery of claimants’ benefits. Title 38 includes the VR&E program, which is outlined in Chapter 31, as well as several claimants’ education benefits, including:

1. Montgomery GI Bill (Chapter 30)

(Change Date December 27, 2012)

To qualify for the Montgomery GI Bill (MGIB), active-duty Service members enroll and pay $100 per month for 12 months to be entitled to receive a monthly education benefit once they have completed a minimum service obligation. The MGIB provides up to 36 months of education benefits. This benefit may be used for degree and certificate programs, flight training, apprenticeship/on-the-job training and correspondence courses. Remedial, deficiency and refresher courses may be approved under certain circumstances. Generally, benefits are payable for 10 years following release from active duty.

2. Claimants’ Educational Assistance Program (Chapter 32)

(Change Date December 27, 2012)

Claimants’ Educational Assistance Program (VEAP) is available to those who entered service for the first time between January 1, 1977, and June 30, 1985. VEAP benefits can be used for degree, certificate, correspondence, apprenticeship/on-the-job training programs and vocational flight training programs. In certain circumstances, remedial, deficiency and refresher training may also be available. Benefit entitlement is up to 36 months. Generally, benefits are payable for 10 years following release from active duty.

3. Post-9/11 GI Bill (Chapter 33)

(Change Date December 27, 2012)

The Forever GI Bill provides financial support for education and housing to individuals with at least 90 days of service on or after September 11, 2001, or individuals discharged with a service-connected disability. Approved training under the Post-9/11 GI Bill includes graduate and undergraduate degrees, vocational/technical training, on-the-job training, flight training, correspondence training, licensing and national testing programs, and tutorial assistance. The program pays for tuition and fees in addition to a monthly housing allowance and a stipend for books and supplies. Benefit entitlement is up to 36 months. Generally, benefits are payable for 15 years following release from active duty. However, on August 17, 2017 the Harry W. Colmery Veterans Educational Assistance Act also known as the “Forever GI-BILL” was passed and made significant changes to the GI-BILL. The law removes the 15-year time limit for the use of Post-9/11 GI Bill benefit for those whose last discharge or release from active duty is on or after January 1, 2013, children of deceased service members who became entitled to Post-9/11 GI Bill benefit on or after January 1, 2013, and all spouses using Fry Scholarship.

4. Survivors’ and Dependents’ Educational Assistance (Chapter 35)

(Change Date August 1, 2018)

Survivors’ and Dependents' Educational Assistance provides education and training opportunities to eligible dependents of certain claimants. These benefits may be used for degree and certificate programs, apprenticeship and on-the-job training. Remedial, deficiency and refresher courses may be approved under certain circumstances. The program offers up to 45 months of education benefits. The period of eligibility varies as it is based on a number of factors. The Harry W. Colmery Veterans Educational Assistance Act decreased the amount of entitlement that new eligible individuals will receive under the Survivors’ and Dependents’ Educational Assistance (DEA) program from 45 months to 36 months.

For more information on the delivery of these services, refer to M28C.VII.A.2.

5. Educational and Vocational Counseling Services (Chapter 36)

(Change Date December 27, 2012)

Free educational and vocational counseling services under Chapter 36 are provided to transitioning Service members and claimants six months prior to discharge to one year following discharge. Additionally, current beneficiaries of VA educational assistance qualify for service under Chapter 36, in accordance with 38 U.S.C. 3697A.

For more information on the delivery of these services, refer to M28C.VII.A.1 .

6. Benefits for Children of Vietnam Veterans and Certain Other Veterans (Chapter 18)

(Change Date December 27, 2012)

VA provides monetary allowances, vocational training and rehabilitation, education services and health care benefits to certain Korea and Vietnam Claimants’ birth children who are born with spina bifida.

Refer to M28C.VII.A.3 for additional information on the implementation of Chapter 18 services.

For more information refer to VA Education Benefits.

(a) Education Benefits Under 10 United States Code

(Change Date December 27, 2017)

10 U.S.C. provides the delivery of education benefits to claimants who are currently serving in the Reserve Components, as follows:

• Selected Reserve Educational Assistance Program (Chapter 1606)

(Change Date December 27, 2012)

A Reservist must be actively drilling and have a six-year obligation in the Selected Reserve to be eligible for services under Chapter 1606.

Approved training under this benefit includes graduate and undergraduate degrees, vocational/technical training, on-the-job or apprenticeship training, correspondence training and flight training. Benefit entitlement is up to 36 months. Entitlement to this benefit is generally contingent upon continued service in the Selected Reserve.

