M28C.V.B.9 M28C.V.B.9 Employment Adjustment Allowance

9.01 Overview

(Change Date August 22, 2019)

An employment adjustment allowance (EAA) payment may be authorized only after the case manager makes the determination that the claimant meets the criteria for an EAA payment. A case manager may only authorize an EAA payment for a claimant who has satisfactorily followed a program of Department of Veterans Affairs (VA) approved employment services under 38 U.S.C. 3104(a)(5). This means that a claimant’s case must have progressed through Rehabilitation to the Point of Employability (RTE) status to Job Ready (JR) status following the provision of services under an Individualized Written Rehabilitation Plan (IWRP). There must be a documented declaration of job-readiness by the Vocational Rehabilitation Counselor (VRC) in the Veteran Readiness and Employment (VR&E) record at the time the claimant’s case is placed in JR status. The claimant must satisfactorily participate in employment services for a period of 30 days before a payment of EAA may be authorized. If authorized, EAA will be processed at the full-time rate for the type of program the claimant was last pursuing. If a claimant, who is receiving the P911SA rate, has relocated to a new area after completing their last term of training, the zip code of the training facility that the claimant last attended must be used when processing EAAs. In addition, if the claimant was attending training solely online during their last term of training and was receiving the P911SA rate, the EAA payment will be equal to 1/2 the national BAH average.

If a claimant has been determined rehabilitated to the point of employability after completing an IWRP that did not include an official training component at a VA approved facility, EAA shall be paid at the improvement of rehabilitation potential rate as indicated in 38 CFR 21.260. However, the IWRP must have included services that assisted the claimant to become employable by improving rehabilitation potential. Examples of these services include, but are not limited to, interview skills training, job seeking techniques, resume development, assistance with translating military experience into civilian experience, and healthcare services.

Since the program of employment services is subject to the 12-year eligibility period, or any extension of this period allowed under 38 U.S.C. 3103(b), (c), or (d), the EAA may only be paid for authorized periods within the eligibility period.

9.02 Criteria for Employment Adjustment Allowance Payment

(Change Date November 7, 2013)

Per 38 CFR 21.268 and 38 U.S.C 3108(a)(2)(A), prior to the authorization of EAA, the VRC must make a determination if the claimant has been rehabilitated to the point of employability. In making this determination, the following criteria must be met:

a. Completion of Individual Written Rehabilitation Plan Objectives

(Change Date November 7, 2013)

The goal is for the claimant to complete the objectives outlined in his or her IWRP. However, the claimant may be considered to have completed the objectives even if he or she has not completed all the services prescribed in the IWRP. The VRC will consider the period of RTE to be completed if, on or before the claimant’s eligibility termination date (ETD), the claimant leaves his or her program without completing all planned services under one of the following conditions:

• The claimant has completed a sufficient portion of the services prescribed in his or her IWRP to establish clearly that he or she is generally employable as a trained worker in the occupational objective established in the IWRP, or

The claimant accepts employment in the occupational objective established in his or her IWRP with wages and other benefits commensurate with wages and benefits received by trained workers in that objective.

b. Declaration as Job Ready

(Change Date December 18, 2020)

The claimant will be declared job ready when the VRC has determined there are no impediments in the claimant’s ability to conduct employment search activities or to maintain suitable employment.

To make the job ready declaration, the VRC conducts an assessment and ensures the following information is obtained, completed, and filed in the VR&E record.

Official or unofficial transcript of records or certificate/diploma which document completion of program,

Completed resume for claimants seeking employment,

Signed Individualized Employment Adjustment Plan (IEAP), and

Completed license or certification, if applicable.

An unofficial transcript of records may be used for the determination. If possible, the VRC should follow-up in obtaining the official records in preparation of the job search process as they may be requested by employers. Additionally, the VRC must ensure that the claimant’s declaration of job readiness is clearly explained and documented in an electronic case note.

c. Development of the Individual Employment Assistance Plan

(Change Date November 7, 2013)

An IEAP must be developed at least 60 days prior to assignment to JR status if a combined IWRP/IEAP, with a valid employment objective(s), was not previously developed. The IEAP must be signed by the case manager and the claimant. The case manager must ensure that the employment objective(s) and the period of services are current if a combined IWRP/IEAP was developed. Additionally, requirements for authorization and payment of EAA must be specified on the IEAP or combined IWRP/IEAP.

An IEAP, or combined IWRP/IEAP, must clearly outline the services being provided to the claimant. The employment services may be provided through the following:

Placement service that includes assistance in the claimant’s employment search.

