Page images
PDF
EPUB

(3) A program of employment services for employable veterans who are prior participants in Department of Veterans Affairs or state-federal vocational rehabilitation programs.

Authority: 38 U.S.C. 3117)

(g) Serious employment handicap. This term 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.

by the Department of Veterans Affairs to be needed;

(i) In the case of a veteran for whom the achievement of a vocational goal has not been found to be currently infeasible, such services include:

(A) Determining whether a vocational goal is reasonably feasible;

(B) Improving the veteran's potential to participate in a program of services designed to achieve a vocational goal;

(C) Enabling the veteran to achieve maximum independence in daily living;

(ii) In the case of a veteran for whom achievement of a vocational goal is feasible, such services include assisting the veteran to become, to the maximum extent feasible, employable and to obtain and maintain suitable employment; and

(2) The term also includes the monetary assistance authorized by 38 U.S.C. Chapter 31 for a veteran receiving any of the services described in this paragraph.

(Authority: 38 U.S.C. 3101(7)

(h) Vocational goal. (1) The term vocational goal means a gainful employment status consistent with a veteran's abilities, aptitudes, and interests;

(2) The term achievement of a vocational goal is reasonably feasible means the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances does not prevent the veteran from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran's abilities, aptitudes, and interests;

(3) The term achievement of a vocational goal is not currently reasonably feasible means the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances at the time of the determination:

(i) Prevent the veteran from successfully achieving a vocational goal at that time; or

(ii) Are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible.

(Authority: 38 U.S.C. 3101(9); Pub. L. 99-576)

(j) Program of employment services. This term includes the counseling, medical, social, and other placement and post-placement services provided to a veteran under 38 U.S.C. Chapter 31 to assist the veteran in obtaining or maintaining suitable employment.

(Authority: 38 U.S.C. 3117)

(k) Other terminology. The following are primarily intended as explanations rather than definitions of terms to which frequent reference will be made in these regulations.

(1) Counseling psychologist. Unless otherwise stated, the term counseling psychologist refers to a counseling psychologist in the Vocational Rehabilitation and Employment Division in the Veterans Benefits Administration, Department of Veterans Affairs.

Authority: 38 U.S.C. 3101(8))

(1) Vocational rehabilitation program. This term includes:

(1) The services that are needed for the accomplishment of the purposes of 38 U.S.C. Chapter 31 including such counseling, diagnostic, medical, social, psychological, independent living, economic, educational, vocational, and employment services as are determined

(Authority: 38 U.S.C. 3118(c))

(2) Vocational rehabilitation specialist. Unless otherwise stated, the term vocational rehabilitation specialist refers to a vocational rehabilitation specialist in the Vocational Rehabilitation and Employment Division in the Veterans

1

Benefits Administration of the Depart. pational rehabilitative activity ( ment of Veterans Affairs, or to a De- educational or therapeutic nature. partment of Veterans Affairs counseling psychologist performing the du- (Authority: 38 U.S.C. 3115(a)) ties of a vocational rehabilitation spe

(7) Vocational rehabilitation coun cialist.

Unless otherwise stated, the term (Authority: 38 U.S.C. 3118(c))

tional rehabilitation counselor I

to a vocational rehabilitation ( (3) School, educational institution, in- selor in the Vocational Rehabiliti stitution. These terms means any public and Employment Division in the or private school, secondary school, vo- erans Benefits Administration, De cational school, correspondence school, ment of Veterans Affairs. business school, junior college, teachers' college, college, normal school, (Authority: 38 U.S.C. 3118(c)) professional school, university, or scientific

(49 FR 40814, Oct. 18, 1984; 50 FR 9622, M or technical institution, or

1985, as amended at 53 FR 50956, Dec. 19, other institution furnishing education

62 FR 17707, Apr. 11, 1997) for adults.

BASIC ENTITLEMENT (Authority: 38 U.S.C. 3452(c)) (4) Training establishment. This term

