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:
- The 12-year time limit does not start until the veteran receives a disability rating of at least 20 percent, or
- 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).
[...] and a 20% disability rating. Disabled veterans with a 10% rating can apply but they must have a “serious employment handicap” to qualify. The difference between these two classifications is somewhat subjective and depends [...]