Post-placement service that includes assistance in the claimant’s ability to maintain employment.

d. Eligibility Termination Date Has Expired and/or Entitlement Has Been Exhausted

(Change Date February 19, 2019)

Unless the claimant has been determined to have a serious employment handicap (SEH), the claimant must be within his or her 12-year period of eligibility to receive EAA. The VRC must make an SEH redetermination, if appropriate, if a claimant’s ETD will expire before completion of his or her vocational rehabilitation program. This determination must be clearly explained and documented in an electronic case note.

For a claimant with no SEH, if the ETD expires before a full 30-day period, the EAA is prorated and the claimant is paid only for the days within the eligibility period. In this situation or when a claimant is provided no EAA payments due to an expired ETD, the case manager must send VR-58, Chapter 31 Adverse Decision Letter.

A claimant who has exhausted all of his or her entitlement to Chapter 31 and is entitled to EAA payments will be provided these payments. Employment services may be provided during a claimant’s period of eligibility even though he or she has no remaining entitlement.

e. Satisfactory Participation in Employment Services

(Change Date November 7, 2013)

The case manager is responsible for making the determination that a claimant has been successfully participating in a program of employment services for at least 30 days before authorizing an EAA payment. The case manager may use information obtained from the claimant directly, a Disabled Veterans’ Outreach Program (DVOP) representative, a Local Veterans’ Employment Representative (LVER), a VA contractor, or an employer.

The case manager must provide details and document that the claimant has satisfactorily participated and followed the planned employment services for no less than 30 days. This means that the claimant has fulfilled the requirements of the IEAP, or employment objective(s) of the combined IWRP/IEAP, for the period being considered for payment.

In addition, the case manager must clearly explain and document that the claimant is following the objectives of the IEAP, or combined IWRP/IEAP, such as satisfactorily conducting an employment search or adequately adjusting in his or her employment, for a period of 30 days. The narrative must be documented in an electronic case note and must include the following information:

• Date of contact with the claimant,
• Method of contact (face-to-face, telephone, email, etc.), and

Information regarding the claimant’s progress in his or her job search or current employment.

This narrative, as well as all supporting documentation, such as the claimant’s job search logs, must be placed in the claimant’s VR&E record.

9.03 Authorizing Employment Adjustment Allowance

a. Criteria for Authorization

(Change Date December 18, 2020)

The case manager may authorize an EAA payment only after the criteria for EAA payments, addressed in section 9.02 of this chapter, have been verified and the claimant’s VR&E record has been updated with the change to JR status. Additionally, the case manager must ensure that two previous EAA payments have not already been paid to the claimant.

The case manager must not authorize an EAA payment in advance, or prior to the end of the 30-day period. However, EAA should be authorized as soon as there is documented evidence that the claimant is entitled to payment, but not later than 10 business days after receipt of documentation that supports authorization of an EAA payment.

The case manager must authorize payment for EAA in two separate 30-day periods. Generally, these are consecutive payments. However, under certain circumstances, the claimant may not meet the requirements for the second payment immediately following the first one.

If a claimant’s Chapter 31 Payment History reflects that the claimant has an existing debt, the case manager must inform the claimant that the EAA payment will be processed; however, he or she may not receive the payment, or may receive partial payment, as the EAA may be applied to the debt. This notification must be documented in an electronic case note.

b. Processing Employment Adjustment Allowance Payments

(Change Date November 7, 2013)

The case manager must process all EAA payments in the subsistence allowance module (SAM). Please reference the awards processing section of the CWINRS User Guide for guidance on how to process these payments.

If a claimant has dependents, they must be added to an EAA payment in the same manner as the payment of subsistence allowance in a normal training period, as outlined in M28C.V.B.7.

c. Rate of Payment

1. Regular EAA Payment

(Change Date August 22, 2019)

Per 38 U.S.C 3108(a)(2)(A) and 38 CFR 21.268, EAA must be paid at the full-time rate for the claimant’s type of program that he or she was last pursuing regardless if his or her last rate of pursuit was full-time. Specific rates for the following types of training programs are detailed in 38 CFR 21.260:

• Institution of Higher Learning (IHL),
• Farm Cooperative,
• Apprenticeship,
• Non-paid Work Experience (NPWE),
• On-job training (OJT) at no or nominal pay in a Federal agency,
• Training in the Home Program,
• Independent Instructor Program,
• Cooperative Program, and

Improvement of Rehabilitation Potential.