$21.40 Basic entitlement. means any establishment providing ap- A veteran or serviceperson shal prentice or other training on the job, entitled to a program of rehabilita including those under the supervision services under 38 U.S.C. chapter of a college or university or any State all of the following conditions are department of education, or any State

(a) Service-connected disability. (1) apprenticeship agency, or any State veteran has a service-connected board of vocational education, or any

ability of 20 percent or more whic joint apprenticeship committee, or the

or but for the receipt of retired Bureau of Apprenticeship and Training

would be, compensable under 38 U, established in accordance with 29

chapter 11, and which was incurre U.S.C. Chapter 4C, or any agency of the

aggravated in service on or after Federal Government authorized to su

tember 16, 1940; or pervise such training.

(2) A serviceperson is hospitalizet

a service-connected disability in a (Authority: 38 U.S.C. 3452(e))

pital over which the Secretary (5) Rehabilitation facility. This term cerned has charge pending discharg means a distinct organizational entity, release from active military, nava either separate or within a larger air service and is suffering from a insititution or agency, which provides ability which will likely be com goal-oriented comprehensive and co- sable at a rate of 20 percent or r ordinated services to individuals de- under 38 U.S.C. Chapter 11; or signed to evaluate and minimize the

(3) A veteran or serviceperson, as handicapping effects of physical, men

scribed in paragraphs (a)(1) and tal, social and vocational disadvan

this section, has a service-conne tages, and to effect a realization of the

disability which is compensable c individual's potential.

likely to be compensable at less tha

percent, if the individual filed an o (Authority: 38 U.S.C. 3115(a))

nal application for Chapter 31 be (6) Workshop. This term means November 1, 1990. charitable organization or institution, (b) Employment handicap. The veti conducted not for profit, but for the or serviceperson is determined to b purpose of carrying out an organized need of rehabilitation to overcome program of evaluation and rehabilita- employment handicap. tion for handicapped workers and/or for providing such individuals with remu

(Authority: 38 U.S.C. 3102, Pub. L. 101-508 nerative employment and other occu- (56 FR 15836, Apr. 18, 1991)

а.

PERIODS OF ELIGIBILITY

$21.41 Basic period of eligibility.

A veteran having basic entitlement may be provided a program of rehabilitative services during the twelve-year period following discharge. The begin ning date of the twelve-year period is the day of the veteran's discharge or release from his or her last period of active military, naval, or air service and the ending date is twelve years from the discharge or release date, un less the beginning date is deferred or the ending date is deferred or extended as provided in 88 21.42, 21.44, and 21.45. (Authority: 38 U.S.C. 3103) (49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)

release was under conditions other than dishonorable.

(2) The basic twelve-year period shall not begin to run during any period in which the veteran's discharge or dismissal was considered a bar to benefits by the Department of Veterans Affairs, before this bar is removed by the Department of Veterans Affairs.

(3) When there is a change in the character of discharge or dismissal under paragraph (b) (1) or (2) of this section the beginning date of the basic twelve-year period of eligibility is the effective date of the change. Determination of character of discharge and change in the character of discharge shall be made under the provisions of 83.12. The ending date is twelve years from the beginning date.

$21.42 Basic period of eligibility de.

ferred. The basic twelve-year period of eligibility does not begin to run if the veteran was prevented from beginning or continuing a vocational rehabilitation program for one of the following reasons:

(a) Qualifying compensable service-connected disability established. The basic twelve-year period shall not begin to run until the veteran establishes the existence of a compensable service-connected disability described in $21.40(a). When the veteran establishes the existence of a compensable service-connected disability described in $21.40(a), the basic twelve-year period begins on the day the Department of Veterans Affairs notifies the veteran of this. The ending date is twelve years from the beginning date.