(b) Education Benefits Under the Department of Defense Authorization Law for FY1981

(Change Date December 27, 2012)

Pub. L. 96-342, the Department of Defense Authorization Act for FY1981, provides education services to a distinct section of the claimant population. Those programs include the following:

• (1.) Educational Assistance Test Program (Section 901)

(Change Date December 27, 2012)

Section 901 is available to individuals who entered active duty after September 30, 1980, and before October 1, 1981. Educational services are limited to onsite training at post-secondary institutions only. Benefit entitlement is up to 36 months. Generally, benefits are payable for 10 years following release from active duty.

(2.) Educational Assistance Pilot Program (Section 903)

(Change Date December 27, 2012)

Educational benefits are available under section 903 to Service members or Veterans who enlisted on active duty after November 30, 1980, and before October 1, 1981. Benefits can be used for degree, certificate, correspondence, apprenticeship/on-the-job training programs and vocational flight training programs. In certain circumstances, remedial, deficiency and refresher training may also be available. Benefit entitlement is up to 36 months. Generally, benefits are payable for 10 years following release from active duty.

l. Transfer of Entitlement

(Change Date June 4, 2021)

The Post 9/11 GI Bill allows members of the Armed Forces (active duty or Selected Reserve, officer or enlisted) to transfer unused education benefits to immediate family members. This is commonly referred to as Transfer of Entitlement (TOE).

TOE is a recruitment and retention tool used by the Department of Defense (DoD) that allows Service members to transfer months of entitlement under VA education programs to qualified dependents. The criteria for eligibility to this benefit are determined by DoD and generally requires a commitment to serve additional years on active duty.

During the initial evaluation, the VRC must determine if the claimant is eligible for, is in receipt of, or has completed a Transfer of Entitlement (TOE). A review of Long Term Solution (LTS), may assist the VRC in determining the claimant’s eligibility to another VA education benefit.

If the claimant has completed a TOE, the VRC must counsel the claimant regarding the potential impact of the use of any transferred entitlement to the claimant’s Chapter 31 benefits. Transferred entitlement that has not been used by a dependent is not counted against the months of entitlement available under Chapter 31. However, if the dependent has used or starts to use the transferred entitlement after the claimant is determined entitled to Chapter 31 benefits, the number of months used by the dependent must be deducted from the available Chapter 31 entitlement.

This could potentially impact the claimant’s ability to complete his or her Chapter 31 program. In this instance, redevelopment of the claimant’s rehabilitation plan may be required, or an extension of entitlement may be requested to ensure the claimant’s successful completion of his or her program. While VAF 28-0957, Vocational Rehabilitation Guidelines and Debt Prevention states that it is the claimant’s responsibility to notify the case manager when a dependent starts to use transferred entitlement, case managers must review LTS at least once per year to make sure the transferred entitlement has not been used.

Refer to M28C.IV.A.2 for information about calculating entitlement and entitlement extensions for claimants who previously used VA education benefits.

For the purpose of applying the 48-month rule, transferred entitlement is not charged to the transferor (Veteran or Service member) until the entitlement is actually used by the dependent. However, a claimant may exceed 48-months of benefits under Chapter 31 if necessary, to accomplish the purposes of a rehabilitation program if the specific criteria for the extension are met. Refer to M28C.IV.A.2 for more information on entitlement extensions.

The amount of an entitlement used under Chapter 31 does not affect the amount of entitlement transferred and available for the dependent. However, if the claimant later revokes the TOE and uses another VA education program, any entitlement used under Chapter 31 must be factored into the calculation of the claimant's remaining Chapter 31 entitlement.

When the claimant notifies the VRC or the VRC finds that the dependent has started to use the transferred entitlement, while the claimant is an active participant in VR&E, the VRC must go into LTS prior to sending a new authorization for the upcoming terms or semesters and determine the amount of entitlement used by the dependent for each semester or term in that time period. The VRC must manually charge the entitlement used by the dependent to the claimant’s remaining Chapter 31 entitlement as outlined in Appendix DR.

1.04 Determination for Employment Handicap

(Change Date August 15, 2013)

In accordance with 38 CFR 21.51, an employment handicap will be determined to exist only if the VRC determines that the claimant meets each of the following conditions

The claimant has a vocational impairment,

The claimant's SCD conditions contributes in substantial part to the overall vocational impairment, and

He or she has not overcome the effects of the impairment to his or her employability.

a. Vocational Impairment Assessment

(Change Date August 15, 2013)

The answers to the following questions can assist the VRC in determining the presence of a vocational impairment:

• Is the claimant employable in suitable occupations for which persons without a disability can compete and qualify?
• Does the claimant possess training and/or education that qualifies him or her for suitable employment?
• Does the claimant possess job-seeking skills?
• Does the SCD/NSCD result in any limitations which may exclude certain types of employment?
• Is there potential negative attitudes by employers toward the claimant because of his or her disabilities or other reasons?
• Did the claimant’s comprehensive evaluation identify restrictions on employment, which may result in the claimant's inability to obtain and maintain suitable employment?