EAA must be paid at the rate in effect for the period being authorized. If rate of payment of the EAA changes during an authorized period, such as change in the number of a claimant’s dependents or increase in an annual cost of living (COLA), this change must be reflected in an electronic case note.

Example: The period of EAA authorization is from 9/15 through 10/15. EAA will be paid at the previous rate from 9/15 through 9/30, and at the new rate from 10/01 through 10/15, to adjust for COLA.

2. Claimant Elects to Use Chapter 30 Rate of Payment

(Change Date November 7, 2013)

When a claimant elects to use the Chapter 30 rate of payment while receiving vocational training under the Chapter 31 program, and completes the training, he or she may be entitled to EAA payments. A claimant who has elected payment at the Chapter 30 rate may be paid an employment adjustment allowance only if he or she reelects subsistence allowance to become effective no later than the day following completion of the period of rehabilitation to the point of employability, per 38 CFR 21.268(b). The case manager must ensure that the requests and actions taken are properly documented in an electronic case note and filed in the claimant’s VR&E record.

3. Claimant Elects to Receive Post 9/11 Subsistence Allowance Rate of Payment

(Change Date September 10, 2021)

A claimant who elects to receive Post 9/11 Subsistence Allowance (P911SA) by signing VAF 28-10214 in lieu of Chapter 31 subsistence allowance, in accordance with 38 U.S.C. 3108(b)(4), may be entitled to EAA payments. The EAA rate of payment will be the same as the P911SA full-time rate of payment for the type of program that the claimant completed during his or her last enrollment period (refer to Appendix AW, Calculating Rate of Pay for P911SA). If the rate is less than the previous year at the time of EAA processing, the case manager must provide rate protection regardless of the amount of time that has passed from the last enrollment period to the first EAA payment.

To determine the correct rate of EAA payment, follow the instructions for determining the current P911SA rate found in M28C.V.B.7.

If a claimant qualifies for EAA payments under improvement of rehabilitation potential, follow the procedures outlined in section 9.05.d of this chapter.

9.04 Retroactive Payment of Employment Adjustment Allowance

(Change Date September 23, 2022)

A case manager must authorize retroactive payment of EAA in the instance where an administrative error has been established, such as when the VA has failed to follow proper case management procedures when a claimant's case is already in JR status. The case manager must clearly document the administrative error in an electronic case note and prepare a memo outlining the details of the administrative error for VR&E Officer approval. This memo must be filed in the VR&E record.

While in JR status, if the case manager determines that the claimant has been suitably employed, has satisfactorily adjusted to that employment, and an IEAP or a combined IWRP/IEAP for placement services has been signed by the case manager and the claimant, EAA may be paid retroactively.

If follow-up indicates that a claimant has been satisfactorily participating in job search activities while in JR status as part of an IEAP or combined IWRP/IEAP, the EAA may be paid retroactively from the date those job search activities began. The case manager must ensure evidentiary documents, which support the claimant’s job search activities, are included in the VR&E record.

EAA must be paid at the rate for the period authorized and if the claimant qualifies for two retroactive EAA payments, the case manager may authorize them as one combined payment if at least 60 days has passed from the date the claimant became job ready. However, the case manager must clearly document in the electronic case note that both retroactive EAA payments have been processed together. This combined payment may be processed out-of-system. Refer to M28C.V.B.9 for criteria on authorizing Employment Adjustment Allowance.

9.05 Special Conditions

a. Claimant Obtains Employment in the Same Vocational Goal as Outlined in the Rehabilitation Plan Prior to Completion of Training

(Change Date November 7, 2013)

A claimant who obtains employment before he or she completes the vocational training delineated in his or her IWRP will not be authorized EAA payment until he or she has completed the training and the objectives in the IWRP. A case manager must not authorize EAA payment on the sole basis that the claimant has obtained suitable employment.

However, if the claimant elects not to complete his or her training, he or she may be entitled to EAA if the case manager determines that he or she has completed a sufficient portion of training to make the claimant employable. The claimant is eligible for EAA payment if the case manager determines he or she is job ready and he or she successfully participates in a plan of post-placement services.

b. Claimant Obtains Employment in a Vocational Goal Other than the Goal Outlined in the Rehabilitation Plan and Claimant Elects not to Continue Training

(Change Date November 7, 2013)

A claimant who obtains suitable employment and elects not to further pursue the vocational training outlined in his or her IWRP may be authorized an EAA payment only if the case manager determines that the claimant completed a sufficient portion of training to make him or her employable and that the rehabilitation services provided to the claimant contributed to his or her employment or employability. The claimant is eligible for an EAA payment if the case manager determines that the claimant is job ready and he or she successfully participates in a plan of post-placement services.

