38 C.F.R. Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31
Title 38 - Pensions, Bonuses, and Veterans' Relief
Authority: 38 U.S.C. 501(a), 3100–3121, unless otherwise noted.
Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.
(a) Purposes. The purposes of this program are to provide to eligible veterans with compensable service-connected disabilities all services and assistance necessary to enable them to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. (b) Basic requirements. Before a service-disabled veteran may receive training and rehabilitation services under Chapter 31, Title 38 U.S.C., three basic requirements must be met: (1) The Department of Veterans Affairs must first find that the veteran has basic entitlement to services as prescribed by §21.40. (2) The services necessary for training and rehabilitation must be identified by the Department of Veterans Affairs and the veteran. (3) An individual written plan must be developed by the Department of Veterans Affairs and the veteran describing the goals of the program and the means through which these goals will be achieved. [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
Title 38: Pensions, Bonuses, and Veterans' Relief
PART 21—VOCATIONAL REHABILITATION AND EDUCATION
Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31
Vocational Rehabilitation Overview
§ 21.1 Training and rehabilitation for veterans with service-connected disabilities.
Nonduplication
§ 21.21 Election of benefits under education programs administered by the Department of Veterans Affairs.
(a) Election of benefits required. A veteran must make an election of benefits among the programs of education administered by VA for which he or she may be eligible. A veteran who has basic entitlement to rehabilitation under chapter 31 and is also eligible for assistance under any of the other education programs administered by VA must make an election of benefits between chapter 31 and any other VA program of education for which he or she may be eligible. The veteran may reelect at any time if he or she is otherwise eligible. (See §§21.264 and 21.334.)
(b) Use of prior training in formulating a rehabilitation program. If a veteran has pursued an educational or training program under an education program listed in §21.4020 of this part, the earlier program of education or special restorative training shall be utilized to the extent practicable.
[53 FR 880, Jan. 14, 1988, as amended at 57 FR 57108, Dec. 3, 1992]
§ 21.22 Nonduplication—Federal programs.
(a) Allowances. A service-disabled veteran who is eligible for benefits under Chapter 31, may not receive a subsistence allowance or elect payment of an allowance at the educational assistance rate under Chapter 30 pursuant to §21.264 if the veteran:
(1) Is on active duty and is pursuing a course of education which is being paid for by the Armed Forces (or by the Department of Health and Human Services in the case of the Public Health Service), or
(2) Is attending a course of education or training paid for under Chapter 41, Title 5 U.S.C. and whose full salary is being paid to such veteran while so training.
(b) Services which may be authorized. A service-disabled veteran who is in one of the two categories defined in paragraph (a) of this section is entitled to receive all benefits, other than an allowance, to which he or she is otherwise entitled under Chapter 31, including:
(1) Payment of any tuition and fees not paid for by the Armed Forces.
(2) The cost of special services, such as reader services, tutorial assistance, and special equipment during the period of such training.
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992]
Claims
§ 21.30 Claims.
A specific claim in the form prescribed by the Department of Veterans Affairs must be filed for:
(a) A program of rehabilitation services, or
(b) Employment assistance.
(Authority: 38 U.S.C. 501(a), 3102, 3117, 5101(a))
§ 21.31 Informal claim.
Any communication or action indicating an intent to apply for rehabilitation or employment assistance, from a veteran, a duly authorized representative, or a Member of Congress may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the veteran for execution. In the case of a claim for rehabilitation, or employment assistance, the formal claim will be considered filed as of the date of receipt of the informal claim if received within 1 year from the date it was sent to the veteran, or before cessation of the course, whichever is earlier.
(Authority: 38 U.S.C. 501(a), 5101(a), 5103(a))
§ 21.32 Time limit.
(a) Time limit for filing evidence. The provisions of this paragraph are applicable to an original application, formal or informal, for rehabilitation or employment assistance and to a claim for increased benefits by reason of the existence of a dependent.
(1) If a claimant's application is incomplete, the claimant will be notified of the evidence necessary to complete the application;
(2) If the evidence is not received within 1 year from the date of such notification, benefits may not be paid by reason of that application.
(b) Failure to furnish claim or notice of time limit. The failure of VA to furnish a claimant:
(1) Any form or information concerning the right to file a claim or to furnish notice of the time limit for the filing of a claim is not a basis for adjusting the periods allowed for these actions;
(2) Appropriate notice of time limits within which evidence must be submitted to perfect a claim shall result in an adjustment of the period during which the time limit runs. The period during which the time limit runs shall be determined in accordance with paragraph (c) of this section. As to appeals see §19.129 of this chapter.
(c) Adjustment of time limit. (1) In computing the time limit for any action required of a claimant or beneficiary to perfect the types of claims described in paragraph (a) of this section, the first day of the specified period will be excluded and the last day included. This rule is applicable in cases in which the time limit expires on a workday. Where the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation.
(2) The period during which the veteran must provide information necessary to perfect his or her claim does not begin to run until the veteran has been notified of this requirement for submission of information. The date of the letter of notification informing the veteran of the action required and the time limit for accomplishing the action shall be “The first day of the specified period” referred to in paragraph (c)(1) of this section.
Due Process. See §3.103.
[49 FR 40814, Oct. 18, 1984, as amended at 55 FR 12821, Apr. 6, 1990]
Definitions
§ 21.35 Definitions.
(a) Employment handicap. This term means an impairment of a veteran's ability to prepare for, obtain, or retain employment consistent with such veteran's abilities, aptitudes, and interests.
(b) Independence in daily living. This term means the ability of a veteran, without the service of others, or with a reduced level of the services of others, to live and function within such veteran's family and community.
(c) Program of education. This term means:
(1) A combination of subjects or unit courses pursued at a school which is generally acceptable to meet requirements for a predetermined educational, professional or vocational objective; or
(2) Such subjects or courses which are generally acceptable to meet requirements for more than one objective if all objectives pursued are generally recognized as being related to a single career field; or
(3) Any unit course or subject, or combination of courses or subjects, pursued by an eligible veteran at any educational institution required by the Administrator of the Small Business Administration as a condition to obtaining financial assistance under the provisions of section (7)(i)(1) of the Small Business Act.
(d) Program of independent living services and assistance. This term includes:
(1) The services provided in this program that are needed to enable a veteran to achieve maximum independence in daily living, including counseling, diagnostic, medical, social, psychological, and educational services determined by the Department of Veterans Affairs to be necessary, and
(2) The monthly allowance authorized by 38 U.S.C. Chapter 31 for such a veteran.
(e) Rehabilitated to the point of employability. This term means that the veteran is employable in an occupation for which a vocational rehabilitation program has been provided under this program
(f) Rehabilitation program. This term includes, when appropriate:
(1) A vocational rehabilitation program (see paragraph (i) of this section);
(2) A program of independent living services and assistance (see paragraph (d) of this section) for a veteran for whom a vocational goal has been determined not to be currently reasonably feasible; or
(3) A program of employment services for employable veterans who are prior participants in Department of Veterans Affairs or state-federal vocational rehabilitation programs.
(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.
(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.
(i) 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 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.
(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.
(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.
(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 Benefits Administration of the Department of Veterans Affairs, or to a Department of Veterans Affairs counseling psychologist performing the duties of a vocational rehabilitation specialist.
(3) School, educational institution, institution. These terms means any public or private school, secondary school, vocational school, correspondence school, business school, junior college, teachers' college, college, normal school, professional school, university, or scientific or technical institution, or other institution furnishing education for adults.
(4) Training establishment. This term means any establishment providing apprentice or other training on the job, including those under the supervision of a college or university or any State department of education, or any State apprenticeship agency, or any State board of vocational education, or any joint apprenticeship committee, or the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. Chapter 4C, or any agency of the Federal Government authorized to supervise such training.
(5) Rehabilitation facility. This term means a distinct organizational entity, either separate or within a larger insititution or agency, which provides goal-oriented comprehensive and coordinated services to individuals designed to evaluate and minimize the handicapping effects of physical, mental, social and vocational disadvantages, and to effect a realization of the individual's potential.
(6) Workshop. This term means a charitable organization or institution, conducted not for profit, but for the purpose of carrying out an organized program of evaluation and rehabilitation for handicapped workers and/or for providing such individuals with remunerative employment and other occupational rehabilitative activity of an educational or therapeutic nature.
(7) Vocational rehabilitation counselor. Unless otherwise stated, the term vocational rehabilitation counselor refers to a vocational rehabilitation counselor in the Vocational Rehabilitation and Employment Division in the Veterans Benefits Administration, Department of Veterans Affairs.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 53 FR 50956, Dec. 19, 1988; 62 FR 17707, Apr. 11, 1997]
Basic Entitlement
§ 21.40 Basic entitlement.
A veteran or serviceperson shall be entitled to a program of rehabilitation services under 38 U.S.C. chapter 31 if all of the following conditions are met:
(a) Service-connected disability. (1) The veteran has a service-connected disability of 20 percent or more which is, or but for the receipt of retired pay would be, compensable under 38 U.S.C. chapter 11, and which was incurred or aggravated in service on or after September 16, 1940; or
(2) A serviceperson is hospitalized for a service-connected disability in a hospital over which the Secretary concerned has charge pending discharge or release from active military, naval or air service and is suffering from a disability which will likely be compensable at a rate of 20 percent or more under 38 U.S.C. Chapter 11; or
(3) A veteran or serviceperson, as described in paragraphs (a)(1) and (2) of this section, has a service-connected disability which is compensable or is likely to be compensable at less than 20 percent, if the individual filed an original application for Chapter 31 before November 1, 1990.
(b) Employment handicap. The veteran or serviceperson is determined to be in need of rehabilitation to overcome an employment handicap.
(Authority: 38 U.S.C. 3102, Pub. L. 101–508)
[56 FR 15836, Apr. 18, 1991]
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 beginning 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, unless the beginning date is deferred or the ending date is deferred or extended as provided in §§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]
§ 21.42 Basic period of eligibility deferred.
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.
(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 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 §3.12. The ending date is twelve years from the beginning date.
(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.
(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.
[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 of eligibility because of serious employment 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.
(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 of the veteran's employment handicap and his or her capabilities are significantly different than were previously found.) or;
(3) Occupational requirements have changed and additional services are needed to help the veteran continue in the occupation in which he or she was trained or in a related field.
§ 21.45 Extension beyond basic period of eligibility for a program of independent living services.
The period of eligibility for a veteran to pursue a program of independent living services may be extended beyond the basic twelve-year period under the following conditions:
(a) The veteran's medical condition (service and nonservice-connected disabilities) is so severe that achievement of a vocational goal is not currently reasonably feasible, or (b) the extension is necessary to ensure that he or she will achieve maximum independence in daily living.
(Authority: 38 U.S.C. 3103(d); Pub. L. (99–576)
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988]
§ 21.47 Eligibility for employment assistance.
(a) Providing employment services to veterans eligible for a rehabilitation program under chapter 31. Each veteran, other than one found in need of a program of independent living services and assistance, who is otherwise currently eligible for and entitled to participate in a program of rehabilitation under chapter 31 may receive employment services. Included are those veterans who:
(1) Have completed a program of rehabilitation services under chapter 31 and been declared rehabilitated to the point of employability;
(2) Have not completed a period of rehabilitation to the point of employability under chapter 31, but:
(i) Have elected to secure employment without completing the period of rehabilitation to the point of employability; and
(ii) Are employable; or
(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.
(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 handicap 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.
(c) Veteran never received vocational rehabilitation 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 before participated in a vocational rehabilitation program under chapter 31 or under the Rehabilitation Act of 1973, no employment assistance may now be provided to the veteran under chapter 31.
(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.
[54 FR 21215, May 17, 1989, as amended at 56 FR 15836, Apr. 18, 1991]
§ 21.48 Severance of service-connection—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 §3.105 (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.
(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 “discontinued” under §21.198 he or she may not reenter.
(c) Severance while in a rehabilitation program. If the proposed rating action is taken while the veteran is in a rehabilitation program and results in severance of the service-connection of his or her disability, rehabilitation will be terminated effective as of the last day of the month in which severance of service-connection becomes final.
Initial and Extended Evaluation
§ 21.50 Initial evaluation.
(a) Eligibility for initial evaluation. VA shall provide an initial evaluation to each individual who applies for benefits under chapter 31 if the individual's compensable service-connected disability meets one of the conditions contained in §21.40(a).
(b) Purpose. An initial evaluation will be provided to each individual who meets the conditions of paragraph (a) of this section to:
(1) Determine the existence of an employment handicap;
(2) Determine the basic twelve-year period of eligibility;
(3) Determine whether an employment handicap shall be considered a serious employment handicap;
(4) Determine whether the basic twelve-year period of eligibility is extended for a veteran with a serious employment handicap;
(5) Determine as expeditiously as possible, without extended evaluation, whether achievement of a vocational goal is currently reasonably feasible.
(6) Evaluate the ability of the veteran to live and function independently within the veteran's family and community;
(7) Determine if the veteran is eligible for employment services under §21.47;
(8) Develop information necessary to plan an individual program for a veteran found eligible and entitled to services under Chapter 31; and
(9) Assist a veteran who is found ineligible for assistance under Chapter 31 to identify other resources and programs for which he or she may be eligible.
(c) Scope of initial evaluation. The initial evaluation shall include consideration of:
(1) The handicapping effects of the veteran's service-connected disability on employability and independence in daily living;
(2) The veteran's residual physical and mental capabilities which contribute to employability and independence in daily living;
(3) The veteran's ability to function independently in family and community;
(4) Prior assessments of employability by a counseling psychologist;
(5) Assessments authorized to provide additional information necessary for initial evaluation; and
(6) The veteran's personal history including:
(i) Education and training;
(ii) Employment;
(iii) Nonservice-connected disability(ies), and
(iv) Family and community adjustment.
(d) Responsibility for initial evaluation. (1) All determinations regarding service requirements for basic entitlement and, the beginning and ending dates of a veteran's basic twelve-year period of eligibility shall be made by appropriate staff of the Veterans Service Center.
(2) All other determinations, including extension of the basic twelve-year period because of serious employment handicap, and entitlement to assistance under Chapter 31 shall be made by appropriate staff of the Vocational Rehabilitation and Employment Division.
(e) Cooperation of the veteran. The cooperation of the veteran is essential to an initial evaluation. The purpose of the initial evaluation and the steps in the process shall be explained to the veteran and his or her cooperation requested. If the veteran does not cooperate in the initiation or completion of the initial evaluation the counseling psychologist shall make a reasonable effort through counseling to secure the veteran's cooperation. If the veteran's cooperation cannot be secured, the counseling psychologist shall suspend the initial evaluation until such time as the veteran cooperates. The veteran will be informed of any suspension of the initial evaluation, the reasons for this action, and the steps necessary to resume the evaluation.
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988; 56 FR 15836, Apr. 18, 1991; 71 FR 28586, May 17, 2006]
§ 21.51 Employment handicap.
(a) Importance of decision. The proper determination of employment handicap is a critical decision for rehabilitation planning and program accountability. To the extent possible, necessary information shall be developed in the course of initial evaluation and the significance of the information under paragraphs (d) and (e) of this section for determining employment handicap shown in each case.
(b) Definition. The term employment handicap means an impairment of the veteran's ability to prepare for, obtain, or retain employment consistent with the veteran's abilities, aptitudes, and interests.
(c) Components of employment handicap. Components of employment handicap include:
(1) Impairment. This term means the restrictions on employability caused by:
(i) The veteran's service and nonservice-connected disabilities;
(ii) Deficiencies in education and training;
(iii) Negative attitudes toward the disabled; and
(iv) Other pertinent factors.
(2) Service-connected disability. The veteran's service-connected disability need not be the sole or primary cause of the employment handicap but it must materially contribute to the impairment described in paragraph (c)(1) of this section. Therefore its effects must be identifiable, measurable, or observable.
(3) Nonservice-connected disability. This term includes all physical and mental disabilities which have not been found to be service-connected by the Department of Veterans Affairs, including alcoholism and drug abuse. The effects of alcoholism and drug abuse are to be considered in the same manner as other nonservice-connected disabilities in evaluating restrictions on employability. When the manifestations of alcoholism, drug abuse or other nonservice-connected disabilities raise questions as to the reasonable feasibility of a vocational goal for a veteran otherwise entitled to assistance under Chapter 31 such questions will be resolved under provisions of §21.53.
(4) Consistency with abilities, aptitudes, and interests. The following points should be considered to determine if the veteran's training and employment are consistent with his or her abilities, aptitudes and interests:
(i) A finding that a veteran is employed in an occupation which is consistent with his or her abilities, aptitudes and interests may not be made if the occupation does not require reasonably developed skills, except under conditions described in paragraphs (e) (2) and (3), of this section;
(ii) The veteran's residual capacities, as well as limitations arising from the veteran's service and nonservice-connected disabilities are relevant;
(iii) Evidence of the consistency of interests with training and employment may be based on:
(A) The veteran's statements to a Department of Veterans Affairs counseling psychologist during initial evaluation or subsequent reevaluation;
(B) The veteran's history of participation in specific activities; or
(C) Information developed by the Department of Veterans Affairs through use of interest inventories.
(d) Determining extent of impairment. The extent of the veterans impairment shall be assessed through consideration of factors described in paragraph (c)(1) of this section:
(e) Material contribution of service-connected disability to the impairment. A finding that the veteran's service-connected disability materially contributes to his or her impairment to employment will be made by assessing the following factors:
(1) Preparation for employment. The service-connected condition adversely affects the veteran's current ability to prepare for employment in one or more fields which would otherwise be consistent with the veteran's abilities, aptitudes, and interests. An adverse effect is demonstrated when the physical or psychological results of the service-connected condition:
(i) Impair the veteran's ability to train;
(ii) Prevent or impede access to training facilities; or
(iii) Diminish the veteran's motivation and ability to mobilize his or her energies for education or training.
(2) Obtaining employment. The service-connected condition places the veteran at a competitive disadvantage with similarly circumstanced nondisabled persons in obtaining employment. A veteran without reasonably developed specific job skills shall be considered to be at a competitive disadvantage unless evidence of record shows a history of current, stable, continuing employment.
(3) Retaining employment. The physical or psychological effects of a service-connected condition adversely affect the veteran's ability to maintain employment which requires reasonably developed skills. This criterion is not met if a veteran though lacking reasonably developed skills, has a history of continuing, stable employment.
(f) Determination of employment handicap. The counseling psychologist may find the veteran has an employment handicap.
(1) An employment handicap which entitles the veteran to assistance under this program exists when all of the following conditions are met:
(i) The veteran has an impairment of employability; this includes veterans who are qualified for suitable employment, but do not obtain or retain such employment for reasons not within their control;
(ii) The veteran's service-connected disability materially contributes to the impairment of employability;
(iii) The veteran has not overcome the effects of the impairment of employability through employment in an occupation consistent with his or her pattern of abilities, aptitudes and interests.
(2) An employment handicap does not exist when any of the following conditions is present:
(i) The veteran's employability is not impaired; this includes veterans who are qualified for suitable employment, but do not obtain or retain such employment for reasons within their control;
(ii) The veteran's employability is impaired, but his or her service-connected disability does not materially contribute to the impairment of employability.
(iii) The veteran has overcome the effects of the impairment of employability through employment in an occupation consistent with his or her pattern of abilities, aptitudes and interests, and is successfully maintaining such employment.
(g) Eligibility for employment assistance. If a veteran is not found to have an employment handicap a separate determination of his or her eligibility for employment assistance will be made under provisions of §21.47.
(h) Responsibility for determinations. The determination of an employment handicap and eligibility for employment assistance may only be made by a counseling psychologist in the Vocational Rehabilitation and Employment Division.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 54 FR 21216, May 17, 1989]
§ 21.52 Serious employment handicap.
(a) Requirement of determination of serious employment handicap. A separate determination whether a serious employment handicap exists shall be made in each case in which an employment handicap is found.
(b) Definition. The term serious employment handicap 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.
(c) Serious employment handicap exists. A veteran who has been found to have an employment handicap shall also be held to have serious employment handicap if he or she has:
(1) A neuropsychiatric service-connected disability rated at thirty percent or more disabling; or
(2) Any other service-connected disability rated at fifty percent or more disabling.
(d) Serious employment handicap may exist. A veteran with a nonneuropsychiatric service-connected disability may be found to have a serious employment handicap even though the disability is rated at thirty or forty percent disabling, when either of the following conditions exists:
(1) The veteran has a prior history of poor adjustment in training and employment, and special efforts will be needed if the veteran is to be rehabilitated; or
(2) The veteran's situation presents special problems due to nonservice-connected disability, family pressures, etc., and a number of special and supportive services are needed to effect rehabilitation.
(e) Serious employment handicap normally not found. A finding of serious employment handicap will normally not be made when a veteran's service-connected disability is rated at less than thirty percent disabling. A finding of serious employment handicap may nevertheless be made when:
(1) The veteran's service-connected disability has caused substantial periods of unemployment or unstable work history;
(2) The veteran has demonstrated a pattern of maladaptive behavior which is shown by a history of withdrawal from society or continuing dependency on government income support programs; and
(f) Responsibility for determining serious employment handicap. A counseling psychologist in the Vocational Rehabilitation and Employment Division shall make determinations of serious employment handicap.
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 37332, Sept. 8, 1989]
§ 21.53 Reasonable feasibility of achieving a vocational goal.
(a) Requirement. The Department of Veterans Affairs shall determine the reasonable feasibility of achieving a vocational goal in each case in which a veteran has either:
(1) An employment handicap, or
(2) A serious employment handicap.
(b) Definition. The term vocational goal means a gainful employment status consistent with the veteran's abilities, aptitudes, and interests.
(c) Expeditious determination. The determination of reasonable feasibility shall be made as expeditiously as possible when necessary information has been developed in the course of initial evaluation. If an extended evaluation is necessary as provided in §21.57 a decision of feasibility shall be made by the end of the extended evaluation. Any reasonable doubt shall be resolved in favor of a finding of feasibility.
(d) Vocational goal is reasonably feasible. Achievement of a vocational goal is reasonably feasible for a veteran with either an employment or serious employment handicap when the following conditions are met:
(1) Vocational goal(s) has (have) been identified;
(2) The veteran's physical and mental conditions permit training for the goal(s) to begin within a reasonable period; and
(3) The veteran:
(i) Possesses the necessary educational skills and background to pursue the vocational goal; or
(ii) Will be provided services by the Department of Veterans Affairs to develop such necessary educational skills as part of the program.
(e) Criteria for reasonable feasibility not met. (1) When VA finds that the provisions of paragraph (d) of this section are not met, but VA has not determined that achievement of a vocational goal is not currently reasonably feasible, VA shall provide the rehabilitation services contained in §21.35(i)(1)(i) of this part as appropriate;
(2) 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.
(f) Independent living services. The counseling psychologist shall determine the current reasonable feasibility of a program of independent living services in each case in which a vocational rehabilitation program is not found reasonably feasible. The concurrence of the Vocational Rehabilitation and Employment (VR&C) Officer is required in any case in which the counseling psychologist does not approve a program of independent living services.
(g) Responsible staff. A counseling psychologist in the Vocational Rehabilitation and Employment Division shall determine whether achievement of a vocational goal is:
(1) Reasonably feasible; or
(2) Not currently reasonably feasible under the provisions of paragraph (e) of this section for the purpose of determining present eligibility to receive a program of independent living services.
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988; 54 FR 37332, Sept. 8, 1989]
§ 21.57 Extended evaluation.
(a) Purpose. The purpose of an extended evaluation for a veteran with a serious employment handicap is to determine the current feasibility of the veteran achieving a vocational goal, when this decision reasonably cannot be made on the basis of information developed during the initial evaluation.
(b) Scope of services. During the extended evaluation, a veteran may be provided:
(1) Diagnostic and evaluative services;
(2) Services to improve his or her ability to attain a vocational goal;
(3) Services to improve his or her ability to live and function independently in the community;
(4) An allowance as provided in §21.260.
(c) Determination. (1) The determination of the reasonable feasibility of a veteran achieving a vocational goal will be made at the earliest time possible during an extended evaluation, but not later than the end of the period of evaluation, or an extension of that period. Any reasonable doubt as to feasibility will be resolved in the veteran's favor;
(2) When it is reasonably feasible for the veteran to achieve a vocational goal, an individualized written rehabilitation plan (IWRP) will be developed as indicated in §21.84 of this part.
(d) Responsibility for determining the need for a period of extended evaluation. A counseling psychologist in the Vocational Rehabilitation and Employment Division shall determine whether a period of extended evaluation is needed.
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988; 54 FR 37332, Sept. 8, 1989; 62 FR 17707, Apr. 11, 1997]
§ 21.58 Redetermination of employment handicap and serious employment handicap.
(a) Prior to induction into a program. A determination as to employment handicap, serious employment handicap, or eligibility for a program of employment services will not be changed except for:
(1) Unmistakable error in fact or law; or
(2) New and material evidence which justifies a change.
(b) After induction into a program. (1) The Department of Veterans Affairs will not redetermine a finding of employment handicap, serious employment handicap, or eligibility for a program of employment services subsequent to the veteran's induction into a program because of a reduction in his or her disability rating, including a reduction to 0 percent:
(2) The Department of Veterans Affairs may consider whether a finding of employment handicap should be changed to serious employment handicap when there is an increase in the degree of service-connected disability, or other significant change in the veteran's situation;
(3) A redetermination of employment handicap, serious employment handicap, or eligibility for a program of employment services will be made when there is a clear and unmistakable error of fact or law.
(c) Following rehabilitation or discontinuance. A veteran's eligibility and entitlement to assistance must be redetermined in any case in which:
(1) The veteran is determined to be rehabilitated to the point of employability under the provisions of §21.190;
(2) The veteran is determined to meet the requirements for rehabilitation under the provisions of §21.196; or
(3) The veteran's program is discontinued under the provisions of §21.198, except as described in §21.198(c)(3).
§ 21.59 Review and appeal of decisions on eligibility and entitlement.
A veteran may appeal decisions of the Vocational Rehabilitation and Employment staff on eligibility and entitlement to rehabilitation services to the Board of Veterans Appeals as provided in §19.2 of Title 38, CFR. However, the veteran or an accredited representative, on his or her behalf, may request administrative review by Central Office prior to filing an appeal to BVA. A case already on appeal to BVA may not be referred to Central Office for administrative review or advisory opinion.
(Authority: 38 U.S.C. 3107(c))
Vocational Rehabilitation Panel
§ 21.60 Vocational Rehabilitation Panel.
(a) Establishment of the Panel. A Vocational Rehabilitation Panel will be established at each field facility by the facility head. The purpose of the Panel is to provide technical assistance in the planning of rehabilitation programs for seriously disabled veterans and dependents. This purpose will be most effectively carried out through use of the services of a wide range of professionals to bring the resources of the Department of Veterans Affairs and the community to bear on problems presented in the individual case.
(b) Composition of the Panel. The Panel will include, but not be limited to the following:
(1) A counseling psychologist in the VR&C (Vocational Rehabilitation and Employment) Division as the chairperson;
(2) A vocational rehabilitation specialist in VR&C;
(3) A medical consultant from a Department of Veterans Affairs Medical Center;
(4) A member of the Social Services staff from a Department of Veterans Affairs Medical Center; and
(5) Other specialists from the Department of Veterans Affairs.
(c) Appointment to the Panel. (1) The VR&C (Vocational Rehabilitation and Employment) Officer may not serve as either chairperson or member of the Panel.
(2) The VR&C Officer will arrange for the participation of nonmedical professional staff in the Panel's meetings.
(d) Scope of Panel review. The Panel will review each case which has been referred to it in relation to:
(1) Specific reason for the referral; and
(2) Other problem areas which the Panel identifies in the course of its consideration of the case.
(e) Referral. A case may be referred to the Panel by:
(1) A counseling psychologist in VR&C;
(2) A vocational rehabilitation specialist in VR&C; or
(3) The VR&C officer.
(f) Report. The Panel must prepare a report on its findings and recommendations in each case. The Panel's recommendations may include specific actions which are warranted on the basis of current information, or may identify additional information needed to provide a sounder basis for planning the veteran's program of rehabilitation.
§ 21.62 Duties of the Vocational Rehabilitation Panel.
(a) Consultation requested. The panel shall provide technical and consultative services when requested by professional staff of the Vocational Rehabilitation and Employment (VR&C) Division to:
(1) Assist staff members in planning and carrying out a rehabilitation plan for seriously disabled veterans and their dependents; and
(2) Consider other cases of individuals eligible for, or being provided assistance under chapter 31 and other programs of education and training administered by the Department of Veterans Affairs.
