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This is supplemental material
for Book G of your set of
Federal Regulations
Title 38, Part 21
Vocational Rehabilitation and Education
Veterans Benefits Administration
Supplement No. 72
Covering period of Federal Register issues
through April 4, 2007
Copyright © 2007 Jonathan Publishing
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GENERAL INSTRUCTIONS
Custom Federal Regulations Service™
Supplemental Materials for Book G
Code of Federal Regulations
Title 38, Part 21
Vocational Rehabilitation and Education
Veterans Benefits Administration
Supplement No. 72
5 April 2007
Covering the period of Federal Register issues
through April 4, 2007
When Book G was originally prepared, it was current through final regulations published in the Federal Register of 25 February 1992. These supplemental materials are designed to keep your regulations up to date. You should file the attached pages immediately, and record the fact that you did so on the Supplement Filing Record which is at page G-8 of Book G, Vocational Rehabilitation and Education.
To ensure accuracy and timeliness of your materials,
it is important that you follow these simple procedures:
1. Always file your supplemental materials immediately upon receipt.
2. Before filing, always check the Supplement Filing Record (page G-8) to be sure that all prior supplements have been filed. If you are missing any supplements, contact the Veterans Benefits Administration at the address listed on page G-2.
3. After filing, enter the relevant information on the Supplement Filing Record sheet (page G-8)—the date filed, name/initials of filer, and date through which the Federal Register is covered.
4. If as a result of a failure to file, or an undelivered supplement, you have more than one supplement to file at a time, be certain to file them in chronological order, lower number first.
5. Always retain the filing instructions (simply insert them at the back of the book) as a backup record of filing and for reference in case of a filing error.
6. Be certain that you permanently discard any pages indicated for removal in the filing instructions in order to avoid confusion later.
To execute the filing instructions, simply remove and throw away the pages listed under Remove These Old Pages, and replace them in each case with the corresponding pages from this supplement listed under Add These New Pages. Occasionally new pages will be added without removal of any old material (reflecting new regulations), and occasionally old pages will be removed without addition of any new material (reflecting rescinded regulations)—in these cases the word None will appear in the appropriate column.
FILING INSTRUCTIONS
Book G, Supplement No. 72
April 5, 2007
Remove theseAdd theseSection(s)
old pagesnew pagesAffected
Do not file this supplement until you confirm that all prior supplements have been filed
21.1-1 to 21.1-621.1-1 to 21.1-6Index to Part 21
21.50-1 to 21.52-121.50-1 to 21.52-3§§21.50–52
21.8010-1 to 21.8010-221.8010-1 to 21.8010-2§21.8010
21.8030-1 to 21.8032-121.8030-1 to 21.8032-1§21.8032
Be sure to complete the
Supplement Filing Record (page G-8)
when you have finished filing this material.
HIGHLIGHTS
Book G, Supplement No. 72
April 5, 2007
Supplement Highlights references: Where substantive changes are made in the text of regulations, the paragraphs of Highlights sections are cited at the end of the relevant section of text. Thus, if you are reading §3.263, you will see a note at the end of that section which reads: “Supplement Highlights references—6(2).” This means that paragraph 2 of the Highlights section in Supplement No. 6 contains information about the changes made in §3.263. By keeping and filing the Highlights sections, you will have a reference source explaining all substantive changes in the text of the regulations.
Supplement frequency: This Book G (Rehabilitation and Education) was originally supplemented six times a year, in February, April, June, August, October, and December. Beginning 1 August 1995, supplements will be issued every month during which a final rule addition or modification is made to the parts of Title 38 covered by this book. Supplements will be numbered consecutively as issued.
Modifications in this supplement include the following:
1. On 26 March 2007, the VA published a final rule, effective 25 April 2007, to adopt as final a proposed rule concerning initial evaluations of individuals who apply for vocational rehabilitation and employment benefits; the amendment is intended to reflect changes in law regarding initial evaluations, reflect VA’s interpretation of applicable law and its determinations of procedures appropriate for use in the initial evaluation, and improve readability. Changes:
Revised §§21.50–21.52; and
In §21.8032, revised paragraph (a).
