Veteranclaims’s Blog

January 16, 2013

Single Judge Application; Vocational Rehab.; 38 USC 3104(a); Is Commute Part of Rehabilitation Services

Excerpts from decision below:
The issue presented is not whether the act of riding a bicycle
is integral to the training VA authorized, but whether a participant’s commute home from VA vocational rehabilitation class is within the scope of the rehabilitation services provided by VA as described in section 3104(a) and addressed in Cottle. Given Mr. Conniff’s arguments, the Board’s statement that it is “manifestly obvious” that riding a bicycle is not an “essential activity or function” or a “necessary component” of VA vocational rehabilitation training (38 C.F.R. § 3.361(d)(3); R. at 13), not only mischaracterizes the veteran’s argument, it also does not contain the
reasoned analysis needed to support an ultimate conclusion as to the question and to enable review by this Court. See Gilbert, 1 Vet.App. at 56-57.

=============================
However, the Board concluded that there is no proximal causal connection
between the veteran’s conceded additional disability and an essential activity or function of the VA vocational rehabilitation program without adequate examination or explanation of whether an individual’s commute to and from rehabilitation classes is an essential activity or necessary component of the vocational rehabilitation program and the scope of services listed in 38 U. S.C. § 3104. Therefore, the Board’s conclusion as to proximate cause was premature–§ 3.361(b) informs VA’s proximate
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cause determination and is not irrelevant in this case. Therefore, the
Board’s failure to consider the “essential activity” language in light of section 3104(a) is not harmless error.

=============================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2131
AUGUSTINE P. CONNIFF, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Augustine P. Conniff served in the U.S. Army from March
1987 to May
1988. Record (R.) at 4. He now appeals through counsel from a May 31, 2011,
decision of the
Board of Veterans’Appeals (Board) that deniedentitlement to compensation
under 38 U.S.C. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees, and laceration of the forehead,1 all claimed to have been sustained while in pursuit of a program of VA vocational rehabilitation.2
For the following reasons, the Court will set aside the Board’s May 2011 decision and remand the case for readjudication consistent with this decision.
There is also evidence in the record of “impaired brain function of
moderate severity” (R. at 98), allegedly resulting from the same accident in which Mr. Conniff suffered the wrist and forearm fractures. R. at 96. The Board noted this evidence (R. at 9), but did not include brain damage in its description of the claim.
The Board also referred a claim for entitlement to service connection for
arthritis in the wrists and knees for development. Normally, the Court does not have jurisdiction over a referred claim. See Link v. West, 12 Vet.App. 39, 47 (1998) (“Claims that have been referred by the Board to the [VA
regional office] are not ripe for review by the Court.”). But see Young v. Shinseki, 25 Vet.App. 201 (2012) (en banc order) (Court has limited jurisdiction to review the propriety of referring rather than remanding a portion of a claim properly before the Court). Because Mr. Conniff
raises no argument as to the propriety of the referral, the Court will
give no further consideration to that matter.
2
1