(b) Independent living services. The Panel has a key responsibility to assure that seriously disabled service-connected veterans who need independent living services to increase their independence in daily living are provided necessary services. In carrying out this responsibility the Panel shall review all cases which come before it to assure that the proposed program of vocational rehabilitation or independent living services includes those services necessary to enable the veteran to achieve the goals of the program.
(c) Dependents. The specific duties of the Panel with respect to dependents are more fully described §§21.3300, 21.3301, 21.3304, 21.4105, and 21.4276 of this part.
[54 FR 37332, Sept. 8, 1989]
Duration of Rehabilitation Programs
§ 21.70 Vocational rehabilitation.
(a) General. The goal of a vocational rehabilitation program is to:
(1) Evaluate and improve the veteran's ability to achieve a vocational goal;
(2) Provide services needed to qualify for suitable employment;
(3) Enable the veteran to achieve maximum independence in daily living;
(4) Enable the veteran to become employed in a suitable occupation and to maintain suitable employment.
(b) Vocational rehabilitation program. This term includes:
(1) The services that are needed for the accomplishment of the purposes of Chapter 31, including such counseling, diagnostic, medical, social, psychological, independent living, economic, educational, vocational, and employment services as are determined 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 needed 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 needed services include assisting the veteran to become, to the maximum extent feasible, employable and to obtain and maintain suitable employment;
(2) The term also includes the monetary assistance authorized by Chapter 31 for a veteran receiving any of the services described in this paragraph.
(c) Duration of vocational rehabilitation. Decisions on the duration of periods for attaining the goals named in paragraph (a) of this section are made in the course of development and approval of the Individualized Written Rehabilitation Plan. However, the duration of a vocational rehabilitation program may not exceed 48 months (or its equivalent when pursued on a part-time basis), except as provided in §21.78.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 53 FR 50957, Dec. 19, 1988]
§ 21.72 Rehabilitation to the point of employability.
(a) General. Rehabilitation to the point of employability may include the services needed to:
(1) Evaluate and improve the veteran's ability to undertake training;
(2) Train the veteran to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma, or certificate is generally necessary for entry into the occupation, e.g., an MSW for social work, the veteran shall be trained to that level.
(b) When duration of training may exceed general requirements—(1) Employment handicap. If the amount of training necessary to qualify for employment in a particular occupation in a geographical area where a veteran lives or will seek employment exceeds the amount generally needed for employment in that occupation, the Department of Veterans Affairs will provide, or arrange for the necessary additional training.
(2) Serious employment handicap. The Department of Veterans Affairs will assist a veteran with a serious employment handicap to train to a higher level than is usually required to qualify in a particular occupation, when one of the following conditions exist:
(i) The veteran is preparing for a type of work in which he or she will be at a definite disadvantage in competing with nondisabled persons for jobs or business, and the additional training will help to offset the competitive disadvantage;
(ii) The number of feasible occupations are restricted, and additional training will enhance the veteran's employability in one of those occupations;
(iii) The number of employment opportunities within feasible occupations are restricted.
(c) Responsibility for estimating duration of training. (1) The counseling psychologist shall estimate the duration of training and the estimate shall be incorporated in the IWRP (Individualized Written Rehabilitation Plan). When the period of training is estimated to exceed 48 months, the concurrence of the Vocational Rehabilitation and Employment Officer is required, prior to approving the IWRP, under conditions listed in §21.78.
(2) The estimated duration of the period of training required to complete an original or amended IWRP may be extended when necessary. Authorization of an extension is the responsibility of the counseling psychologist, except as provided in paragraph (d) of this section. Any extension which will result in use of more than 48 months of entitlement must meet conditions described in §21.78.
(d) Extension of training by the vocational rehabilitation specialist. (1) The VRS (Vocational Rehabilitation Specialist) may authorize an extension of up to six months of the period of vocational rehabilitation training authorized by the IWRP when:
(i) The veteran is in rehabilitation to the point of employability status under §21.190;
(ii) The veteran has completed more than half of the prescribed training;
(iii) The veteran is making satisfactory progress;
(iv) The extension is necessary to complete training;
(v) Training can be completed within six months; and
(vi) The extension will not result in use of more than 48 months of entitlement under Chapter 31 alone or in combination with other programs identified in §21.4020.
(2) If the conditions listed in paragraph (d)(1) of this section are not met, and an extension is needed to complete the program, the case will be referred to the counseling psychologist for a determination.
§ 21.73 Duration of employment assistance programs.
(a) Duration. Employment assistance may be provided to the veteran for the period necessary to enable the veteran to secure employment in a suitable occupation, and to adjust in the employment. This period shall not exceed 18 months. A veteran may be provided such assistance if he or she is eligible for employment assistance under the provisions of §21.47 of this part.
(b) Employment assistance not charged against Chapter 31 entitlement. The period of employment assistance provided in paragraph (a) of this section is not charged against the months of entitlement under Chapter 31 (see §21.70).
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 21216, May 17, 1989]
§ 21.74 Extended evaluation.
(a) General. An extended evaluation may be authorized for the period necessary to determine whether the attainment of a vocational goal is currently reasonably feasible for the veteran. The services which may be provided during the period of extended evaluation are listed in §21.57(b) of this part.
(b) Duration. An extended evaluation may not be for less than two weeks (full or part-time equivalent) nor for more than twelve months, unless a longer period is necessary to determine whether achievement of a vocational goal is reasonably feasible.
(c) Approval of the period of an extended evaluation. (1) The counseling psychologist may approve an initial period of up to 12 months for an extended evaluation.
(2) An additional period of extended evaluation of up to 6 months may be approved by the counseling psychologist, if there is reasonable certainty that the feasibility of achieving a vocational goal can be determined during the additional period. The counseling psychologist will obtain the concurrence of the Vocational Rehabilitation and Employment (VR&C) Officer before approving the extension of a period of extended evaluation.
(3) An extension beyond a total period of 18 months for additional periods of up to 6 months each may only be approved by the counseling psychologist if there is a substantial certainty that a determination of current feasibility may be made within this extended period. The concurrence of the VR&C Officer is also required for this extension.
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988; 54 FR 37332, Sept. 8, 1989; 62 FR 17707, Apr. 11, 1997]
§ 21.76 Independent living.
(a) General. A program of independent living services may be authorized to enable the veteran to:
(1) Reach the goals of the program, and
(2) Maintain the newly achieved level of independence in daily living.
(b) Period of independent living services. The duration of an independent living services program may not exceed 24 months unless the counseling psychologist finds that an additional period of up to 6 months would enable the veteran to substantially increase his or her level of independence in daily living. The concurrence of the Vocational Counseling and Rehabilitation Officer in this finding is required.
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 37332, Sept. 8, 1989]
§ 21.78 Approving more than 48 months of rehabilitation.
(a) General. Neither the basic period of entitlement which may be authorized for a program of rehabilitation under Chapter 31 alone, nor a combination of entitlement of Chapter 31 and other programs listed in §21.4020 shall exceed 48 months except as indicated in paragraphs (b) and (c) of this section.
(b) Employment handicap. A rehabilitation program for a veteran with an employment handicap may only be extended beyond 48 months when:
(1) The veteran previously completed training for a suitable occupation but the veteran's service-connected disability has worsened to the point that he or she is unable to perform the duties of the occupation for which training had been provided, and a period of training in the same or a different field is required. An extension beyond 48 months under Chapter 31 alone shall be authorized for this purpose.
(2) The occupation in which the veteran previously completed training is found to be unsuitable because of the veteran's abilities and employment handicap. An extension beyond 48 months under Chapter 31 alone shall be approved for this purpose.
(3) The veteran previously used education benefit entitlement under other programs administered by VA, and the additional period of assistance to be provided under Chapter 31 which the veteran needs to become employable will result in more than 48 months being used under all VA education programs, under these conditions the number of months necessary to complete the program may be authorized under Chapter 31, provided that the length of the extension will not result in authorization of more than 48 months under Chapter 31 alone.
(4) A veteran in an approved Chapter 31 program has elected payment of benefits at the Chapter 30 educational assistance rate. The 48 month limitation may be exceeded only:
(i) To the extent that the entitlement in excess of 48 months does not exceed the entitlement previously used by the veteran in a course at the secondary school level under §21.4235 before December 31, 1989, or
(ii) If the veteran is in a course on a term, quarter, or semester basis which began before the 36 month limitation on Chapter 30 entitlement was reached, and completion of the course will be possible by permitting the veteran to complete the training under Chapter 31.
(5) The assistance to be provided in excess of 48 months consists only of a period of employment assistance (see §21.73).
(c) Serious employment handicap. The duration of a rehabilitation program for a veteran with a serious employment handicap may be extended beyond 48 months under Chapter 31 for the number of months necessary to complete a rehabilitation program under the following conditions:
(1) To enable the veteran to complete a period of rehabilitation to the point of employability;
(2) To provide an extended evaluation in cases in which the total period needed for an extended evaluation and for rehabilitation to the point of employability would exceed 48 months;
(3) To provide a program of independent living services, including cases in which achievement of a vocational goal becomes feasible during or following a program of independent living services;
(4) Following rehabilitation to the point of employability:
(i) The veteran has been unable to secure employment in the occupation for which training has been provided despite intensive efforts on the part of the Department of Veterans Affairs and the veteran, and a period of retraining or additional training is needed;
(ii) The skills which the veteran developed in training for an occupation in which he or she was employed are no longer adequate to maintain employment in that field and a period of retraining is needed;
(iii) The veteran's service-connected disability has worsened to the point that he or she is unable to perform the duties of the occupation for which the veteran has been trained, and a period of training in the same or different field is required;
(iv) The occupation in which the veteran previously completed training is found to be unsuitable due to the veteran's abilities and employment handicap.
(5) The assistance to be provided in excess of 48 months consists, only of a period of employment assistance. (see §21.73).
(d) Approval of extension beyond 48 months. All extensions of a rehabilitation program beyond 48 months of total entitlement under all Department of Veterans Affairs programs requires the approval of the counseling psychologist and concurrence of the Vocational Rehabilitation and Employment Officer. Concurrence of the VR&C officer is not required for an extension due to provision of employment assistance (see §21.21).
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992]
§ 21.79 Determining entitlement usage under Chapter 31.
(a) General. The determination of entitlement usage for chapter 31 participants is made under the provisions of this section except as provided in paragraph (f) of this section. Charges for entitlement usage shall be based upon the principle that a veteran who pursues a rehabilitation program for 1 day should be charged 1 day of entitlement. The determination of entitlement is based upon the rate at which the veteran pursues his or her rehabilitation program. The rate of pursuit is determined under the provisions of §21.310 of this part.
(b) No charge against chapter 31 entitlement. No charge will be made against chapter 31 entitlement under any of the following circumstances:
(1) The veteran is receiving employment services under an Individualized Employment Assistance Plan (IEAP);
(2) The veteran is receiving an employment adjustment allowance; or
(3) The veteran is on leave from his or her program, but leave is not authorized by the Department of Veterans Affairs.
(c) Periods during which entitlement may be charged. Charges for usage of chapter 31 entitlement may only be made for program participants in one of the following case statuses:
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; or
(3) Independent living.
(d) Method of charging entitlement under chapter 31. The Department of Veterans Affairs will make a charge against entitlement:
(1) On the basis of total elapsed time (1 day of entitlement for each day of pursuit) if the veteran is being provided a rehabilitation program on a full-time basis;
(2) On the basis of a proportionate rate of elapsed time if the veteran is being provided a rehabilitation program on a three-quarter, one-half or less than one-half time basis. Entitlement is charged at a:
(i) Three-quarter time rate if pursuit is three-quarters or more, but less than full-time;
(ii) One-half time rate if pursuit is half-time or more, but less than three-quarter time;
(iii) One-quarter time rate if pursuit is less than half-time. Measurement of pursuit on a one-quarter time basis is limited to veterans in independent living or extended evaluation programs.
(e) Computing entitlement. (1) The computation of entitlement is based upon the rate of program pursuit, as determined under §21.310 of this part, over the elapsed time during which training and rehabilitation services were furnished;
(2) The Department of Veterans Affairs will compute elapsed time from the commencing date of the rehabilitation program as determined under §21.322 of this part to the date of termination as determined under §21.324 of this part. This includes the period during which veterans not receiving subsistence allowance because of a statutory bar; e.g., certain incarcerated veterans or servicepersons in a military hospital, nevertheless, received other chapter 31 services and assistance. Elapsed time includes the total period from the commencing date until the termination date, except for any period of unauthorized leave;
(3) If the veteran's rate of pursuit changes after the commencing date of the rehabilitation program, the Department of Veterans Affairs will:
(i) Separate the period of rehabilitation program services into the actual periods of time during which the veteran's rate of pursuit was different; and
(ii) Compute entitlement based on the rate of pursuit for each separate elapsed time period.
(f) Special situtations. (1) When a chapter 31 participant elects benefits of the kind provided under chapter 30 or chapter 34 as a part of his or her rehabilitation program under chapter 31, the veteran's entitlement usage will be determined by using the entitlement provisions of those programs. Entitlement charges shall be in accordance with §21.7076 for chapter 30 and §21.1045 under chapter 34. The entitlement usage computed under these provisions is deducted from the veteran's chapter 31 entitlement. No entitlement charges are made against either chapter 30 or chapter 34.
(2) When a veteran is pursuing on-job training or work experience in a Federal agency on a nonpay or nominal pay basis, the amount of entitlement used is determined in the following manner:
(i) Entitlement used in on-job training in a Federal agency on a nonpay or nominal pay basis is determined in the same manner as other training.
(ii) Entitlement used in pursuing work experience will be computed in the same manner as for veterans in on-job training except that work experience may be pursued on a less than full-time basis. If the veteran is receiving work experience on a less than full-time basis, entitlement charges are based upon a proportionate amount of the workweek. For example, if the workweek is 40 hours, three-quarter time is at least 30 hours, but less than 40 hours, and half-time is at least 20 hours but less than 30 hours.
(3) Entitlement is charged on a full-time basis for a veteran found to have a reduced work tolerance.
(g) Overpayment. The Department of Veterans Affairs will make a charge against entitlement for an overpayment of subsistence allowance under the conditions described in §21.1045(h) of this part.
[54 FR 47770, Nov. 17, 1989]
Individualized Written Rehabilitation Plan
§ 21.80 Requirement for a rehabilitation plan.
(a) General. An IWRP (Individualized Written Rehabilitation Plan) will be developed for each veteran eligible for rehabilitation services under Chapter 31. The plan is intended to assist in:
(1) Providing a structure which allows VR&C staff to translate the findings made in the course of the initial evaluation into specific rehabilitation goals and objectives;
(2) Monitoring the veteran's progress in achieving the rehabilitation goals established in the plan;
(3) Assuring the timeliness of assistance by Department of Veterans Affairs staff in providing services specified in the plan; and
(4) Evaluating the effectiveness of the planning and delivery of rehabilitation services by VR&C staff.
(b) When a plan is prepared. A plan will be prepared in each case in which a veteran will pursue:
(1) A vocational rehabilitation program, as that term is defined in §21.35(i);
(2) An extended evaluation program;
(3) An independent living services program; or
(4) An employment program.
(c) Plan—a generic term. The term plan refers to the IWRP (Individualized Written Rehabilitation Plan) §21.84, IEEP (Individualized Extended Evaluation Plan) §21.86, IEAP (Individualized Employment Assistance Plan) §21.88, and IILP (Individualized Independent Living Plan) §21.90.
(d) Plan not required. A plan will not be prepared for a veteran who is not eligible for any assistance under Chapter 31. Department of Veterans Affairs staff, with the veteran's assistance and cooperation, will utilize information developed in the course of an initial evaluation to assist the veteran to develop alternatives for education and training, independence in daily living, or employment assistance. This assistance should help the veteran in achieving attainable vocational, independent living and employment goals utilizing benefits and services for which the veteran may be eligible under other Department of Veterans Affairs or non-Department of Veterans Affairs programs.
§ 21.82 Completing the plan under Chapter 31.
(a) Serious employment handicap. Each plan for a veteran with a serious employment handicap shall provide for completion of the program provided by the plan under Chapter 31. The provisions of §21.70 and §21.78(c) are designed to enable a veteran with a serious employment handicap to pursue and complete a rehabilitation plan under Department of Veterans Affairs auspices. These provisions shall be used as necessary to accomplish the goals of the plan.
(b) Employment handicap. A plan for a veteran with an employment handicap that is not a serious employment handicap shall require that the program be completed within 48 months, if the veteran is not eligible for an extension as provided in §21.78. When the program provided by the plan cannot be completed under Chapter 31 because of limitations imposed by the veteran's termination date or months of remaining entitlement, realistic, comprehensive and detailed arrangements must be made which will enable the veteran to successfully complete training under other auspices. If an arrangement cannot be made which meets these requirements, the long-range vocational goal of the veteran must be reevaluated, and another vocational goal selected which can be completed using the veteran's remaining Chapter 31 resources.
(c) Employment assistance when training is not completed under Chapter 31. A plan for employment assistance may be implemented even though the veteran's training has not been or will not be completed under Chapter 31.
§ 21.84 Individualized written rehabilitation plan.
(a) Purpose. The purposes of the IWRP (Individualized Written Rehabilitation Plan) are to:
(1) Identify goals and objectives to be achieved by the veteran during the period of rehabilitation services that will lead to the point of employability;
(2) Plan for placement of the veteran in the occupational field for which training and other services will be provided; and
(3) Specify the key services needed by the veteran to achieve the goals and objectives of the plan.
(b) Elements of the plan. A plan will include the following:
(1) A statement of long-range rehabilitation goals. Each statement of long-range goals shall include at a minimum:
(i) One vocational goal for a veteran with an employment handicap; or
(ii) One vocational goal and, if applicable, one independent living goal for a veteran with a serious employment handicap.
(2) Intermediate rehabilitation objectives; Intermediate objectives are statements of achievement expected of the veteran to attain the long-range goal. The development of appropriate intermediate objectives is the cornerstone of an effective plan. Intermediate objectives should have the following characteristics:
(i) The activity specified relates to the achievement of the goal;
(ii) The activity specified is definable in terms of observable behavior (e.g., pursuing an A.A. degree);
(iii) The activity has a projected completion date;
(iv) The outcome desired upon completion is measurable (e.g., receiving an A.A. degree).
(3) The specific services to be provided by the Department of Veterans Affairs as stated. Counseling shall be included in all plans for a veteran with a serious employment handicap.
(4) The projected starting and completion dates of the planned services and the duration of each service;
(5) Objective criteria and an evaluation procedure and schedule for determining whether the objectives and goals are being achieved as set forth; and
(6) The name, location, and phone number of the VBA case manager.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
§ 21.86 Individualized extended evaluation plan.
(a) Purpose. The purpose of an IEEP is to identify the services needed for the VA to determine the veteran's current ability to achieve a vocational goal when this cannot reasonably be determined during the initial evaluation.
(b) Elements of the plan. An IEEP shall include the same elements as an IWRP except that:
(1) The long range goal shall be to determine achievement of a vocational goal is currently reasonably feasible;
(2) The intermediate objectives relate to problems of questions which must be resolved for the VA to determine the current reasonable feasibility of achieving a vocational goal.
[53 FR 50957, Dec. 19, 1988]
§ 21.88 Individualized employment assistance plan.
(a) Purpose. The purpose of the IEAP (Individualized Employment Assistance Plan) is to assure that a comprehensive, thoughtful approach is taken, enabling eligible veterans to secure suitable employment.
(b) Requirement for a plan. An IEAP will be prepared:
(1) As part of an IWRP; or
(2) When the veteran is eligible for employment assistance under provisions of §21.47.
(c) Elements of the plan. The IEAP shall follow the same structure as the IWRP. Each IEAP will include full utilization of community resources to enable the veteran to:
(1) Secure employment; and
(2) Maintain employment.
(d) Preparation of the IEAP. Preparation of the IEAP will be completed:
(1) No later than 60 days before the projected end of the period of rehabilitation services leading to the point of employability; or
(2) Following initial evaluation when employment services constitute the whole of the veteran's program under provisions of §21.47.
§ 21.90 Individualized independent living plan.
(a) Purpose. The purpose of the IILP is to identify the steps through which a veteran, whose disabilities are so severe that a vocational goal is not currently reasonably feasible, can become more independent in daily living within the family and community.
(b) Elements of the plan. The IILP shall follow the same structure as the IWRP. The plan will include:
(1) Services which may be provided under Chapter 31 to achieve independence in daily living;
(2) Utilization of programs with a demonstrated capacity to provide independent living services for severely handicapped persons;
(3) Services provided under other Department of Veterans Affairs and non-Department of Veterans Affairs programs needed to achieve the goals of the plan;
(4) Arrangements for maintaining the improved level of independence following completion of the plan.
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988]
§ 21.92 Preparation of the plan.
(a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran.
(b) Approval of the plan. The terms and conditions of the plan must be approved and agreed to by the counseling psychologist, the vocational rehabilitation specialist, and the veteran.
(c) Implementation of the plan. The vocational rehabilitation specialist or counseling psychologist designated as case manager has the primary role in carrying out Department of Veterans Affairs responsibility for implementation of the plan.
(d) Responsible staff. The counseling psychologist has the primary responsibility for the preparation of plans.
(Authority: 38 U.S.C. 3107(a))
§ 21.94 Changing the plan.
(a) General. The veteran, the counseling psychologist or the vocational rehabilitation specialist may request a change in the plan at any time.
(b) Long-range goals. A change in the staement of a long-range goal may only be made following a reevaluation of the veteran's rehabilitation program by the counseling psychologist. A change may be made when:
(1) Achievement of the current goal(s) is no longer reasonably feasible; or
(2) The veteran's circumstances have changed or new information has been developed which makes rehabilitation more likely if a different long-range goal is established; and
(3) The veteran fully participates and concurs in the change.
(c) Intermediate objectives or services. A change in intermediate objectives or services provided under the plan may be made by the case manager when such change is necessary to carry out the statement of long-range goals. The veteran must concur in the change.
(d) Minor changes. Minor changes in the plan (e.g., changing the date of a scheduled evaluation) by the case manager may be made without the participation and concurrence of the veteran.
(e) Changes in duration of the plan. Any change in the total duration of a veteran's rehabilitation plan is subject to provisions on duration of a rehabilitation program described in §§21.70–21.78.
§ 21.96 Review of the plan.
(a) General. The veteran's progress in reaching the goals of the plan will be reviewed and evaluated as scheduled in the plan by the case manager and the veteran.
(b) Comprehensive review required. The case manager and the veteran will review all of the terms of the plan and the veteran's progress at least every twelve months. On the basis of such review the veteran and the case manager will agree whether the plan should be:
(1) Retained in its current form;
(2) Amended; or
(3) Redeveloped.
(Authority: 38 U.S.C. 3107(b))
§ 21.98 Appeal of disagreement regarding development of, or change in, the plan.
(a) General. The veteran may request a review of a proposed, original, or amended plan when Department of Veterans Affairs staff and the veteran do not reach agreement on the terms and conditions of the plan. A veteran who requests a review of the plan must submit a written statement to the case manager which:
(1) Requests a review of the proposed, original, or amended plan; and
(2) Details his or her objections to the terms and conditions of the proposed, original, or amended plan.
(b) Review by Vocational Rehabilitation and Employment Officer. Upon receipt of the veteran's request for review of the plan, the counseling psychologist or the case manager will forward the request together with relevant comment to the VR&C Officer who will:
(1) Review relevant information; and
(2) Inform the veteran of his or her decision within 90 days.
(c) Review by Director, Vocational Rehabilitation and Employment Service. The veteran's request shall be reviewed by the Director, VR&C in any case in which the VR&C Officer is the case manager. The veteran will be informed of the decision within 90 days.
(d) Appeal to the Board of Veterans Appeals. The veteran may appeal an adverse decision of the VR&C Officer, or the Director, VR&C to the Board of Veterans Appeals.
(Authority: 38 U.S.C. 3107(c))
[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17708, Apr. 11, 1997]
Counseling
§ 21.100 Counseling.
(a) General. A veteran requesting or being furnished assistance under Chapter 31 shall be provided professional counseling services by Vocational Rehabilitation and Employment (VR&C) Service and other staff as necessary to:
(1) Carry out an initial evaluation in each case in which assistance is requested;
(2) Develop a rehabilitation plan or plan for employment services in each case in which the veteran is found during the initial evaluation to be eligible and entitled to services;
(3) Assist veterans found ineligible for services under Chapter 31 to the extent provided in §21.82; and
(4) Try to overcome problems which arise during the course of the veteran's rehabilitation program or program of employment services.
(b) Types of counseling services. VA will furnish comprehensive counseling services, including but not limited to
(1) Psychological;
(2) Vocational;
(3) Personal adjustment;
(4) Employment;
(5) Educational.
(c) Qualifications. Counseling services may only be furnished by VA or other personnel who meet requirements established under provisions of §21.380 and other policies of the VA pertaining to the qualifications of staff providing assistance under Chapter 31.
(d) Limitations. (1) If a veteran resides within a State, counseling services necessary to carry out the initial evaluation and the development of a rehabilitation plan or a program of employment services will be furnished by counseling psychologists in the Vocational Rehabilitation and Employment (VR&C) Division;
(2) If a veteran does not reside in a State the counseling services necessary to carry out an initial evaluation may be accomplished in the same manner as for a veteran residing in a State or through other arrangements when deemed appropriate by the VR&C Division. These alternative arrangements include, but are not limited to:
(i) Use of counseling centers or individual qualified professionals under contract to VA; and
(ii) Professional staff of other Federal agencies located in the area in which the veteran resides.
(3) Alternative arrangements to provide counseling are subject to the following requirements:
(i) All arrangements must be consistent with the provisions of paragraph (c) of this section regarding utilization of professionally qualified persons to provide counseling services during the initial evaluation;
(ii) All determinations of eligibility, entitlement and the development of a rehabilitation plan will continue to be made by counseling psychologists in the VR&C Division.
(4) If a counseling psychologist in the VR&C Division determines that the evidence of record is insufficient to carry out an initial evaluation in a case in which alternative arrangements were used, VA staff may authorize the veteran to travel to a VA facility to complete the evaluation.
(e) Definition. For the purposes of this section, the term State means each of the several States, the District of Columbia, and the Commonwealth of Puerto Rico.
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 32071, Aug. 4, 1989; 62 FR 17708, Apr. 11, 1997]
Educational and Vocational Training Services
§ 21.120 Educational and vocational training services.
(a) Purposes. The purposes of providing educational and vocational training services are to enable a veteran eligible for, and entitled to, services and assistance under Chapter 31 to:
(1) Meet the requirements for employment in the occupational objective established in the IWRP (Individualized Written Rehabilitation Plan);
(2) Provide incidental training which is necessary to achieve the employment objective in the IEAP (Individualized Employment Assistance Plan);
(3) Provide incidental training needed to achieve the goals of an IILP (Individualized Independent Living Plan); or
(4) Provide training services necessary to implement an IEEP (Individualized Extended Evaluation Plan).
(b) Selection of courses. VA will generally select courses of study and training, completion of which usually results in a diploma, certificate, degree, qualification for licensure, or employment. If such courses are not available in the area in which the veteran resides, or if they are available but not accessible to the veteran, other arrangements may be made. Such arrangements may include, but are not limited to:
(1) Relocation of the veteran to another area in which necessary services are available, or
(2) Use of an individual instructor to provide necessary training.
(c) Charges for education and training services. The cost of education and training services will be one of the factors considered in selecting a facility when:
(1) There is more than one facility in the area in which the veteran resides which:
(i) Meets requirements for approval under §§21.292 through 21.298;
(ii) Can provide the education and training services, and other supportive services specified in the veteran's plan; and
(iii) Is within reasonable commuting distance; or
(2) The veteran wishes to train at a suitable facility in another area, even though training can be provided at a suitable facility in the area in which the veteran resides.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
§ 21.122 School course.
(a) Explanation of terms—schools, educational institution, and institution. These terms mean any public or private school, secondary school, vocational school, correspondence school, business school, junior college, teacher's college, college, normal school, professional school, university, scientific or technical institution, or other institution funishing education for adults.
(b) Course. A course generally consists of a number of areas of subject matter which are organized into learning units for the purpose of attaining a specific educational or vocational objective. Organized instruction in the units comprising the course is offered within a given period of time and credit toward graduation or certification is generally given.