If the VRC determines that the claimant does not have a vocational impairment, the claimant is not entitled to Chapter 31 benefits.

b. Sources of Information for Determining the Existence of a Vocational Impairment

(Change Date August 15, 2013)

The following sources of information are recommended and not limited to the following:

• VAF 28-1902w
• VHA and/or private medical records
• Rating decisions
• Labor market information
• Academic records or transcripts
• Previous VR&E case documentation
• VRC's observation
• History of employment and earnings, including resume, performance appraisals, position descriptions, attendance records
• Consultation with other service providers and/or professionals
• Claimant’s self-report

c. Potential Impairments

(Change Date August 15, 2013)

The following factors must be considered in determining if a vocational impairment exists:

• Effects of the service-connected and non-service connected disability(ies) on employability,
• Physical limitations,
• Psychosocial limitations,
• Cognitive limitations,
• Mobility limitations,
• Sensory limitations,
• Chronic pain,
• Deficiencies in education and/or training, including civilian certifications or licensure,
• Employer bias against persons with disabilities, including issues, such as anticipated poor work performance and the need for accommodation,
• Lack of reliable transportation,
• Lack of stable housing,
• Financial issues,
• History of unstable work,
• History of incarceration(s), and

Stigma associated with employees having a mental illness, such as perceived to be unable to cope with typical stress inherent in the workplace.

d. Contribution of the Service-Connected Disability to the Vocational Impairment

(Change Date August 15, 2013)

In accordance with 38 CFR 21.51, the service connected disability (SCD) must contribute in a substantial part to the vocational impairment. This means that the effects of the vocational impairment must be identifiable, measurable, and/or observable. When evaluating evidence that the vocational impairment results in substantial part from the SCD(s), the VRC must clearly show how the SCD impacts the claimant’s ability to prepare for, obtain, or maintain employment consistent with his or her abilities, aptitudes and interests. The SCD need not be the sole cause of the vocational impairment but must contribute to the vocational impairment in more than a trivial or technical manner.

e. Overcoming the Effects of the Vocational Impairment

(Change Date August 15, 2013)

A claimant may overcome the effects of the impairment of employability through obtaining, maintaining, or qualifying for employment, including self-employment, in an occupation consistent with his or her abilities, aptitudes, and interests and compatible with his or her SCD conditions.

A claimant who qualifies for a suitable employment, but who does not obtain or maintain employment for reasons within his or her control, is considered to have overcome the effects of the impairment to his or her employability.

The following are factors for determining the claimant’s ability to overcome impairments of his or her employability:

• If the claimant is employed or self-employed, is the claimant's employment compatible with his or her disability conditions, and consistent with his or her pattern of interests, aptitudes, and abilities?
• If the claimant is unemployed but he or she possesses qualifications and/or skills for suitable employment, did the claimant make efforts to seek employment? Is his or her unemployment outside his or her control?

3. If the claimant is unemployment, does the claimant possess the necessary skills to obtain suitable employment?

f. Employment Handicap Criteria

(Change Date August 15, 2013)

An EH is present when all the following exist:

The claimant has a vocational impairment.

The claimant’s SCD contributes in substantial part to the impairment.

The claimant has not overcome the effects of his or her impairment of employability through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests.

If the conditions listed above do not exist, the claimant does not have an EH and is not entitled to receive a plan of VR&E services.

g. Prompt Notification of the Determination

(Change Date June 18, 2024)

Once the entitlement decision is made, VAF 28-1902b must be completed and uploaded to the claimant's electronic record prior to mailing the entitlement decision letter to the claimant.

The VRC must send VR-64, Ch31 Positive Decision Letter with VAF 20-0998, Your Rights to Seek Further Review of our Decision for a positive determination. If the claimant is not found entitled, the VRC must send VR-58, Ch31 Adverse Decision Letter with VAF 20-0998. A copy of the notification letter must be placed in the claimant’s electronic record.

The date on the decision letter notifying the claimant of the determination of entitlement must not be before the date of the completed VAF 28-1902b, Counseling Record- Narrative Report. The completed VAF 28-1902b must be signed and uploaded to the claimant’s electronic record.

