False: 12-Year Time Limit To Use Chapter 31

More Voc Rehab BS… No more for me please, I’m full.

Every couple months, a few disabled veterans email me about the 12-year time limit to use VA Vocational Rehabilitation and Employment benefits. More often than not, they recently became qualified for benefits, but their Voc Rehab Counselor denied their benefits claim. The reason for the denial was that 12 years has passed since the newly disabled veteran separated from the military. While this is an important fact, it is often an incorrect reason for a benefits denial when applied as follows.

Veteran email:

I recently got 20% and they tell me my 12 years end 1/15/2013 so that leaves me 2 years to finish a degree. How can I get them to approve a 4-year degree? All the jobs are asking for a 4-year degree. Any help would be great.

He later explained that in 2000 he received a 10 percent rating. This year he received an increase to 20 percent.

Does this fact disqualify the veteran from obtaining a 4-year degree? Hell no. The regulations clearly state the following:

  1. The 12-year time limit does not start until the veteran receives a disability rating of at least 20 percent, or
  2. the person receives a 10 percent rating with a Serious Employment Handicap (highly uncommon).

What this means. Once either of these two elements appears, the 12-year clock begins to tick. The VA’s own website states as much. Yet, Voc Rehab Counselors continue to deny veterans access to their benefits. In the case of the veteran above, it is highly unlikely his disability was of the kind, rated at 10 percent, which would qualify for a Serious Employment Handicap. Thus, he is being fed bush league Chapter 31 BS.

And that’s not the end of it. When the veteran has a Serious Employment Handicap, the 12-year time limit can be completely waived. By the time I finish Law School, I will have been qualified for Voc Rehab for over 12 years. One friend of mine has been qualified for Voc Rehab for 15 years and is finally going to finish his Airline Transport Pilot training.

Just add Logic. For our friend, he either has a Serious Employment Handicap, starting in 2000, and now his time limit could be waived. Or, he does not have a Serious Employment Handicap, and his 12-year time limit started this year. Either way, he should qualify. Unfortunately, the VA has a lot of things, but a Logic Tree is not one of them.

Next step. Document what was said. Point out that, since you have an entitlement of 12 years from the date you received your 20% disability rating (or 10% SEH rating), you want to request that 4-year degree, or whatever you’re qualified to receive. Write a brief letter outlining the conversation in a professional manner. Print off copies of the appropriate regulation and the Board of Appeals case excerpt. Talk to your friendly Veteran Service Office for advice on the issue. Then mail it to your counselor’s attention via certified mail with return receipt. Do not mail it using regular mail or email it. Certified mail with return receipt is the only way to ensure proper documentation.

The following are the regulations and a case from the Board of Appeals explaining the 12-year time limit. The counselor is full of BS.

Here are the full regulations: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title38/38cfr21_main_02.tpl.

I have cut and pasted a couple short clips below to give you an idea of what they say and why your counselor is feeding you a line of BS. The third regulation is where the special sauce is for your situation: 38 CFR Part 21.40-42.

Veterans with general questions about Chapter 31 can email: help@disabledveterans.org.

§ 21.40   Basic entitlement to vocational rehabilitation benefits and services.

An individual meets the basic entitlement criteria for vocational rehabilitation benefits and services under this subpart if VA determines that he or she meets the requirements of paragraph (a), (b), (c), or (d) of this section. For other requirements affecting the provision of vocational rehabilitation benefits and services, see §§21.41 through 21.46 (period of eligibility), §21.53 (reasonable feasibility of achieving a vocational goal), and §§21.70 through 21.79 (months of entitlement).

(a) Veterans with at least 20 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated 20 percent or more under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

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

(b) Veterans with 10 percent disability. The individual is a veteran who meets all of the following criteria:

(1) Has a service-connected disability or combination of disabilities rated less than 20 percent under 38 U.S.C. chapter 11.

(2) Incurred or aggravated the disability or disabilities in active military, naval, or air service on or after September 16, 1940.

(3) Is determined by VA to be in need of rehabilitation because of a serious employment handicap.

§ 21.41   Basic period of eligibility.

(a) Time limit for eligibility to receive vocational rehabilitation. (1) For purposes of §§21.41 through 21.46, the term basic period of eligibility means the 12-year period beginning on the date of a veteran’s discharge or release from his or her last period of active military, naval, or air service, and ending on the date that is 12 years from the veteran’s discharge or release date, but the beginning date may be deferred or the ending date extended under the sections referred to in paragraph (b) of this section. (See §§21.70 through 21.79 concerning duration of rehabilitation programs.)

§ 21.42   Deferral or extension of the basic period of eligibility.

The basic period of eligibility does not run as long as any of the following reasons prevents the veteran from commencing or continuing a vocational rehabilitation program:

(a) Qualifying compensable service-connected disability(ies) not established. The basic period of eligibility does not commence until the day VA notifies a veteran of a rating determination by VA that the veteran has a qualifying compensable service-connected disability under §21.40.