I. FACTS
Beginning in 2004, Mr. Conniff participated in
aVAvocationalrehabilitationprogramunder
title 38 U.S.C., chapter 31 (R. at 323, 719); the program included a
course of study at Arkansas State
University Mountain Home. See R. at 13. On June 7, 2007, after taking a
test in connection with
the vocational rehabilitation program, he was returning home on his
bicycle and, while en route, an
automobile struck him while he was entering an intersection crosswalk. R.
at 331, 334, 337-38. His
injuries included “[two] double breaks in the bones of each forearm, both
wrists [] shattered, and
. . . three broken fingers on the right (major) hand.” R. at 719. He
apparently also sustained a “large
laceration superior left skull,” which required 10 sutures. R. at 8. The
driver of the automobile “was
at fault for failure to yield and careless driving. [S]he was issued two
citations.” R. at 334 (police
report).
On June 25, 2007, Mr. Conniff submitted a claim for compensation for his
injuries under
38 U.S.C. § 1151. The regional office denied the claim on the basis that “[
t]here [was] no action on
the part of the VA that resulted in the accident that caused [the]
additional disabilities and [the]
travel from the site of VA’s vocational rehabilitation training was not an
act performed in [pursuit]
of vocational training, that is, a required learning activity.” R. at 292.
On appeal to the Board, Mr. Conniff’s representative argued that under
Cottle v. Principi,
14 Vet.App. 329 (2001), “the phrase ‘in the pursuit of a course of
vocational rehabilitation’ embraces
a full programof rehabilitation[,] which includes educational, vocational,
and employment services,
and which ends when the veteran has been declared rehabilitated.” R. at
137. He argued that “the
injuries [Mr. Conniff] sustained while traveling on his way home . . .
arose out of and in the course
of his vocational rehabilitation [t]raining.” Id. He cited a case from the
Arkansas Supreme Court
that granted worker’s compensation benefits under a “coming and going”
rule for an in-home
assistant who used her own vehicle to travel to and from her patients’
homes. The representative
argued that like the plaintiff in that case, Mr. Conniff “was acting
within the course of his
employment with [the VA] Vocational Rehabilitation Training [Program] at
the time his injuries
were sustained.” R. at 138.
In the decision here on appeal, the Board found that “[r]iding a bicycle
was not a necessary
component of the training or services program authorized for the Veteran.”
R. at 5. The Board
asserted that “[i]t is manifestly obvious that riding a bicycle was not an
‘essential activity or function’
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of [the] training, nor was it a ‘necessary component’ of the training he
was receiving.” R. at 13; see
38 C.F.R. § 3.361(d)(3) (2012). The Board reasoned that “[t]he VA
training program did not cause
the Veteran’s injuries; misadventure and a careless driver of another
vehicle on a public highway
did.” Id. The Board concluded that “[t]here is nothing in the law,
regulations or court decisions
which make VA an insurer with respect to injuries sustained via activities
which are only
tangentially connected with VA programs, such as traveling to and from
such programs.” Id.
The Board interpreted the statute and regulation to exclude Mr. Conniff’s
claim under the
proximate causation requirement. The Board concluded that: “[T]here is no
proximal causal
connection between the multiple injuries, involving the wrists, forearms,
knees and left forehead,
sustained in the June 2007 bicycle accident and an essential activity or
function which was within
the scope of the VA rehabilitation course.” R. at 13.

II. ANALYSIS
A. Applicable Law and Regulations
Under 38 U.S.C. § 1151(a), compensation “shall be awarded for a
qualifying additional
disability in the same manner as if such additional disability were
service[ ]connected” if the
disability was
(a) . . . not the result of the veteran’s willful misconduct and –
(2) . . . was proximately caused [] by the provision of training and
rehabilitation services by the Secretary (including by a service-provider
used
by the Secretary for such purpose under section 3115 of this title) as
part of
an approved rehabilitation program under chapter 31 of this title . . . .
38 U.S.C. § 1151(a). Thus, to obtain benefits under 38 U.S.C. § 1151(a),
Mr. Conniff, who was
participating in a VA vocational rehabilitation program, must show: (1) A ”
qualifying additional
disability,” (2) proximately caused by the provision of VA training and
rehabilitation services under
chapter 31. Id.
To establish that the provision of training and rehabilitation services ”
proximately caused
a veteran’s additional disability . . . it must be shown that the
veteran’s participation in an essential
activity or function of the training, services, or CWT (Compensated Work
Therapy) provided or
authorized by VA proximately caused the disability.” 38 C.F.R. § 3.361(d)(
3) (emphasis added).
3

“It need not be shown that VA approved that specific activity or function,
as long as the activity or
function is generally accepted as being a necessary component of the
training, services, or CWT
program that VA provided or authorized.” Id. (emphasis added). The
regulation further states that
“[t]he proximate cause of disability . . . is the action or event that
directly caused the disability . . .
as distinguished from a remote contributing cause.” 38 C.F.R. § 3.361(d).
The Board is required to consider all evidence of record and discuss all ”
potentially applicable” provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In
rendering its decision, the Board must also provide a statement of reasons
or bases that is adequate to enable an appellant to understand the precise basis for that decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with these requirements,
the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Court reviews the Board’s interpretation of the statute and regulations de novo. See 38 U.S.C. § 7261(a); Martin v. Brown, 6 Vet.App. 272, 274 (1994).