In addition, the Entitlement Determination Notification Date in CWINRS must be the same date of the entitlement decision letter.

h. Effective Dates of Public Law 104-275

(Change Date April 2, 2009)

In Davenport v. Brown [7 Vet. App. 476 (CVA, 1995)], the Court of Veterans Appeals (COVA) set aside regulations that required a causal nexus relationship between a Veteran’s SCD and EH or SEH. COVA ruled that the law did not require that a SCD contribute in any way to an EH or SEH to establish entitlement to a program of chapter 31 services and assistance. VA regulations had stated that while a SCD need not be the sole or primary cause of an EH or SEH, it must materially contribute to the handicap. The contribution of the SCD had to be identifiable, measurable, or observable. Pub. L. 104-275 redefined the terms EH and SEH to include a requirement for impairment “resulting in substantial part from” SCD(s), effective with applications received on or after October 9, 1996. The application of the changes in law are applied based on the date of claim in relation to the following information.

1. Pre-Davenport period

(Change Date April 2, 2009)

For claims received in VA during the period from April 1, 1981, to March 30, 1995, the definitions of EH and SEH are the same as in the post-Davenport period described below, except that the Veteran’s SCDs must have materially contributed to the EH or SEH, and the SEH determination is based on level of SCD.

2. Davenport period

(Change Date April 2, 2009)

For claims received in VA during the period from March 30, 1995, to October 8, 1996, a causal nexus relationship between a SCD and an EH or SEH is required. Therefore, the SCD need not be part of vocational impairment in determining entitlement to a program of Chapter 31 services and assistance for Veterans whose applications for Chapter 31 were received by VA during the period March 30, 1995, to October 9, 1996, nor to claims denied any time prior to October 9, 1996, which were not finalized by that date. During this time, the term EH is defined as an impairment of a Veteran’s ability to prepare for, obtain, or retain employment consistent with such Veteran’s abilities, aptitudes, and interests. The Veteran’s SCD need not have materially contributed to the impairment which results in the handicap. The term SEH during this period means a significant impairment of a Veteran’s ability to prepare for, obtain, or retain employment consistent with such Veteran’s abilities, aptitudes, and interests. The Veteran’s SCD need not have materially contributed to the impairment which results in the handicap.

3. Post-Davenport period

(Change Date April 2, 2009)

For all claims received in VA October 9, 1996, and after, Pub. L. 104-275 applies, with one noted exception. Reapplications filed by claimants with a current combined compensable rating less than 20 percent who filed an original application before November 1, 1990, are subject to the pre-Pub. L. 104-275 (Davenport period) definition of EH in determining entitlement to a program of Chapter 31 services and assistance. However, they are subject to the Pub. L. 104-275 definition of SEH.

The purpose of the phrase resulting in substantial part, in the definitions of EH and SEH is to restore VA’s pre-Davenport interpretation of the statute as expressed prior to March 30, 1995, in 38 CFR 21.51(c)(2). The SCDs must contribute in more than a trivial or technical manner to the EH and SEH. The current definitions of EH and SEH are located in the M28C Glossary .

1.05 Determination for Serious Employment Handicap

(Change Date January 6, 2020)

For all claimants found to have an EH, the VRC must make a separate determination for a serious employment handicap (SEH). An SEH exists when all the following conditions have been met:

• A significant vocational impairment is established
• The SCD condition(s) contribute to the overall significant vocational impairment
• The claimant has not overcome the significant vocational impairment

a. Factors for Determining Serious Employment Handicap

(Change Date January 6, 2020)

In accordance with 38 CFR 21.52, one or more major deficiencies that impact the claimant’s ability to prepare for, obtain and maintain employment may contribute to the finding of an SEH. The VRC must explain how each factor identified contributes significantly to the impairment of employability. The VRC must also document how the claimant’s SCD is part of the overall significant impairment to establish an SEH.

Factors to consider in determining if a claimant has an SEH include but are not limited to:

• Number of disabling conditions
• Severity of disabling condition(s)
• Existence of a neuropsychiatric condition
• Deficiencies in education and training for suitable employment
• Negative attitudes toward the disabled
• Long or substantial period of unemployment or unstable work history

A pattern of reliance on government support programs, such as welfare, SCD compensation, SCD pension, Workers’ Compensation, Social Security Disability Insurance, etc.

Withdrawal from society

Difficulties with communicating

Criminal record

Extent and complexity of needed rehabilitation services and other evidence of significant restrictions on employability, e.g., high unemployment; age, race, sexual orientation and sex discrimination issues; etc.

Other factors that relate to preparing for, obtaining, or maintaining employment consistent with the claimant’s abilities, aptitudes, and interests, in accordance with 38 U.S.C. 3102 and 3106

b. Required Serious Employment Handicap Determination

(Change Date January 5, 2021)

1. SEH Determination during Initial Evaluation

In accordance with 38 CFR 21.52(a), a separate SEH determination must be conducted for a claimant who has been determined with an EH during the initial evaluation.

A determination for an SEH is required for entitlement to Chapter 31 benefits when one of the following conditions exist:

The claimant’s compensable SCD is rated at a combined 10 percent.