c. Claimant’s Vocational Goal Changed After Interruption of Services

(Change Date November 7, 2013)

A claimant, whose case has been placed in Interrupted status and returned to JR status with a subsequent change in the vocational goal outlined in his or her IWRP, may be paid EAA only if the case manager makes a determination that the claimant meets the criteria for EAA payment as described in this chapter and he or she successfully participates in a plan of employment services.

d. Improvement of Rehabilitation Potential

(Change Date March 25, 2022)

If a claimant is provided employment services after being determined entitled with an employment handicap under 38 U.S.C. 3102, EAA may be provided at the improvement of rehabilitation potential rate as indicated in 38 CFR 21.260 if both the following criteria exist:

• The claimant has been determined rehabilitated to the point of employability after completing an IWRP that does not include an official training component at a VA approved facility, and

The IWRP included services that assisted the claimant to become employable by improving rehabilitation potential. Examples of these services include, but are not limited to, interview skills training, job seeking techniques, resume development, assistance with translating military experience into civilian experience, and health care services.

If a claimant qualifies for EAA payments under improvement of rehabilitation potential and he or she is eligible for and has elected the P911SA rate by signing VAF 28-10214, pay the current full-time P911SA rate for EAA based on the zip code of the RO of jurisdiction where the case is assigned. If the claimant's case is managed by another RO, the zip code associated with the RO of jurisdiction based on where the claimant resides must be used to obtain the rate of EAA payment.

If the claimant has elected the traditional Chapter 31 rate, however, provide the current full-time rate for improvement of rehabilitation potential.

9.06 Prohibitions in Paying Employment Adjustment Allowance

a. Employment Services is the Sole Program of Services

(Change Date October 22, 2019)

Per 38 U.S.C. 3108(a)(3), a claimant will not be authorized payment of EAA if the only program of services provided is placement or post-placement services. This includes claimants who were provided employment services under 38 U.S.C. 3117.

The only exception to this is when rehabilitation services were previously provided under a rehabilitation plan. A claimant who was previously provided with rehabilitation services under an IWRP and subsequently provided with employment services only in an IEAP, after a period of interruption, may be entitled to EAA payments. This only applies if the case manager makes a determination that the claimant meets the criteria for EAA payment, as described within this chapter, he or she successfully participates in a plan of employment services, and he or she has not received two EAA payments previously.

b. Return to Active Military Service

(Change Date November 7, 2013)

A claimant who has been recalled, or who returned to active military service while receiving rehabilitation services, is not entitled to EAA payments. The claimant’s status has changed to active Service member; therefore, he or she is not eligible to receive EAA payments while on active duty.

c. Pursuit of Further Education

(Change Date November 7, 2013)

A claimant who was declared rehabilitated to the point of employability may elect to continue educational pursuits rather than actively pursue suitable employment consistent with the goal of his or her vocational rehabilitation program. At that point in the rehabilitation process, the claimant may not receive an EAA despite a declaration of rehabilitation.

Additionally, a claimant who pursues immediate employment, but who also pursues further training and elects another VA education benefit, cannot receive both the EAA and the non-chapter 31 education benefit for the same period even if the claimant is following a VA-approved employment services program.

Essentially, the case manager may authorize payment of EAA for a claimant who elects to pursue further education only if he or she meets all the following conditions:

• Claimant obtains suitable employment,
• Claimant satisfactorily participates in a plan of employment services, and

Claimant is not utilizing any VA educational benefits to pursue further education.

9.07 Procedures for Denial of Employment Adjustment Allowance

(Change Date November 7, 2013)

The case manager may deny payment of EAA when a claimant fails to satisfactorily participate or follow his or her approved program of employment services. This includes situations where a claimant has not been responsive to outreach attempts by the case manager.

a. Informing the Claimant

(Change Date February 19, 2019)

The case manager must inform the claimant of the denial of EAA payment using VR-58, Chapter 31 Adverse Decision Letter, and VAF 20-0998, Your Rights to Seek Further Review of Our Decision.

b. Documenting Reasons for Denial

(Change Date February 19, 2019)

The case manager must carefully document the reason(s) for the denial of EAA payment in VR-58 relating the reasons to the specific requirements of the IEAP or combined IWRP/IEAP. This is critical as this documentation, which details the basis for the denial as related to the provisions of the IEAP, will be the basis for review of the decision in any instance that the claimant requests a review or an appeal of the decision.