(c) School course. A school course is a course as defined in paragraph (b) of this section offered by a facility identified in paragraph (a) of this section.
§ 21.123 On-job course.
(a) Training establishment. This term means any establishment providing apprentice or other training on the job, including those under the supervision of a college or university or any State department of education, or any state apprenticeship agency, or any State board of vocational education, or any joint apprenticeship committee, or the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. Chapter 4C, or any agency of the Federal government authorized to supervise such training.
(b) On-job course, An on-job course is pursued toward a specified vocational objective, provided by a training establishment. The trainee learns, in the course of work performed under supervision, primarily by receiving formal instruction, observing practical demonstration of work tasks, and assisting in those tasks. Productive work should gradually increase with greater independence from formal instruction as the course progresses.
(Authority: 38 U.S.C. 501(a), 3104)
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
§ 21.124 Combination course.
(a) General. A combination course is a course which combines training on the job with training in school. For the purpose of VA vocational rehabilitation, a course will be considered to be a combination course, if the student spends full-time on the job and one or more times a week also attends school on a part-tme basis. A veteran may pursue the components of a combination course in the following manner:
(1) Concurrent school and on-job training;
(2) Primarily on-job with some related instruction in school;
(3) In a school as a preparatory course to entering on-job training; or
(4) First training on-job followed by the school portion.
(b) Cooperative course. A cooperative course is a special type of combination course which usually:
(1) Has an objective which the student attains primarily through school instruction with the on-job portion being supplemental to the school course;
(2) Is at the college or junior college level although some cooperative courses are offered at post-secondary schools which do not offer a college degree or at secondary schools;
(3) Requires the student to devote at least one-half of the total training period to the school portion of the course; and
(4) Includes relatively long periods each of training on the job and in school such as a full term in school followed by a full term on the job.
(Authority: 38 U.S.C. 3104(a)(7))
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
§ 21.126 Farm cooperative course.
(a) Definition. An approvable farm cooperative course is a full-time course designated to restore employability by training a veteran to:
(1) Operate a farm which he or she owns or leases; or
(2) Manage a farm as the employee of another.
(b) Reaching the goal of a farm cooperative course. The farm cooperative course must enable a veteran to become proficient in the type of farming for which he or she is being provided rehabilitation services. The areas in which proficiency is to be established include:
(1) Planning;
(2) Producing;
(3) Marketing;
(4) Maintaining farm equipment;
(5) Conserving farm resources;
(6) Financing the farm;
(7) Managing the farm; and
(8) Keeping farm and home accounts.
(c) Instruction, including organized group instruction. Instruction in a farm cooperative course may be by a mixture of organized group (classroom) instruction and individual instruction or by individual instruction alone. A course which includes organized group instruction must meet the following criteria to be considered as full-time:
(1) The number of clock hours of instruction which should be provided yearly shall meet the requirements of §21.310(a)(4) and §21.4264 pertaining to full-time pursuit of a farm cooperative course:
(2) The individual instructor portion of a farm cooperative course shall include at least 100 hours of individual instruction per year.
(d) Instruction given solely by an individual instructor. (1) Instruction in a farm cooperative course may be given solely by an individual instructor if organized group instruction is:
(i) Not available within reasonable commuting distance of the veteran's farm; or
(ii) The major portion of the organized group instruction that is available does not have a direct relation to the veteran's farming operation and pertinent VA records are fully and clearly documented accordingly.
(2) To be considered full-time pursuit the individual instruction provided in these course must:
(i) Consist of at least 200 hours of instruction per year;
(ii) Be given by a fully qualified individual instructor by contract between VA and the instructor or an educational agency which employs the instructor.
(e) Plan requirements for farm operator or farm manager. (1) The plan for training developed by the case manager and the veteran in collaboration with the instructor must include:
(i) A complete written survey including but not limited to the areas identified in §21.298 (a) and (b);
(ii) An overall, long-term plan based upon the survey of the operation of the farm;
(iii) An annual plan identifying the part of the overall plan to be implemented which will be prepared before the beginning of each crop year; and
(iv) A detailed individual training program showing the kind and amount of instruction, classroom and individual, or individual; and
(2) The farm must meet the requirements for selecting a farm found in §21.298.
(Authority: 38 U.S.C. 3104(a)(7))
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
§ 21.128 Independent study course.
A veteran may pursue a course by independent study under the following conditions:
(a) College level. The course is offered by a college or university.
(b) College degree. The course leads to or is fully creditable towards a standard college degree.
(c) Course content. The course consists of a prescribed program of study with provision for interaction between the student and regularly employed faculty of the university or college by mail, telephone, personally, or class attendance.
(d) School responsibility. The university or college:
(1) Evaluates the course in semester or quarter hours or the equivalent; and
(2) Prescribes a period for completion.
(Authority: 38 U.S.C. 3104(a)(7))
§ 21.129 Home study course.
(a) Definition. A home study course is a course conducted by mail, consisting of a series of written lesson assignments furnished by a school to the student for study and preparation of written answers, solutions to problems, and work projects which are corrected and graded by the school and returned to the trainee.
(b) Limitations on inclusion of home study courses, in rehabilitation plans. A veteran and his or her case manager may include a home study course in a rehabilitation plan only when it supplements the major part of the program. The purpose of the home study course is to provide the veteran with theory or technical information directly related to the practice of the occupation for which the veteran is training.
(Authority: 38 U.S.C. 3104(a)(7))
§ 21.130 Educational and vocational courses outside the United States.
(a) General. VA may provide educational and vocational courses outside a State if the case manager determines that such training is in the best interest of the veteran and the Federal Government.
(b) Specific conditions. (1) The training must be necessary to enable the veteran to qualify for, obtain, and retain suitable employment in the occupational objective; and
(2) Either:
(i) The training is not available in the United States; or
(ii) The training is available in the United States, but personal hardship would result from requiring that the veteran pursue training in this country; and
(3) All necessary supportive and follow-up services, including medical care and treatment and employment services, reasonably can be provided by or through VA, considering such factors as the availability, accessibility and cost of such services.
(Authority: 38 U.S.C. 3114)
[49 FR 40814, Oct. 18, 1984, as amended at 55 FR 27822, July 6, 1990]
§ 21.132 Repetition of the course.
(a) Repeating all or part of the course. A veteran, having completed a course under Chapter 31 according to the standards and practices of the institution, ordinarily will not pursue it again at the expense of VA. However, VA may approve repetition of all, or any part of the course when VA determines that the repetition is necessary to accomplish the veteran's vocational rehabilitation. A veteran repeating a course under Chapter 31 is subject to the same requirements for satisfactory pursuit and completion of the course as are other veterans taking the course unless a longer period is needed because of the veteran's reduced work tolerance.
(b) Review course. A veteran who has completed a course of training under Chapter 31 may pursue a review course, such as a bar review course, if it is specifically organized and conducted as a review course.
(c) Auditing a subject. Auditing, as defined in §21.4200(i), may not be authorized as a part of any rehabilitation plan. However, if an individual repeats a course under the conditions described in paragraph (a) of this section, the course shall not be considered an audited course, if pursued in the same manner as a subject offered for credit. The individual must meet the same requirements as other students, and not be a mere listener.
§ 21.134 Limitation on flight training.
Flight Training approved under chapter 31 may only be authorized in degree curriculums in the field of aviation that include required flight training. This type of training is otherwise subject to the same limitations as are applicable to flight training under Chapter 30.
(Authority: 38 U.S.C. 3680A(b))
[57 FR 57108, Dec. 3, 1992]
Special Rehabilitation Services
§ 21.140 Evaluation and improvement of rehabilitation potential.
(a) General. The purposes of these services are to:
(1) Evaluate if the veteran:
(i) Has an employment handicap;
(ii) Has a serious employment handicap; and
(iii) Is reasonably feasible for a vocational goal or an independent living goal.
(2) Provide a basis for planning:
(i) A program of services and assistance to improve the veteran's potential for vocational rehabilitation or independent living;
(ii) A suitable vocational rehabilitation program; or
(iii) A suitable independent living program.
(3) Reevaluate the vocational rehabilitation or independent living potential of a veteran participating in a rehabilitation program under Chapter 31, as necessary.
(4) Enable a veteran to achieve:
(i) A vocational goal; or
(ii) An independent living goal.
(b) Periods during which evaluation and improvement services may be provided. Evaluation and improvement services may be provided concurrently, whenever necessary, with a period of rehabilitation services, including:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation:
(3) Rehabilitation to the point of employability:
(4) A program of independent living services: or
(5) Employment services, incidental to obtaining or maintaining employment.
(c) Duration of full-time assistance. If evaluation and improvement services are furnished on a full-time basis as a preliminary part of the period of rehabilitation to the point of employability, or as the vocational rehabilitation program, the duration of such assistance may not exceed 12 months, except as provided in §21.74(c).
(d) Scope of services. Evaluation and improvement services include:
(1) Diagnostic services;
(2) Personal and work adjustment training;
(3) Medical care and treatment;
(4) Independent living services;
(5) Language training, speech and voice correction, training in ambulation, and one-hand typewriting;
(6) Orientation, adjustment, mobility and related services; and
(7) Other appropriate services.
§ 21.142 Adult basic education.
(a) Definition. The term adult basic education means an instructional program for the undereducated adult planned around those basic and specific skills most needed to help him or her to function adequately in society.
(b) Purposes. The purposes of providing adult basic education are to:
(1) Upgrade a veteran's basic educational skills;
(2) Provide refresher training; or
(3) Remedy deficiencies which prevent the veteran from undertaking a course of education or vocational training.
(c) Periods during which basic adult education may be provided. Basic adult education may be authorized, as necessary, during;
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; and
(3) Independent living services.
(Authority: 38 U.S.C. 3104(a)(1))
§ 21.144 Vocational course in a sheltered workshop or rehabilitation facility.
(a) General. A vocational course in a sheltered workshop or rehabilitation facility may be an institutional, on-job, or combination course which has been modified to facilitate successful pursuit by a person with a disability that would otherwise prevent or impair the person's participation in the course.
(b) Authorization. A vocational course in a sheltered workshop or rehabilitation facility may be authorized when the training offered is a sound method of restoring a veteran's employability.
(Authority: 38 U.S.C. 3104(a)(7))
§ 21.146 Independent instructor course.
(a) Definition. An independent instructor course is a full-time course of vocational training which the veteran pursues with an individual instructor, who, independently of a training institution or on-job training establishment, furnishes and conducts a vocational course at a suitable place of training.
(b) Limitations on including an independent instructor course in a rehabilitation plan. A veteran and his or her case manager may include an independent instructor course in a rehabilitation plan, other than one involving a farm cooperative program, only when either or both of the following conditions exist:
(1) Training is not available through an established school, on-job training establishment, rehabilitation facility or sheltered workshop within a reasonable commuting distance from the veteran's home; or
(2) The veteran's condition or other circumstances do not permit the veteran to attend an otherwise suitable facility within commuting distance. See §21.126.
(c) Training in the home. Training in the home is a specialized type of independent instructor course which the veteran pursues in his or her home if:
(1) He or she is unable to pursue training at an otherwise suitable facility because of the effects of his or her disability;
(2) Based on proper medical opinion, the veteran is able to pursue the prescribed training; and
(3) The veteran's home provides a favorable educational environment with adequate work and study space.
(d) Planning an individual instructor course. The case manager, the veteran, and the instructor should jointly plan the training program for a veteran for whom an independent instructor course is prescribed.
(e) Assuring employment. Since the customary channels leading to employment may not be readily available to a veteran requiring an individual instructor course, the IEAP (Individual Employment Assistance Plan) shall indicate thorough consideration of plans and prospects for seeking and obtaining employment, including self-employment, upon completion of training.
(f) Rate of pursuit. A veteran in an independent instructor program shall pursue training at a rate comparable to the rate at which similar training is pursued on an institutional basis, unless the veteran's work tolerance is reduced by the effects of his or her disability.
(Authority: 38 U.S.C. 3104(a)(7))
§ 21.148 Tutorial assistance.
(a) General. A veteran may be provided individualized tutorial assistance, if VA determines that special assistance beyond that ordinarily given by the facility to students pursuing the same or a similar subject is needed to correct a deficiency in a subject.
(b) Authorization of tutorial assistance. Tutorial assistance may be provided during any period of rehabilitation services authorized by VA.
(c) Use of relatives precluded. Tutorial assistance at VA expense may not be provided by a relative of the veteran. The term relative has the same meaning as under §21.374 pertaining to the use of a relative as an attendant.
(d) Payment at the Chapter 30 rate. If a veteran has elected payment at the educational assistance rate payable under Chapter 30, he or she may not be provided individualized tutorial assistance under provision of Chapter 31. (See §21.334.)
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992]
§ 21.150 Reader service.
(a) Limitations on vision. A veteran considered to have a visual impairment necessitating reader service includes a veteran:
(1) Whose best corrected vision is 20/200 in both eyes;
(2) Whose central vision is greater than 20/200 but whose field of vision is limited to such an extent that the widest diameter of a visual field subtends to an angle no greater than 20 degrees; or
(3) With impaired vision, whose condition or prognosis indicates that the residual sight will be adversely affected by the use of his or her eyes for reading.
(b) Periods during which reader service may be provided. reader service necessary to the development of a rehabilitation plan, or the successful pursuit of a rehabilitation program may be provided during:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services; or
(5) Employment services, including an initial employment period of up to three months.
(c) Reader responsibility. The reader should be able to do more than read to the veteran. The reader should have an understanding of the subject matter based upon prior training or experience which allows him or her to:
(1) Read printed material with understanding; and
(2) Test the veteran's understanding of what has been read.
(d) Extent of service. The number of hours of service will be determined in each case by the amount of reading necessitated by the course and the efficacy of other equipment with which the veteran has been furnished to enable him or her to read printed material unassisted.
(e) Recording. VA will not normally pay for recording textbooks or other materials as a part of reader services, since excellent recording services are provided by volunteer organizations at no cost.
(f) Selecting a relative as a reader. Utilization of a relative of the veteran as a reader is subject to the limitations on use of a relative as an attendant under §21.374.
(Authority: 38 U.S.C. 3104(a)(14))
§ 21.152 Interpreter service for the hearing impaired.
(a) General. The main purpose of interpreter service for the hearing impaired is to facilitate instructor-student communication. VA will provide interpreter service as necessary for the development and pursuit of a rehabilitation program. This service will be provided if:
(1) A VA physician determines that:
(i) The veteran is deaf or his or her hearing is severely impaired; and
(ii) All appropriate services and aids have been furnished to improve the veteran's residual hearing; or
(2) A VA physician determines that the veteran:
(i) Can benefit from language and speech training; and
(ii) Agrees to undertake language and speech training.
(b) Periods during which interpreter service may be provided. Interpreter service may be furnished during:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services; or
(5) Employment services, including the first three months of employment.
(c) Selecting the interpreter. Only certified interpreters or persons meeting generally accepted standards for interpreters shall provide interpreter service. When an individual is not certified by a State or professional association, VA shall seek the assistance of a State certifying agency or a professional association in ascertaining whether the individual is qualified to serve as an interpreter.
(d) Relatives. Interpreter service at VA expense may not be provided by a relative of the veteran. The term relative has the same meaning as under §21.374 pertaining to the use of relatives as attendants.
§ 21.154 Special transportation assistance.
(a) General. A veteran, who because of the effects of disability has transportation expenses in addition to those incurred by persons not so disabled, shall be provided a transportation allowance to defray such additional expenses. The assistance provided in this section is in addition to provisions for interregional and intraregional travel which may be authorized under provisions of §§21.370 through 21.376.
(b) Periods during which special transportation allowance may be provided. A special transportation allowance may be provided during:
(1) Extended evaluation;
(2) Rehabilitation to the point of employability;
(3) Independent living services; or
(4) Employment services, including the first three months of employment.
(c) Scope of transportation assistance. (1) Transportation assistance includes mileage, parking fees, reasonable fee for a driver, transportation furnished by a rehabilitation facility or sheltered workshop, and other reasonable expenses which may be incurred in local travel;
(2) The veteran's monthly transportation allowance may not exceed the lesser of actual expenses incurred or one-half of the subsistence allowance of a single veteran in full-time institutional training, unless extraordinary arrangements, such as transportation by ambulance, are necessary to enable a veteran to pursue a rehabilitation program.
(d) Determining the need for a transportation allowance. The case manager will determine the need for a transportation allowance. The assistance of a medical consultant shall be utilized, as necessary, to determine the need for special transportation assistance and to develop transportation arrangements which do not unduly tax the veteran's ability to travel and pursue a rehabilitation program.
(e) Use of a relative precluded. A relative of the veteran may not be paid any part of a special transportation allowance. The term relative has the same meaning as under §21.374 pertaining to the use of a relative as an attendant.
§ 21.155 Services to a veteran's family.
(a) General. VA shall provide services to a veteran's family which are necessary to the implementation of the veteran's rehabilitation plan. The term family includes the veteran's immediate family, legal guardian, or any individual in whose home the veteran certifies an intention to live.
(b) Scope of services to a veteran's family. The services which may be furnished to the family are generally limited to consultation, homecare training, counseling, and mental health services of brief duration which are designed to enable the family to cope with the veteran's needs. Extended medical, psychiatric or other services may not be furnished to family members under these provisions.
(c) Providing services to a veteran's family. VR&C Staff will:
(1) Identify services which family members may need to facilitate the rehabilitation of the veteran; and
(2) Arrange for provision of the services which have been identified.
(d) Resources for provision of services to family members. (1) The established program and services which are furnished by Veterans Health Administration (VHA) to family members of veterans eligible for Chapter 31 should be used to the extent practicable; but
(2) If services are not readily available through regular VHA programs, necessary services will normally be secured through arrangements with other public and nonprofit agencies.
(Authority: 38 U.S.C. 3104(a)(11))
[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17708, Apr. 11, 1997]
§ 21.156 Other incidental goods and services.
(a) General. Other incidental goods and services may be authorized if the case manager determines them to be necessary to implement the veteran's rehabilitation plan. For example, a calculator may be authorized for a veteran pursuing an engineering degree, even though the veteran may not be required to have a calculator for any specific subject in his or her course, where there is substantial evidence that lack of a calculator places the veteran at a distinct disadvantage in successfully pursuing the course.
(b) Limitation on cost. The costs of incidental goods and services normally should not exceed five percent of training costs for any twelve-month period.
(Authority: 38 U.S.C. 3104(a)(10))
Independent Living Services
§ 21.160 Independent living services.
(a) Purpose. The purpose of independent living services is to assist eligible veterans whose ability to function independently in family, community, or employment is so limited by the severity of disability (service and nonservice-connected) that vocational or rehabilitation services need to be appreciably more extensive than for less disabled veterans.
(b) Definitions. The term independence in daily living means the ability of a veteran, without the services of others or with a reduced level of the services of others, to live and function within the veteran's family and community.
(c) Situations under which independent living services may be furnished. Independent living services may be furnished:
(1) As part of a program to achieve rehabilitation to the point of employability;
(2) As part of an extended evaluation to determine the current reasonable feasibility of achieving a vocational goal;
(3) Incidental to a program of employment services; or
(4) As a program of rehabilitation services for eligible veterans for whom achievement of a vocational goal is not currently reasonably feasible. This program of rehabilitation services may be furnished to help the veteran:
(i) Function more independently in the family and community without the assistance of others or a reduced level of the assistance of others;
(ii) Become reasonably feasible for a vocational rehabilitation program; or
(iii) Become reasonably feasible for extended evaluation.
(d) Services which may be authorized. The services which may be authorized as part of an IILP (Individualized Independent Living Plan) include:
(1) Any appropriate service which may be authorized for a vocational rehabilitation program as that term is defined in §21.35(i), except for a course of education or training as described in §21.120; and
(2) Independent living services offered by approved independent living centers and programs which are determined to be necessary to carry out the veteran's plan including:
(i) Evaluation of independent living potential;
(ii) Training in independent living skills;
(iii) Attendant care;
(iv) Health maintenance programs; and
(v) Identifying appropriate housing accommodations.
(e) Coordination with other VA elements and other Federal, State, and local programs. Implementation of programs of independent living services and assistance will generally require extensive coordination with other VA and non-VA programs. If appropriate arrangements cannot be made to provide these services through VA, other governmental, private nonprofit and for-profit agencies and facilities may be used to secure necessary services if the requirements contained in §21.294 are met.
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988; 55 FR 42186, Oct. 18, 1990]
§ 21.162 Participation in a program of independent living services.
(a) Approval of a program of independent living services. A program of independent living services and assistance is approved when:
(1) The VA determines that achievement of a vocational goal is not currently reasonably feasible;
(2) The VA determines that the veteran's independence in daily living can be improved, and the gains made can reasonably be expected to continue following completion of the program;
(3) All steps required by §§21.90 and 21.92 of this part for the development and preparation of an Individualized Independent Living Plan (IILP) have been completed; and
(4) The VR&C Officer concurs in the IILP.
(b) Considerations for the VR&C Officer. The VR&C Officer will consider the following factors in administering programs providing independent living services:
(1) If VA resources available limit the number of veterans who may be provided a program of independent living services and assistance, the first priority shall be given to veterans for whom the reasonable feasibility of achieving a vocational goal is precluded solely as a result of service-connected disability; and
(2) To the maximum extent feasible, a substantial portion of veterans provided with programs of independent living services and assistance shall be receiving long-term care in VA medical centers and nursing homes.
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988; 55 FR 48842, Nov. 23, 1990; 62 FR 17708, Apr. 11, 1997]
Case Status
§ 21.180 Case status system.
(a) General. Each veteran's case will be assigned to a specific case status from the point of initial contact until all appropriate steps in the rehabilitation process have been completed. The case status system will:
(1) Assist VR&C staff to fulfill its case management responsibility to provide authorized assistance to enable the veteran to successfully pursue his or her program; and
(2) Assure program management and accountability.
(b) Responsibility for change of case status. The case manager is responsible for assigning a case to the appropriate case status at each point in the rehabilitation process.
(c) Case manager. The VR&C (Vocational Rehabilitation and Employment) Officer or his or her designee will assign a case manager when the veteran's case is placed in evaluation and planning status. The VR&C Officer or his or her designee may assign case management responsibility for development and implementation of a rehabilitation plan authorized under Chapter 31 to a counseling psychologist or vocational rehabilitation specialist in the VR&C Division. The case manager assigned will, unless replaced by the VR&C Officer, continue to be responsible for case management throughout the course of the veteran's rehabilitation program. When securing medical care, treatment, and other related services, the VR&C case manager will coordinate with Veterans Health Administration (VHA) staff members who have case management responsibility for the veteran.
(d) Informing the veteran. The veteran will be informed in writing of changes in case status by VA which affect his or her receipt of benefits and services under Chapter 31. The letter to the veteran will include the reason for the change of case status, and other information required under provisions of §21.420.
(e) Normal progression for eligible veterans. The cases of veterans who are eligible for and entitled to services under Chapter 31 for whom individualized plans have been prepared will generally undergo the following changes of status:
(1) Individualized written rehabilitation plan. A veteran with an IWRP (Individualized Written Rehabilitation Plan) will generally move sequentially from applicant status through evaluation and planning status, rehabilitation to the point of employability status, employment services status, and rehabilitated status.
(2) Individualized extended evaluation plan. A veteran with an IEEP (Individualized Extended Evaluation Plan) will generally move from applicant status through evaluation and planning status to extended evaluation status. Once in extended evaluation status there will generally be a finding which leads to development of an IWRP (paragraph (e)(1) of this section), or IILP (Individualized Independent Living Plan) (paragraph (e)(3) of this section).
(3) Individualized independent living plan. A veteran with an IILP (Individualized Independent Living Plan) will generally move from applicant status through evaluation and planning, extended evaluation, independent living, and rehabilitated status.
(4) Individualized employment assistance plan. (i) A veteran with an IEAP (Individualized Employment Assistance Plan) which is a part of an IWRP will move through the case statuses described in paragraph (e)(1) of this section, or in some cases through the steps in paragraph (e)(2) of this section.
(ii) A veteran for whom only employment services are provided will generally move from applicant through evaluation and planning, employment services to rehabilitated status.
(f) Normal progression for ineligible veterans. A veteran found ineligible for services under Chapter 31 will generally move from applicant to evaluation and planning status, to ineligible status.
(g) Changes of status. The case manager may change the case status when:
(1) Conditions for change specified in the status are met;
(2) The change is not specifically precluded by the status to which change is being considered; and
(3) The change is consistent with provisions of other applicable regulations.
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 34987, Aug. 23, 1989; 62 FR 17708, Apr. 11, 1997]
§ 21.182 “Applicant” status.
(a) Purpose. The purposes of applicant status are to:
(1) Process a veteran's claim for assistance under Chapter 31 in a timely manner; and
(2) Identify service-disabled veterans whom VA should contact individually to increase their awareness and understanding of how they may benefit from services furnished under Chapter 31.
(b) Assignment to applicant status. VA will assign a veteran's records to applicant status when either:
(1) VA receives a formal or informal application from a veteran for services under Chapter 31; or
(2) The VR&C (Vocational Rehabilitation and Employment) Division:
(i) Advises a veteran in writing of the veteran's potential eligibility for Chapter 31 services, or
(ii) Is informed that the veteran has been advised in writing of his or her potential eligibility for Chapter 31 services by other VA elements.
(c) Termination of applicant status. Applicant status will be terminated when:
(1) An appointment for an initial evaluation has been kept by the veteran; or
(2) The veteran's service-connected disability is reduced to a noncompensable degree; or
(3) The veteran's service-connected disability is severed; or
(4) The veteran's application is invalid because of fraud or error; or
(5) The veteran withdraws his or her claim, or otherwise indicates that no further assistance is desired.
(d) Transfer of terminated cases to discontinued status. Each instance in which a veteran's case is terminated for reasons described in paragraph (c)(4) or (5) of this section shall be placed in discontinued status.
See §§21.30 Claims, 21.31 Informal claims, and 21.32 Time limits.
[49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987]
§ 21.184 “Evaluation and planning” status.
(a) Purpose. The purpose of evaluation and planning status is to identify veterans for whom evaluation and planing services are needed to:
(1) Accomplish an initial evaluation as provided in §21.50;
(2) Develop an IWRP (Individualized Written Rehabilitation Plan), IEEP (Individualized Extended Evaluation Plan), IILP (Individualized Independent Living Plan) or IEAP (Individualized Employment Assistance Plan); or
(3) Reevaluate:
(i) Findings made in prior initial evaluations, or
(ii) Current or previous individualized rehabilitation plans.
(b) Assignment to evaluation and planning status. A veteran's records will be assigned to evaluation and planning status for any of the purposes specified in paragraph (a) of this section.
(c) Termination of evaluation and planning status. The assignment of the veteran's records to evaluation and planning status may be terminated under the following conditions:
(1) Evaluation and planning completed. The services necessary to complete evaluation and planning have been provided. These services are:
(i) Completion of an initial evaluation;
(ii) Development of an IWRP (Individualized Written Rehabilitation Plan) or other individual rehabilitation plan in those cases in which eligibility and entitlement to services provided under Chapter 31 are established; or
(iii) Completion of reevaluation of prior findings made in initial evaluation or modification of a rehabilitation plan.
(2) Evaluation and planning not completed. The VR&C Division shall make every reasonable effort to enable the veteran to complete the evaluation and planning phase of the rehabilitation process. A determination that every reasonable effort by VA has been made, and that little likelihood exists that continued efforts will lead to completion of planning and evaluation, may be made under the following conditions:
(i) The veteran writes VA and requests that his or her case be inactivated;
(ii) The veteran fails to keep scheduled appointments following his or her initial appointment; or
(iii) The veteran otherwise fails to cooperate with VA in the evaluation and planning process. If the veteran fails to cooperate, the provisions of §21.362 are applicable.
(Authority: 38 U.S.C. 3106, 3107)
See §§21.50 through 21.58 Initial and extended evaluation, and §§21.80 through 21.98 Individualized written rehabilitation plan.3
§ 21.186 “Ineligible” status.
(a) Purpose. The purpose of ineligible status is to identify the cases in which a veteran requests services under Chapter 31, but the request is denied by VA, usually, on the basis of information developed when the veteran was in evaluation and planning status.
(b) Assignment to ineligible status. A veteran's case will be assigned to ineligible status following a finding by VA that the veteran is not eligible for or entitled to services under Chapter 31. The finding must preclude all possible Chapter 31 services.