-
G72–1
21.1-1§21.1—Training and rehabilitation for veterans with service-connected disabilities 21.1-1
Subpart A—Vocational Rehabilitation
Under 38 U.S.C. Chapter 31
Authority: 38 U.S.C. 501(a), ch. 31, and as noted in specific sections.
Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.
Vocational Rehabilitation Overview
21.1 Training and rehabilitation for veterans with
service-connected disabilities...... 21.1-1
Non-duplication
21.21 Election of benefits under education programs administered
by the Department of Veterans Affairs...... 21.21-1
21.22 Nonduplication—Federal programs...... 21.22-1
Claims
21.30 Claims ...... 21.30-1
21.31 Informal claim ...... 21.31-1
21.32 Time limit...... 21.32-1
Definitions
21.35 Definitions...... 21.35-1
Basic entitlement
21.40 Basic entitlement...... 21.40-1
Periods of eligibility
21.41 Basic period of eligibility...... 21.41-1
21.42 Basic period of eligibility deferred...... 21.42-1
21.44 Extension beyond basic period of eligibility
because of serious employment handicap...... 21.44-1
21.45 Extension beyond basic period of eligibility for a program
of independent living services...... 21.45-1
21.47 Eligibility for employment assistance...... 21.47-1
21.48 Severance of service-connection—reduction to
noncompensable degree...... 21.48-1
Initial and extended evaluation
21.50Initial evaluation...... 21.50-1
21.51 Determining employment handicap...... 21.51-1
21.52 Determining serious employment handicap...... 21.52-1
21.53 Reasonable feasibility of achieving a vocational goal...... 21.53-1
21.57 Extended evaluation...... 21.57-1
21.58 Redetermination of employment handicap and
serious employment handicap...... 21.58-1
21.59 Review and appeal of decisions on eligibility and entitlement...... 21.59-1
Vocational Rehabilitation Panel
21.60 Vocational Rehabilitation Panel...... 21.60-1
21.62 Duties of the Vocational Rehabilitation Panel...... 21.62-1
Duration of rehabilitations programs
21.70 Vocational rehabilitation...... 21.70-1
21.72 Rehabilitation to the point of employability...... 21.72-1
21.73 Duration of employment assistance programs...... 21.73-1
21.74 Extended evaluation...... 21.74-1
21.76 Independent living...... 21.76-1
21.78 Approving more than 48 months of rehabilitation...... 21.78-1
21.79 Determining entitlement usage under chapter 31...... 21.79-1
Individualized written rehabilitation plan
21.80 Requirement for a rehabilitation plan...... 21.80-1
21.82 Completing the plan under Chapter 31...... 21.82-1
21.84 Individualized written rehabilitation plan...... 21.84-1
21.86 Individualized extended evaluation plan...... 21.86-1
21.88 Individualized employment assistance plan...... 21.88-1
21.90 Individualized independent living plan...... 21.90-1
21.92 Preparation of the plan...... 21.92-1
21.94 Changing the plan...... 21.94-1
21.96 Review of the plan...... 21.96-1
21.98 Appeal of disagreement regarding development of,
or change in, the plan...... 21.98-1
Counseling
21.100 Counseling...... 21.100-1
Educational and vocational training services
21.120 Educational and vocational training services...... 21.120-1
21.122 School course...... 21.122-1
21.123 On-job course...... 21.123-1
21.124 Combination course...... 21.124-1
21.126 Farm cooperative course...... 21.126-1
21.128 Independent study course...... 21.128-1
21.129 Home study course...... 21.129-1
21.130 Educational and vocational courses outside the United States...... 21.130-1
21.132 Repetition of the course...... 21.132-1
21.134Limitations on flight training...... 21.134-1
Special rehabilitation services
21.140 Evaluation and improvement of rehabilitation potential...... 21.140-1
21.142 Adult basic education...... 21.142-1
21.144 Vocational course in sheltered workshop or
rehabilitation facility...... 21.144-1