B. Summary of the Parties’ Arguments
Mr. Conniff argues, inter alia, that his commute
fromhisVAvocationalrehabilitationclasses
was “an essential activity or function” of that program. Appellant’s Br.
at 10-11. Mr. Conniff
further argues that the Board erred in failing to fully address an
argument raised below, to the effect
that a rehabilitation program includes a panoply of services directed at
rehabilitating a veteran, all
of which are essential activities or functions of the training.
Appellant’s Br. at 9 (citing Cottle,
supra). In Cottle, the Court construed a phrase in a former version of
section 1151,3 which provided for benefits when a veteran was injured in “pursuit of a course of vocational rehabilitation.” Id. at Section 1151 was amended in 1996; the amendment applied to cases filed on or after October 7, 1997. Cottle, 14 Vet.App. at 332. The amended language did not include the phrase “pursuit of a course of vocational rehabilitation.”
Because Mr. Conniff’s claim was received by VA in June 2007 (R. at 11),
the version of the statute considered in Cottle does not apply to Mr. Conniff’s claim. However, the Cottle Court remarked: “We note that the current version of section 1151 provides for the same eligibility.” Cottle, 14 Vet.App. at 337.

Therefore, the Court perceives no alteration to the logic of the case inhering in the amendment to the statute.
3
4

332. The Court held that a veteran who injured his back while working for
a city transit system while on a probationary period of employment obtained through a VA rehabilitation program, but who had not been certified as rehabilitated, had a claim for benefits under section 1151 because
“employment services” was within the scope of the rehabilitation program.
Id. at 337. Mr. Conniff argues that his Cottle argument, raised before the Board, “should have prompted a discussion of 38 U.S.C. § 3104(a),” which provides in part that the Secretary may provide participants in the VA
vocational rehabilitation program with travel and incidental expenses and,
in some cases, a special transportation allowance. Appellant’s Br. at 9-10.
Mr. Conniff also raises to this Court an argument submitted to the Board, ”
regarding the ‘coming and going rule’ under the Workers’ Compensation Act.”4
Appellant’s Br. at 8-9; see also R. at 122, 124, 140-44. Mr. Conniff also implies that the Board erred by failing to mention a regulation requiring a “meticulous examination into all the circumstances . . . including a
consideration of the time and place of the incident producing the injury,”
in order to determine the scope of the rehabilitation program (Appellant’s Br. at 11-12).5 38 C.F.R. § 3.358(c)(5) (2012).
The Secretary responds, inter alia, that nothing in Cottle pertained to
the issue of whether a commute to or from a “course of vocational rehabilitation”was within the purview of section 1151. Secretary’s Br. at 11. He concludes that the Board did not err in failing to discuss Cottle or the provisions of 38 U.S.C. § 3104, or alternatively, that the error was harmless because Mr. Conniff has not demonstrated that VA caused his additional disabilities. Id. at 12.

C. Whether Veteran’s Commute Home From a VA Vocational Rehabilitation
Class is an Essential Activity or Function of the Vocational Rehabilitation Program Section 3104 of title 38, U. S. Code, which defines the “Scope of Services and Assistance” of the VA vocational rehabilitation program, provides in part:
(a) Services and assistance which the Secretary may provide under this
chapter,
The Court has cautioned against importing regulations from another body of
benefits law in the adjudication
of VA claims. See Beaty v. Brown, 6 Vet.App. 532, 538 (1994) (“There is no
statutory or regulatory authority for the determinative application of SSA [Social Security Administration] regulations to the adjudication of VA claims.”). For this reason, the Court does not find that consideration of the “coming and going” rule under the Workers’ Compensation Act to be of assistance in resolving this case. The Court will not further discuss this argument.
Section 3.361 applies to claims received by VA after October 1, 1997. 38 C.
F.R. § 3.361(a)(1). Section 3.358 applies to claims received by VA prior to October 1, 1997. 38 C.F.R. § 3.358(a) (2012). As the Board noted, Mr.
Conniff’s claim was received in June 2007. R. at 7. Therefore, his
arguments based on § 3.358 are misplaced.
5
4
5