(c) Termination of ineligible status. The assignment of the veteran's case to ineligible status should be terminated if the veteran thereafter becomes eligible to receive any Chapter 31 service. Placement of the case in ineligible status is a bar to reconsideration of eligibility unless a material change in circumstances occurs.
§ 21.188 “Extended evaluation” status.
(a) Purpose. The purposes of extended evaluation status are to:
(1) Identify a veteran for whom a period of extended evaluation is needed; and
(2) Assure that necessary services are provided by VA during the extended evaluation.
(b) Assignment to extended evaluation status. A veteran's case may be assigned or reassigned to extended evaluation status under provisions of §21.57, §21.74, §21.86, §21.94, §21.96, or §21.98.
(c) Continuation in extended evaluation status. A veteran's case will be in extended evaluation status during periods in which:
(1) The veteran is pending induction into the facility at which rehabilitation services will be provided;
(2) The veteran is receiving rehabilitation services prescribed in the IEEP (§21.86); or
(3) The veteran is on authorized leave of absence during an extended evaluation.
(d) Termination of extended evaluation status. A veteran in extended evaluation status will remain in that status until one of the following events occur:
(1) Following notification of necessary arrangements to begin an extended evaluation, the date the extended evaluation begins, and instructions as to the next steps to be taken, the veteran:
(i) Fails to report and does not respond to followup contact by the case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers induction for a period exceeding 30 days beyond the scheduled date of induction, except where the deferment is due to illness or other sufficient reason;
(2) VA determines the reasonable feasibility of a vocational goal for the veteran before completion of all of the planned evaluation because the decision does not require the further evaluation;
(3) The veteran completes the extended evaluation;
(4) Either the veteran or VA interrupts the extended evaluation;
(5) Either the veteran or VA discontinues the extended evaluation; or
(6) Service-connection for the veteran's service-connected disability is severed by VA or his or her continued eligibility otherwise ceases.
See §§21.57 Extended evaluation, 21.322 Commencing dates, 21.324 Reduction or termination.
§ 21.190 “Rehabilitation to the point of employability” status.
(a) Purpose. The rehabilitation to the point of employability status serves to:
(1) Identify veterans who receive training and rehabilitation services to enable them to attain a vocational goal; and
(2) Assure that services specified in the veteran's IWRP are provided in a timely manner by VA.
(b) Assignment. A veteran's case may be assigned or reassigned to rehabilitation to the point of employability status under the provisions of §§21.84, 21.94, 21.96, or 21.98.
(c) Continuation in rehabilitation to the point of employability status. A veteran will be assigned to rehabilitation to the point of employability status during periods in which:
(1) The veteran has progressed through applicant status and evaluation and planning status (including extended evaluation status when appropriate), and is pending induction into the facility at which training and rehabilitation services will be provided;
(2) The veteran is receiving training and rehabilitation services prescribed in the IWRP; or
(3) The veteran is on authorized leave of absence.
(d) Termination of rehabilitation to the point of employability status when goals of the IWRP for this period are achieved. VA will consider a veteran to have completed the period of rehabilitation to the point of employability, and will terminate this status under the following conditions:
(1) The veteran achieves the goals of, and has been provided services specified in, the IWRP;
(2) The veteran who leaves the program has completed a sufficient portion of the services prescribed in the IWRP to establish clearly that he or she is generally employable as a trained worker in the occupational objective established in the IWRP;
(3) The veteran, who has not completed all prescribed services in the IWRP, accepts employment in the occupational objective established in the IWRP with wages and other benefits commensurate with wages and benefits received by trained workers; or
(4) The veteran:
(i) Satisfactorily completes a prescribed program, the practice of which requires pursuing an examination for licensure, but
(ii) Is unable to take the licensure examination prior to the basic twelve-year termination date and there is no basis for extension of that date.
(e) Other conditions for termination of rehabilitation to the point of employability status. In addition to termination under conditions described in paragraph (d) of this section, the classification of the veteran's records in this status may be terminated under any of the following conditions:
(1) A veteran who has been notified of necessary arrangements to begin the program, the date the program begins and instructions as to the next steps to be taken:
(i) Fails to report and does not respond to initial or subsequent followup by the case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers induction for a period exceeding 30 days beyond the scheduled beginning date of the program, except where the deferment is due to illness or other sufficient reason.
(2) Either the veteran or VA interrupts the period of rehabilitation to the point of employability;
(3) Either VA or the veteran discontinues the period of rehabilitation to the point of employability;
(4) The veteran reaches his or her termination date, and there is no basis for extension under §21.44;
(5) The veteran's entitlement to training and rehabilitation services under Chapter 31 is exhausted, and there is no basis for extension under §21.78; or
(6) Service-connection for the veteran's service-connected disability is served by VA or he or she otherwise ceases to be eligible.
(f) Payment of employment adjustment allowance. An employment adjustment allowance will be paid when the veteran's classification in rehabilitation to the point of employability status is terminated under provisions of paragraph (d) of this section. An employment adjustment allowance will not be paid if termination is for one of the reasons specified in paragraph (e) of this section.
See §§21.120 Educational and vocational trainings services, 21.282 Effective date of induction into a rehabilitation program, and 21.284 Reentering into a rehabilitation program.
§ 21.192 “Independent living program” status.
(a) Purpose. The independent living program status serves to:
(1) Identify veterans who are being furnished a program of independent living services by VA; and
(2) Assure that such veterans receive necessary services from VA in a timely manner.
(b) Assignment to independent living program status. A veteran may be assigned or reassigned to independent living program status under the provisions of §§21.88, 21.94, 21.96, or 21.98.
(c) Continuation in independent living program status. A veteran will be in independent living program status during periods in which:
(1) The provisions of §21.282 for induction into a program are met, but the veteran is pending induction into the facility at which rehabilitation services will be provided;
(2) The veteran receives rehabilitation services prescribed in an IILP; or
(3) The veteran is on authorized leave of absence status.
(d) Termination of independent living program status. When a veteran's case has been assigned to independent living program status, the case will be terminated from that status, if one of the following occurs:
(1) A veteran, who has been notified of necessary arrangements to begin a program, the date the program begins and instructions as to the next steps to be taken:
(i) Fails to report and does not respond to followup contact by the case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers entry for more than 30 days beyond the scheduled beginning date, unless the deferment is due to illness or other sufficient reason.
(2) The veteran completes the IILP;
(3) Either the veteran or VA interrupts the program;
(4) Either the veteran or VA discontinues the program; or
(5) Service-connection for the veteran's service-connected disability is severed by VA or he or she otherwise ceases to be eligible.
See §§21.160 Independent living services, 21.282 Effective date of induction into a rehabilitation program, 21.322 Commencing date, and 21.324 Reduction or termination date.
§ 21.194 “Employment services” status.
(a) Purpose. The status employment services serves to:
(1) Identify veterans who are being furnished employment services; and
(2) Assure that these veterans receive necessary services in a timely manner.
(b) Assignment to employment services status. A veteran's case may be assigned or reassigned to employment services status under the provisions of §§21.84, 21.88, 21.94 and 21.98.
(c) Continuation in employment services status. A case will remain in employment services status for the period specified in the IEAP, subject to the limitations specified in paragraph (d) of this section.
(d) Termination of employment services status. The veteran will continue in employment services status until the earliest of the following events occurs:
(1) He or she is determined to be rehabilitated under the provisions of §21.283; or
(2) He or she is:
(i) Employed for at least 60 days in employment that does not meet the criteria for rehabilitation contained in §21.283, if the veteran intends to maintain this employment and declines further assistance; and
(ii) Adjusted to the duties and responsibilities of the job.
(3) Either the veteran or VA interrupts the employment services program;
(4) Either the veteran or VA discontinues the employment services program;
(5) He or she reaches the end of the period for which employment services have been authorized and there is no basis for extension; or
(6) Service-connection for the veteran's service-connected disability is severed or he or she otherwise ceases to be eligible.
(Authority: 38 U.S.C. 3117)
See §§21.47 Eligibility for employment assistance, 21.250 Overview of employment services, and 21.326 Authorization of employment services.
[49 FR 40814, Oct. 18, 1984, as amended at 58 FR 68768, Dec. 29, 1993]
§ 21.196 “Rehabilitated” status.
(a) Purpose. The purpose of rehabilitated status is to identify those cases in which the goals of a rehabilitation program or a program of employment services have been substantially achieved.
(b) Assignment to “rehabilitated” status. A veteran's case shall be assigned to “rehabilitated” status when his or her case meets the criteria for rehabilitation contained in §21.283.
(c) Termination of rehabilitated status. A veteran's case will not be removed from rehabilitated status under §21.284 once that status has been assigned, unless the determination of rehabilitation is set aside for a reason specified in §21.284.
See §21.284 Reentrance into a rehabilitation program.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 58 FR 68768, Dec. 29, 1993]
§ 21.197 “Interrupted” status.
(a) Purpose. The purpose of interrupted status is to recognize that a variety of situations may arise in the course of a rehabilitation program in which a temporary suspension of the program is warranted. In each case, VA first must determine that the veteran will be able to return to a rehabilitation program or a program of employment services following the resolution of the situation causing the interruption. This determination will be documented in the veteran's record.
(b) Assignment to “interrupted” status. A veteran's case will be assigned to interrupted status when:
(1) VA determines that a suspension of services being provided is necessary; and
(2) Either:
(i) A definite date for resumption of the program is established; or
(ii) The evidence indicates the veteran will be able to resume the program at some future date, which can be approximately established.
(c) Reasons for assignment to “interrupted” status. A veteran's case may be interrupted and assigned to interrupted status for reasons including but not limited to the following:
(1) Veteran does not initiate or continue rehabilitation process. If a veteran does not begin or continue the rehabilitation process, the veteran's case will be interrupted and assigned to interrupted status, including:
(i) A case in evaluation and planning status;
(ii) A case in extended evaluation status;
(iii) A case in rehabilitation to the point of employability status;
(iv) A case in independent living program status; or
(v) A case in employment services status.
(2) Unsatisfactory conduct and cooperation. If a veteran's conduct or cooperation becomes unsatisfactory, services and assistance may be interrupted as determined under provisions of §§21.362 and 21.364.
(3) Services not available. The veteran cannot continue the program because the necessary training and rehabilitation services are unavailable.
(4) Prior to assignment to “discontinued” status. A veteran's case shall be assigned to interrupted status prior to discontinuance and assignment to discontinued status in all cases except as provided in §21.182(d) and upon the veteran's death. The purpose of assignment to interrupted status is to assure that all appropriate actions have been taken to help the veteran continue in his or her program before discontinuing benefits and services.
(5) Absences. The veteran is not entitled to be placed on authorized absence under §§21.340 through 21.350 while in interrupted status.
(d) Reentrance from “interrupted” status. (1) A veteran in interrupted status may be assigned to his or her prior status or other appropriate status, if he or she reports for entrance or reentrance into the prescribed program at the time and place scheduled for the resumption of the rehabilitation program.
(2) If a veteran in interrupted status fails to report for entrance or reentrance into the program at the appointed time and place, the veteran's case will remain in interrupted status. The case manager will then determine whether there is a satisfactory reason for the veteran's failure to enter a new or reenter the prior program. If the evidence of record does not establish a satisfactory reason, the veteran's case will be discontinued and assigned to discontinued status.
(e) Case management responsibility during a period of interruption. The case manager shall maintain contact with the veteran during interruption and shall arrange for appropriate medical or other services the veteran needs to be able to enter or reenter a rehabilitation program or a program of employment services.
See §21.324 Reduction or termination date.
[49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987]
§ 21.198 “Discontinued” status.
(a) Purpose. The purpose of discontinued status is to identify situations in which termination of all services and benefits received under Chapter 31 is necessary.
(b) Placement in “discontinued”. VA will discontinue the veteran's case and assign the case to discontinued status following assignment to interrupted status as provided in §21.197 for reasons including but not limited to the following:
(1) Veteran declines to initiate or continue rehabilitation process. If a veteran does not initiate or continue the rehabilitation process and does not furnish an acceptable reason for his or her failure to do so following assignment to interrupted status, the veteran's case will be discontinued and assigned to discontinued status. This includes:
(i) A case in applicant status;
(ii) A case in evaluation and planning status;
(iii) A case in extended evaluation status;
(iv) A case in rehabilitation to the point of employability status;
(v) A case in independent living program status;
(vi) A case in employment services status; or
(vii) A case in interrupted status;
(2) Unsatisfactory conduct and cooperation. When a veteran's conduct or cooperation becomes unsatisfactory, services and assistance may be discontinued and assigned to discontinued status as determined under provisions of §§21.362 and 21.364.
(3) Eligibility and entitlement. Unless the veteran desires employment assistance, the veteran's case will be discontinued and assigned to discontinued status when:
(i) The veteran reaches the basic twelve-year termination date, and there is no basis for extension; or
(ii) The veteran has used 48 months of entitlement under one or more VA programs, and there is no basis for extension of entitlement.
(4) Medical and related problems. A veteran's case will be discontinued and assigned to discontinued status when:
(i) The veteran will be unable to participate in a rehabilitation program because of a serious physical or emotional problem for an extended period; and
(ii) VA medical staff are unable to estimate an approximate date by which the veteran will be able to begin or return to the program.
(5) Withdrawal. Veteran voluntarily withdraws from the program.
(6) Failure to progress. The veteran's case will be discontinued and assigned to discontinued status if his or her failure to progress in a program is due to:
(i) Continuing lack of application by the veteran unrelated to any personal or other problems; or
(ii) Inability of the veteran to benefit from rehabilitation services despite the best efforts of VA and the veteran.
(7) Special review of proposed discontinuance action. The Vocational Rehabilitation and Employment (VR&C) Officer shall review each case in which discontinuance is being considered for a veteran with a service-connected disability rated 50 percent or more disabling. The VR&C Officer may utilize exisitng resources to assist in the review, including referral to the Vocational Rehabilitation Panel (VRP).
(c) Termination of “discontinued” status. Except as noted in paragraph (c)(3) of this section assignment of the veteran's case to the same status from which the veteran was discontinued or to a different one requires that VA first find:
(1) The reason for the discontinuance has been removed; and
(2) VA has redetermined his or her eligibility and entitlement under Chapter 31.
(3) In addition to the criteria described in paragraphs (c) (1) and (2) of this section a veteran placed into discontinued status as a result of a finding of unsatisfactory conduct or cooperation under §§21.362 and 21.364 must also meet the requirements for reentrance into a rehabilitation program found in §21.364.
(d) Follow-up of a cases placed in “discontinued” status. VA shall establish appropriate procedures to follow up on cases which have been placed in discontinued status, except in those cases reassigned from applicant status. The purpose of such followup is to determine if:
(1) The reasons for discontinuance may have been removed, and reconsideration of eligibility and entitlement is possible; or
(2) The veteran is employed, and criteria for assignment to rehabilitated status are met.
See §21.324 Reduction or termination dates of subsistence allowance.
[49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987; 53 FR 32620, Aug. 26, 1988]
Supplies
§ 21.210 Supplies.
(a) Purpose of furnishing supplies. Supplies are furnished to enable a veteran to pursue rehabilitation and achieve the goals of his or her program.
(b) Definition. The term supplies includes books, tools, and other supplies and equipment which VA determines are necessary for the veteran's rehabilitation program.
(c) Periods during which supplies may be furnished. Supplies may be furnished during:
(1) Extended evaluation;
(2) Rehabilitation to the point of employability;
(3) Employment services; and
(4) An independent living services program.
(d) Supplies precluded. Notwithstanding the provisions of paragraph (c) of this section, supplies may not be furnished to a veteran who has elected, or is in receipt of, payment at the educational assistance rate paid under Chapter 34.
§ 21.212 General policy in furnishing supplies during periods of rehabilitation.
(a) Furnishing necessary supplies during a period of rehabilitation services. A veteran will be furnished supplies that are necessary for a program of rehabilitation services. For example, a veteran training in a school will be furnished the supplies needed to pursue the school course. If additional supplies are subsequently needed to secure employment, they will be furnished during the period of employment services as provided in §21.214(d).
(b) Determining supplies needed during a period of rehabilitation. Subject to the provisions of §§21.210 through 21.222, VA will authorize only those supplies which are required:
(1) To be used by similarly circumstanced non-disabled persons in the same training or employment situation;
(2) To mitigate or compensate for the effects of the veteran's disability while he or she is being evaluated, trained or assisted in gaining employment; or
(3) To allow the veteran to function more independently and thereby lessen his or her dependence on others for assistance.
(c) When supplies may be authorized. Supplies should generally be authorized subsequent to the date of enrollment in training or beginning date of other rehabilitation services unless there are compelling reasons to authorize them earlier. Supplies may not be authorized earlier than the date the veteran's rehabilitation plan is approved by VA and the veteran is accepted by the facility or individual providing services.
(d) Supplies needed, but not specifically required. VA may determine that an item, such as a calculator, while not required by the school for the pursuit of a particular school subject, is nevertheless necessary for the veteran to successfully pursue his or her program under the provisions of §21.156 pertaining to incidental goods and services. The item may be authorized if:
(1) It is generally owned and used by students pursuing the course; and
(2) Students who do not have the item would be placed at a distinct disadvantage in pursuing the course.
(e) Supplies for special projects and theses. The amount of supplies that VA may authorize for special projects, including theses, may not exceed the amount generally needed by similarly circumstanced nonveterans in meeting course or thesis requirements.
(f) Responsibility for authorization of supplies. The case manager is responsible for the authorization of supplies, subject to requirements for prior approval contained in §21.258 and other instructions governing payment of program charges.
§ 21.214 Furnishing supplies for special programs.
(a) General. A veteran pursuing one of the following types of vocational rehabilitation programs is eligible for any types of supplies listed in §21.212. The following paragraphs clarify the applicability of the general provisions of §21.212 to these special situations.
(b) Supplies furnished to veterans pursuing training in the home. VA may furnish to veterans training in the home:
(1) Books, tools, and supplies which schools or training establishments that train individuals outside the home for the objective the veteran is pursuing at home ordinarily require all students and trainees to personally possess;
(2) Supplies and equipment which are essential to the prescribed course of training because the veteran is pursuing the course at home. Equipment in this category consists of items which ordinarily are not required by a school or training establishment;
(3) Special equipment, such as a vise or drafting table;
(4) Supplies needed to enable the veteran to function more independently in his or her home and community.
(c) Supplies furnished to a veteran in farm cooperative training. The books and related training supplies which VA may furnish a veteran in farm cooperative training depend upon the type of instruction he or she is receiving:
(1) When organized, group instruction is part of a veteran's course, VA will furnish those books and supplies which the school requires all students in the school portion of the course to own personally or on a rental basis;
(2) When all instruction is given on the veteran's farm by an individual instructor, VA will furnish to a student only those textbooks and other supplies which would ordinarily be required by a school.
(d) Obtaining and maintaining employment. A veteran being furnished employment services may receive supplies which:
(1) The employer requires similarly circumstanced nonveterans to own upon begining employment to the extent that the items were not furnished during the period in which the veteran was training for the objective, or the items that were furnished for training purposes are not adequate for employment;
(2) VA determines that special equipment is necessary for the veteran to perform his or her duties, subject to the obligation of the employer to make reasonable accommodation to the disabling effects of the veteran's condition.
(e) Self-employment. The supplies and services which may be furnished, subject to the requirements prescribed under §21.258, to a veteran for whom self-employment has been approved as the occupational objective, are generally limited to those necessary to begin operations:
(1) Minimum stocks of materials, e.g., inventory of saleable merchandise or goods, expendable items required for day-to-day operations, and items which are consumed on the premises;
(2) Essential equipment, including machinery, occupational fixtures, accessories, and appliances; and
(3) Other incidental services such as business license fees.
(f) Supplies and related assistance which may not be furnished for self-employment. VA may not authorize assistance for:
(1) Purchase of, or part payment for, land and buildings;
(2) Making full or part payment of leases or rentals;
(3) Purchase or rentals of trucks, cars, or other means of transportation;
(4) Stocking a farm for animal husbandry operations.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
§ 21.216 Special equipment.
(a) General. Special equipment should be authorized as necessary to enable a veteran to mitigate or overcome the effects of disability in pursuing a rehabilitation program. The major types of special equipment which may be authorized include:
(1) Equipment for educational or vocational purposes. This category includes items which are ordinarily used by nondisabled persons pursuing evaluation or training, modified to allow for use by disabled persons. e.g., calculators with speech capability for blinded persons.
(2) Sensory aids and prostheses. This category includes items which are specifically designed to mitigate or overcome the effects of disability. They range from eyeglasses and hearing aids to closed-circuit TV systems which amplify reading material for veterans with severe visual impairments.
(3) Modifications to improve access. This category includes adaptations of environment not generally associated with education and training, such as adaptive equipment for automobiles or supplies necessary to modify a veteran's home to make either training or self-employment possible.
(b) Coordination with other VA elements in securing special equipment. In any case in which the veteran needs special equipment and is eligible for such equipment under other VA programs, such as medical care and treatment at VA medical centers, the items will be secured under that program. The veteran must be found ineligible for needed special equipment under other programs and benefits administered by VA before the item may be authorized under Chapter 31.
§ 21.218 Methods of furnishing supplies.
(a) Supplies furnished by the school or facility. VA will make arrangements for the school or other facility furnishing a veteran training, rehabilitation assistance, or employment under Chapter 31 to provide supplies to the extent practicable. This method is the one most likely to assure that supplies are available and can be secured expeditiously. A facility may be considered to be furnishing supplies when the facility itself is the supplier, or the facility has designated a supplier. Prior authorization of supplies by the case manager is required, except for standard sets of books, tools, or supplies which the facility requires all trainees or employees to have.
(b) Issuance of supplies not furnished by the facility. VA will issue authorized supplies directly to the veteran, if the supplies are not furnished by the facility providing training, rehabilitation services, or employment.
See 48 CFR part 831. Contract cost principles and procedures.
§ 21.219 Supplies consisting of clothing, magazines and periodicals, and items which may be personally used by the veteran.
(a) Furnishing protective articles and clothing. Protective articles or apparel worn in place of ordinary clothing will be furnished at VA expense, when the school or training establishment requires similarly circumstanced nonveterans to use the articles of apparel. No other clothing will be supplied.
(b) Furnishing magazines and periodicals. Appropriate past issues of magazines, periodicals, or reprints may be furnished in the same manner as text material, when relevant to the course or training.
(c) Furnishing items which may be personally used. Musical instruments, cameras, or other items which could be used personally by the veteran may only be furnished if required by the facility to meet requirements for degree or course completion.
§ 21.220 Replacement of supplies.
(a) Lost, stolen, misplaced or damaged supples. VA will replace articles which are necessary to further pursuit of the veteran's program and which are lost, stolen, misplaced, or damaged beyond repair through no fault of the veteran;
(1) VA will make an advancement from the Vocational Rehabilitation Revolving Fund to a veteran to replace articles for which VA will not pay, if the veteran is without funds to pay for them;
(2) If a veteran refuses to replace an article indispensable to the program after VA determines that its loss or damage was his or her fault, the veteran's refusal may be considered as noncooperation under §21.364;
(3) If the veteran's program is discontinued under provisions of §21.364(b), he or she will be reentered into the program only when he or she replaces the necessary articles.
(b) Personally purchased supplies. VA will not generally reimburse a veteran who personally buys supplies. VA may pay for the required supplies which a training facility or other vendor sells to a veteran, if the facility chooses to return to the veteran the amounts he or she paid, so that the charges stand as an unpaid obligation of VA to the facility. If the facility does not agree to such an arrangement, VA may still pay the veteran, if the facts and equities of the case are demonstrated.
(c) Supplies used in more than one part of the program. Except as provided in paragraph (a) of this section, VA will generally furnish any nonconsumable supplies only one time, even though the same supplies may be required for use by the veteran in another subject or in another quarter, semester, or school year.
§ 21.222 Release of, and repayment for, training and rehabilitation supplies.
The value of supplies authorized by VA will be repaid under the provisions of this section, when the veteran fails to complete the program as planned.
(a) Consumable supplies. VA will require reimbursement from a veteran for consumable supplies authorized, unless:
(1) The veteran fails to complete the rehabilitation program through no fault of his or her own;
(2) The employment objective of the rehabilitation plan is changed as a result of reevaluation by VA staff;
(3) The total value of the supplies for which repayment is required is less than $100; or
(4) The veteran dies.
(b) Nonconsumable supplies (general). (1) In addition to the exceptions noted in paragraph (c) of this section, VA will not require reimbursement from a veteran for nonconsumable supplies authorized, if:
(i) The veteran and VA change the long-range goal of the rehabilitation plan and those supplies are not required for the veteran's pursuit of training for the new goal;
(ii) The veteran's failure to complete the program was not his or her fault;
(iii) The veteran was pursuing the program at a facility which recovers nonconsumable supplies from veterans through contractural arrangements with VA, and the veteran returned to the facility all the nonconsumable supplies furnished at VA expense;
(iv) The veteran reenters the Armed Forces or is in the process of reentering the Armed Forces;
(v) The veteran satisfactorily completed one-half or more of a noncollege degree course (or at least two terms in the case of a college course) for which VA furnished the supplies;
(vi) The veteran certifies that he or she is using in current employment the supplies furnished during training;
(vii) The total value of the supplies for which repayment is required is less than $100;
(viii) The veteran dies;
(ix) The veteran is furnished supplies during a period of employment services but loses the job through no fault of his or her own;
(x) A veteran discontinued from an independent living services program is using supplies and equipment to reduce his or her dependence on others; or
(xi) The veteran is declared rehabilitated.
(2) The amount which a veteran must repay will be the lesser of the current value of the supplies, or the original cost of the supplies. VA will accept supplies in lieu of repayment of the value of the supplies if VA has authorized a change of objective.
(c) Training in the home and self-employment. In addition to the reasons for not requiring repayment or return of nonconsumable supplies listed in paragraph (b) of this section, VA will not require a veteran to pay for or return nonconsumable supplies if: (1) In the case of a veteran training in the home:
(i) VA furnished such supplies to equip his or her home as a place of training; and
(ii) The veteran has completed enough of his or her training program to be considered employable, and has been declared rehabilitated to the point of employability;
(2) A veteran in a self-employment program not in the home is declared rehabilitated; or
(3) The veteran dies and the Director, VR&C Service determines that the facts and equities of the family situation warrant waiver of all or a part of the requirements for repayment.
[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17708, Apr. 11, 1997]
§ 21.224 Prevention of abuse.
Supplies are to be furnished under the most careful checks by the case manager as to what is needed by the veteran to pursue his or her program. Determinations of the supplies needed to enable the veteran to successfully pursue his or her rehabilitation program are made under the provisions of §§21.210 through 21.222.
Medical and Related Services
§ 21.240 Medical treatment, care and services.
(a) General. A Chapter 31 participant shall be furnished medical treatment, care and services which VA determines are necessary to develop, carry out and complete the veteran's rehabilitation plan. The provision of such services is a part of the veteran's entitlement to benefits and services under Chapter 31, and is limited to the period or periods in which the veteran is a Chapter 31 participant.
(b) Scope of services. The services which may be furnished under Chapter 31 include the treatment, care and services described in part 17 of this title. In addition the following services may be authorized under Chapter 31 even if not included or described in part 17:
(1) Prosthetic appliances, eyeglasses, and other corrective or assistive devices;
(2) Services to a veteran's family as necessary for the effective rehabilitation of the veteran;
(3) Special services (including services related to blindness and deafness) including:
(i) Language training; speech and voice correction, training in ambulation, and one-hand typewriting;
(ii) Orientation, adjustment, mobility and related services;
(iii) Telecommunications, sensory and other technical aids and devices.
(c) Eligibility. A veteran is eligible for the services described in paragraph (b) of this section during periods in which he or she is considered a Chapter 31 participant. These periods include:
(1) Initial evaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services program;
(5) Employment services; and
(6) Other periods to the extent that services are needed to begin or continue in any of the statutes described in paragraphs (c)(1) through (5) of this section. Such periods include but are not limited to services needed to facilitate reentry into rehabilitation following:
(i) Interruption; or
(ii) Discontinuance because of illness or injury.
See §17.48(g). Participating in a rehabilitation program under Chapter 31.
§ 21.242 Resources for provision of treatment, care and services.
(a) General. VA medical centers are the primary resources for the provision of medical treatment, care and services for Chapter 31 participants which may be authorized under the provisions of §21.240. The availability of necessary services in VA facilities shall be ascertained in each case.