(Authority: 38 U.S.C. 3103(b)(3))

VA Board of Appeals Case:

And here’s the what the Board says the regulations mean in light of a real situation: http://www4.va.gov/vetapp08/files5/0838805.txt

FINDING OF FACT

1.  The veteran was discharged from service in October 1992.

2.  VA determined the veteran to be in need of rehabilitation because of an employment handicap.

3.  The veteran did not establish the existence of a service- connected disability compensable at a rate of 20 percent or more until June 2004.

4.  The veteran first received notice of a grant of a disability rating of 20 percent or more for service-connected disability on June 9, 2004.

5.  The basic period of eligibility for entitlement to vocational rehabilitation and employment services under the provisions of Chapter 31, Title 38, United States Code runs 12 years from the date the veteran received such notice.

CONCLUSION OF LAW

The veteran’s basic period of eligibility for entitlement to vocational rehabilitation and employment services under the provisions of Chapter 31, Title 38, United States Code did not begin until June 9, 2004 and that period of eligibility has not expired.  38 U.S.C.A. §§ 3101, 3102 (West 2002); 38 C.F.R. §§ 21.40, 21.41, 21.42 (2008).

 

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Comments

  1. Hello Ben,
    I exited the service Mar 2001. Was approved 30% disabled May 2001. Approved for Voc Rehab May 2004 and used it through Dec 2005. I jumped out of school and headed overseas as a contractor for 3 years in Afghan and Iraq. I came back and went through 2 periods of unemployment lasting over 2 years combined. I am currently employed but my job is aggravating my knee conditions and I am trying to get back in school since I can’t promote to a more suitable position without the degree. I am looking at going into the medical field as a nurse and then ultimately a nurse practitioner. I have reapplied to the VA for Voc Rehab but am sure I am going to get the 12 year answer since I just hit that a few months ago. Is there anything I can do to help my situation since I pretty much have to go back to school, it will just be 100X harder without the help from Voc Rehab. Thanks for any advice in advance! And thank you for operating this blog and helping knuckleheads like me! Dan

  2. John Marshall says:

    I’m 70% SC with IU

    from the VA:
    Like many VA benefits VR&E has a limited period of eligibility. The basic period of eligibility in which VR&E services may be used is 12 years from the date of separation from active military service, or the date the veteran was first notified by VA of a service-connected disability rating, which comes later.

    so if the rating comes later you get it twelve years from the rating date

    [from Benjamin Krause: I posted this comment above to illustrate the point of the article. The VA did not inform this veteran of the difference between an Employment Handicap and a Serious Employment Handicap. The 12 year time limit can be waived so long as the veteran is deemed to have a Serious Employment Handicap. John Marshall - the commenter above - should have received a Serious Employment Handicap assuming his disability is high enough to be IU and had the time limit waived. The Counselor clearly did not inform Mr. Marshall that there can be a waiver of the 12 year limit.]

  3. My experience with Voc Rehab (Ch 31).
    -Medically discharged from the USAF in August 1990 with 20% Disability.
    -Started and stopped school at least 4 times while trying to get my undergrad.
    -Went to about 6 different schools in 3 states (Community Colleges & Universities)
    -Had 4 Voc Rehab Counselors.
    -Changed programs 3 times.
    -Finished my undergrad in 2003.
    -Found a job in my field (IT).
    -Became 50% disabled in 2006.
    -I was told early in my Voc Rehab training that they would pay for undergrad ONLY!! So several years went by until I found this website while doing research on the possibility of going back to school and having the VA pay for it. After reading the articles here, as well as some other places, I thought to myself, why not give it a shot. In late 2011 I went online at va.gov and applied for re-entry to Voc Rehab. Within a month I was contacted by the VA for an appointment to assess my needs. I met with the counselor and she deemed me to have a “serious employment handicap.” I started school this week (Jan 10, 2012) to get my Graduate degree in Vocational Rehabilitation Counseling.

    It was interesting to note that my counselor would not comment on my status until we agreed on a course. Once we agreed what I would go to school for she gave me an official letter saying that I was found to have a serious employment handicap.” It was my assessment of the situation that had we not agreed on a field of study that she would NOT have found me to have this handicap and I would have been rejected. Now that it is official, I believe I could change my training program IF I wanted to. I do not expect to change my program as I feel this would be a great program for me. Also, knowing how many Voc Rehab counselors are needed at the VA over the next 5 years, I would love to get a job with the VA and be a Voc Rehab Counselor to help other veterans get their training/schooling instead of putting roadblocks in their way.

    I must say, I have been one of the lucky veterans as the system has worked amazingly well for me. However, had roadblocks been put in my way I would have been willing to fight for my rights. YOU MUST KNOW YOUR RIGHTS BEFORE YOU CAN FIGHT FOR THEM! Thank you for having this site to help veterans learn their rights.

  4. Hugh Marbach says:

    I was medically separated from the AF in 2005 and did receive VR and obtained 2 Associate Degrees in the IT field. I got a job working for the WA Dept of Transportation that is unrelated to my degree and I have no room for advancement. When applying for IT jobs almost all of them require a BS. Since I am still within the 12 years can I get further VR benefits to obtain my BS in IT?