(Authority: 38 U.S.C. 3103(b)(2))

(C) Medical condition prevents initiation or continuation. (1) The basic 12-year period of eligibility shall not begin to run or continue to run during any period of 30 days or more in which the veteran's participation in vocational rehabilitation is infeasible because of the veteran's medical condition, which condition may include the disabling effects of chronic alcoholism, subject to paragraph (c)(5) of this section. The 12-year period shall begin or resume when it is feasible for the veteran to participate in a vocational rehabilitation program, as that term is defined in $21.35.

(2) The term disabling effects of chronic alcoholism means alcohol-induced physical or mental disorders or both, such as habitual intoxication, withdrawal, delirium, amnesia, dementia, and other like manifestations of chronic alcoholism which, in the particular case:

(i) Have been medically diagnosed as manifestations of alcohol dependency or chronic alcohol abuse; and

(ii) Are determined to have prevented commencement or completion of the affected individual's rehabilitation program.

(3) A diagnosis of alcoholism, chronic alcoholism, alcohol dependency, chronic alcohol abuse, etc., in and of itself, does not satisfy the definition of disabling effects of chronic alcoholism.

Authority: 38 U.S.C. 3103(b)(3), Pub. L. 101508)

(b) Character of discharge. (1) The basic twelve-year period of eligibility shall not begin to run during any period when the veteran had not met the requirement of a discharge or release from the active military, naval or air services under conditions other than dishonorable before:

(i) The discharge or release was changed by appropriate authority, or

(ii) The Department of Veterans Affairs determines that the discharge or

(4) Injury sustained by a veteran as a proximate and immediate result of activity undertaken by the veteran while physically or mentally unqualified to do so due to alcoholic intoxication is not considered a disabling effect of chronic alcoholism.

(5) The disabling effects of chronic alcoholism, which prevent initiation or continuation of participation in a vocational rehabilitation program after November 17, 1988, shall not be considered to be the result of willful misconduct.

of the veteran's employment hanc and his or her capabilities are sig cantly different than were previc found.) or;

(3) Occupational requirements changed and additional services needed to help the veteran contini the occupation in which he or she trained or in a related field.

(Authority: 38 U.S.C. 3103(c))

(Authority: 38 U.S.C. 3103(b)(1), Pub. L. 100689) [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 55 FR 40171, Oct. 2, 1990; 56 FR 15836, Apr. 18, 1991)

$21.44 Extension beyond basic period

$21.45 Extension beyond basic pe

of eligibility for a program of i

pendent living services. The period of eligibility for a vet to pursue a program of independent ing services may be extended be the basic twelve-year period under following conditions:

(a) The veteran's medical condi (service and nonservice-connected abilities) is so severe that achiever of a vocational goal is not curre reasonably feasible, or (b) the ex sion is necessary to ensure that h she will achieve maximum indep ence in daily living. (Authority: 38 U.S.C. 3103(d); Pub. L. (99 (49 FR 40814, Oct. 18, 1984, as amended FR 50956, Dec. 19, 1988)

of eligibility because of serious em

ployment handicap. The basic period of eligibility of a veteran with a serious employment handicap may be extended when the veteran's employment and particular handicap necessitate an extension as necessary to pursue a vocational rehabilitation program under the following conditions:

(a) Not rehabilitated to the point of employability. The basic period of eligibility may be extended when the veteran has not previously been rehabilitated to the point of employability.

(Authority: 38 U.S.C. 3103(c))

(b) Rehabilitated to the point of employability. The veteran was previously declared rehabilitated to the point of employability, under the Department of Veterans Affairs vocational rehabilitation program, but either:

(1) The veteran's service-connected disability or disabilities have worsened to the extent that he or she is unable to perform the duties of the occupation in which he or she is trained, or in a related occupation; or

(2) The occupation in which the veteran was rehabilitated to the point of employability is not presently suitable in view of the veteran's current employment handicap and capabilities. (The finding of unsuitability must be based upon objective evidence developed in the course of reconsideration which shows that the nature or extent