21.146 Independent instructor course...... 21.146-1
21.148 Tutorial assistance...... 21.148-1
21.150 Reader service...... 21.150-1
21.152 Interpreter service for the hearing impaired...... 21.152-1
21.154 Special transportation assistance...... 21.154-1
21.155 Services to a veteran’s family...... 21.155-1
21.156 Other incidental goods and services...... 21.156-1
Independent Living Services
21.160 Independent living services...... 21.160-1
21.162 Participation in a program of independent living services...... 21.162-1
Case status
21.180 Case status system...... 21.180-1
21.182 “Applicant” status...... 21.182-1
21.184 “Evaluation and planning” status...... 21.184-1
21.186“Ineligible” status...... 21.186-1
21.188 “Extended evaluation” status...... 21.188-1
21.190“Rehabilitation to the point of employability” status...... 21.190-1
21.192“Independent living program” status...... 21.192-1
21.194“Employment services” status...... 21.194-1
21.196“Rehabilitated” status...... 21.196-1
21.197“Interrupted” status...... 21.197-1
21.198 “Discontinued” status...... 21.198-1
Supplies
21.210 Supplies...... 21.210-1
21.212 General policy in furnishing supplies during periods of rehabilitation...... 21.212-1
21.214 Furnishing supplies for special programs...... 21.214-1
21.216 Special equipment...... 21.216-1
21.218Methods of furnishing supplies...... 21.218-1
21.219 Supplies consisting of clothing, magazines and periodicals,
and items which may be personally used by the veteran...... 21.219-1
21.220 Replacement of supplies...... 21.220-1
21.222 Release of, and repayment for, training and rehabilitation supplies...... 21.222-1
21.224 Prevention of abuse...... 21.224-1
Medical and related services
21.240 Medical treatment, care and services...... 21.240-1
21.242 Resources for provision of treatment, care and services...... 21.242-1
Employment services
21.250 Overview of employment services...... 21.250-1
21.252 Job development and placement services...... 21.252-1
21.254 Supportive services...... 21.254-1
21.256Incentives for employers...... 21.256-1
21.257 Self-employment...... 21.257-1
21.258 Special assistance for veterans in self-employment...... 21.258-1
Monetary assistance services
21.260 Subsistence allowance...... 21.260-1
21.262 Procurement and reimbursement of cost for training
and rehabilitation services, supplies, or facilities...... 21.262-1
21.264 Election of payment at the 38 U.S.C. chapter 30
educational assistance rate...... 21.264-1
21.266 Payment of subsistence allowance under special conditions...... 21.266-1
21.268 Employment adjustment allowance...... 21.268-1
21.270 Payment of subsistence allowance during leave and
between periods of instruction...... 21.270-1
21.272 Veteran-student services...... 21.272-1
21.274 Revolving fund loan...... 21.274-1
21.276Incarcerated veterans...... 21.276-1
Entering a rehabilitation program
21.282 Effective date of induction into a rehabilitation program...... 21.282-1
21.283Rehabilitated...... 21.283-1
21.284 Reentrance into a rehabilitation program...... 21-284-1
Course approval and facility selection
21.290 Training and rehabilitation resources...... 21.290-1
21.292 Course approvals...... 21.292-1
21.294 Selecting the training or rehabilitation facility...... 21.294-1
21.296 Selecting a training establishment for on-job training...... 21.296-1
21.298 Selecting a farm...... 21.298-1
21.299 Use of Government facilities for on-job training or
work experience at no or nominal pay...... 21.299-1
Rate of pursuit
21.310Rate of pursuit of a rehabilitation program...... 21.310-1
21.312Reduced work tolerance...... 21.312-1
21.314Pursuit of training under special conditions...... 21.314-1
Authorization of subsistence allowance and training and rehabilitation services.