(b) Hospital care and medical service. Hospital care and medical services provided under Chapter 31 shall only be furnished in facilities over which VA has direct jurisdiction, except as authorized on a contract or fee basis under the provisions of part 17 of this title.
See §17.30(l). Hospital care. §17.30(m) Medical services.
Employment Services
§ 21.250 Overview of employment services.
(a) General. Employment services shall be provided if:
(1) Eligibility for employment services exists;
(2) The employment services which are needed have been identified; and
(3) The services which have been identified are incorporated in the veteran's IWRP (Individualized Written Rehabilitation Plan) or IEAP (Individualized Employment Assistance Plan).
(b) Definitions. (1) The term program (period) of employment services includes the counseling, medical, social, and other placement and postplacement services provided to a veteran under 38 U.S.C. Chapter 31 to assist the veteran in obtaining or maintaining suitable employment. The term program of employment services is used only if the veteran's eligibility under Chapter 31 is limited to employment services.
(2) The term job development means a comprehensive professional service to assist the individual veteran to actually obtain a suitable job, and not simply the solicitation of jobs on behalf of the veteran. Continuing and mutually beneficial relationships with employers should be established by VA staff through referral of suitable employees and supportive services (e.g., adjustment counseling and job modification). Job development activities by VA staff are intended to provide disabled workers with a chance for suitable employment with cooperating employers.
(3) The term employable means the veteran is able to secure and maintain employment in the competitive labor market or in a sheltered workshop or other special situation at the minimum wage.
(c) Determining eligibility for, and the extent of, employment services. (1) A veteran's eligibility for employment services shall be determined under the provisions of §21.47;
(2) The duration of the period of employment services is determined under provisions of §21.73;
(3) An IEAP (Individualized Employment Assistance Plan) shall be prepared under provisions of §21.88;
(4) A veteran shall be placed in and removed from “Employment Assistance Status” under provisions of §21.194.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 54 FR 21216, May 17, 1989]
§ 21.252 Job development and placement services.
(a) General. Job development and placement services may include:
(1) Direct placement assistance by VA;
(2) Utilization of the job development and placement services of:
(i) DVOP (Disabled Veterans Outreach Program) specialists;
(ii) Programs authorized under the Rehabilitation Act of 1973, as amended;
(iii) The State Employment Services and the Veterans' Employment and Training Service of the United States Department of Labor;
(iv) The Office of Personnel Management; and
(v) The services of any other public, or nonprofit organization having placement services available; and
(vi) Any for-profit agency in a case in which it has been determined that comparable services are not available through public and nonprofit agencies and comparable services cannot be provided cost-effectively by the public and nonprofit agencies listed in this paragraph.
(b) Promotion of employment and training opportunities. As funding permits, VA employees engaged in the administration of Chapter 31 will promote the establishment of employment, training, and related opportunities to accomplish the purposes described in §21.1.
(c) Advocacy responsibility. VA shall take reasonable steps to ensure that a veteran being provided employment services receives the benefit of any applicable provision of law or regulation providing for special consideration or emphasis or preference of the veteran in employment or training, especially programs and activities identified in the preceding paragraphs of this section.
(d) Interagency coordination. VA employees providing assistance to Chapter 31 participants shall coordinate their job development, placement, promotional, and advocacy activities with similar or related activities of:
(1) The Department of Labor and State employment security agencies as provided by written agreement or other arrangement;
(2) The State approving agencies:
(3) Other public, for-profit and nonprofit agencies providing employment and related services.
[49 FR 40814, Oct. 18, 1984, as amended at 55 FR 42187, Oct. 18, 1990; 62 FR 17708, Apr. 11, 1997]
§ 21.254 Supportive services.
(a) General. Supportive services which may be provided during a period or program of employment services include a broad range of medical treatment, care and services, supplies, license and other fees, special services, including services to the blind and deaf, transportation assistance, services to the veteran's family, and other appropriate services, subject to the limitations provided in VA regulations governing the provisions of these services under Chapter 31.
(b) Exclusions. The following benefits may not be provided to the veteran by VA during a period or program of employment services:
(1) Subsistence allowance, or payment of an allowance at the educational assistance rate paid under Chapter 30 for similar training;
(2) Education and training services, other than brief courses, such as review courses necessary for licensure;
(3) Revolving Fund Loan; and
(4) Work-study allowance.
(c) Disabled veterans trained for self-employment under a State rehabilitation agency. A service-disabled veteran who has trained for self-employment under the auspices of a State rehabilitation agency may be provided supplemental equipment and initial stocks and supplies similar to the materials supplied to the most severely disabled veterans in self-employment programs under Chapter 31, if the following conditions are met:
(1) The veteran is eligible for employment assistance under provisions of §21.47;
(2) An official of the State rehabilitation program with responsibility for administration of self-employment programs certifies that:
(i) The veteran has successfully completed training for a self-employment program;
(ii) The assistance needed is not available through the State rehabilitation program, or other non-VA sources;
(iii) The assistance requested is a part of the veteran's IWRP (Individualized Written Rehabilitation Plan) developed by the State rehabilitation program;
(3) The requirements of §21.258 pertaining to self-employment for the most severely disabled veterans are met; and
(4) The Director, VR&E Service, approves the request, if the cost of supplies is more than $2,500. The approval of the Director is required prior to authorization of supplies.
[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992; 62 FR 17709, Apr. 11, 1997]
§ 21.256 Incentives for employers.
(a) General. VA may make payments to employers to enable a veteran who has been rehabilitated to employability to begin and maintain employment or to provide on-job training. The purpose of such payment is to facilitate the placement of veterans who are generally qualified for employment but may lack some specific training or work experience which the employer requires or who are difficult to place due to their disability. The specific conditions which must be met before this option may be considered are contained in paragraphs (b) through (d) of this section.
(b) Requirements for payments to employers. Payments may be made to employers to provide on-job training or to begin and maintain employment if all of the following conditions are met:
(1) The veteran is in need of an on-job training situation or is generally qualified for employment but such on-job situation or employment opportunity is not otherwise available despite repeated and intensive efforts on the part of VA and the veteran to secure such opportunities. These conditions are also considered to be met when:
(i) There are few employers within commuting distance of the veteran's home who can provide a training or employment opportunity consistent with the veteran's plan; and
(ii) The veteran reasonably could not be required to seek on-job or employment opportunities in other areas due to the effects of his or her disability, family situation, or other pertinent factors; and
(iii) The available local employers will only provide a training or employment opportunity if VA agrees to reimburse for direct expenses to the degree permitted under this section.
(2) The training establishment or employer is in compliance with provisions of §21.292 (a) and (b), pertaining to the approval of courses and facilities.
(3) VA entered into an agreement with the employer in writing prior to the beginning of the period of on-job training or employment, whereby the employer will be reimbursed for direct expenses approved under provisions of paragraph (c) of this section.
(4) The on-job training program or employment of the veteran does not displace a current employee or prevent the recall of a laid-off employee.
(c) Limitation on payment. Payments to the employer may be made only for the employer's direct expenses as a result of hiring the veteran and generally may not exceed one-half of the wage paid to other employees in the same or similar job. Direct expenses include:
(1) Instruction;
(2) Instructional aids;
(3) Training materials and supplies provided to the veteran;
(4) Minor modification of equipment to the special limitations of the veteran;
(5) Significant loss of productivity of the employer caused by using the veteran as opposed to a nondisabled employee.
(d) Duration. The period for which the employer is paid may not exceed the period necessary to accomplish on-job training or to begin and maintain employment at the journeyman level for at least 2 months. The period for which payment may be authorized may not exceed 9 months, unless the VR&C Officer, approves a longer period.
(e) Benefits and services. (1) An eligible veteran on whose behalf payments are made to the employer shall be provided all other Chapter 31 benefits and services furnished to other veterans receiving employment services. A veteran may not be paid a subsistence allowance during the period in which job training or work experience is furnished under this section.
(2) Notwithstanding any other provisions of these regulations, if the program in which the veteran is participating meets the criteria for approval of on-job training under chapter 30, the veteran may be paid at educational assistance rates provided for this type of training under chapter 30 to the extent that he or she has remaining eligibility and entitlement under chapter 30 and has elected to receive a subsistence allowance in accordance with §21.7136.
(f) Non-duplication. VA will not make payments under the provisions of this section to an employer receiving payments from any other program for the same training or employment expenses.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985; 54 FR 4283, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992; 62 FR 17709, Apr. 11, 1997]
§ 21.257 Self-employment.
(a) General. Vocational rehabilitation will generally be found to have been accomplished by the veteran when he or she achieves suitable employment in the objective selected, in an existing business, agency or organization in the public or private sector. Rehabilitation of the veteran may be achieved through self-employment in a small business, if the veteran's access to the normal channels for suitable employment in the puplic or private sector is limited because of his or her disability or other circumstances in the veteran's situation warrant consideration of self-employment as an additional option.
(b) Self-employment plan. VA staff will conduct a comprehensive survey and analysis of the feasibility of self-employment prior to authorization of a rehabilitation plan leading to self-employment. The analysis and self-employment plan developed on the basis of such analysis shall be made a part of the veteran's Chapter 31 record. The survey and plan shall include:
(1) An analysis of the economic viability of the proposed small business plan;
(2) A cost analysis which specifies the amount and type of assistance, if any, which VA would be committed to furnish;
(3) Provision for development of a market for the veteran's services during the period of rehabilitation to the point of employability, and/or employment services;
(4) A suitable occupational objective in which employment can normally be secured in the public or private sector;
(5) Training necessary for the operation of a successful small business;
(6) Availability of non-VA financing, including the veteran's financial resources, local banks and other sources;
(7) Coordination with the Small Business Administration to secure special consideration under section 8 of the Small Business Act, as amended;
(8) The location of the site selected for the business and the cost of the site, if any.
§ 21.258 Special assistance for veterans in self-employment.
(a) General. A veteran in a self-employment program is eligible for certain special assistance in addition to the services for which veterans in a vocational rehabilitation program are generally eligible under the provisions of §21.252. A veteran may be provided the assistance described under §21.214 to the extent of his or her eligibility for such services as determined under paragraphs (b) and (c) of this section and §21.254(c).
(b) Special services for the most severely disabled veterans. Special services listed in §21.214(e) shall be provided as necessary for the most severely disabled veterans. The term most severely disabled veteran means a veteran who has been determined to have a serious employment handicap and limitations on employability arising from the effects of disability (service-connected and nonservice-connected) which necessitates selection of self-employment as the veteran's vocational goal. This category includes veterans requiring:
(1) Homebound training and self-employment; or
(2) Self-employment for other reasons even though the veteran is able to pursue training on other than a homebound basis, e.g., lack of suitable employment opportunities in the area.
(c) Special services for other veterans. Special services described in §21.214(e) may be furnished to a veteran with a serious employment handicap if the veteran also meets the following conditions:
(1) Self-employment is clearly shown to be the soundest method of achieving rehabilitation; or
(2) Self-employment is selected as an alternative to retaining the veteran in another occupation, and the cost of a self-employment program will not exceed the cost of retraining in another occupation.
(d) Assisting a veteran with an employment handicap to become self-employed. A veteran with an employment handicap may not be furnished any of the special services described in §21.214(e). However, if it is determined that consideration of self-employment is warranted, VA may provide:
(1) Incidental training in the management of a small business;
(2) License or other fees required for employment and self-employment; and
(3) The tools and supplies which would ordinarily be required for the veteran to begin employment in the field in which the veteran has trained.
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 55 FR 25975, June 26, 1990; 55 FR 28511, July 11, 1990]
Monetary Assistance Services
§ 21.260 Subsistence allowance.
(a) General. A veteran participating in a rehabilitation program under 38 U.S.C. Chapter 31 will receive a monthly subsistence allowance at the rates in paragraph (b) of this section, unless the veteran elects to receive payment at the rate of monthly educational assistance allowance payable under 38 U.S.C. Chapter 30 for the veteran's type of training. See §21.264 for election of payment at the Chapter 30 rate and §§21.7136, 21.7137, and 21.7138 to determine the applicable Chapter 30 rate.
(b) Rate of payment. VA pays subsistence allowance at the rates stated in the following tables:
(1) Subsistence allowance is paid at the following rates effective October 1, 1994, and before November 2, 1994:
---------------------------------------------------------------------------------------------------------------- Additional amount for Type of program No One Two each dependents dependent dependents dependent over two----------------------------------------------------------------------------------------------------------------Institutional: \1\ Full-time............................................... $374.93 $465.08 $548.05 $39.95 \3/4\ time.............................................. 281.71 349.32 409.76 30.73 \1/2\ time.............................................. 188.49 233.56 274.54 20.49Nonpay or nominal pay on-job training in a Federal, State, or local agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: Full-time only.......................................... 374.93 465.08 548.05 39.95Nonpay or nominal pay work experience in a Federal, State, or local agency: Full-time............................................... 374.93 465.08 548.05 39.95 \3/4\ time.............................................. 281.71 349.32 409.76 30.73 \1/2\ time.............................................. 188.49 233.56 274.54 20.49Farm cooperative, apprenticeship, or other on-job training: \2\ Full-time only.......................................... 327.81 396.44 456.88 29.71Combination of institutional and OJT (Full-time only): Institutional greater than \1/2\ time................... 374.93 465.08 548.05 39.45 OJT greater than \1/2\ time............................. 327.81 396.44 456.88 29.71Non-farm cooperative (Full-time only): Institutional........................................... 374.93 465.08 548.05 39.95 On-job.................................................. 327.81 396.44 456.88 29.71Improvement of rehabilitation potential: Full-time only.......................................... 374.93 465.08 548.05 39.95 \3/4\ time.............................................. 281.71 349.32 409.76 30.73 \1/2\ time.............................................. 188.49 233.56 274.54 20.49 \1/4\ time \3\.......................................... 94.24 116.78 137.27 10.24----------------------------------------------------------------------------------------------------------------\1\ For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran's objective.\3\ The quarter-time rate may be paid only during extended evaluation.
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(2) Subsistence allowance is paid at the following rates effective November 2, 1994, and before October 1, 1995: |
---------------------------------------------------------------------------------------------------------------- Additional amount for Type of program No One Two each dependents dependent dependents dependent over two----------------------------------------------------------------------------------------------------------------Institutional: \1\ Full-time............................................... $374.93 $465.08 $548.05 $39.95 \3/4\ time.............................................. 281.71 349.32 409.76 30.73 \1/2\ time.............................................. 188.49 233.56 274.54 20.49Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: Full-time only.......................................... 374.93 465.08 548.05 39.95Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: Full-time............................................... 374.93 465.08 548.05 39.95 \3/4\ time.............................................. 281.71 349.32 409.76 30.73 \1/2\ time.............................................. 188.49 233.56 274.54 20.49Farm cooperative, apprenticeship, or other on-job training: \2\ Full-time only.......................................... 327.81 396.44 456.88 29.71Combination of institutional and OJT (Full-time only): Institutional greater than \1/2\ time................... 374.93 465.08 548.05 39.45 OJT greater than \1/2\ time............................. 327.81 396.44 456.88 29.71Non-farm cooperative (Full-time only): Institutional........................................... 374.93 465.08 548.05 39.95 On-job.................................................. 327.81 396.44 456.88 29.71Improvement of rehabilitation potential: Full-time only.......................................... 374.93 465.08 548.05 39.95 \3/4\ time.............................................. 281.71 349.32 409.76 30.73 \1/2\ time.............................................. 188.49 233.56 274.54 20.49 \1/4\ time \3\.......................................... 94.24 116.78 137.27 10.24----------------------------------------------------------------------------------------------------------------\1\ For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran's objective.\3\ The quarter-time rate may be paid only during extended evaluation.
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(3) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1995, and before October 1, 1996: |
---------------------------------------------------------------------------------------------------------------- Additional amount for Type of program No One Two each dependents dependent dependents dependent over two----------------------------------------------------------------------------------------------------------------Institutional:\1\ Full-time............................................... $385.80 $478.57 $563.94 $41.11 \3/4\ time.............................................. 289.88 359.45 421.64 31.62 \1/2\ time.............................................. 193.96 240.33 282.50 21.08Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: Full-time only.......................................... 385.80 478.57 563.94 41.11Nonpay or nominal pay work experience in a facility of a Federal, State, local, or Indian tribe agency: Full-time............................................... 385.80 478.57 563.94 41.11 \3/4\ time.............................................. 289.88 359.45 421.64 31.62 \1/2\ time.............................................. 193.96 240.33 282.50 21.08Farm cooperative, apprenticeship, or other on-job training (OJT): \2\ Full-time only.......................................... 337.32 407.94 470.13 30.57Combination of institutional and OJT (Full-time only): Institutional greater than \1/2\ time................... 385.80 478.57 563.94 41.11 OJT greater than \1/2\ time \2\......................... 337.32 407.94 470.13 30.57Non-farm cooperative (Full-time only): Institutional........................................... 385.80 478.57 563.94 41.11 On-job \2\.............................................. 337.32 407.94 470.13 30.57Improvement of rehabilitation potential: Full-time only.......................................... 385.80 478.57 563.94 41.11 \3/4\ time.............................................. 289.88 359.45 421.64 31.62 \1/2\ time.............................................. 193.96 240.33 282.50 21.08 \1/4\ time \3\.......................................... 96.97 120.17 141.25 10.54----------------------------------------------------------------------------------------------------------------\1\ For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran's objective.\3\ The quarter-time rate may be paid only during extended evaluation.
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(4) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1996, and before October 1, 1997: |
---------------------------------------------------------------------------------------------------------------- Additional amount for Type of program No One Two each dependents dependent dependents dependent over two----------------------------------------------------------------------------------------------------------------Institutional: \1\ Full-time............................................... $396.22 $491.49 $579.17 $42.22 \3/4\time.............................................. 297.71 369.16 433.02 32.47 \1/2\ time............................................. 199.20 246.82 290.13 21.65Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: Full-time only.......................................... 396.22 491.49 579.17 42.22Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: Full-time............................................... 396.22 491.49 579.17 42.22 \3/4\ time............................................. 297.71 369.16 433.02 32.47 \1/2\ time............................................. 199.20 246.82 290.13 21.65Farm cooperative, apprenticeship, or other on-job training (OJT) \2\ Full-time only.......................................... 346.43 418.95 482.82 31.40Combination of institutional and OJT (Full-time only): Institutional greater than \1/2\ time................... 396.22 491.49 579.17 42.22 OJT greater than \1/2\ time \2\......................... 346.43 418.95 482.82 31.40Non-farm cooperative (Full-time only): Institutional........................................... 396.22 491.49 579.17 42.22 On-job \2\.............................................. 346.43 418.95 482.82 31.40Improvement of rehabilitation potential: Full-time only.......................................... 396.22 491.49 579.17 42.22 \3/4\ time............................................. 297.71 369.16 433.02 32.47 \1/2\ time............................................. 199.20 246.82 290.13 21.65 \1/4\ time \3\......................................... 99.59 123.41 145.06 10.82----------------------------------------------------------------------------------------------------------------\1\ For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran's objective.\3\ The quarter-time rate may be paid only during extended evaluation.
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(5) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1997, and before November 1, 1998: |
---------------------------------------------------------------------------------------------------------------- Additional amount for Type of program No One Two each dependents dependent dependents dependent over two----------------------------------------------------------------------------------------------------------------Institutional: \1\ Full-time............................................... $407.31 $505.25 $595.39 $43.40 \3/4\ time.............................................. 306.05 379.50 445.14 33.38 \1/2\ time.............................................. 204.78 253.73 298.25 22.26Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: Full-time only.......................................... 407.31 505.25 595.39 43.40Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: Full-time............................................... 407.31 505.25 595.39 43.40 \3/4\ time.............................................. 306.05 379.50 445.14 33.38 \1/2\ time.............................................. 204.78 253.73 298.25 22.26Farm cooperative, apprenticeship, or other on-job training (OJT): \2\ Full-time only.......................................... 356.13 430.68 496.34 32.28Combination of institutional and OJT (Full-time only): Institutional greater than \1/2\ time................... 407.31 505.25 595.39 43.40 OJT greater than \1/2\ time \2\......................... 356.13 430.68 496.34 32.28Non-farm cooperative (Full-time only): Institutional........................................... 407.31 505.25 595.39 43.40 On-job \2\.............................................. 356.13 430.68 496.34 32.28Improvement of rehabilitation potential: Full-time only.......................................... 407.31 505.25 595.39 43.40 \3/4\ time.............................................. 306.05 379.50 445.14 33.38 \1/2\ time.............................................. 204.78 253.73 298.25 22.26 \1/4\ time \3\.......................................... 102.38 126.87 148.09 11.12----------------------------------------------------------------------------------------------------------------\1\For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran's objective.\3\ The quarter-time rate may be paid only during extended evaluation.
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(6) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1998, and before October 1, 1999: |
---------------------------------------------------------------------------------------------------------------- Additional amount for Type of program No One Two each dependents dependent dependents dependent over two----------------------------------------------------------------------------------------------------------------Institutional: \1\ Full-time............................................... $413.83 $513.33 $604.92 $44.09 \3/4\ time.............................................. 310.95 385.57 452.26 33.91 \1/2\ time.............................................. 208.06 257.79 303.02 22.62Nonpay or nominal pay on-job training in a facility of a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor: Full-time only.......................................... 413.83 513.33 604.92 44.09Nonpay or nominal pay work experience in a facility of a Federal, State, local, or federally recognized Indian tribe agency: Full-time............................................... 413.83 513.33 604.92 44.09 \3/4\ time.............................................. 310.95 385.57 452.26 33.91 \1/2\ time.............................................. 208.06 257.79 303.02 22.62Farm cooperative, apprenticeship, or other on-job training (OJT): \2\ Full-time only.......................................... 361.83 437.57 504.28 32.80Combination of institutional and OJT (Full-time only): Institutional greater than \1/2\ time................... 413.83 513.33 604.92 44.09 OJT greater than \1/2\ time \2\......................... 361.83 437.57 504.28 32.80Non-farm cooperative (Full-time only): Institutional........................................... 413.83 513.33 604.92 44.09 On-job \2\.............................................. 361.83 437.57 504.28 32.80Improvement of rehabilitation potential: Full-time only.......................................... 413.83 513.33 604.92 44.09 \3/4\ time.............................................. 310.95 385.57 452.26 33.91 \1/2\ time.............................................. 208.06 257.79 303.02 22.62 \1/4\ time \3\.......................................... 104.02 128.90 151.51 11.30----------------------------------------------------------------------------------------------------------------\1\ For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran's objective.\3\ The quarter-time rate may be paid only during extended evaluation.
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(7) The following table states the monthly rates of subsistence allowance payable for participation in a rehabilitation program under 38 U.S.C. Chapter 31 that occurs after September 30, 1999, and before October 1, 2000: |
---------------------------------------------------------------------------------------------------------------- Additional amount for Type of program No One Two each dependents dependent dependents dependent over two----------------------------------------------------------------------------------------------------------------Institutional:\1\ Full-time............................................... $420.45 $521.54 $614.60 $44.80 \3/4\ time.............................................. 315.93 391.74 459.50 34.45 \1/2\ time.............................................. 211.39 261.91 307.87 22.98Nonpay or nominal pay on-job training in a Federal, State, local, or federally recognized Indian tribe agency; training in the home; vocational course in a rehabilitation facility or sheltered workshop; independent instructor; institutional non-farm cooperative: Full-time only.......................................... 420.45 521.54 614.60 44.80Nonpay or nominal pay work experience in a Federal, State, local, or federally recognized Indian tribe agency: Full-time............................................... 420.45 521.54 614.60 44.80 \3/4\ time.............................................. 315.93 391.74 459.50 34.45 \1/2\ time.............................................. 211.39 261.91 307.87 22.98Farm cooperative, apprenticeship, or other on-job training (OJT):\2\ Full-time only.......................................... 367.62 444.57 512.35 33.32Combination of institutional and OJT (Full-time only): Institutional greater than \1/2\ time................... 420.45 521.54 614.60 44.80 OJT greater than \1/2\ time\2\.......................... 367.62 444.57 512.35 33.32Non-farm cooperative (Full-time only): Institutional........................................... 420.45 521.54 614.60 44.80 On-job \2\.............................................. 367.62 444.57 512.35 33.32Improvement of rehabilitation potential: Full-time............................................... 420.45 521.54 $614.60 $44.80 \3/4\ time.............................................. 315.93 391.74 459.50 34.45 \1/2\ time.............................................. 211.39 261.91 307.87 22.98 \1/4\ time \3\.......................................... 105.98 130.96 153.93 11.48----------------------------------------------------------------------------------------------------------------\1\ For measurement of rate of pursuit, see §§ 21.4270 through 21.4275.\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage, not including overtime, and the entrance journeyman wage for the veteran's objective.\3\ The quarter-time rate may be paid only during extended evaluation.