The claimant’s eligibility termination date (ETD) is expired, if applicable.

The claimant's Chapter 31 entitlement has been exhausted.

When the claimant’s entitlement is exhausted or his or her eligibility period is expired and cannot be extended as outlined in accordance with 38 CFR 21.44 and 38 CFR 21.78, the VRC must consider the provision of limited employment services if the claimant meets the criteria outlined in 38 U.S.C. 3117.

2. SEH Determination after Initial Evaluation

If a claimant was determined with an EH only during the initial evaluation, the VRC must conduct an evaluation for SEH if the claimant’s circumstances have changed during the course of his or her rehabilitation program.

The determination for the SEH must be justified and clearly documented in an electronic case note.

c. Additional Benefits for Claimants with a Serious Employment Handicap

(Change Date January 5, 2021)

In accordance with 38 CFR 21.57, claimants with an SEH are eligible for additional benefits, which may not be provided to claimants who do not have an SEH. Benefits include:

• Extension of the 12-year period of eligibility, if applicable
• Extension of the duration of a rehabilitation program beyond 48 months, if required to complete the program
• Extended evaluation services
• Possible IL services

d. Documentation and Notification of Serious Employment Handicap Determination

(Change Date June 18, 2024)

1. Initial Evaluation

(a) SEH Established

The VRC must document the decision and justification that the claimant meets the criteria for an SEH on the appropriate section in VAF 28-1902b. VAF 28-1902b must be completed and uploaded to the claimant’s electronic record prior to an entitlement decision letter being mailed to the claimant.

The VRC must notify the claimant of the decision, in writing, by using VR-64, Ch31 Positive Decision Letter, and VAF 20-0998, Your Right To Seek Review Of Our Decision, and place a copy of the notification letter in the claimant’s VR&E record.

(b) SEH not Established

The VRC must document the decision and justification that the claimant does not meet the criteria for an SEH on the appropriate section in VAF 28-1902b. The determination that the claimant does not meet the criteria for an SEH will apply to one of the following conditions:

The claimant was granted a combined 10 percent SCD rating.

The claimant's ETD has expired, if applicable, and cannot be extended.

The claimant's entitlement for Chapter 31 has been exhausted and cannot be extended.

VAF 28-1902b must be completed and uploaded to the claimant’s electronic record prior to an entitlement decision letter being mailed to the claimant. The VRC must promptly notify the claimant of the decision verbally and in writing by using VR-58 and VAF 20-0998 and place a copy of the notification letter in the claimant’s VR&E record.

2. After the Initial Evaluation

This SEH determination is conducted when there is a change in a claimant's condition(s) after the initial evaluation, or while the claimant is participating in a plan of services. The VRC must document the decision and justification that the claimant meets the criteria for an SEH in an electronic case note.

The VRC must then notify the claimant with the decision in writing by using VR-64 and VAF 20-0998 and place a copy of the notification letter in the claimant’s VR&E record.

1.06 Feasibility of Achieving a Vocational Goal

(Change Date August 15, 2013)

In accordance with 38 CFR 21.53, for each claimant determined to have an EH, the VRC must also determine whether achievement of a vocational goal is currently reasonably feasible. However, the feasibility decision is not part of the entitlement decision; it is a determination that assists the VRC in appropriate planning of needed rehabilitation services.

a. Current Reasonable Feasibility

(Change Date August 15, 2013)

Achievement of a vocational goal is currently reasonably feasible when all the following conditions exist:

One or more vocational goals have been identified.

The claimant’s physical, psychological, and cognitive functioning permits training for the goal to begin within a reasonable period.

The claimant either has the educational skills and background to pursue the vocational goal or will receive services through VA to develop these skills as part of his or her rehabilitation program.

b. Considerations for a Feasibility Determination

(Change Date August 15, 2013)

A feasibility determination documents whether the claimant has the potential to benefit from rehabilitation services and achieve a vocational goal. The determination should be made as soon as possible during the initial evaluation, but only after reviewing the circumstances under which current reasonable feasibility to achieve a vocational goal may or may not be found to exist.

If the VRC cannot resolve the issue of current reasonable feasibility during the initial evaluation, the VRC may authorize an extended evaluation for claimants with a SEH. For an EH, any reasonable doubt shall be resolved in favor of a finding of feasibility. A finding that achievement of a vocational goal is infeasible without a period of extended evaluation requires compelling evidence which establishes infeasibility beyond any reasonable doubt.

c. Actions Following a Feasibility Determination

(Change Date August 15, 2013)

The following actions should be taken based on the corresponding feasibility determination as listed below:

If the VRC determines that achievement of a vocational goal is currently reasonably feasible, the VRC will proceed with the rehabilitation process to the development of a suitable vocational goal.