21.320 Awards for subsistence allowance and authorization
of rehabilitation services...... 21.320-1
21.322 Commencing dates of subsistence allowance...... 21.322-1
21.324 Reduction or termination dates of subsistence allowance...... 21.324-1
21.326Authorization of employment services...... 21.326-1
21.328 Two veteran cases—dependents...... 21.328-1
21.330 Apportionment...... 21.330-1
21.332 Payments of subsistence allowance...... 21.332-1
21.334 Election of payment at the chapter 30 rate...... 21.334-1
Leaves of absence
21.340 Introduction...... 21.340-1
21.342 Leave accounting policy...... 21.342-1
21.344 Facility offering training or rehabilitation services...... 21.344-1
21.346 Facility temporarily not offering training
or rehabilitation services...... 21.346-1
21.348 Leave following completion of a period of training
or rehabilitation services...... 21.348-1
21.350 Unauthorized absences...... 21.350-1
Conduct and cooperation
21.362Satisfactory conduct and cooperation...... 21.362-1
21.364 Unsatisfactory conduct and cooperation...... 21.364-1
Interregional and intraregional travel of veterans
21.370 Intraregional travel at government expense...... 21.370-1
21.372 Interregional transfer at government expense...... 21.372-1
21.374 Authorization for travel of attendants...... 21.374-1
21.376Travel expenses for initial evaluation and counseling...... 21.376-1
Personnel training and development
21.380 Establishment of qualifications for personnel
providing assistance under Chapter 31...... 21.380-1
21.382 Training and staff development for personnel
providing assistance under Chapter 31...... 21.382-1
Rehabilitation research and special projects
21.390 Rehabilitation research and special projects...... 21.390-1
Veterans Advisory Committee on Rehabilitation
21.400 Veterans’ Advisory Committee on Rehabilitation...... 21.400-1
21.402 Responsibilities of the Veterans’ Advisory Committee
on Rehabilitation...... 21.402-1
Additional administrative consideration
21.410 Delegation of authority...... 21.410-1
21.412 Finality of decisions...... 21.412-1
21.414 Revision of decision...... 21.414-1
Informing the veteran
21.420 Informing the veteran...... 21-420-1
21.422 Reduction in subsistence allowance following
loss of a dependent...... 21.422-1
Accountability
21.430 Accountability for authorization and payment of training
and rehabilitation services...... 21.430-1
Vocational Rehabilitation Overview
§21.1 Training and rehabilitation for veterans with service-connected disabilities.
(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. (Authority: 38 U.S.C. 3100)
(b) Basic requirements. Before a service-disabled veteran may receive training and rehabilitation services under Chapter 31, Title 38, United States Code, 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. (Authority: 38 U.S.C. 3102)
(2) The services necessary for training and rehabilitation must be identified by the Department of Veterans Affairs and the veteran. (Authority: 38 U.S.C. 3106)
(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. (Authority: 38 U.S.C. 3107)
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]
Next Section is §21.21
(No. 72 4/5/07)
21.50-1§21.50—Initial evaluation 21.50-1
Initial and Extended Evaluation
§21.50 Initial evaluation.
(a) Entitlement to an initial evaluation. VA will provide an initial evaluation to an individual who:
(1) Applies for benefits under 38 U.S.C. chapter 31; and
(2) Meets the service-connected disability requirements of §21.40. (Authority: 38 U.S.C. 3101(9), 3106)
(b) Determinations to be made by VA during the initial evaluation. A counseling psychologist (CP) or vocational rehabilitation counselor (VRC) will determine:
(1) Whether the individual has an employment handicap as determined in accordance with this section and §21.51;
(2) Whether an individual with an employment handicap has a serious employment handicap as determined in accordance with this section and §21.52; and
(3) Whether the achievement of a vocational goal is currently reasonably feasible as described in §21.53. (Authority: 38 U.S.C. 3102, 3103)
(c) Factors for assessment as part of the initial evaluation. In making the determinations under paragraph (b) of this section, the following factors will be developed and assessed:
(1) The handicapping effects of the individual’s service-connected and nonservice-connected disability(ies) on employability and on independence in daily living;
(2) The individual’s physical and mental capabilities that may affect employability and ability to function independently in daily living activities in family and community;
(3) The impact of the individual’s identified vocational impairments on the individual’s ability to prepare for, obtain, and keep suitable employment;
(4) The individual’s abilities, aptitudes, and interests;
(5) The individual’s personal history and current circumstances (including educational and training achievements, employment record, developmental and related vocationally significant factors, and family and community adjustment); and
(6) Other factors that may affect the individual’s employability. (Authority: 38 U.S.C. 3106(a))
(d) Need for cooperation in evaluation. The individual’s cooperation is essential during the initial evaluation. If the individual does not cooperate, the CP or VRC will make reasonable efforts to secure the individual’s cooperation. If, despite those efforts, the individual fails to cooperate, VA will discontinue the initial evaluation. A redetermination of entitlement as described in §21.58 will be made in the case of an individual whose program has been discontinued due to failure to cooperate. (Authority: 38 U.S.C. 3111)
[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988; 56 FR 15836, April 18, 1991; 62 FR 17707, Apr. 11, 1997; 66 FR 44053, Aug. 22, 2001; 71 FR 28586, May 17, 2006; 72 FR 14042, Mar. 26, 2007]
Supplement Highlights references: 30(2), 72(1).