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(c) Subsistence allowance precluded. A veteran may not receive a subsistence allowance when VA is providing the veteran only the following services: (1) Initial evaluation; (2) Placement and post-placement services under 38 U.S.C. 3105(b); or (3) Counseling. (d) Dependents. The term dependent means a spouse, child or dependent parent who meets the definition of relationship specified in §§3.50, 3.51, 3.57 or 3.59 of this chapter. [49 FR 40814, Oct. 18, 1984, as amended at 51 FR 9955, Mar. 24, 1986; 52 FR 42113, Nov. 3, 1987; 54 FR 4283, Jan. 30, 1989; 56 FR 7567, Feb. 25, 1991; 60 FR 4561, Jan. 24, 1995; 65 FR 51764, Aug. 25, 2000; 65 FR 60724, Oct. 12, 2000] § 21.262 Procurement and reimbursement of cost for training and rehabilitation services, supplies, or facilities.(a) General. Whenever services, supplies and facilities from source outside VA are required by any of these regulations, they shall be provided through contract, agreement of other cooperative arrangement between VA and the vendor. (b) VA Acquisition Regulations. Payments of charges for training and rehabilition services, supplies, or facilities, authorized under Chapter 31 are subject to the provisions of applicable VA Acquisition Regulations especially 48 CFR part 831 and subpart 871.2. § 21.264 Election of payment at the 38 U.S.C. chapter 30 educational assistance rate.(a) Eligibility. A veteran who applies for, and is found entitled to training or education under Chapter 31, may elect to receive payment at the educational allowance rate and other assistance furnished under Chapter 30, for similar training in lieu of a subsistence allowance, provided the following criteria are met: (1) The veteran has remaining eligibility for, and entitlement to educational assistance under Chapter 30; (2) The veteran enrolls in a program of education or training approved for benefits under Chapter 30; (3) The program of education is part of an IWRP (Individualized Written Rehabilitation Plan) approved by VA. (b) Reelection of subsistence allowance. Reelection of payment of benefits at the Chapter 31 subsistence allowance rate may be made only after completion of a term, quarter, semester, or other period of instruction unless: (1) Chapter 30 eligibility or entitlement ends earlier; (2) Failure to approve immediate reelection would prevent the veteran from continuing in the rehabilitation program. (c) Services precluded. A veteran entitled to vocational rehabilitation training or education who elects payment at the educational assistance rate payable under Chapter 30 shall be provided the same training and rehabilitation services as other veterans under Chapter 31, but may not be provided: (1) Subsistence allowances; (2) Loans from the revolving fund loan; (3) Payment of costs for: (i) Vocational and other training services; (ii) Supplies; or (iii) Individualized tutorial assistance. (d) Chapter 30 provisions applicable. A veteran who has elected payment at the Chapter 30 educational assistance rate must meet the same terms and conditions as other veterans pursuing similar training under these programs. [49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992] § 21.266 Payment of subsistence allowance under special conditions.(a) Hospitalized veteran or serviceperson. A veteran pursuing a VA rehabilitation program under Chapter 31 while hospitalized in a VA medical center or in any other hospital at VA expense may receive the subsistence allowance otherwise payable. The subsistence allowance will be paid at the rates specified in §21.260, except: (1) The amount of subsistence allowance or the allowance provided under §21.264 that may be paid to a veteran pursuing a rehabilitation program for any month for which the veteran receives compensation at the rate prescribed in §3.401(h) of this title, as the result of hospital treatment (not including post-hospital convalescence) or observation at the expense of VA may not exceed, when added to any compensation to which such veteran is entitled for the month, an amount equal to the greater of: (i) The sum of: (A) the amount of monthly subsistence of the allowance payable under §21.264, and (B) the amount of monthly disability compensation that would be paid to the veteran if he or she was not receiving compensation at the temporary 100 percent rate as the result of such hospital treatment or observation, or (ii) The amount of monthly disability compensation payable under §3.401(h) of this title. (2) A veteran pursuing a rehabilitation program while in post hospital convalescence (§3.401(h)) will be paid the regular rate of subsistence allowance. (3) A serviceperson pursuing a rehabilitation program under Chapter 31 will not receive a subsistence allowance if he or she is hospitalized in a medical facility under the jurisdiction of the Secretary pending final discharge from the armed forces. (b) Specialized rehabilitation facility—(1) A veteran in a specialized rehabilitation facility will be paid the regular rate of subsistence allowance at the institutional rate. VA may pay the cost of room and board in lieu of subsistence allowance when: (i) The specialized rehabilitation facility requires that similarly circumstanced persons pay the same charges for room and board, and (ii) The case manager finds and the veteran agrees that it is to the veteran's advantage for VA to pay the cost of room and board. (2) Even though VA pays the cost of room and board, the veteran will be paid that portion of subsistence allowance otherwise payable for dependents. (c) Non-pay work experience or training in a Federal agency. A veteran in an on-job program or being provided work experience in a Federal agency at no or nominal pay shall receive subsistence allowance at the institutional rate. (d) Extended evaluation and independent living program. A veteran in a program of extended evaluation or independent living service program shall be paid subsistence allowance for full or part-time participation at the rate specified for institutional training in §21.260. If an extended evaluation or independent living program is pursued on a less than a quarter-time basis, as measured under §21.310(d), VA will only pay established charges for services furnished. (e) On-job training. A veteran in an on-job training program will be paid subsistence allowance at the rate provided under §21.260(b), except that subsistence allowance may not exceed the difference between the monthly training wage, exclusive of overtime, and the entrance journeyman wage for the veteran's objective. § 21.268 Employment adjustment allowance.(a) General. A veteran who completes a period of rehabilitation and reaches the point of employability will be paid an employment adjustment allowance for a period of two months at the full-time subsistence allowance rate for the type of program the veteran was last pursuing. (See §21.190(d)) (b) Reelection of subsistence allowance. A veteran who has elected payment at the Chapter 30 educational assistance allowance 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. (c) Special programs. An employment adjustment allowance will be paid at the institutional rate of subsistence allowance for veterans in any of the following programs: (1) On-job training at no or nominal pay in a Federal agency; (2) Training in the home program; (3) Independent instructor program; (4) Cooperative program; or (5) Self-employment program. (d) Combination program. A veteran who has pursued a combination program will be paid an employment adjustment allowance at the full-time rate for the type of training the veteran was actually pursuing at the completion of the period of rehabilitation to the point of employability. (e) Subsequent payments of employment adjustment allowance. If a veteran has ever received an employment adjustment allowance following rehabilitation 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: (1) The prior determination of rehabilitation to the point of employability is set aside; and (2) The veteran is reinducted into a new vocational rehabilitation program as provided in §21.282. (f) Employment adjustment allowance not charged against entitlement. An employment adjustment allowance will not be charged against the veteran's basic entitlement. [49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992] § 21.270 Payment of subsistence allowance during leave and between periods of instruction.(a) Payment during leave. VA will pay an eligible veteran a subsistence allowance during any period of approved leave including a veteran: (1) Receiving medical or rehabilitation services on an outpatient basis at a VA medical center, and who provides his or her own room and board; (2) Receiving service department retirement or retained pay while not on active duty; (3) Hospitalized at a VA medical center while on approved leave. If the veteran becomes eligible for payment of disability compensation at the temporary 100 percent rate, under §3.401(h) of this title due to hospitalization, payment will be made under provisions of §21.266(a). (b) Payment for intervals between periods of instruction. Subsistence allowance will paid to a veteran during the following periods unless the case manager and the veteran jointly determine that such payment is not in the veteran's interest: (1) A period between consecutive terms within an enrollment period that does not exceed 1 full calendar month; (2) A period between consecutive school terms, when the veteran, as part of his or her approved program of vocational rehabilitation, transfers from one educational institution to another for the purpose of enrolling in, and pursuing, the same objective at the second institution, provided the period does not exceed 30 days; (3) A period which does not exceed 30 days, between a semester, term, or quarter, when the educational institution certifies the enrollment of the veteran on an individual semester, term, or quarter basis. (c) Payment for other periods. Subsistence allowance will be paid for: (1) Weeekend and legal holidays, or customary vacation periods associated with them; (2) Periods in which the school is closed temporarily under emergency conditions described in §21.4138(f). § 21.272 Veteran-student services.(a) Eligibility. Veterans who are pursuing a rehabilitation program under chapter 31 on a three-quarter or full-time basis are eligible to receive a work-study allowance. (b) Selection criteria. Whenever feasible, VA will give priority to veterans with service-connected disabilities rated at 30 percent or more disabling in selection of recipients of this allowance. VA shall consider the following additional selection criteria: (1) Need of the veteran to augment the subsistence allowance or payment made by the Chapter 30 rate; (2) Motivation of the veteran; and (3) Compatibility of the work assignment with the veteran's physical condition. (c) Utilization. Veteran-student services may be utilized in connection with: (1) VA outreach service program as carried out under the supervision of a VA employee; (2) Preparation and processing of necessary VA papers and other documents at educational institutions, regional offices or other VA facilities; (3) Hospital and domiciliary care and medical treatment at VA facilities; and (4) Any other appropriate activity of VA. (d) Rate of payment. (1) In return for the veterans' agreement to perform services for VA totaling 25 times the number of weeks contained in an enrollment period, VA will pay an allowance equal to the higher of: (i) The hourly minimum wage in effect under section 6(a) of the Fair Labor Standards Act of 1938 times the number of hours the veteran has agreed to work; or (ii) The hourly minimum wage under comparable law of the State in which the services are to be performed times the number of hours the veteran has agreed to work. (2) VA will pay proportionately less to a veteran who agrees to perform a lesser number of hours of services. (e) Payment in advance. VA will pay in advance an amount equal to 40 percent of the total amount payable under the contract (but not more than an amount equal to 50 times the applicable hourly minimum wage). (f) Veteran reduces rate of training. In the event the veteran reduces his or her training to less than three-quarter time before completing an agreement, the veteran, with the approval of the Director of the VA field station, or designee, may be permitted to complete the portions of an agreement in the same or immediately following term, quarter or semester in which the veteran ceases to be at least a three-quarter time student. (g) Veteran terminates training. If the veteran terminates all training before completing an agreement, VA: (1) Will permit him or her to complete the portion of the agreement represented by the sum of money VA has advanced to the veteran for which he or she has not performed any services; but (2) Will not permit him or her to complete that portion of an agreement for which no advance has been made. (h) Indebtedness for unperformed service. (1) If the veteran has received an advance for hours of unperformed service that remain after application of paragraphs (f) and (g) of this section, that advance: (i) Will be a debt due the United States; and (ii) Will be subject to recovery in the same manner as any other debt due the United States; (2) For each hour of unperformed service, the amount of indebtedness shall equal the hourly wage upon which the contract was made. (i) Survey. VA will conduct an annual survey of its regional offices to determine the number of veterans whose services can be utilized effectively. [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985; 54 FR 4284, Jan. 30, 1989, as amended at 56 FR 14648, Apr. 11, 1991; 57 FR 57108, Dec. 3, 1992; 62 FR 17709, Apr. 11, 1997] § 21.274 Revolving fund loan.(a) Establishment of revolving fund loan. A revolving fund is established to provide advances to veterans who would otherwise be unable to begin or continue in a rehabilitation program without such assistance. (b) Definition. The term advance means a non-interest loan from the revolving fund. (c) Eligibility. A veteran is eligible for an advance if the following conditions are present: (1) An Individualized Written Rehabilitation Plan, Individualized Extended Evaluation Plan, or Individualized Independent Living Plan has been prepared; and (2) The veteran and VA staff agree on the terms and conditions of the plan. (d) Advance conditions. (1) An advance may be approved when the following conditions are met: (i) The purpose of the advance is clearly and directly related to beginning, continuing, or reentering a rehabilitation program; (ii) The veteran would otherwise be unable to begin, continue or reenter his or her rehabilitation program; (iii) The advance does not exceed either the amount needed, or twice the monthly subsistence allowance for a veteran without dependents in full-time institutional training; and (iv) The veteran has elected, or is in receipt of, subsistence allowance. (2) An advance may not be made to a veteran who meets conditions described in paragraph (d)(1) of this section if the veteran: (i) Has not fully repaid an advance; (ii) Does not agree to the terms and conditions for repayment; or (iii) Will not be eligible in the future for payments of pension, compensation, subsistence allowance, educational assistance, or retired pay. (e) Determination of the amount of the advance. (1) If the conditions described in paragraphs (c) and (d)(2) of this section are met, a counseling psychologist or vocational rehabilitation specialist in the VR&C Division will: (i) Document the findings; and (ii) Determine the amount of the advance. (2) Loans will be made in multiples of $10. (f) Repayment—(1) Offset possible. The amount advanced will be repaid in monthly installments from future VA payments for compensation, pension, subsistence allowance, educational assistance allowance or retired pay. (i) Repayment will begin on the earlier of the following dates: (A) The first day of the month following the month in which the advance is granted; or (B) The first day of the month after receipt of the advance in which the veteran receives a subsistence allowance (ii) The VR&C staff person who approves the advance will determine the rate of repayment. (iii) The monthly rate of repayment may not be less than 10 percent of the amount advanced unless the monthly benefit against which the advance is being offset is less than that amount. (2) Offset not possible. If the amount advanced cannot be repaid from the benefits cited in paragraph (f)(1) of this section because the veteran is not in receipt of any of these benefits, collection of the amount due will be made in the same manner as any other debt payable to VA. (Authority: 38 U.S.C. 3112) § 21.276 Incarcerated veterans.(a) General. The provisions contained in this section describe the limitations on payment of subsistence allowance and charges for tuition and fees for: (1) Incarcerated veterans; (2) Formerly incarcerated veterans in halfway houses; and (3) Incarcerated and formerly incarcerated veterans in work release programs. (b) Definition. The term incarcerated veteran means any veteran incarcerated in a Federal, State, or local prison, jail, or other penal institution for a felony. It does not include any veteran who is pursuing a rehabilitation program under Chapter 31 while residing in a halfway house or participating in a work-release program in connection with such veteran's conviction of a felony. (c) Subsistence allowance not paid to an incarcerated veteran. A subsistence allowance may not be paid to an incarcerated veteran convicted of a felony, but VA may pay all or part of the veteran's tuition and fees. (d) Halfway house. A subsistence allowance may be paid to a veteran pursuing a rehabilitation program while residing in a halfway house as a result of a felony conviction even though all of the veteran's living expenses are paid by a non-VA Federal, State, or local government program. (e) Work-release program. A subsistence allowance may be paid to a veteran in a work-release program as a result of a felony conviction. (f) Services. VA may provide other appropriate services, including but not limited to medical, reader service, and tutorial assistance necessary for the veteran to pursue his or her rehabilitation program. (g) Payment of allowance at the rates paid under Chapter 30. A veteran incarcerated for a felony conviction or a veteran in a halfway house or work-release program who elects payment at the educational assistance rate paid under Chapter 30 shall be paid in accordance with the provisions of law applicable to other incarcerated veterans training under Chapter 30. (h) Apportionment. Apportionment of subsistence allowance which began before October 17, 1980 made to dependents of an incarcerated veteran convicted of a felony may be continued. [49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22807, June 23, 1986; 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992] Entering a Rehabilitation Program§ 21.282 Effective date of induction into a rehabilitation program.(a) General. Except as provided in paragraph (b) the effective date of induction of a veteran into a rehabilitation program will be one of the dates provided in §§21.320 through 21.334. (b) Retroactive induction. (1) A veteran may be inducted into a vocational rehabilitation program retroactively when all of the following conditions are met: (i) The period for which retroactive induction is requested is within the veteran's basic period of eligibility or extended eligibility as provided in §§21.41 through 21.44; (ii) The veteran was entitled to disability compensation during the period for which retroactive induction is requested, and met the criteria of entitlement to vocational rehabilitation for that period; and (iii) The training the veteran pursued during the period is applicable to the occupational objective that is confirmed in initial evaluation to be compatible with his or her disability, consistent with his or her abilities, interests, and aptitudes, and otherwise suitable for accomplishing vocational rehabilitation. (2) A veteran shall not be inducted into a vocational rehabilitation program retroactively if any of the following conditions exist even though all conditions of paragraph (b) of this section are met; (i) Timely induction was prevented by the veteran's lack of cooperation in completing an initial evaluation; (ii) The veteran has previously received benefits under another VA program of education or training for any period for which retroactive benefits are being requested under Chapter 31; (iii) A period of extended evaluation is authorized to determine the reasonable feasibility of a vocational goal; or (iv) The veteran's claim is not received within the time limits described in §21.31. (c) Effective date of retroactive induction. The effective date of a veteran's retroactive induction into training shall be no earlier than one year prior to the date of application for Chapter 31 benefits but in no event may precede: (1) The effective date of the establishment of the veteran's compensable service-connected disability; or (2) The first date the veteran began training in the program leading to the occupational objective established in the veteran's plan. § 21.283 Rehabilitated.(a) General. For purposes of chapter 31 a veteran shall be declared rehabilitated when he or she has overcome the employment handicap to the maximum extent feasible as described in paragraph (c), (d) or (e) of this section. (b) Definition. The term “suitably employed” includes employment in the competitive labor market, sheltered situations, or on a nonpay basis which is consistent with the veteran's abilities, aptitudes and interests if the criteria contained in paragraph (c) (1) or (2) of this section are otherwise met. (c) Rehabilitation to the point of employability has been achieved. The veteran who has been found rehabilitated to the point of employability shall be declared rehabilitated if he or she: (1) Is employed in the occupational objective for which a program of services was provided or in a closely related occupation for at least 60 continuous days; (2) Is employed in an occupation unrelated to the occupational objective of the veteran's rehabilitation plan for at least 60 continuous days if the veteran concurs in the change and such employment: (i) Follows intensive, yet unsuccessful, efforts to secure employment for the veteran in the occupation objective of a rehabilitation plan for a closely related occupation contained in the veteran's rehabilitation plan; (ii) Is consistent with the veterans's aptitudes, interests, and abilities; and (iii) Utilizes some of the academic, technical or professional knowledge and skills obtained under the rehabilitation plan; or (3) Pursues additional education or training, in lieu of obtaining employment, after completing his or her prescribed program of training and rehabilitation services if: (i) The additional education or training is not approvable as part of the veteran's rehabilitation program under this chapter; and (ii) Achievement of employment consistent with the veterans's aptitudes, interests, and abilities will be enhanced by the completion of the additional education or training. (d) Rehabilitation to the point of employability has not been completed. A veteran under a rehabilitation plan who obtains employment without being declared rehabilitated to the point of employability as contemplated by the plan, including a veteran in a rehabilitation program consisting solely of employment services, is considered to be rehabilitated if the following conditions exist: (1) The veteran obtains and retains employment substantially using the services and assistance provided under the plan for rehabilitation. (2) The employment obtained is consistent with the veterans's abilities, aptitudes and interests. (3) Maximum services feasible to assist the veteran to retain the employment obtained have been provided. (4) The veteran has maintained the employment for at least 60 continuous days. (e) Independent living. A veteran who has pursued a program of independent living services will be considered rehabilitated when all goals of the program have been achieved, or if not achieved, when: (1) The veteran, nevertheless, has attained a substantial increase in the level of independence with the program assistance provided; (2) The veteran has maintained the increased level of independence for at least 60 days; and (3) Further assistance is unlikely to significantly increase the veteran's level of independence. [58 FR 68768, Dec. 29, 1993] § 21.284 Reentrance into a rehabilitation program.(a) Reentrance into rehabilitation to the point of employability following a determination of rehabilitation. A veteran who has been found rehabilitated under provisions of §21.283 may be provided an additional period of training or services only if the following conditions are met: (1) The veteran has a compensable service-connected disability and either; (2) Current facts, including any relevant medical findings, establish that the veteran's service-connected disability has worsened to the extent that the effects of the service-connected disability considered in relation to other facts precludes him or her from performing the duties of the occupation for which the veteran previously was found rehabilitated; or (3) The occupation for which the veteran previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of the veteran's specific employment handicap and capabilities. (b) Reentrance into a program of independent living services following a determination of rehabilitation. A finding of rehabilitation following a program of independent living services may only be set aside, and an additional period of independent living services provided, if the following conditions are met: (1) Either: (i) The veteran's condition has worsened and as a result the veteran has sustained a substantial loss of independence; or (ii) Other changes in the veteran's circumstances have caused a substantial loss of independence; and (2) The provisions of §21.162 pertaining to participation in a program of independent living services are met. (c) Reentrance into rehabilitation to the point of employability during a period of employment services. A finding of rehabilitation to the point of employability by VA may be set aside during a period of employment services and an additional period of training and related services provided, if any of the following conditions are met: (1) The conditions for setting aside a finding of rehabilitation under paragraph (a) of this section are found; (2) The rehabilitation services originally given to the veteran are now inadequate to make the veteran employable in the occupation for which he or she pursued rehabilitation; (3) Experience during the period of employment services has demonstrated that employment in the objective or field for which the veteran was rehabilitated to the point of employability should not reasonably have been expected at the time the program was originally developed; or (4) The veteran, because of technological change which occurred subsequent to the declaration of rehabilitation to the point of employability, is no longer able: (i) To perform the duties of the occupation for which he or she trained, or in a related occupation; or (ii) To secure employment in the occupation for which he or she trained, or in a related occupation. [49 FR 40814, Oct. 18, 1984, as amended at 58 FR 68769, Dec. 29, 1993] Course Approval and Facility Selection§ 21.290 Training and rehabilitation resources.(a) General. For the purpose of providing training and rehabilitation services under Chapter 31 VA may: (1) Use facilities, staff and other resources of VA; (2) Employ any additional personnel and experts needed; (3) Use the facilities and services of any: (i) Federal agency; (ii) State agency; (iii) Other public agency; or (iv) Agency maintained by joint Federal and state contributions. (4) Use the facilities and services of any: (i) Public institution or establishment; (ii) Private institution or establishment; or (iii) Private individual. (b) Agreement required. Use of facilities and services provided under paragraph (a) of this section shall be procured through contract, agreement, or other cooperative arrangement. The specific requirements for use of contracts or other arrangements are described in 48 CFR 871.2. (Authority: 38 U.S.C. 3115) § 21.292 Course approvals.(a) Courses must be approved. Only those courses approved by the Department of Veterans Affairs shall be utilized to provide training and rehabilitation services under Chapter 31. (b) General. VA staff in consultation with the veteran will select courses and services needed to carry out the rehabilitation plan only from those which VA determines are offered by a training or rehabilitation facility which: (1) Meets the requirements of §§21.120 through 21.162; (2) Meets the criteria of §§21.290 through 21.299; and (3) Is in compliance with Title VI of the Civil Rights Act of 1964, section 503(a) Veterans Readjustment Act of 1972, and sections 501 through 504 of the Rehabilitation Act of 1973. (c) Obtaining information necessary for approval. In determining whether services and courses may be approved for a veteran's training and rehabilitation under Chapter 31, the Department of Veterans Affairs may use information relevant to the approval or certification of such services and courses for similar purposes developed by: (1) The State approving agencies; (2) The Department of Labor; (3) State vocational rehabilitation agencies; (4) Nationally recognized accrediting associations; (5) The Committee on Accreditation of Rehabilitation Facilities; and (6) Other organizations and agencies. (d) Course not approved. If a course or program is not approved by one of the agencies identified in paragraph (c) of this section, VR&C staff shall develop necessary information to determine whether criteria given in paragraphs (a) and (b) of this section are met. (e) Course disapproved. The VR&C Officer may approve for 38 U.S.C. chapter 31 use courses that one of the agencies in paragraph (c) of this section has disapproved. [49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17709, Apr. 11, 1997] § 21.294 Selecting the training or rehabilitation facility.(a) Criteria the facility must meet. In addition to approval of the courses offered, all facilities which provide training and rehabilitation services under Chapter 31 must meet the criteria contained in §§21.290 through 21.299 applicable to the type of facility. Each facility must: (1) Have space, equipment, instructional material and instructor personnel adequate in kind, quality, and amount to provide the desired service for the veteran; (2) Fully accept the obligation to give the training or rehabilitation services in all parts of the plan which call for the facility's participation; (3) Provide courses or services which: (i) Meet the customary requirements in the locality for employment in the occupation in which training is given when employment is the objective of the program; and (ii) Meet the requirements for licensure or permit to practice the occupation, if such is required; (4) Agree: (i) To cooperate with VA, and (ii) To provide timely and accurate information covering the veteran's attendance, performance, and progress in training in the manner prescribed by VA. (b) Selecting a facility for provision of independent living services. (1) Facilities offering independent living services will be utilized to: (i) Evaluate independent living potential; (ii) Provide a program of independent living services to veterans for whom an IILP (Individualized Independent Living Plan) has been developed; or (iii) Provide independent living services to veterans as part of an IWRP (Individualized Written Rehabilitation Plan) or an IEEP (Individualized Extended Evaluation Plan). (2) VA may use public and nonprofit agencies and facilities to furnish independent living services. Public and nonprofit facilities may be: (i) Veterans Health Administration (VHA) facilities that provide independent living services; (ii) Facilities which meet standards established by the State rehabilitation agency for rehabilitation facilities or for providers of independent living services; (iii) Facilities which are neither approved nor disapproved by the State rehabilitation agency, but are determined by VA as able to provide the services necessary in an individual veteran's case. (3) VA also may use for-profit agencies and organizations to furnish programs of independent living services only if services comparable in effectiveness to those provided by for-profit agencies and organizations: (i) Are not available through public or nonprofit agencies or VHA; or (ii) Cannot be obtained cost-effectively from public or nonprofit agencies or VHA. (4) In addition to the criteria described in paragraph (b)(3)(i) of this section for public and private nonprofit agencies; for-profit agencies and organizations must meet any additional standards established by local, state (including the State rehabilitation agency), and Federal agencies which are applicable to for-profit facilities and agencies offering independent living services. (c) Use of facilities. VA policy shall be to use VA facilities, if available, to provide rehabilitation services for veterans in a rehabilitation program under chapter 31. Non-VA facilities may be used to provide rehabilitation services only when necessary services are not readily available at a VHA facility. This policy shall be implemented in accordance with the provisions of paragraph (b) of this section in the case of the use of for-profit facilities to provide programs of independent living services, or in the case of employment services, provision of such services by non-VA sources is permitted under §21.252. (d) Selection of individual to provide training or rehabilitation services. Persons selected to provide individual instruction or other services as part of a program leading to the long-range goal of a veteran's plan must meet one of the following criteria: (1) State requirements for teaching in the field or occupation for which training is being provided; or (2) Expertise demonstrated through employment in the field in which the veteran is to be trained; or (3) Requirements established by professional associations to provide the services needed by the veteran. (e) Relatives. Relatives of the veteran may not be selected to provide services, even if otherwise qualified, unless such use is specifically permitted by VA regulation governing provision of the service. Selection of a training or rehabilitation facility owned by the veteran or a relative, or in which the veteran or a relative of the veteran has an interest is precluded, except for selection of a farm as provided in §21.298. The term relative has the same meaning as in §21.374. (f) Contracts or agreements required. The Department of Veterans Affairs will negotiate formal contracts for reimbursement to providers of services as requred by §21.262. However, a letter contract will be effected immediately to permit the induction of the veteran into a program if: (1) The veteran is immediately entered into a school with which a contract is required; (2) The veteran's rehabilitation plan will be jeopardized by withholding services until a contract can be completed; and (3) There are no known reasons to indicate that a contract may not be completed in a reasonable time. (g) Training outside the United States. VA may only use those facilities and courses outside the United States to provide training under Chapter 31 which meet requirements for approval under §§21.4250(c) and 21.4260. The conditions under which training outside the United States may be approved are contained in §21.130. (h) Flight training. Flight training may only be provided in educational institutions which offer a standard college degree. The specific conditions under which flight training may be approved are contained in §21.134. (i) Additional consideration. The case manager will consider the veteran's preference for a particular training or rehabilitation facility but VA has final responsibility for selection of the facility. [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 53 FR 50958, Dec. 19, 1988; 55 FR 42187, Oct. 18, 1990; 62 FR 17709, Apr. 11, 1997] § 21.296 Selecting a training establishment for on-job training.(a) Additional criteria for selecting a training establishment. In addition to meeting all of the requirements of §21.294 the training establishment must: (1) Sign an agreement to provide on-job training to disabled veterans; (2) Provide continuous training for each veteran without interruption except for normal holidays and vacation periods; (3) Provide daytime training for the veteran except when the veteran cannot obtain necessary on-job or related training during the working hours of the day; (4) Modify the program when necessary to compensate for the limitations resulting from the veteran's disability or needs; (5) Organize training into definite steps or units which will result in progressive training; (6) Encourage rapid progress of each veteran rather than limit the progress of the individual to the progress of the group; (7) Not, during the period of training, use the veteran on production activities beyond the point of efficient training; (8) Agree to pay the veteran during training (except as provided in paragraph (b) of this section) a salary or wage rate; (i) Commensurate with the value of the veteran's productive labor, (ii) Not less than that prescribed by the Fair Labor Standards Act of 1938, as amended, and (iii) Not less than that customarily paid to nonveteran-trainees in the same or similar training situation; (9) Agree to provide the veteran with employment at the end of the training program, provided the veteran's conduct and progress have been satisfactory; and (10) Agree to furnish VA a statement in writing showing wages, compensation, and other income paid directly or indirectly to each veteran in training under Chapter 31 during the month. (b) On-job training at subminimum wage rates. A subminimum hourly wage rate for handicapped workers may be considered where necessary in order to prevent curtailment of opportunities for employment. Payment at the subminimum rate must be approved by the Wage and Hour Division of the Department of Labor. [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985] § 21.298 Selecting a farm.(a) Control of the farm—farm operator. A farm selected for farm cooperative training must be under the control of the veteran by ownership, lease or other written tenure arrangement. If the veteran does not own the farm, the lease or other written agreement shall: (1) Afford the veteran control of the farm at least until the end of his or her course; (2) Allow the veteran's control to be such that he or she is able: (i) To carry out the provisions of the training program; and (ii) To operate the farm in accordance with the farm and home plan developed by the case manager and the veteran in collaboration with the instructor, and when appropriate, the landowner or lessor; (3) Permit instruction in the planning, management, and operation of farming enterprise in the veteran's farm and home plan; (4) At least by the end of the necessary minimum period of training, assure the veteran a reasonably satisfactory living under normal economic conditions; (5) Provide for the necessary buildings and equipment to enable the veteran to satisfactorily begin pursuit of the course of farm cooperative training; (6) Provide for resources which give reasonable promise that any additional items required for the pursuit of the course, including livestock, will be available as they become necessary; (7) Provide for capital improvements to be made which are necessary for carrying out the farm and home plan, with the veteran furnishing no greater portion of the costs than the benefits accruing to the veteran warrant; and (8) Provide for the landowner or leasor to share the costs of improved practices put into effect in proportion to the returns he or she will receive from such practices. (b) Farms on which more than one person trains—farm operator. If a veteran in training is a partner of another person or if more than one person is involved in operating the farm, the farm shall be of such size and character that the farm: (1) Together with the instruction part of the course will occupy the full time of the veteran; and (2) Meets all requirements of paragraph (a) of this section. (c) Selecting a farm—farm manager. The farm on which a veteran trains to become a farm manager shall be of such size and character that, together with the group instruction part of the course the farm: (1) Will occupy the full time of the veteran; (2) Will permit instruction in all aspects of the management and operation of a farm of the type for which the veteran is being trained; and (3) Meets the requirements of paragraph (a) of this section. (d) Employer agreement. VA may approve a farm on which a veteran is to train to become a farm manager only if the employer-trainer agrees: (1) To instruct the veteran in various aspects of farm management in accordance with the individual's plan; (2) To pay the veteran for each successive period of training a salary or wage rate: (i) Commensurate with the value of the veteran's productive labor; and (ii) Not less than that customarily paid to a nonveteran trainee in the same or similar training situation in that community; and (3) To employ the veteran as a manager of the farm on which he or she is being trained if his or her conduct and progress remain satisfactory, or assure that the veteran will be employed as manager of a specified comparable farm. (Authority: 38 U.S.C. 3115) [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985] § 21.299 Use of Government facilities for on-job training or work experience at no or nominal pay.(a) Types of facilities which may be used to provide training. Notwithstanding any other provision of regulations governing chapter 31, the facilities of any agency of the United States or of any State or local government receiving Federal financial assistance may be used to provide training or work experience at no or nominal pay as all or part of the veteran's program of vocational training under §§21.123, 21.294, and 21.296 of this part. The counseling psychologist and case manager must determine that the training work experience is necessary to accomplish vocational rehabilitation and providing such training or work experience is in the best interest of the veteran and the Federal government. (b) Employment status of veterans. (1) While pursuing on-job training or work experience in a facility of the United States, a veteran: (i) Shall be deemed to be an employee of the United States for the purposes of benefits under chapter 81, title 5 U.S.C.; but (ii) Shall not be deemed an employee of the United States for the purpose of laws administered by the Office of Personnel Management. (2) While pursuing on-job training or work experience in a State or local government agency the veteran shall have the employment status and rights comparable to those provided in paragraph (b)(1) of this section for a veteran pursuing on-job training or work experience at a Federal agency. (c) Terms applicable to training in State and local government. (1) The term State means each of the several States Territories, any possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. (2) The term local government agency means an administrative subdivision of a government including a county, municipality, city, town, township, public authority, district, school district, or other such agency or instrumentality of a local government. (3) The term Federal financial assistance means the direct or indirect provision of funds by grant, loan, contract, or any other arrangement by the Federal government to a State or local government agency. (d) Additional considerations in providing on-job training and work experience in State and local government agencies. (1) The veteran's progress and adjustment in a rehabilitation program conducted wholly or in part at a State or local government agency shall be closely monitored by VR&C staff members to assure that: (i) Training and rehabilitation services are provided in accordance with the veteran's rehabilitation plan. The plan shall provide for: (A) Close supervision of the veteran's progress and adjustment by the case manager during the period he or she is at the State or local government agency; and (B) The employer's periodic certification (not less than once every three months) that the veteran's progress and adjustment are in accordance with the program which has been jointly developed by VA, the veteran and the employer; and (ii) The veteran achieves his or her employment goal. (2) Training may not be provided for a position which involves religious or political activities; (3) The veteran's training: (i) Will not result in the displacement of currently employed workers; and (ii) Will not be in a job while another person is laid off from a substantially equivalent job, or will not be in a job the opening for which was created as a result of the employer having terminated the employment of any regular employee or otherwise having reduced its workforce with the intention of using the opening for a Chapter 31 trainee. [55 FR 3739, Feb. 5, 1990] Rate of Pursuit§ 21.310 Rate of pursuit of a rehabilitation program.(a) Programs offered at educational institutions. This section provides policy for determining the full-time and part-time rate of pursuit of a rehabilitation program by a veteran whose ability to pursue a program has not been reduced by the effects of disability. (1) Measuring full and part-time training. VA will measure the full-time and part-time rate of pursuit of training offered at educational institutions according to the criteria found in §§21.4270 through 21.4275, except as provided in paragraphs (a) (2) and (3) of this section. (2) Independent study course. (i) For certain seriously disabled veterans described in subdivision (i)(A) of this subparagraph VA may measure the veteran's enrollment: (A) In an independent study course as half-time or greater training, or (B) Both in independent study subjects and subjects requiring class attendance on the basis of the combined training load when the number of credit hours of independent study equals or exceeds the number of other credit hours. (ii) To qualify for measurement described in paragraph (a)(2)(i) of this section: (A) The seriously disabled veteran must have a disability or circumstances which preclude regular attendance at an institution of higher learning, and (B) Independent study must be a sound method for providing the training necessary for restoring the veteran's employability. (iii) In all other cases VA will measure independent study according to the provisions of §21.4280. (3) Special school. If training is pursued in a special school, such as those for persons with visual or hearing disabilities, the rate of pursuit will be measured under §§21.2470 through 21.4275 unless it is the established policy of the school to measure the rate of pursuit for full-time or particular level or part-time training based upon fewer semester, credit, or clock hours of attendance than prescribed in these regulations. (4) Farm cooperative. If training in a farm cooperative program is provided by an educational institution, the rate of pursuit shall be determined the same as under §21.4270 for that type of training. (5) Course offered under contract. When a school or other entity furnishes all or part of a vocational rehabilitation program under contact with another school, VA will measure the course or courses as appropriate for the school or other entity actually providing the training. (b) Education or training not furnished by an educational institution. The following types of training which are not furnished by an educational institution (§21.35(k)(3) may only be pursued full-time: (1) On-job training. Full-time training in an on-job program is the lesser of the number of hours in the prevailing workweek for: (i) Journeyman employees in the same job categories at the establishment where training is being provided; (ii) Other persons in on-job training for the same or similar occupations at the facility where the veteran is training or at other facilities in the locality. (2) Farm cooperative training. If training in a farm cooperative program is provided by an individual instructor, the full-time rate of pursuit must meet the requirements of §21.126. (3) Independent instructor. The full-time rate of pursuit for a veteran in an independent instructor program must meet the requirements of §21.146. (4) Training in the home. The full-time rate for a training program provided in the veteran's home must meet the requirements of §21.146. (5) Vocational course in a rehabilitation facility or sheltered workshop. A vocational course of training offered by a rehabilitation facility or sheltered workshop (§21.35(k) (5) and (6)), will be measured under provisions of §21.4270(b) for trade or technical nonaccredited courses, unless it is the established policy of the facility to measure the rate of pursuit for full-time or a particular level of part-time training based upon fewer clock hours of attendance than provided in that regulation. (c) Combination and cooperative programs. The rate of pursuit of a program which combines institutional training and on job training will be measured as follows: (1) The institutional part will be assessed under §§21.4270 through 21.4275, and (2) The on-the-job part will be assessed under paragraph (b)(1) of this section. (d) Rehabilitative services. Measurement of the rate of pursuit for veterans in programs consisting primarily of services designed to evaluate and improve physical and psychological functioning will be assessed under this paragraph. (1) The services assessed under this paragraph include: (i) Evaluation and improvement of the rehabilitation potential of a veteran for whom attainment of a vocational goal is reasonably feasible; (ii) Extended evaluation to determine whether attainment of a vocational goal is reasonably feasible; or (iii) A program of independent living services to enable a veteran to function more independently in his or her family and community when attainment of a vocational goal is not reasonably feasible. (2) Measurement of the rate of pursuit for services and programs named in paragraph (d)(1) of this section will be: (i) As provided in paragraph (a) of this section for services furnished by educational institutions; or (ii) According to the noneducational facility's customary criteria for full-time and part-time pursuit. If the facility does not have established criteria for full-time and part-time pursuit, or services are being provided by more than one facility, the rate of pursuit will be assessed in the following manner: |
------------------------------------------------------------------------ Rate of pursuit Clock hours per month------------------------------------------------------------------------Full-time................................. 120 or more.Three-quarter time \1\.................... 90-119.Half-time \1\............................. 60-89.Quarter-time \1\.......................... 30-59.------------------------------------------------------------------------\1\ Extended evaluation and independent living.