If the VRC cannot determine if achievement of a vocational goal is currently reasonably feasible and the claimant has a SEH, the VRC will proceed with the rehabilitation process to develop an IEEP. For more information on IEEPs, see M28C.IV.C.3 .

If the VRC cannot determine if achievement of a vocational goal is currently reasonably feasible and the claimant does not have a SEH, the VRC will resolve reasonable doubt in favor of a finding of feasibility, in accordance with 38 CFR 21.53.

If the VRC determines that the achievement of a vocational goal is not currently reasonably feasible and the claimant does not have a SEH, the VRC must work with the claimant to determine if services can be provided which improve the claimant's potential to participate in a program of services designed to achieve a vocational goal, in accordance with 38 CFR 21.35(i).

If the claimant's case is discontinued for infeasibility and the VRC expects the claimant’s condition to improve within 12 months from the date of the determination of infeasibility, the VRC will diary the case to follow-up at six and 12-month intervals to ascertain if the claimant’s condition has improved to the point that achievement of a vocational goal is currently reasonably feasible. If the claimant's situation has worsened, however, the VRC must determine if he or she now meets the criteria for an SEH.

If the VRC determines that achievement of a vocational goal is not currently reasonably feasible and the claimant has a SEH, the VRC will conduct an IL assessment, as outlined in M28C.IV.C.6 . If the claimant is a Service member, he or she can receive IL services under Pub. L. 110-181, NDAA; however, IL services must focus on the transition from military to civilian life while the Service member is on active duty.

d. Required Documentation to Veterans Service Center

(Change Date February 19, 2019)

The VRC must provide the VSC with a copy of the VAF 28-1902b and VAF 28-1902f when the claimant’s SCD is less than 100 percent and the VRC determines that achievement of a vocational goal is not currently reasonably feasible. The VSC may also obtain the documentation from the claimants eFolder in VBMS. The VSC rating board will reconsider the claimant’s SCD rating if the infeasibility finding is based on factors associated with the SCD.

e. Review of Feasibility Determination

(Change Date January 6, 2020)

The determination of current reasonable feasibility is subject to ongoing review throughout the claimant’s rehabilitation program. Changes in circumstances may require a reconsideration of the vocational goal and, if necessary, a reevaluation or amendment of that goal. The VRC will review determinations of feasibility, as warranted by the facts of each case, and either retain or change the determination, as appropriate. Justification of feasibility determination and/or redetermination must be documented in VAF 28-1902f.

1.07 Initial Evaluation Outcomes

(Change Date February 19, 2019)

The following outlines possible initial evaluation outcomes and the corresponding required activity. All correspondence and written notification must be filed in the claimant’s VR&E record. See M28C.III.A.1 for case status guidance.

a. The claimant is entitled to Chapter 31 benefits after completing the evaluation, but he or she does not pursue the claim by developing a rehabilitation plan or declines VR&E services for any reason.

Send the claimant a notification letter using VR-66, General Proposed Adverse Action Letter, before taking an adverse action or changing case status.

If the claimant does not respond to pursue the claim within the 30-day due process period, discontinue the claim. Notify the claimant of the adverse action using VR-58 and VAF 20-0998.

If the claimant responds and pursues the claim, continue the evaluation.

If eligible, a claimant may choose to train under another VA program, regardless of entitlement to Chapter 31. The VRC will provide the claimant with information to assist him or her in the decision-making process.

b. The claimant is entitled and a rehabilitation plan (IEEP, IWRP, IEAP, or IILP) is developed and signed by the VRC and the claimant, after obtaining any required levels of concurrence. The VRC will follow steps outlined in M28C.IV.C.2 for rehabilitation plan development. The CWINRS Claims Disposition tab must be updated prior to case status movement.

c. Achievement of a vocational goal is determined not currently reasonably feasible and the claimant does not need, is not eligible for, or cannot participate in a plan of IL services at this time.

Notify the claimant of the proposed adverse action (denial of any plan of services) in writing using VR-66.

After 30 days, if evidence has not been received leading to a new determination, the VRC must obtain the VR&E Officer’s concurrence.

Once concurrence is obtained, notify the claimant of the decision to discontinue the claim using VR-58 and VAF 20-0998.

After discontinuance, provide the claimant with the follow up at 6 months and 12 months, as warranted, to evaluate if his or her circumstances have changed sufficiently to reevaluate current reasonable feasibility to achieve a vocational goal. Follow-up can be done via email, letter, or phone and documented in an electronic case note.

d. The claimant is determined not entitled to VR&E services, due to no EH or no SEH.

Disallow and discontinue the claim on the date of the decision.