See M28C.III.C.2 for detailed information on reviews and appeals.

c. Claimant Later Agrees to Participate

(Change Date November 7, 2013)

If a claimant who had failed to cooperate later agrees to follow a program of employment services, the case manager will repeat the procedures detailed in sections 9.02 and 9.03 of this chapter.

9.08 Additional Payments of Employment Adjustment Allowance

(Change Date June 21, 2023)

There are specific criteria in which additional Employment Adjustment Allowance payments may be paid to include: when a claimant is inducted into a new vocational rehabilitation program and the prior determination of rehabilitation is set aside, a claimant is displaced by a natural or other disaster, and when a claimant is negatively affected by an emergency situation.

a. Employment Adjustment Allowance Payments Previously Provided

(Change Date February 14, 2017)

If a claimant has ever received an EAA after being determined rehabilitated to the point of employability, he or she may, nevertheless, receive it again when completing an additional rehabilitation program to the point of employability if both of the following conditions exist:

• The prior determination of rehabilitation to the point of employability is set-aside; and

The claimant is inducted into a new vocational rehabilitation program as provided in 38 CFR 21.282(a).

Therefore, if a claimant participated in employment services, to include the authorization of EAA, and was subsequently determined no longer job ready, warranting plan redevelopment of a new vocational goal (i.e. new Dictionary of Occupational Title (DOT) code), two additional EAA payments may be authorized during the same application period if the criteria for EAA payment as outlined in section 9.02 of this chapter are met. However, the period of employment assistance remains limited to a total of 18 months not including any time in Interrupted status.

Prior rehabilitated cases where the previous rehabilitation has been set aside may also receive two additional EAA payments following rehabilitation to the point of employability if criteria outlined 9.02 of this chapter are met.

b. Claimant Affected by a Natural Disaster

(Change Date July 2, 2014)

Per 38 U.S.C 3108(a)(2)(B), if a claimant lives in an area where a natural disaster is declared by the Governor and/or the President of the United States, then he or she may qualify for additional assistance in accordance with Public Law (Pub. L.) 112-154. The law allows the VR&E program to provide up to two additional months of EAA payments to Veterans who have been displaced by a natural or other disaster.

To qualify for this benefit, the claimant must meet all the following conditions:

• The claimant must be in Job Ready status at the time of the disaster,
• The claimant must be currently receiving EAA payments, and

The claimant must be satisfactorily following a program of employment services at the time of the disaster.

This benefit is applicable to claimants who have been displaced by a natural or other disaster occurring after August 6, 2013, as long as the claimant meets the eligibility criteria.

The payment process for the two additional months of EAA under Pub. L. 112-154 is the same as that discussed in this chapter. The two additional payments must be made subsequent to the initial EAA payments currently authorized under 38 CFR 21.268. Payment of each month of additional EAA will be made following a month of successful participation in employment services. A case will remain open for the period of time needed to receive the additional EAA before declaration of rehabilitation is made.

The case manager must identify the additional payments as a benefit payable under Pub. L. 112-154 and document the impact of the disaster by completing the following steps:

Process the EAA payment within the subsistence allowance module (SAM) located within the CWINRS system.

Document the natural disaster and the impact on the claimant in an electronic case note. The note must indicate that the additional payments are being approved per Pub. L. 112-154 and it must also be specified whether this is the first or second additional payment. Submit a local memo to the VR&E Officer, or designee, for approval and file the memo in the VR&E record.

VR&E Officer, or designee, will compile a list that includes the claimant’s name, claim number, name of the natural or other disaster, and the amount of additional EAA payments; this list will be emailed to the respective District Office on a quarterly basis. Please note that negative responses are required.

District Offices should compile all responses for their ROs and submit one spreadsheet to the VR&E Corporate mailbox at VAVBAWAS/CO/VRE, with cc to the Office of Field Operations (OFO) liaison. This information is due by the 10th of the following months: January, April, July, and October.

c. Claimant Affected by an Emergency Situation

(Change Date January 5, 2023)

Refer to Glossary of Terms for definition of emergency situation.

38 U.S.C.3104 (e) was amended to allow for two additional payments of EAA during the covered period if certain criteria are met.

To qualify for these two additional months of EAA, all of the following criteria must be met:

The claimant must be satisfactorily following a program of employment services during the covered period.

The payment must apply to dates during the covered period of the emergency situation.

The case must be in Job Ready status.

All current eligibility for EAA criteria.

The claimant must be negatively impacted by the emergency situation in order to receive the two additional EAA payments.