[Federal Register Volume 75, Number 12 (Wednesday, January 20, 2010)]
[Rules and Regulations]
[Pages 3165-3168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-879]


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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: Final rule.

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SUMMARY: This document adopts without change the proposed rule 
published in the Federal Register on March 9, 2009, amending 
regulations of the Department of Veterans Affairs (VA) concerning 
periods of eligibility applicable to VA's provision of

[[Page 3166]]

Vocational Rehabilitation and Employment benefits and services. The 
amendments clarify program requirements, interpret and incorporate new 
statutory requirements, and make clarifying non-substantive changes.

DATES: Effective Date: This final rule is effective February 19, 2010.

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: On March 9, 2009, VA published a proposed 
rule in the Federal Register (74 FR 9975). We proposed to amend VA's 
regulations in 38 CFR Part 21, Subpart A--Vocational Rehabilitation 
Under 38 U.S.C. Chapter 31. The amendments in the proposed rule 
concerned periods of eligibility applicable to VA's provision of 
Vocational Rehabilitation and Employment (VR&E) benefits and services.
    VA provided a 60-day comment period for the proposed rule that 
ended May 8, 2009. We received no comments. Based on the rationale set 
forth in the proposed rule, we are adopting the provisions of the 
proposed rule as a final rule without change.
    Specifically, in 38 CFR 21.41, we are clarifying the term ``basic 
period of eligibility.'' We are revising Sec.  21.42 to clarify who is 
authorized to determine that a veteran's participation in a vocational 
rehabilitation program is reasonably feasible and when a basic period 
of eligibility would begin or resume. We are revising Sec.  21.44 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. Section 21.45 is being revised to clearly state the 
length of extension of the basic period of eligibility for a veteran in 
a program of independent living services. Finally, we are adding a new 
Sec.  21.46 to reflect and interpret an amendment to 38 U.S.C. 3103 
that extends the period of eligibility for a veteran who VA determines 
``was prevented from participating'' in a vocational rehabilitation 
program because the veteran was recalled to active duty.

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 final rule will 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 final 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 final rule will 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 final rule will not affect any small entities. Only 
individuals will be affected. Therefore, pursuant to 5 U.S.C. 605(b), 
this final 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 final rule will 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, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Approved: December 8, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

0
For the reasons set forth in the preamble, VA amends 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

0
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.


0
2. Revise the subpart A heading as set forth above.

0
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

[[Page 3167]]

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 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

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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))



0
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), Pub. L. 107-330, 116 
Stat. 2829)


[FR Doc. 2010-879 Filed 1-19-10; 8:45 am]
BILLING CODE 8320-01-P