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(Authority: 38 U.S.C. 3108(d)) § 21.312 Reduced work tolerance.(a) General. VA will consider that a veteran with reduced work tolerance is pursuing a rehabilitation program full-time when the amount of time the veteran is devoting to his or her program is as great as the effects of his or her disability (service and nonservice-connected) will permit. (b) Pursuit of a program. A veteran with reduced work tolerance may pursue a rehabilitation program when the following conditions are met: (1) Reduced work tolerance has been determined. (2) Achievement of the goals of the program are reasonably feasible; (3) The IWRP (Individualized Written Rehabilitation Plan) or other plan provides for completion of the program under Chapter 31. (c) Redetermination of work tolerance. As necessary, but not less than once yearly, the veteran's work tolerance will be reevaluated. The rate of pursuit required to meet the standard of full-time pursuit will be modified if there is either an increase or decrease in the work tolerance of the veteran. (d) Payment of allowance. A veteran with a reduced work tolerance will be paid a subsistence allowance, at the full-time rate for the type of program being pursued, when the veteran meets the standard for full-time pursuit established for him or her in the Plan. A veteran with reduced work tolerance, who elects benefits at the Chapter 34 rate, will have to meet normal attendance requirements for that chapter, however. (e) Determining work tolerance. A VA physician will make all determinations and redeterminations of work tolerance. (Authority: 38 U.S.C. 3108(d)) § 21.314 Pursuit of training under special conditions.A veteran is required to pursue a rehabilitation program at a rate which meets the requirement for full- or part-time participation described in §§21.310 and 21.312. However, a veteran may pursue a rehabilitation program at a lesser rate, if such pursuit is a part of the veteran's plan. Subsistence allowance is not payable during such periods. (Authority: 38 U.S.C. 3108(d)) Authorization of Subsistence Allowance and Training and Rehabilitation Services§ 21.320 Awards for subsistence allowance and authorization of rehabilitation services.Awards providing for payment of a subsistence allowance and authorization of services necessary for rehabilitation may be prepared when an IWRP (Individualized Written Rehabilitation Plan) or other plan has been completed and other requirements for entrance or reentrance into a rehabilitation program have been met. (a) Commencing date of subsistence allowance. The commencing date of an award of subsistence allowance will be determined under the provisions of §21.322. (b) Commencing date of authorization of training and rehabilitation services. The commencing date for authorization of training and rehabilitation services is the same as the effective date for awards for subsistence allowance under provisions of §21.322, except when: (1) The commencing date for authorization of a program of employment services is determined under provisions of §21.326; (2) An earlier commencement date is established in the veteran's plan or the veteran is entitled to earlier induction under §21.282; (3) The veteran elects payment at the educational assistance allowance rate, in which case the commencing date of payment is determined under provisions applicable to commencement of payment under Chapter 30. (c) Ending date of subsistence allowance. The ending date of an award for subsistence allowance will be the earliest of the following dates: (1) The ending date provided in the veteran's IWRP or other plan; (2) The ending date of a period of enrollment as certified by a training or rehabilitation facility; (3) The ending date specified in §21.324. (d) Ending date for training and rehabilitation services. The ending date of training and rehabilitation services will be the same as the termination date for subsistence allowance under paragraph (c) of this section, except when: (1) The ending date for a period of employment services is determined under provisions of §21.326; (2) A later termination date is established in the veteran's plan; (3) A veteran has elected payment at the educational assistance rate paid under Chapter 30. The ending date of the award is determined under regulations applicable to termination of training under Chapter 30. [49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992] § 21.322 Commencing dates of subsistence allowance.(a) General. VA will determine the commencing date of an award or increased award of subsistence allowance under this section. VA will not authorize subsistence allowance for any period prior to the earliest date for which disability compensation is payable or would be payable but for the veteran's receipt of retired pay. (b) Entrance or reentrance into vocational rehabilitation, extended evaluation, independent living services. Except in the case of retroactive induction into a rehabilitation program, as provided in §21.282, the commencing date of an award of subsistence allowance shall be the earlier of: (1) The date the facility requires the veteran to report for prescribed activities; or (2) The date training or rehabilitation services begin. (c) Increases for dependents—(1) Dependency exists at the time of entrance or reentrance into a rehabilitation program. A veteran may have one or more dependents on or before the date he or she enters or reenters a rehabilitation program. When this occurs, the following rules apply: (i) The effective date of the increase will be the date of entrance or reentrance if: (A) VA receives the claim for the increase within one year of the date of entrance or reentrance; and (B) VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period of submission of the evidence is adjusted in accordance with §21.32 of this part. (ii) The effective date of the increase will be the date VA receives notice of the dependents existence if: (A) VA receives the claim for the increase more than one year after the date of entrance or reentrance; and (B) VA receives any necessary evidence within 1 year of the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with §21.32 of this part; (iii) The effective date of the increase will be the date VA receives all necessary evidence if that evidence is received more than one year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with §21.32 of this part. (2) Dependency arises after entrance or reentrance into a rehabilitation program. If the veteran acquires a dependent after he or she enters or reenters a rehabilitation program, the increase will be effective on the latest of the following dates: (i) Date of claim. This term means the following listed in order of their applicability: (A) Date of the veteran's marriage, or birth of his or her child, or his or her adoption of a child, if the evidence of the event is received within one year from the date of the event; (B) Date notice is received of the dependents's existence if evidence is received within 1 year from the date VA requested the evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of these time limits, the period for submission of the evidence is adjusted in accordance with §21.32 of this part. (C) Date VA receives evidence of the dependent's existence if this date is more than one year after VA requested this evidence and informed the veteran of the time limits during which this evidence must be submitted. If VA fails to inform the veteran of the time limits, the period for submission of the evidence is adjusted in accordance with §21.32 of this part. (ii) Date dependency arises—(3) Increased award not permitted. No increased award for dependency may be paid prior to the date the law permits benefits for dependents generally. (d) Correction of military records. In accordance with the facts found, but not earlier than the date the change, correction, or modification was made by the service department, if eligibility of a veteran arises as the result of correction or modification of military records under 10 U.S.C. 1552, or change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553, or other competent military authority. (e) Bar to benefits removed by VA. In accordance with the facts found, but not earlier than the date the change was made by VA, if eligibility of a veteran arises as the result of review of the evidence of record regarding the character of discharge by VA, when the veteran's discharge or dismissal was a bar to benefits under 38 U.S.C. 5301. (f) Incarcerated veterans. (1) Date of release from Federal, State, or local penal institution of a veteran incarcerated for conviction of a felony. (2) Earlier of the following dates in the case of a veteran residing in a half-way house or participating in a work-release program as a result of a felony conviction. (i) Date of release from the half-way house or work-release program, or (ii) Date a veteran becomes obligated to pay part of his or her living expenses. (g) Temporary 100 percent award terminated. Date of reduction of a temporary award of disability compensation at the 100 percent rate because of hospitalization. (h) Liberalizing laws and VA issues. In accordance with facts found, but not earlier than the date of the act or administrative issue. See §21.260(c) for definition of dependents. [49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 52 FR 42113, Nov. 3, 1987; 55 FR 12821, Apr. 6, 1990] § 21.324 Reduction or termination dates of subsistence allowance.(a) General. The effective date of the reduction of the amount paid or termination of payment of subsistance allowance will be the earliest of the dates specified in this section. If an award is reduced, the reduced rate will be effective the day following the date of termination of the greater benefit. (b) Death of a veteran. Date of death, if death occurs while the veteran is in attendance or authorized leave status; otherwise date of last attendance. (c) Death of a dependent. (1) Before October 1, 1982. Last day of the calendar year in which death occurs, unless the veteran's program is terminated earlier under other provisions. (2) After September 30, 1982. Last day of the month in which death occurs unless discontinuance is required at an earlier date under other provisions. (d) Divorce—(1) Before October 1, 1982. Last day of the calendar year in which divorce occurs, unless the veteran's program is terminated earlier under other provisions. (2) After September 30, 1982. Last day of the month in which divorce occurs unless discontinuance is required at an earlier date under other provisions. (e) Child—(1) Marriage—(i) Before October 1, 1982. Last day of the month in which the marriage occurs, unless the veteran's program is terminated earlier under other provisions. (ii) After September 30, 1982. Last day of the month in which the marriage occurs, unless discontinuance is required at an earlier date under other provisions. (2) Age 18. Day preceding the child's 18th birthday. (3) School attendance. (i) Last day of the month in which the child ceases attending school; or (ii) The day preceding the child's 23rd birthday, whichever is earlier. (4) Helplessness. Last day of the month in which 60 days has passed from VA's notice to the payee that the child's helplessness has ceased. (f) Interrupted, rehabilitation to the point of employability, independent living program completed, and extended evaluation completed status. Last day of attendance, or approved leave status, whichever is applicable. (g) Discontinued. Last day of attendance or approved leave status, whichever is applicable, except as follows: (1) If VA places the veteran in “discontinued” status following the veteran's withdrawal from all courses with nonpunitive grades or following his or her completion of all courses with nonpunitive grades and the case manager does not find mitigating circumstances, VA will terminate subsistence allowance effective: (i) The first date of the term, or (ii) December 1, 1976, whichever is later. (2) If VA places the veteran in “discontinued” status following a term in which the grades the veteran receives include both those that count in the grade point average and nonpunitive grades, and the case manager does not find mitigating circumstances: (i) VA will terminate subsistence allowance for courses in which the veteran receives nonpunitive grades effective the first day of the term or December 1, 1976, whichever is later. (ii) VA will terminate subsistence allowance for courses in which the veteran receives grades that will count in the grade point average effective the veteran's last day of attendance or approved leave status, whichever is applicable. (h) Wages or salary received in apprentice or on-job training. (1) If the sum of the training wage plus the scheduled subsistence allowance is more than the journeyman wage when the training commences, the subsistence allowance will be decreased by VA effective the first day of the second month following the month in which the veteran enters on-job training. (2) Subsequent adjustments will be effective the first day of the second month following the month in which wages or salary changes are made which justify the adjustment under provisions of §21.266(e). (i) Reduction in rate of pursuit of the program. End of month in which reduction occurs, except that if the rate of pursuit is reduced as a result of the veteran's withdrawal from a unit course or courses with nonpunitive grade(s) or as a result of the veteran's completion of a unit course or courses with nonpunitive grade(s) (§21.4200(j)), VA will reduce subsistence allowance as follows: (1) If it is determined that there are mitigating circumstances: (i) Withdrawal with nonpunitive grades: The end of the month or the end of the term in which the veteran withdraws, whichever is earlier; if the reduction occurs at the beginning of the term benefits will be reduced the first day of the term in which the veteran withdraws. (ii) Completion with nonpunitive grades. No reduction required. (2) If it is determined there are no mitigating circumstances VA will reduce the veteran's subsistence allowance effective the first day of the term in which the veteran withdraws or which the veteran completes with nonpunitive grades. The term mitigating circumstances means circumstances beyond the veteran's or serviceperson's control which prevent him or her from continuously pursuing a rehabilitation program. The following circumstances are representative of those which are considered mitigating. (i) An illness of the program participant; (ii) An illness or death in the program participant's family; (iii) An unavoidable change in the veteran's conditions of employment; (iv) An unavoidable geographical transfer resulting from the veteran's employment; (v) Immediate family or financial obligations beyond the control of the veteran which are found by VA to require the veteran to suspend pursuit of the rehabilitation program; (vi) Discontinuance of the course by the educational institution; (vii) In the first instance of withdrawal on or after June 1, 1989 by a program participant from a course or courses with respect to which such veteran has been paid subsistence allowance under the provisions of §21.260(b), mitigating circumstances shall be considered to exist with respect to courses totaling not more than six semester hours or the equivalent thereof; (viii) Difficulties in obtaining child care or changes in such arrangements which are beyond the control of the program participant and which require interruption of the rehabilitation program is order for the participant to provide or arrange for such care. (j) Severance of service-connection. Last day of the month in which the severance becomes final. (k) Fraud. The later of the following dates: (1) The beginning date of the award of subsistence allowance, or (2) The day preceding the date of the fraudulent act. (l) Error—(1) Payee error. Effective date of the award of subsistence allowance or day preceding the act, whichever is later, but not prior to the date the veteran's entitlement ceases, on an erroneous award based on an act of commission or omission by a payee with his or her knowledge. (2) Administrative error. Except as provided in paragraph (j) of this section, date of last payment on an erroneous award based solely on administrative error or an error in judgment by a VA employee. (m) Treasonable acts, subversive activities. The later of the following dates: (1) Beginning date of the award of subsistence allowance, or (2) Day preceding the date of commission of the treasonable act or subversive activities for which the veteran is convicted. (n) Incarceration in prison or jail—(1) Felony conviction. If a veteran's subsistence allowance must be reduced because of incarceration for a felony conviction under provisions of §21.276, his or her rate of payment will be reduced the later of: (i) The date of his or her incarceration in a prison or jail; or (ii) The commencing date of his or her award as determined by §21.322. (2) Halfway house or work-release program. The subsistence allowance of a veteran in a halfway house or work release program as a result of conviction of a felony will not be reduced under the provisions of §21.276 the date on which the Federal Government or a State or local government pays all of the veteran's living expenses. (o) Specialized rehabilitation facility. Date payment for room and board by VA begins, reduce the rate paid to the amount payable for dependents. (p) Termination of subsistence allowance while hospitalized at VA expense. Date before the beginning date of the increased disability compensation award, which results in a reduced subsistence allowance under the provisions of §21.266. [49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 51 FR 25525, July 15, 1986; 55 FR 48843, Nov. 23, 1990] § 21.326 Authorization of employment services.(a) General. Authorization of employment services shall be based upon the services identified and goals established in an IEAP (Individualized Employment Assistance Plan) under provisions of §21.88. The effective dates for the commencement, or termination of such services will be determined under this section. (b) Commencing date. The commencing date authorizing a period of employment services will be the later of: (1) The date following completion of the period of rehabilitation to the point of employability; or (2) The date of the original IEAP. (c) Termination of the authorization of employment services. Authorization for employment services will be terminated the earliest of: (1) The last day employment services are provided under the terms of an IEAP when employment services are interrupted, discontinued, or the veteran is rehabilitated; (2) The date the authorization is found to be erroneous because of an act of omission or commission by the veteran, or with his or her knowledge; (3) The last day of the month in which severance of service connection becomes final; (4) The day proceding the date of a fraudulent act; (5) The date preceding the commission of a treasonable or subversive act for which the veteran is convicted. § 21.328 Two veteran cases—dependents.If both partners in a marriage are veterans, and if each is receiving either subsistence allowance for a vocational rehabilitation program or an educational assistance allowance under another VA program, each is entitled to receive the additional allowances payable for each other and for their children. (Authority: 38 U.S.C. 3108(a)) § 21.330 Apportionment.(a) General. Where in order, VA will apportion subsistence allowance in accordance with §3.451 of this title, subject to the limitations of §3.458 of this title. If the veteran is in receipt of benefits at the Chapter 30 rate, VA will not apportion these benefits. (b) Effective date. The effective date of apportionment will be as prescribed in §3.400(e) of this title. (c) Child adopted out of family. Where evidence establishes that a veteran is the natural parent of a child or children legally adopted outside of the veteran's family, VA will apportion in favor of the child or children only that additional amount of subsistence allowance payable on account of the existence of the child or children. The veteran is not entitled in his or her own right to the additional amount of subsistence allowance payable for the child because of the existence of the child unless the veteran is contributing to the child's support. (d) Veteran convicted of a felony. The subsistence allowance of a veteran in a rehabilitation program after October 17, 1980, may not be apportioned if the veteran is incarcerated because of conviction for a felony. [49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992] § 21.332 Payments of subsistence allowance.(a) Eligibility. At the end of the month, VA shall pay to an eligible veteran enrolled in a rehabilitation program, subsistence allowance at the rates specified in §21.260 for the type of program pursued during the month, unless advance payment is approved. VA will continue payments during those intervals described in §21.270. (b) Advance payment criteria. VA will make an advance payment of subsistence allowance only when: (1) The veteran specifically requests an advance payment; and (2) The educational institution at which the veteran is accepted or enrolled has agreed to, and can carry out, satisfactorily, the provisions of 38 U.S.C. 3680(d) (4) and (5) pertaining to: (i) Receipt, delivery or return of advance checks; and (ii) Certifications of delivery and enrollment. (c) Advance payment. (1) The amount of advance payment is not to exceed: (i) The veteran's subsistence allowance for the month or part of a month in which his or her course will begin; plus (ii) The veteran's subsistence allowance for the following month. (2) Upon application and completion of arrangements for enrollment of a veteran who meets the criteria for an advance payment, VA shall mail a check payable to the veteran to the institution for delivery to the veteran upon registration. (3) An institution shall not deliver an advance payment check to a veteran more than 30 days in advance of commencement of his or her program. (d) Certification for advance payment. VA will authorize advance payment upon receipt of the institution's certification of the following information: (1) The veteran is eligible for benefits; (2) The institution has accepted the veteran or he or she is eligible to continue his or her training; (3) The veteran has notified the institution of his or her intention to attend or to reenroll; (4) The number of semester or clock hours the veteran will pursue; and (5) The beginning and ending dates of the enrollment period. (e) Time of advance payment. VA will authorize advance payment only: (1) At the beginning of an ordinary school year; or (2) At the beginning of any other enrollment period which begins after a break in enrollment of one full calendar month or longer. (f) Other payments. (1) VA will make all payments other than advance payments at the end of the month for the veteran's training during that month. (2) VA may withhold final payment until: (i) VA receives certification that the veteran has completed his or her course; and (ii) VA makes all necessary adjustments in the veteran's award resulting from that certification. (g) Payments for courses which are repeated. VA may pay subsistence allowance to a veteran who repeats a course under conditions described in §21.132. [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985] § 21.334 Election of payment at the Chapter 30 rate.(a) Election. When the veteran elects payment of an allowance at the chapter 30 rate, the effective dates for commencement, reduction and termination of the allowance shall be in accordance with §§21.7130 through 21.7135 and §21.7050 under chapter 30. (b) Election of payment at the Chapter 30 rate subsequent to induction into a rehabilitation program. Election of payment at the Chapter 30 rate subsequent to induction into training is permissible under provisions of §21.264 (a) and (b). The effective date of the election is the latest of the following dates: (1) The commencing date determined under §21.7131 in the case of a veteran who has elected payment at the chapter 30 rate; or (2) The day following the end of the period for which VA paid tuition, fees or other program charges under this Chapter. (c) Reelection of subsistence allowance subsequent to induction. If a veteran reelects subsistence allowance under provisions of §21.264(b) of this part, the effective date of change is earliest of the following: (1) The date following completion of the term, semester, quarter, or other period of instruction in which the veteran is currently enrolled; (2) The veteran's Chapter 30 delimiting date; (3) The day after exhaustion of Chapter 30 entitlement; or (4) The day following the date of a VA determination that failure to approve reelection would prevent the veteran from continuing the rehabilitation program. (d) Election or reelection during leave or between periods of instruction—(1) Payment at the Chapter 30 rate. If an otherwise eligible veteran elects payment at the Chapter 30 rate during a period between periods of instruction, the effective date of the election shall be the first day of the next period of instruction. (2) Subsistence allowance. If an otherwise eligible veteran reelects subsistence allowance during leave or between periods of instruction following election of payment at the Chapter 30 rate, the effective date of the change will be the date of the reelection or the beginning of the next period of training, whichever is to the veteran's benefit. (e) Effect of Chapter 34 program termination. (1) Since Chapter 34 benefits are not payable beyond December 31, 1989, any previous election of benefits at that rate is terminated as of that date; (2) A veteran entitled to chapter 30 benefits based on his or her chapter 34 eligibility as of December 31, 1989, and whose election of chapter 34 rates terminated as of the date under paragraph (e)(1) of this section must, if the individual desires payment at the chapter 30 rate, elect such payment. [49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989, 54 FR 13522, Apr. 4, 1989; 57 FR 57108, Dec. 3, 1992] Leaves of Absence§ 21.340 Introduction.(a) General. VA may approve leaves of absence under certain conditions. During approved leaves of absence, a veteran in receipt of subsistence allowance shall be considered to be pursuing a rehabilitation program. Leave may be authorized for a veteran during a period of: (1) Rehabilitation to the point of employability; (2) Extended evaluation; or (3) Independent living services. (b) Election of subsistence allowance. If a veteran elects to receive subsistence allowance and payment of rehabilitation services by VA, he or she may be authorized leave of absence under §§21.342 through 21.350. (c) Election of benefits at the chapter 30 rate. If a veteran elects to receive a subsistence allowance paid at the chapter 30 rate, the effect of absences is determined under §§21.7139 and 21.7154. (Authority: 38 U.S.C. 1508(f) and 1510) [49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4285, Jan. 30, 1989; 57 FR 57109, Dec. 3, 1992] § 21.342 Leave accounting policy.(a) Amount of leave. A veteran pursuing one of the programs listed in §21.340(a) may be authorized up to 30 days of leave by the case manager during a twelve-month period. The beginning date of the first twelve-month period is the commencing date of the original award, and the ending date is twelve months from the beginning date, with subsequent twelve-month periods running consecutively thereafter. (b) Additional leave under exceptional circumstances. A veteran in a program may be authorized up to 15 additional days of leave during the twelve-month period by the case manager under exceptional circumstances, such as extended illness or family problems. (c) Absence. For the purpose of determining when a leave of absence may be authorized, a veteran who elects subsistence allowance shall be considered absent during any period in which he or she is: (1) Not in attendance under the rules and regulations of the educational institution, rehabilitation center, or sheltered workshop; (2) Not considered at work under the rules of the training establishment; or (3) Not present at a scheduled period of individual instruction. (d) System of records. An educational institution, training establishment, rehabilitation center, or other facility or individual providing training and rehabilitation services under Chapter 31 may utilize the same system of records to determine absence as the one used for similarly circumstanced nonveterans. (e) Change in rate of pursuit. The amount of approved leave is not affected by the veteran's rate of pursuit of a rehabilitation program. (f) Charging leave. VA shall charge 1 day of leave for each day or part of a day of absence from pursuit of a rehabilitation program. (g) Limitation on carrying leave over to another period. The veteran may not carry over unused days of leave from one twelve-month period to another. (Authority: 38 U.S.C. 3110) [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended by 56 FR 14649, Apr. 11, 1991] § 21.344 Facility offering training or rehabilitation services.(a) Approval of leaves of absence required. Leaves of absence normally must be approved in advance by the case manager when the facility offering training or rehabilitation services arranges for the leave. The approval of the case manager is required: (1) During periods in a rehabilitation program identified in §21.342(c); or (2) A period of hospitalization at VA expense during one of the periods identified in §21.342(c). (b) Responsibility of the veteran in obtaining leave. VA will not authorize leave without a verbal or written request by the veteran, and the approval of the facility. (c) Conditions permitting approval of leaves of absence. (1) The case manager may approve leaves of absence up to a total of 30 days during a twelve-month period if the facility certifies that the use of the leave does not interfere materially with the veteran's progress; (2) An additional period of up to 15 days of leave in the same twelve-month period under exceptional circumstances may be approved by the case manager if failure to approve leave will: (i) Result in personal hardship, or (ii) Adversely affect the veteran's ability to continue in his or her rehabilitation program. (Authority: 38 U.S.C. 3110) [49 FR 40814, Oct. 18, 1984, as amended by 56 FR 14649, Apr. 11, 1991] § 21.346 Facility temporarily not offering training or rehabilitation services.(a) Approval of leave of absence not required. A veteran may receive subsistence allowance, during a period when the facility temporarily is not offering services, without the veteran's being charged with leave when: (1) The facility is closed temporarily under an executive order of the President or due to an emergency situation; (2) The veteran is pursuing on-job training and he or she receives holidays established by Federal or State law; (3) The veteran is pursuing farm cooperative training and is required in the ordinary day to day conduct of farm business to be absent: (i) From the farm; or (ii) From that part of a farm cooperative course which is given at the educational institution. (4) The veteran is pursuing a standard college degree; and (i) There is an interval between consecutive semesters, terms, quarters or periods of instruction within a certified enrollment period which does not exceed a full calendar month; (ii) There is an interval, which does not exceed a full calendar month between semesters, terms or quarters when the educational institution only certifies enrollment on a semester, term, or quarter basis; or (iii) There is an interval, which does not exceed 30 days, when the veteran, as part of his or her approved program of vocational rehabilitation, transfers from one educational institution to another for the purpose of enrolling in and pursuing a similar program at the second institution; (5) The veteran is pursuing a non-college-degree course and there is a period of up to 5 days per twelve-month period during which the school offering non-college-degree courses is not operating, because instructors are attending professional meetings. (b) Case manager responsibility. The case manager may disapprove leave under paragraph (a)(4) of this section if: (1) Approval would result in or lead to use of more than 48 months of entitlement under Chapter 31, alone; or (2) Approval would require extension of the scheduled completion date of the veteran's program. (c) Approval of leaves of absence required. A veteran, who wishes to receive subsistence allowance while the facility temporarily is not offering training under conditions other than those identified in paragraph (a) of this section, must seek an approved leave of absence and be charged leave. (Authority: 38 U.S.C. 3110) § 21.348 Leave following completion of a period of training or rehabilitation services.