(No. 72 4/5/07)
21.51-1§21.51—Determining employment handicap 21.51-1
§21.51 Determining employment handicap.
For the purposes of §21.50, an employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(a) Vocational impairment. The individual has a vocational impairment; that is, an impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests.
(b) Effects of impairment not overcome. The individual has not overcome the effects of the individual’s impairment of employability through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests. This situation includes an individual who qualifies for a suitable job, but who does not obtain or keep the job for reasons beyond his or her control. (Authority: 38 U.S.C. 3102)
(c) Contribution of the service-connected disability(ies) to the individual’s overall vocational impairment.
(1) Except as provided in paragraph (c)(3) of this section, the service-connected disability(ies) must contribute in substantial part to the individual’s overall vocational impairment. This means that the disability(ies) must have an identifiable, measurable, or observable causative effect on the overall vocational impairment, but need not be the sole or primary cause of the employment handicap.
(2) When determining the individual’s overall vocational impairment, the CP or VRC will consider the factors identified in §21.50(c).
(3) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual’s service-connected disability(ies) need not contribute to the individual’s overall vocational impairment. (Authority: 38 U.S.C. 3101, 3102)
[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 54 FR 21216, May 17, 1989; 66 FR 44053, Aug. 22, 2001; 72 FR 14042, Mar. 26, 2007]
Supplement Highlights reference: 72(1)
(No. 72 4/5/07)
21.52-1§21.52—Determining serious employment handicap 21.52-1
§21.52 Determining serious employment handicap.
(a) Requirements for determining serious employment handicap. For each individual who is found to have an employment handicap, a CP or VRC must make a separate determination of whether the individual has a serious employment handicap. For the purposes of an initial evaluation under §21.50, a serious employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(1) Significant vocational impairment. The individual has a significant vocational impairment; that is, a significant impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests, considering the factors described in §21.50 and paragraph (b) of this section.
(2) Effects of significant impairment not overcome. The individual has not overcome the effects of the significant vocational impairment through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests. This includes an individual who qualifies for a suitable job, but who does not obtain or keep the job for reasons beyond his or her control. (Authority: 38 U.S.C. 3102)
(3) Contribution of the service-connected disability(ies) to the individual’s overall significant vocational impairment.
(i) Except as provided in paragraph (a)(3)(ii) of this section, the service-connected disability(ies) must contribute in substantial part to the individual’s overall significant vocational impairment. This means that the disability(ies) must have an identifiable, measurable, or observable causative effect on the overall significant vocational impairment, but need not be the sole or primary cause of the serious employment handicap. (Authority: 38 U.S.C. 3101)
(ii) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual’s service-connected disability(ies) need not contribute to the individual’s overall significant vocational impairment.
(b) Factors for assessment during the initial evaluation, when determining whether a significant vocational impairment exists. The combination of all restrictions and their effects on the individual define the extent of the vocational impairment and its significance. When determining whether the individual has a significant vocational impairment, VA will develop and assess the following factors and their effects:
(1) Number of disabling conditions;
(2) Severity of disabling condition(s);
(3) Existence of neuropsychiatric condition(s);
(4) Adequacy of education or training for suitable employment;
(5) Number, length, and frequency of periods of unemployment or underemployment;
(6) A pattern of reliance on government support programs, such as welfare, service-connected disability compensation, nonservice-connected disability pension, worker’s compensation, or Social Security disability;