[Federal Register Volume 74, Number 44 (Monday, March 9, 2009)]
[Proposed Rules]
[Pages 9975-9978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4935]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AM84


Vocational Rehabilitation and Employment Program--Periods of 
Eligibility

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend regulations of the Department 
of Veterans Affairs (VA) concerning periods of eligibility applicable 
to VA's provision of Vocational Rehabilitation and Employment benefits 
and services. The proposed amendments are intended to reflect changes 
in law, to reflect VA's interpretation of statutory requirements, to 
make clarifying changes, and to make other changes that are 
nonsubstantive.

DATES: Comments must be received on or before May 8, 2009.

ADDRESSES: Written comments may be submitted through http://

[[Page 9976]]

www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AM84--Vocational Rehabilitation and Employment Program--
Periods of Eligibility.'' Copies of comments received will be available 
for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Alvin Bauman, Senior Policy Analyst, 
Vocational Rehabilitation and Employment Service (28), Department of 
Veterans Affairs, Veterans Benefits Administration, 810 Vermont Ave., 
NW., Washington, DC 20420, (202) 461-9613.

SUPPLEMENTARY INFORMATION: We propose to amend VA's regulations in 38 
CFR Part 21, Subpart A--Vocational Rehabilitation Under 38 U.S.C. 
Chapter 31. These amendments concern periods of eligibility applicable 
to VA's provision of Vocational Rehabilitation and Employment (VR&E) 
benefits and services.
    Specifically, we propose to restate and interpret the provisions of 
38 U.S.C. 3102 and 3103 in 38 CFR 21.41 by defining the term ``basic 
period of eligibility,'' clarifying its significance, identifying the 
provisions for deferring or extending the basic period of eligibility, 
and stating that a servicemember's basic period of eligibility does not 
begin before his or her discharge or release from active military, 
naval, or air service.
    We propose to revise Sec.  21.42 to make clarifying changes in its 
provisions. These include specifying who is authorized to determine 
that the veteran's participation in a vocational rehabilitation program 
is reasonably feasible, after the basic period of eligibility had been 
delayed or interrupted due to any medical condition(s) of the veteran. 
It would also specify that the basic period of eligibility would begin 
or resume on the date of written notice to the veteran of that 
determination.
    We propose to revise Sec.  21.44. Pursuant to 38 U.S.C. 3103(c)(3), 
we would add provisions in a new paragraph (b) to more clearly state 
the length of time that an extension of the basic period of eligibility 
for a veteran with a serious employment handicap may be granted. 
Proposed Sec.  21.44 also would specify who is authorized to extend the 
basic period of eligibility for the reasons described in this section 
and would make other clarifying changes.
    We propose to revise and restructure Sec.  21.45 to conform this 
section to statutory requirements and more clearly state the length of 
extension of the basic period of eligibility for a veteran in a program 
of independent living services.
    We propose to add a new Sec.  21.46 to reflect and interpret an 
amendment to 38 U.S.C. 3103 by section 103(c)(2) of Public Law 107-103 
for a veteran who VA determines ``was prevented from participating'' in 
a vocational rehabilitation program under chapter 31 of title 38, 
United States Code, because they are recalled to active duty. The 
section would reflect our interpretation that ``prevented from 
participating'' includes those who are prevented from commencing or 
continuing in a program of vocational rehabilitation. This section 
would also describe--
    <bullet> The reasons for recall that allow VA to extend the period 
of eligibility; and
    <bullet> The length of extension of the period of eligibility, 
which under 38 U.S.C. 3103(e) is the length of time the veteran served 
on active duty plus 4 months.
    Finally, we propose to rewrite these sections in reader-focused 
plain English and make other nonsubstantive changes in their 
provisions.

Paperwork Reduction Act of 1995

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This proposed rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a regulatory action as a ``significant regulatory 
action,'' requiring review by the Office of Management and Budget (OMB) 
unless OMB waives such review, if it is a regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This proposed rule would not affect any small entities. 
Only individuals would be affected. Therefore, pursuant to 5 U.S.C. 
605(b), this proposed rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The program that this rule would affect has the following Catalog 
of Federal Domestic Assistance number and title: 64.116, Vocational 
Rehabilitation for Disabled Veterans.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs--education, Grant programs--veterans, Health 
care, Loan programs--education, Loan programs--veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools,

[[Page 9977]]

Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Approved: February 24, 2009.
John R. Gingrich,
Chief of Staff.
    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 21 (subpart A) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C. 
Chapter 31

    1. Revise the authority citation for part 21, subpart A to read as 
follows:


    Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in 
specific sections.

    2. Revise the subpart A heading as set forth above.
    3. Revise Sec. Sec.  21.41, 21.42, 21.44, and 21.45 to read as 
follows:


Sec.  21.41  Basic period of eligibility.

    (a) Time limit for eligibility to receive vocational 
rehabilitation. (1) For purposes of Sec. Sec.  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 
Sec. Sec.  21.70 through 21.79 concerning duration of rehabilitation 
programs.)
    (2) Except as provided in paragraph (b) or (c) of this section, the 
period during which an individual may receive a program of vocational 
rehabilitation benefits and services under 38 U.S.C. chapter 31 is 
limited to his or her basic period of eligibility.
    (b) Deferral and extension of the basic period of eligibility. VA 
may defer the beginning date of a veteran's basic period of eligibility 
under Sec.  21.42. VA may extend the ending date of a veteran's basic 
period of eligibility under Sec.  21.42 (extension due to medical 
condition); Sec.  21.44 (extension for a veteran with a serious 
employment handicap), Sec.  21.45 (extension during a program of 
independent living services and assistance), and Sec.  21.46 (extension 
for a veteran recalled to active duty).


Authority: 38 U.S.C. 3103.