Notify the claimant of the decision using VR-58 and VAF 20-0998.

e. The claimant has reapplied after his or her case was closed in discontinued status and the VRC determines the reasons for prior discontinuance have not been removed, and/or the case was closed with an MRG within the prior year and the VR&E Officer does not concur with the decision to reopen the claim, in accordance with 38 CFR 21.197(c).

Disallow and discontinue the claim on the date of the decision.

Notify the claimant of the decision using VR-58 and VAF 20-0998.

f. The claimant has reapplied after their case was closed in rehabilitated status and the VRC determines the reasons for prior rehabilitation have not been removed and/or the VR&E Officer does not concur with the decision to reopen the claim, in accordance with 38 CFR 21.196(c).

Disallow and discontinue the claim on the date of the decision.

Notify the claimant of the decision using VR-58 and VAF 20-0998.

g. The claimant qualifies for services under 38 U.S.C. 3117 only and an IEAP is developed and signed by the VRC and the claimant, after obtaining any required levels of concurrence. The VRC will follow steps outlined in M28C.IV.C.2 and M28C.IV.C.4 for rehabilitation plan development. The CWINRS Claims Disposition tab must be updated prior to case status movement.

h. The claimant’s SCD rating is reduced to a non-compensable level, or severed, or claimant is found to otherwise be ineligible such as when the GED processing incorrectly granted eligibility.

Disallow and discontinue the claim on the date of the decision.

Notify the claimant of the decision using VR-58 and VAF 20-0998.

i. The claimant’s death is confirmed and date of death appears in Share.

Discontinue the claim on the date the claimant’s death is verified. Refer to M28C.V.C.3 for more information on deceased claimants.

1.08 Documenting Initial Evaluation Determinations

(Change Date April 2, 2009)

Determinations to allow or deny claims for Chapter 31 services and assistance must be documented to show clearly how the claimant’s SCD impairs, or does not impair, a claimant’s ability to prepare for, obtain, or retain employment consistent with abilities, aptitudes, and interests.

a. VA Form 28-1902b, Counseling Record-Narrative Report

(Change date October 21, 2022)

The VRC documents the entitlement decision using VAF 28-1902b. The narrative synthesis:

Provides the basis for counseling and assistance throughout the rehabilitation process, including information necessary to develop a comprehensive evaluation of the claimant’s abilities, aptitudes, and interests.

Allows the VRC to revisit and review the information in order to clarify his or her understanding and implications for providing additional services.

Must contain reasoning which is clear to professionals and nonprofessionals.

Must logically support legal determinations, including overturning prior rehabilitation, discontinuance, or MRG closure; EH; SEH; entitlement determination; and determination for limited employment services.

The VRC must adhere to the instructions for completing the VAF 28-1902b, which are located under the heading, “Instructions for Completing VAF 28-1902b.” The decisions the VRC makes and documents on this form will impact the claimant’s entitlement to VR&E services as follows:

Re-entrance following a prior rehabilitation, discontinuance, or previous determination of MRG closure: If the claimant’s case has previously been rehabilitated, discontinued or determined to be an MRG and the claimant meets the criteria for re-entrance, continue with the evaluation. If the claimant’s case has previously been rehabilitated or discontinued and the claimant does not meet the criteria for re-entrance, the VRC must consider whether the claimant meets the criteria for limited employment services under 38 U.S.C. 3117. However, limited employment services are not available if the reasons for a previous discontinuance cannot be removed for a claimant. Refer to M28C.IV.A.2.04 for criteria for limited employment services.

Automatic Entitlement under Pub. L. 110-81: If the claimant meets the provisions of the law, he or she is automatically entitled to services. If the claimant does not meet the provisions of the law, continue with the evaluation.

Vocational Impairment: If the claimant has a vocational impairment, then continue evaluating the claimant for entitlement. If the claimant does not have a vocational impairment, then the claimant is not entitled to services.

SCD Contribution to the Vocational Impairment: If the claimant’s SCD contributes in substantial part to the vocational impairment, then continue evaluating the claimant for entitlement. If the claimant’s SCD does not contribute in substantial part to the vocational impairment, then the claimant is not entitled to services.

Overcome the Effects of the Vocational Impairment: If the claimant has not overcome the effects of the vocational impairment, then continue evaluating him or her for entitlement. If the claimant has overcome the effects of the vocational impairment, then he or she is not entitled to services.

Employment Handicap: If the claimant does not have an EH, then he or she is not entitled to services. If the claimant has an EH, a SCD or memo rating of 20 percent or more, and is within his or her ETD, then he or she is entitled to services; however, continue the evaluation as the determination of SEH is required. If the claimant does not have a SCD rating or memo rating of 20 percent or more and/or his or her ETD has passed, the claimant must be found to have an SEH for entitlement; continue evaluating the claimant for entitlement.