  5. Rod Barrios says:

    Hi. I am a disabled veteran with 20% disability. I was places on the VA Voc Rehab program in 1996. I only went to school for 3 semesters and I quit school. I went to the VA regional office and a Voc Rehab counselour told me that I would not be able to go back into the Voc Rehab program because it’s been more than 12 years sinse my disability claim was approved. I will be going next week for a re-evaluation to increase my percentage of disability. What can I do? I need to go back to school, I am 38 y/o and unemployed. I need some advise. How can I get approved back into the Voc Rehab to get my degree and be able to get a decent job. Thanks.

  6. Rod Barrios says:

    Hi,

    I need some guidance. I have a 20% disability and was placed on voc rehab by the VA back in 1996. I quit school after going going for 3 semesters. I went to the VA regional office last year and was told that I would be denied because it has been more than the 12 year limit. I will be going soon for an increase of my disability. If my disability is increased from the 20%, can I qualify to get my voc rehab extended? I need some advise, I need to get back to college. I am 38 y/o and unemployed. How can I appeal it if it gets denied by the counselor? Thank you so much.

  7. Mike Pribble says:

    I have heard rumors that I have 6 months to find a job after I graduate. I cannot find an actual time limit or the regulation regarding the time limit. Please help. Love the blog!

  8. I am a retired VR&C Officer who cares about veterans. I retired at Muskogee, Ok. VA Regional Office in 1996. Since that time I have survived hospice and several chronic illnesses. However, I have some limited energy left to help veterans-I am one(Korean Era). I looked over your comments and didn’t see Independent living rehabilitation. Your comments.
    Pete Furek

  9. Rodney Robinson says:

    Hello Ben, I also wrote earlier too. About the 12 year thing. I got my 20 percent in 2004, but filed a claim in 2003. I was told the samething. Now when I got 20 percent in 2004 as time went on in 2009 I was disabled from my job. Before that I was told from voc rehab that I can’t get chap. 31 because I’m still working, so I was denied. It wasn’t until after my retirement that they approvedvoc rehab which left me with six years remaining for education benefits. I really feel strongly about Law school. What’s your take. Thank you

  10. In order to claim a Serious Employment Handicap do you have be getting IU or does it just have to be stated in one’s VA Record?

    I want to go to school to get my Bachelor’s Degree and to start a small business, self-employment. Yes, they try to discourage one from the self-employment, I heard you have to a business plan, get a loan etc… and that I would be better going to school for something else. I have 2 A.A.S. Degrees and the counselor stated that it is hard to get a job with 2 year degree and that the Paralegal field has dropped in hiring.

    Since, I got out I have had a lot of jobs, lots of unemployment, and now I am not working at all or very little here and there.

    I just got an increase in my rating from 30% to 60% and still have an appeal in for another claim and will be resubmitting another claim that was denied for PTSD-MST. I know I can’t go back to the field I was in or be able to sit in office all day. I want to start my own business in order to be able to handle my work environment and not have the pressure of working for a company or the government. He said with Bachelor’s Degree I could work at RO, maybe doing claims or doing something like that, because of my Paralegal Degree. I could not take the pressure of doing that type of job, turning down claims. Maybe becoming a VSO to help Vets, not many women VSO’s out there.

    But, I also think they said they would help me with opening an office, not sure what he meant by that. I really don’t need a loan, because what I am going be doing does not require inventory. I will be selling different types of insurances and would want to be able to get government contracts or access to the government and also state, county, and local governments. Not sure what type of help I can get or is out there. I can handle going to my own office, that would be down the road and I am hoping I could hire other Vets. I want to explore all options, start looking at schools… Thanks for your help…

  11. Karen Baker says:

    I received voc rehab and go a 4 year degree when I first got out but now find myself about to run out of unemployment and cannot find a job. It has been fourteen years since my discharge so I am passed the twelve year limit, but my rating was increased to 40% in 2009. I feel I definitely have a serious employment handicap so I just did the VONAPP for another voc rehab just yesterday. What do you think my chances are for approval of another go around with voc rehab?

  12. Brian Carlson says:

    My question is as follows. I was discharged in 1996 and was awarded 10%. I appealed and like most vets I got the run around. I finally rcieved 20% in 2001. When does the clock start? I would assume the final approval letter from the VA. Is that correct? I also was recently upgraded to 60% in 2009. Does the clock ever start over?

    • It really depends. The regulation used to be 20% and then was lowered to 10% so long as the veteran has a “serious employment handicap.” When the veteran is eligible for the benefit, that is when the clock ticks in most cases. However, if you have a “serious employment handicap” the 12-year time limit can be waived. File an appeal if it’s been less than one year since the denial or go talk with a local Veteran Service Officer.

  13. I am graduating with my BS degree in May 11 and I don’t know how or what’s the next step. I don’t know what to say to my Voc Counselor in order to get approved.

  14. Thank you for your blog! Love it and will read often. Starting back up at college after 7 years medically retired using Voc Rehab instead of Post 9/11 GI Bill.

  15. God Bless you

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