    (c) Servicemember entitled to vocational rehabilitation services 
and assistance before discharge. The basic period of eligibility for a 
servicemember who is entitled to vocational rehabilitation services and 
assistance under 38 U.S.C. chapter 31 for a period before discharge 
does not run while the servicemember remains on active duty, but begins 
on the date of discharge from the active military, naval, or air 
service. The period of eligibility requirements of this section are not 
applicable to provision of vocational rehabilitation services and 
assistance under chapter 31 during active duty.


Authority: 38 U.S.C. 3102, 3103.


Sec.  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 
Sec.  21.40.


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


    (b) Character of discharge is a bar to benefits.
    (1) The basic period of eligibility does not commence until the 
veteran meets the requirement of a discharge or release under 
conditions other than dishonorable. (For provisions regarding character 
of discharge, see Sec.  3.12 of this chapter.)
    (2) If VA has considered a veteran's character of discharge to be a 
bar to benefits, the basic period of eligibility commences only when 
one of the following happens:
    (i) An appropriate authority changes the character of discharge or 
release; or
    (ii) VA determines that the discharge or release was under 
conditions other than dishonorable or that the discharge or release 
was, but no longer is, a bar to benefits.
    (3) If there is a change in the character of discharge, or the 
discharge or release otherwise is determined, as provided in paragraph 
(b)(2) of this section, not to be a bar to benefits, the beginning date 
of the basic period of eligibility will be the effective date of the 
change or VA determination.


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


    (c) Commencement or continuation of participation prevented by 
medical condition(s).
    (1) The basic period of eligibility does not run during any period 
when a veteran's participation in a vocational rehabilitation program 
is determined to be infeasible for 30 days or more because of any 
medical condition(s) of the veteran, including the disabling effects of 
chronic alcoholism (see paragraphs (c)(2) through (c)(5) of this 
section).
    (2) For purposes of this section, 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 that:
    (i) Have been diagnosed as manifestations of alcohol dependency or 
chronic alcohol abuse; and
    (ii) Have been determined to prevent the affected veteran from 
beginning or continuing in a program of vocational rehabilitation and 
employment.
    (3) A diagnosis of alcoholism, chronic alcoholism, alcohol 
dependency, or chronic alcohol abuse, in and of itself, does not 
satisfy the definition of disabling effects of chronic alcoholism.
    (4) Injuries 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 are not 
considered disabling effects of chronic alcoholism. An injury itself, 
however, may prevent commencement or continuation of a rehabilitation 
program.
    (5) For purposes of this section, after November 17, 1988, the 
disabling effects of chronic alcoholism do not constitute willful 
misconduct. See 38 U.S.C. 105(c).
    (6) If the basic period of eligibility is delayed or interrupted 
under this paragraph (c) due to any medical condition(s) of the 
veteran, it will begin or resume on the date a Counseling Psychologist 
(CP) or Vocational Rehabilitation Counselor (VRC) notifies the veteran 
in writing that the CP or VRC has determined, based on the evidence of 
record, that participation in a vocational rehabilitation program is 
reasonably feasible for the veteran.


Authority: 38 U.S.C. 3103(b)(1).


Sec.  21.44  Extension of the basic period of eligibility for a veteran 
with a serious employment handicap.

    (a) Conditions for extension. A Counseling Psychologist (CP) or 
Vocational Rehabilitation Counselor (VRC) may extend the basic period 
of eligibility of a veteran with a serious employment handicap when the 
veteran's current employment handicap and need for rehabilitation 
services and

[[Page 9978]]

assistance necessitate an extension under the following conditions:
    (1) Not rehabilitated to the point of employability. The veteran 
has not been rehabilitated to the point of employability; or


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


    (2) Rehabilitated to the point of employability. The veteran was 
previously declared rehabilitated to the point of employability, but 
currently meets one of the following three conditions:
    (i) One or more of the veteran's service-connected disabilities has 
worsened, preventing the veteran from working in the occupation for 
which he or she trained, or in a related occupation;
    (ii) The veteran's current employment handicap and capabilities 
clearly show that the occupation for which the veteran previously 
trained is currently unsuitable; or
    (iii) The occupational requirements in the occupation for which the 
veteran trained have changed to such an extent that additional services 
are necessary to enable the veteran to work in that occupation, or in a 
related field.


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


    (b) Length of eligibility extension. For a veteran with a serious 
employment handicap, a CP or VRC may extend the basic period of 
eligibility for such additional period as the CP or VRC determines is 
needed for the veteran to accomplish the purposes of his or her 
individualized rehabilitation program.


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


    Sec.  21.45 Extending the period of eligibility for a program of 
independent living beyond basic period of eligibility. A Counseling 
Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) may 
extend the period of eligibility for a veteran's program of independent 
living services beyond the veteran's basic period of eligibility if the 
CP or VRC determines that an extension is necessary for the veteran to 
achieve maximum independence in daily living. The extension may be for 
such period as the CP or VRC determines is needed for the veteran to 
achieve the goals of his or her program of independent living. (See 
Sec.  21.76(b) concerning duration of independent living services.)


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


    4. Add Sec.  21.46 to read as follows:
    Sec.  21.46 Veteran ordered to active duty; extension of basic 
period of eligibility. If VA determines that a veteran is prevented 
from participating in, or continuing in, a program of vocational 
rehabilitation as a result of being ordered to active duty under 10 
U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, the 
veteran's basic period of eligibility will be extended by the length of 
time the veteran serves on active duty plus 4 months.


Authority: 38 U.S.C. 3103(e); sec. 308(h), Public Law 107-330, 116 
Stat. 2829.


[FR Doc. E9-4935 Filed 3-6-09; 8:45 am]
BILLING CODE 8320-01-P