(a) Leave following completion of training or rehabilitation services. Leave may not be approved following completion of a period of rehabilitation services described in §21.340(a). (b) Postponement of the date of completion of a period of rehabilitation services prohibited. The date of completion of the veteran's program may not be extended for the purpose of allowing the veteran to use leave. (Authority: 38 U.S.C. 3110) § 21.350 Unauthorized absences.A veteran who is unable to obtain an authorized leave of absence in advance may seek to have the unauthorized absence excused. (a) Excusing unauthorized absences. VA may excuse an unauthorized absence and make proper charges against the veteran's leave when: (1) The veteran has absented himself or herself when advance approval from VA is impracticable; and (2) Conditions for approval of leave are otherwise met. (b) Unexcused, unauthorized absences. When an unauthorized absence is not satisfactorily explained, VA will take necessary action, including recoupment of subsistence allowance for that period of absence. (Authority: 38 U.S.C. 3110) Conduct and Cooperation§ 21.362 Satisfactory conduct and cooperation.(a) General. The successful development and implementation of a program of rehabilitation services require the full and effective participation of the veteran in the rehabilitation process. (1) The veteran is responsible for satisfactory conduct and cooperation in developing and implementing a program of rehabilitation services under Chapter 31; (2) The staff is responsible for insuring satisfactory conduct and cooperation on the veteran's part; and (3) VA staff shall take required action when the veteran's conduct and cooperation are not satisfactory. (See §21.364) (b) VA responsibility. VA shall make a reasonable effort to inform the veteran and assure his or her understanding of: (1) The services and assistance which may be provided under Chapter 31 to help the veteran maintain satisfactory cooperation and conduct and to cope with problems directly related to the rehabilitation process, especially counseling services; (2) Other services which VR&C staff can assist the veteran in securing through non-VA programs; and (3) The specific responsibilities of the veteran in the process of developing and implementing a program of rehabilitation services, especially the specific responsibility for satisfactory conduct and cooperation. (c) Veteran's responsibility. A veteran requesting or being provided services under Chapter 31 must: (1) Cooperate with VA staff in carrying out the initial evaluation and developing a rehabilitation plan; (2) Arrange a schedule which allows him or her to devote the time needed to attain the goals of the rehabilitation plan; (3) Seek the assistance of VA staff, as necessary, to resolve problems which affect attainment of the goals of the rehabilitation plan; (4) Conform to procedures established by VA governing pursuit of a rehabilitation plan including: (i) Enrollment and reenrollment in a course; (ii) Changing the rate at which a course is pursued; (iii) Requesting a leave of absence; (iv) Requesting medical care and treatment; (v) Securing supplies; and (vi) Other applicable procedures. (5) Conform to the rules and regulations of the training or rehabilitation facility at which services are being provided. (d) Responsibility for determining satisfactory conduct and cooperation. VR&C staff with case management responsibility in the veteran's case will: (1) Monitor the veteran's conduct and cooperation as necessary to assure consistency with provisions of paragraph (c) of this section. (2) Provide assistance which may be authorized under Chapter 31, or for which arrangements may be made under other programs to enable the veteran to maintain satisfactory conduct and cooperation. (Authority: 38 U.S.C. 3111) § 21.364 Unsatisfactory conduct and cooperation.(a) General. If VA determines that a veteran has failed to maintain satisfactory conduct or cooperation, VA may, after determining that all reasonable counseling efforts have been made and are found not reasonably likely to be effective, discontinue services and assistance to the veteran, unless the case manager determines that mitigating circumstances exist. In any case in which such services and assistance have been discontinued, VA may reinstitute such services and assistance only if the counseling psychologist determines that: (1) The unsatisfactory conduct or cooperation of such veteran will not be likely to recur; and (2) The rehabilitation program which the veteran proposes to pursue (whether the same or revised) is suitable to such veteran's abilities, aptitudes, and interests. (b) Unsatisfactory conduct or cooperation exists. When the case manager determines that the veteran's conduct and/or cooperation are not in conformity with provisions of §21.362(c), the case manager will: (1) Discuss the situation with the veteran; (2) Arrange for services, particularly counseling services, which may assist in resolving the problems which led to the veteran's unsatisfactory conduct or cooperation; (3) Interrupt the program to allow for more intense efforts, if the unsatisfactory conduct and cooperation persist. If a reasonable effort to remedy the situation is unsuccessful during the period in which the program is interrupted, the veteran's case will be discontinued and assigned to “discontinued” status unless mitigating circumstances are found. When mitigating circumstances exist the case may be continued in “interrupted” status until VA staff determines the veteran may be reentered into the same or a different program because the veteran's conduct and cooperation will be satisfactory, or if a plan has been developed, to enable the veteran to reenter and try to maintain satisfactory conduct and cooperation. Mitigating circumstances include: (i) The effects of the veteran's service and nonservice-connected condition; (ii) Family or financial problems which have led the veteran to unsatisfactory conduct or cooperation; or (iii) Other circumstances beyond the veteran's control. (Authority: 38 U.S.C. 3111) Interregional and Intraregional Travel of Veterans§ 21.370 Intraregional travel at government expense.(a) Introduction. VA may authorize transportation expenses for intraregional travel to a veteran in a rehabilitation program or a program of employment services for the purposes presented in paragraph (b) of this section. When approved for purposes stated in paragraph (b) of this section, authorization of travel is limited to the veteran's transportation, and does not include transportation for the veteran's dependents, or for moving personal effects. (b) Necessary condition for intraregional travel at government expense. VA may authorize a veteran to travel at government expense within the regional territory of the VA field station of jurisdiction when: (1) VA determines that the travel is necessary in the discharge of the government's obligation to the veteran; and (2) The veteran is instructed to travel for any of the following reasons: (i) To report to the chosen school or training facility for the purpose of starting training; (ii) To report to a prospective employer-trainer for an interview prior to induction into training, when there is definite assurance in advance of approving the travel that, upon interview, the employer will start the veteran in training, if the employer finds the veteran acceptable, or (iii) To report to the chosen school for a personal interview prior to induction into training when: (A) The school requires the interview as a condition of admission, (B) There is assurance before the travel is approved that the veteran's records (school, counseling, etc.) show he or she meets all basic requirements for induction under §21.282; and (C) The veteran submits to the school a transcript of his or her high school credits and a transcript from any school he or she attended following high school. (iv) To report to a rehabilitation facility or sheltered workshop; (v) To return to his or her home from the training or rehabilitation facility when: (A) Services are not available for a period of 30 days or more (including summer vacation periods), and (B) Travel from his or her home to the training or rehabilitation facility was at government expense; (vi) To return to the training or rehabilitation facility from his or her home, when: (A) The purpose of the travel is to continue the rehabilitation program, and (B) Travel from the training or rehabilitation facility to the veteran's home was at government expense; (vii) To return to the point from which he or she was transported at government expense, upon being placed in “discontinued” or “interrupted” status for any reason, except abandonment of training by the veteran without good reason; (viii) To report to a place of prearranged satisfactory employment upon completion of vocational rehabilitation for the purpose of beginning work; (ix) To return to his or her home from the place of training following rehabilitation to the point of employability, when suitable employment is not available; (x) To return from the place of training to the veteran's prior location, when VA could have approved travel to the place of training at government expense, but did not issue the necessary travel authorization; and (xi) To report to a place to take a scheduled examination required to practice the trade or profession for which the veteran has been trained. This travel shall be limited to points within the state in which the veteran has pursued his or her training or, if the veteran returned to the state from which he or she was sent to pursue training, he or she may be sent at government expense to a place within that state to take the examination. If there is more than one place within the state at which the veteran may take the examination, travel shall be limited to the nearest place. (c) Approval of intraregional transfer. Intraregional travel must be approved by the case manager. [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985] § 21.372 Interregional transfer at government expense.(a) Introduction. A veteran may need to transfer from the jurisdiction of one VA facility to another in order to accomplish rehabilitation. This section states the conditions which will permit the transfer to be made at government expense. Authorization of travel is limited to the veteran's transportation, and does not include transportation for the veteran's dependents or for moving personal effects. (b) Conditions which permit interregional transfers at government expense. A veteran may be provided travel at government expense when it has been determined that such travel is necessary to accomplish rehabilitation. VA will authorize an interregional transfer at government expense only to allow the veteran: (1) To enter training in the nearest satisfactory facility if: (i) The nearest satisfactory facility is within the jurisdiction of another VA facility; or (ii) There are no satisfactory facilities within the jurisdiction of the facility in which the veteran resides. (2) To enter training in the state in which the veteran has long-standing family and social ties, and in which he or she plans to live following rehabilitation; (3) To report to an employer-trainer when all necessary steps have been taken to establish an on-job training program; (4) To report to rehabilitation facility or sheltered workshop; (5) To return to his or her home from the place of training when: (i) Training is not available for a period of 30 days or more (including summer vacation periods), and (ii) Travel from his or her home to the place of training or rehabilitation services was at government expense; (6) To return to the place of training or rehabilitation services from his or her home, when; (i) The purpose of the travel is to continue training or rehabilitation services; and (ii) Travel from the place of training or rehabilitation services to the veteran's home was at government expense; (7) To return to the point from which he or she was transferred at government expense, upon being assigned to “discontinued” or “interrupted” status, for any reason, except abandonment of training by the veteran without good reason; (8) To report to a place of prearranged satisfactory employment or for a prearranged employment interview following completion of his or her program of vocational rehabilitation, when: (i) There is no satisfactory opportunity for employment in the veteran's occupation within the jurisdiction of the facility which has jurisdiction over his or her residence, and (ii) The veteran has a serious employment handicap. (9) To return to his or her home, from which he or she was transferred at government expense to pursue training, when, upon completion of his or her course, satisfactory employment is not available; (10) To return to the location from which he or she traveled without authorization because VA did not issue the necessary travel authorization on a timely basis. (c) Approval of interregional transfer. Interregional travel must be approved by the case manager. § 21.374 Authorization for travel of attendants.(a) Travel for attendants. The services of an attendant to accompany a veteran while traveling for rehabilitation purposes may be provided when such services are necessitated by the severity of the veteran's disability. Attendants may only be used to enable a veteran to attend appointments for initial evaluation, counseling, or intraregional or interregional travel at government expense under §21.370 and §21.372. (b) Attendants not employed by the Federal government. (1) VA may authorize persons not in regular civilian employment of the Federal government to act as attendants. Payment of travel expenses for attendants will be authorized on the same basis as for the veteran the attendant is accompanying. VA: (i) Will furnish the attendant with common-carrier transportation, meal and lodging expenses; or (ii) Will grant the attendant a mileage allowance in lieu of furnishing the assistance cited in paragraph (b)(1)(i) of this section. (2) VA will not pay the attendant a fee if he or she is a relative of the veteran. A relative, for this purpose, is a person who by blood or marriage is the veteran's (i) Spouse, (ii) Parent, (iii) Child, (iv) Brother, (v) Sister, (vi) Uncle, (vii) Aunt, (viii) Niece, or (ix) Nephew. (c) Attendant employed by the Federal government. (1) VA may authorize a person in the regular civilian employment of the Federal government to act as an attendant. When assigned, the attendant: (i) Will be entitled to transportation and expenses, or (ii) May be allowed per diem in place of subsistence in accordance with the provisions of the Federal Travel Regulations (5 U.S.C. Chapter 57). (2) VA will pay no fee to civilian employees of the Federal government who act as attendants. [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985] § 21.376 Travel expenses for initial evaluation and counseling.When VA asks a disabled veteran to report to a designated place for an initial evaluation, reevaluation or counseling (including personal or vocational adjustment counseling), the veteran will travel to and from the place of evaluation and counseling at government expense. When a veteran, because of a severe disability, requires the services of an attendant while traveling, VA will authorize payment of travel expenses for the attendant under the provisions of §21.374. Personnel Training and Development§ 21.380 Establishment of qualifications for personnel providing assistance under Chapter 31.(a) General. Notwithstanding any other provision of law or regulation, VA shall establish qualification standards for VBA personnel providing evaluation, rehabilitation, and case management services to eligible veterans under chapter 31, including: (1) Counseling psychologists; (2) Vocational rehabilitation specialists; and (3) Other staff providing professional and technical assistance. (b) Rehabilitation Act of 1973. VA shall consider qualification standards established for comparable personnel under the Rehabilitation Act of 1973, when setting agency standards. (Authority: 38 U.S.C. 3118(c)) § 21.382 Training and staff development for personnel providing assistance under Chapter 31.(a) General. VA shall provide a program of ongoing professional training and development for staff of the VR&E Service engaged in providing rehabilitation services under chapter 31. The objective of such training shall be to insure that rehabilitation services for disabled veterans are provided in accordance with the most advanced knowledge, methods, and techniques available for the rehabilitation of disabled persons. The areas in which training and development services may be provided to enhance staff skills include: (1) Evaluation and assessment: (2) Medical aspects of disability; (3) Psychological aspects of disability; (4) Counseling theory and techniques; (5) Personal and vocational adjustment; (6) Occupational information; (7) Placement processes and job development; (8) Special considerations in rehabilitation of the seriously disabled; (9) Independent living services; (10) Resources for training and rehabilitation; and (11) Utilizing research findings and professional publications. (b) Training and development resources. For the purpose of carrying out the provisions of paragraph (a) of this section VA may: (1) Employ the services of consultants; (2) Make grants to and contract with public and private agencies, including institutions of higher learning, to conduct workshop and training activities; (3) Authorize individual training at institutions of higher learning and other appropriate facilities; and (4) Utilize chapter 41 of title 5, U.S.C., and related instructions to provide training and staff development activities on a group and individual basis. (c) Interagency coordination. VA shall coordinate with the Commissioner of the Rehabilitation Services Administration and the Assistant Secretary for Veterans' Employment in planning and carrying out personnel training in areas of mutual programmatic concern. Rehabilitation Research and Special Projects§ 21.390 Rehabilitation research and special projects.(a) General. VA shall carry out an ongoing program of activities for the purpose of advancing the knowledge, methods, techniques, and resources available for use in rehabilitation programs for veterans. For this purpose, VA may conduct research and development, provide support for research and development, or both conduct and provide support for the development and conduct of: (1) Studies and research concerning the psychological, educational, social, vocational, industrial, and economic aspects of rehabilitation; and (2) Projects which are designed to increase the resources and potential for accomplishing the rehabilitation of disabled veterans. (b) Grants. VA may make grants to, or contract with, public on nonprofit agencies, including institutions of higher learning, to carry out the provisions of paragraph (a) of this section. (c) Research by Vocational Rehabilitation and Employment (VR&C) staff members. VA will encourage research by VR&C staff members. This research will address problems affecting service delivery, initiation and continuation in rehabilitation programs, and other areas directly affecting the quality of VR&C services to veterans. (d) Interagency coordination. VA shall cooperate with the Commissioner of the Rehabilitation Services Administration and the Director of the National Institute of Handicapped Research in the Department of Education, the Assistant Secretary for Veterans' Employment in the Department of Labor, and the Secretary of Health and Human Services regarding rehabilitation studies, research, and special projects of mutual programmatic concern. [49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17710, Apr. 11, 1997] Veterans' Advisory Committee on Rehabilitation§ 21.400 Veterans' Advisory Committee on Rehabilitation.(a) General. The Secretary shall appoint an advisory committee to be known as the Veterans' Advisory Committee on Rehabilitation. (b) Purpose. The purposes of the Veterans' Advisory Committee on Rehabilitation, hereafter referred to as the committee, are to: (1) Assess the rehabilitation needs of service and nonservice-disabled veterans; and (2) Review the programs and activities of VA designed to meet such needs; (c) Members. The committee shall include: (1) Members of the general public; (2) Appropriate representation of veterans with service-connected disabilities; and (3) Persons who have distinguished themselves in the public and private sectors in the fields of rehabilitation, and employment and training programs. (d) Members terms. The Secretary shall appoint members of the committee for three-year terms. Members may be reappointed for additional three-year terms. (e) Chairperson. The Secretary will designate one of the members of the committee to chair the committee. (f) Ex-officio members. The committee shall also include ex-officio members named by the following agencies. The ex-officio members shall include one representative from: (1) The Veterans Health Services and Research Administration; (2) The Veterans Benefits Administration; (3) The Rehabilitation Services Administration and one from the National Institute for Handicapped Research of the Department of Education; and (4) The Assistant Secretary of Labor for Veterans' Employment of the Department of Labor. § 21.402 Responsibilities of the Veterans' Advisory Committee on Rehabilitation.(a) Consultation with the Secretary. The Secretary shall regularly, but not less than twice yearly, consult with and seek the advice of the committee with respect to the administration of veterans' rehabilitation programs authorized under Title 38, United States Code. (b) Submission of an annual report. The committee shall: (1) Submit to the Secretary an annual report on the rehabilitation programs and activities of the VA; and (2) Submit such other reports and recommendations to the Secretary as the committee determines appropriate. (c) Contents of the committee's annual report. The committee's annual report shall include: (1) An assessment of the rehabilitation needs of veterans; and (2) A review of the programs and activities of VA designed to meet needs identified in paragraph (c)(1) of this section. (d) Secretary's annual report. The findings of the committee shall be incorporated in the Secretary's annual report submitted to the Congress under 38 U.S.C. 529. In addition the Secretary shall submit, together with this annual report, a copy of all reports and recommendations of the committee submitted to the Secretary since the previous annual report was submitted to the Congress. (Authority: 38 U.S.C. 3121(c)) Additional Administrative Consideration§ 21.410 Delegation of authority.The Secretary delegates authority to the Under Secretary for Benefits to make findings and decisions under 38 U.S.C. chapter 31 and regulations, precedents, and instructions that affect vocational rehabilitation services for disabled veterans. The Under Secretary for Benefits may further delegate this authority to supervisory and non-supervisory Vocational Rehabilitation and Employment staff members. (Authority: 38 U.S.C. 512(a)) [62 FR 17710, Apr. 11, 1997] § 21.412 Finality of decisions.(a) Facility of original jurisdiction. The decision of a VA facility in a given veteran's case: (1) Will be final and binding upon all field stations of VA as to conclusions based on evidence on file at that time; and (2) Will not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §§21.410 and 21.414. (See §§19.153, 19.154, and 19.155. (b) Adjudicative determinations. Current determinations of line of duty, character of discharge, relationship, and other pertinent elements affecting eligibility for training and rehabilitation services or payment of subsistence allowance under Chapter 31, made by an adjudicative activity by application of the same criteria and based on the same facts, are binding upon all other adjudicative activities in the absence of clear and unmistakable error. § 21.414 Revision of decision.The revision of a decision on which an action is based is subject to the following regulations: (a) Clear and unmistakable error, §3.105(a); (b) Difference of opinion, §3.105(b); (c) Character of discharge, §3.105(c); (d) Severance of service-connection, §3.105(d); (e) Reduction to less than compensable evaluation, §3.105(e). (See §§21.48, 21.322, and 21.324) (Authority: 38 U.S.C. 5112) Informing the Veteran§ 21.420 Informing the veteran.(a) General. VA will inform a veteran in writing of findings affecting receipt of benefits and services under Chapter 31. This includes veterans: (1) Requesting benefits and services; or (2) In receipt of benefits and services. (b) Notification. (1) Each notification should include the decision or finding, the reasons, including fact and law, for the decision, the effective date of the decision or finding; and (2) The veteran's appeal rights, if any. (c) Adverse action. An adverse action is one, other than an interim action such as a suspension of benefits pending development, which: (1) Denies Chapter 31 benefits, when such benefits have been requested; (2) Reduces or otherwise diminishes benefits being received by the veteran; or (3) Terminates receipt of benefits for reasons other than scheduled interruptions which are a part of the veteran's plan. (d) Prior notification of adverse action. VA shall give the veteran a period of at least 30 days to indicate his or her disagreement with an adverse action other than one which arises as a consequence of a change in training time or other such alteration in circumstances. If the veteran disagrees, he or she shall be given the opportunity, before appealing the adverse action as provided in §21.59 of this part, to: (1) Meet informally with a representative of VA; (2) Review the basis for VA decision, including any relevant written documents or material; and (3) Submit to VA any material which he or she may have relevant to the decision. (Authority: 38 U.S.C. 3102) [49 FR 40814, Oct. 18, 1984, as amended at 54 FR 40872, Oct. 4, 1989] § 21.422 Reduction in subsistence allowance following the loss of a dependent.(a) Notice of reduction required when a veteran loses a dependent. (1) Except as provided in paragraph (a)(2) of this section, VA will not reduce an award of subsistence allowance following the veteran's loss of a dependent unless: (i) VA has notified the veteran of the adverse action, and (ii) VA has provided the veteran with a period of 60 days in which to submit evidence for the purpose of showing that subsistence allowance should not be reduced. (2) When the reduction is based solely on written, factual, unambiguous information as to dependency provided by the veteran or his or her fiduciary with knowledge or notice that the information would be used to determine the monthly rate of subsistence allowance; (i) VA is not required to send a pre-reduction notice as stated in paragraph (a)(1) of this section, but; (ii) VA will send notice contemporaneous with the reduction in subsistence allowance. (b) Pre-reduction notice. Where a reduction in subsistence allowance is proposed by reason of information concerning dependency received from a source other than the veteran, VA will: (1) Prepared a proposal for the reduction of subsistence allowance, setting forth material facts and reasons; (2) Notify the veteran at his or her latest address of record of the proposed action; (3) Furnish detailed reasons for the proposed reduction; (4) Inform the veteran that he or she has an opportunity for a predetermination hearing, provided that VA receives a request for such a hearing within 30 days from the date of the notice; and (5) Give the veteran 60 days for the presentation of additional evidence to show that the subsistence allowance should be continued at its present level. (c) Predetermination hearing. (1) If VA receives a timely request for a predetermination hearing as indicated in paragraph (b)(4) of this section: (i) VA will notify the veteran in writing of the date, time and place for the hearing; and (ii) Payments of subsistence allowance will continue at the previously established level pending a final determination concerning the proposed reduction. (2) The hearing will be conducted by a VA employee who: (i) Did not participate in the preparation of the proposal to reduce the veteran's subsistence allowance, and (ii) Will bear the decision-making responsibility. (d) Final action. VA will take final action following the predetermination procedures specified in paragraph (c) of this section. (1) If a predetermination hearing was not requested or if the veteran failed to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record at the expiration of 60 days. (2) If a predetermination hearing was conducted, VA will base final action upon: (i) Evidence presented at the hearing; (ii) Evidence contained in the claims file at the time of the hearing; and (iii) Any additional evidence obtained following the hearing pursuant to necessary development. (3) Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the veteran setting forth the reasons for the decison, and the evidence upon which it is based. The veteran will be informed of his or her appellate rights and right of representation. (For information concerning the conduct of the hearing see §3.103 (c) and (d) of this chapter). (4) When a reduction of subsistence allowance is found to be warranted following consideration of any additional evidence submitted, the effective date of the reduction or discontinuance shall be as specified under the provisions of §21.324 of this part. [54 FR 40872, Oct. 4, 1989] Accountability§ 21.430 Accountability for authorization and payment of training and rehabilitation services.(a) General. VA shall maintain policies and procedures which provide accountability in the authorization and payment of program costs for training and rehabilitation services. The procedures established under this section are applicable to all program costs except subsistence allowance (or the optional allowance at Chapter 34 rates). Policies and procedures governing payment of subsistence allowance are governed by §§21.260 through 21.276, and §§21.320 through 21.334. (b) Determining necessary costs for training and rehabilitation services. The estimates of program costs during a calendar year or lesser period shall be based upon the services necessary to carry out the veteran's rehabilitation plan during that period (§§21.80 through 21.98). The estimates will be developed by the VBA case manager. If additional approval is required, the VBA case manager shall secure such additional approval prior to authorization of services. (c) Vocational Rehabilitation and Employment (VR&C) Officer's review of program costs. The VR&C Officer will review the program costs for the services in paragraphs (c)(1) through (c)(3) of this section if the case manager's program cost estimate for a calendar year exceeds $25,000. The VR&C Officer may not delegate this responsibility. The case manager will neither sign a rehabilitation plan nor authorize expenditures before the VR&C Officer approves the program costs. The services subject to this review are: (1) Providing supplies to help establish a small business; (2) A period of extended evaluation; or (3) A program of independent living services. (Authority: 38 U.S.C. 3115(b)(4)) See §21.156. Other incidental goods and services. §21.258. Special assistance for veterans in self-employment. [49 FR 40814, Oct. 18, 1984, as amended at 51 FR 45767, Dec. 22, 1986; 55 FR 25975, June 26, 1990; 62 FR 17710, Apr. 11, 1997] Browse Next
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