$21.47 Eligibility for employment

sistance. (a) Providing employment service veterans eligible for a rehabilitation gram under chapter 31. Each vete other than one found in need of a gram of independent living serv and assistance, who is otherwise rently eligible for and entitled to ticipate in a program of rehabilita under chapter 31 may receive emp ment services. Included are those erans who:

(1) Have completed a program of habilitation services under chapte and been declared rehabilitated to point of employability;

(2) Have not completed a period of habilitation to the point of empl ability under chapter 31, but:

(i) Have elected to secure emp! ment without completing the perio rehabilitation to the point of empl ability; and

(ii) Are employable; or

under the Rehabilitation Act of 1973, no employment assistance may now be provided to the veteran under chapter 31.

(3) Have never received services for rehabilitation to the point of employability under chapter 31 if they:

(i) Are employable or employed in a suitable occupation;

(ii) Have an employment handicap or a serious employment handicap; and

(iii) Need employment services to secure and/or maintain suitable employment.

(Authority: 38 U.S.C. 3117)

(d) Duration of period of employment assistance. The periods during which employment assistance may be provided are not subject to limitations on periods of eligibility for vocational rehabilitation provided in $21.41 through 21.45 of this part, but entitlement to such assistance is, as provided in $21.73 of this part, limited to 18 total months of assistance.

(Authority: 38 U.S.C. 3105) (54 FR 21215, May 17, 1989, as amended at 56 FR 15836, Apr. 18, 1991)

(Authority: 38 U.S.C. 3102)

(b) Veteran previously participated in a VA vocational rehabilitation program or a similar program under the Rehabilitation Act of 1973, as amended. A veteran who at some time in the past has participated in a vocational rehabilitation program under chapter 31 or a similar program under the Rehabilitation Act of 1973 as amended, and is employable is eligible for employment services under the following conditions even though he or she is ineligible for any other assistance under chapter 31:

(1) The veteran is employable in a suitable occupation;

(2) The veteran has filed a claim for vocational rehabilitation or employment assistance;

(3) The veteran meets the criteria for eligibility described in $21.40(a); and

(4) The veteran has an employment bandicap or serious employment handicap, and

(5) The veteran: (i) Completed a vocational rehabilitation program under 38 U.S.C. ch. 31 or participated in such a program for at least 90 days on or after September 16, 1940; or

(ii) Completed a vocational rehabilitation program under the Rehabilitation Act of 1973 after September 26, 1975, or participated in such a program which included at least 90 days of postsecondary education or vocational training.

$21.48 Severance of service-connec

tion-reduction to noncompensable

degree. When a rating action is taken which proposes severance of service-connection or reduction to a noncompensable degree, the provisions of the following paragraphs will govern the veteran's entitlement to rehabilitation and employment assistance under 38 U.S.C. Chapter 31.

(a) Applicant. If the veteran is an applicant for rehabilitation or employment assistance when the proposed rating action is taken, all processes respecting determination of entitlement or induction into training shall be immediately suspended. In no event shall any veteran be inducted into a rehabilitation program or provided employment assistance during the interim periods provided in 83.105 (d) and (e) of this title. If the proposed rating action becomes final, the application will be denied. See also $21.50 as to initial evaluation.

(Authority: 38 U.S.C. 3117)

(c) Veteran never received vocational Tehabilitation services from the Department of Veterans Affairs or under the Rehabilitation Act of 1973. If a veteran is currently ineligible under chapter 31 because he or she does not have an employment handicap, and has never be fore participated in a vocational rehabilitation program under chapter 31 or

(Authority: 38 U.S.C. 3104)

(b) Reduction while in a rehabilitation program. If the proposed rating action is taken while the veteran is in a rehabilitation program and results in a reduction to a noncompensable rating of his or her disability, the veteran may be retained in the program until the completion of the program, except if

« PreviousContinue »