Serious Employment Handicap: If the claimant does not have a SCD rating or memo rating of 20 percent or more, and/or his or her ETD has passed and the claimant does not have a SEH, then the claimant is not entitled to services. If the claimant has a SEH, then he or she is entitled to services; continue evaluating him or her for services. Evidence of multiple or significant factors that could contribute to an SEH without a decision of SEH, requires a clear and comprehensive explanation outlining why the VRC determined the criteria for SEH were not met.

Limited Employment Services: If the claimant is not entitled to VR&E services under other provisions, the VRC will determine if the claimant meets the criteria under 38 U.S.C. 3117 for limited employment services.

b. VA Form 28-1902f, Feasibility Determination-Narrative Report

(Change Date January 10, 2020)

Every case in which a VRC has determined that an EH exists, the VRC must also determine whether achievement of a vocational goal is currently reasonably feasible. The VRC must document and justify whether achievement of a vocational goal is or is not currently reasonably feasible on VAF 28-1902f. The VRC must document the feasibility determination as outlined in the VAF 28-1902f section titled, “Instructions for Completing VAF 28-1902f.” The VRC’s justification of this decision may include, but is not limited to:

• Is the claimant physically and mentally stable?
• Has a suitable vocational goal(s) been identified?
• Does the claimant possess, or will the claimant receive, education or skills to qualify for suitable employment?
• Will use of reduced work tolerance (RWT) enable completion of a program when it may otherwise not be feasible?

The VAF 28-1902f must be completed each time the VRC reevaluates the feasibility determination, such as following a period of extended evaluation or when a change in the claimant’s circumstances prompts reconsideration.

c. VA Form 28-8606, Notes from Counseling and Next Steps

(Change Date August 15, 2013)

The VRC must indicate the next steps in the plan development process on the VAF 28-8606, Notes from Counseling and Next Steps, prior to the conclusion of the initial evaluation. Review the entitlement, feasibility determination, and next steps with the claimant. The VRC will sign and date Part II of the VAF 28-8606, provide a copy to the claimant, and place the form in the claimant’s VR&E record.

d. Potential Sources of Assistance Following Denial

(Change Date December 9, 2013)

When entitlement to VR&E services is denied, the VRC and claimant must explore alternative resources, such as job placement assistance through the Disabled Veteran’s Outreach Program (DVOP) or Local Veterans’ Employment Representative (LVER) staff, educational assistance through other VA programs, educational assistance through grant and scholarship programs, and rehabilitation or related assistance through State agencies. The results of the exploration and referral must be documented on the VAF 28-1902b.

e. Entitlement Determination Documentation in Corporate WINRS

(Change Date February 9, 2019)

Once an entitlement determination has been made in accordance with 38 CFR 21.40, the VRC will complete the CWINRS Claims Disposition tab, select the drop-down option for the Rehab Claim Disposition and enter the Entitlement Determination Notification Date. The Entitlement Determination Notification Date must match the date the claimant was notified in writing of the entitlement decision. The Entitlement Determination Notification Date must also match the date the entitlement determination is documented on the VA Form 28-1902b.

f. Pre-Chapter 31 Salary Documentation

(Change Date October 8, 2020)

The VRC must ensure that the pre-Chapter 31 salary reported on the claimant's VAF 28-1902w, Information for Veteran Readiness and Employment Entitlement Determination, is entered in the pre-Chapter 31 salary field in the claimant's electronic record. However, if the claimant later reports a different salary from the VAF 28-1902w, the correct amount must be documented on an electronic case note and appropriately updated in the electronic record. For Service members, $0 must be entered in the pre-Chapter 31 field.

A pre-Chapter 31 salary is based on the claimant's reported monthly income at the time of the initial evaluation.

The maximum monthly salary value allowed in the CWINRS pre-Chapter 31 salary is $9999. For more information on documenting information in CWINRS, see M28C.II.A.2, M28C.IV.C.2, and the CWINRS User Guide.

1.09 Track Selection and Plan Development

(Change Date December 9, 2013)

Refer to M28C.IV.C.2 for detailed information about track selection and plan development.

a. Planning Services

(Change Date December 9, 2013)

When a claimant has been found entitled to VR&E services, an appointment to begin the track selection/plan development process must be offered within 10 business days from the date of the entitlement determination.

b. Plan Development

(Change Date April 23, 2021)

For a claimant considered to be Seriously Injured (SI) or Very Seriously Injured (VSI), track selection and plan development must be completed within 45 days from the date of entitlement determination. An IWRP with a Deferred Vocational Goal may be used to provide training for remedial or general education courses only, while exploring a suitable vocational goal for the claimant, if feasible. See M28C.IV.C.2 for detailed information on rehabilitation plan development.