pursuant to regulations which the Secretary shall prescribe, include the
following:
*****
(13) Travel and incidental expenses under the terms and conditions set
forth in section 111 of this title, plus, in the case of a veteran who
because of
such veteran’s disability has transportation expenses in addition to those
incurred
by persons not so disabled, a special transportation allowance to defray
such
additionalexpensesduringrehabilitation,jobseeking, andtheinitialemployment
stage.
*****
(15) Services necessary to enable a veteran to achieve maximum
independence in daily living.
38 U.S.C. § 3104. Mr. Conniff points out that this Court has stated that
the purpose of chapter 31
benefits is “‘to provide all services and assistance necessary to enable
veterans . . . to become
employable and to maintain suitable employment.'” Id. (quoting Cottle, 14
Vet.App. at 332).
“Consequently,” Mr. Conniff reasons, he “was entitled to reimbursement for
travel and incidental expenses during his vocational rehabilitation.” Appellant’s Br. at 10. Mr. Conniff concludes “that transportation to and from courses provided as a part of a vocational rehabilitation program is an
‘essential activity or function’ of that program.” Id. at 10-11. He adds:
There is no question that had Mr. Conniff sought reimbursement for
transportation expenses to and from his vocational courses, VA would have been obligated to pay him. Where, like here, a veteran uses a mode of transportation that does not have any costs associated with it, that does not eviscerate the fact that transportation to and from classes is an essential activity or function necessary for participation in the
program. Therefore, because Mr. Conniff was participating in an essential
activity or function of his vocational program at the time of his disabling
injuries, he is entitled to compensation under the provisions of 38 U.S.C. § 1151 for his additional disability. Id. at 11.
This argument presents the issue whether a commute home from a vocational
rehabilitation program is to be regarded as within the scope of the services that VA provides in connection with such a program. The record shows that this argument was amply presented to the Board. See R. at
124-27, 135-39, 237. The Board’s purported reasoning, that “[i]t is
manifestly obvious that riding a bicycle was not an ‘essential activity or function’ of this training, nor . . . a ‘necessary component’ of the training he was receiving” (R. at 13), mischaracterized rather than
confronted Mr. Conniff’s
6

argument. The issue presented is not whether the act of riding a bicycle
is integral to the training VA authorized, but whether a participant’s commute home from VA vocational rehabilitation class is within the scope of the rehabilitation services provided by VA as described in section 3104(a) and addressed in Cottle. Given Mr. Conniff’s arguments, the Board’s statement that it is “manifestly obvious” that riding a bicycle is not an “essential activity or function” or a “necessary component” of VA vocational rehabilitation training (38 C.F.R. § 3.361(d)(3); R. at 13), not only mischaracterizes the veteran’s argument, it also does not contain the
reasoned analysis needed to support an ultimate conclusion as to the question and to enable review by this Court. See Gilbert, 1 Vet.App. at 56-57.

The Court will therefore set aside the Board decision and remand the case.
On remand, the
Board should address whether the commute to and from rehabilitation
classes that are part of a
program of vocational rehabilitation is an essential activity or function
or necessary component of
the rehabilitation services furnished by VA, in view of the Court’s
decision in Cottle and
38 U.S.C. §§ 3104(a)(13) & (15).
As to proximatecause,thepertinent regulation states that “[t]he proximate
cause ofdisability
. . . is the action or event that directly caused the disability . . . as
distinguished from a remote
contributing cause.” 38 C.F.R. § 3.361(d). In assessing proximate
causation in the context of the
VA vocational rehabilitation program specifically, the regulation provides
that “[t]o establish that
the provision of training and rehabilitation services [ ] proximately
caused a veteran’s additional
disability . . . it must be shown that the veteran’s participation in an
essential activity or function of
the training . . . proximately caused the disability.” 38 C.F.R. § 3.361(
d)(3). Here, the Board
concluded: “[T]here is no proximal causal connection between the multiple
injuries, involving the
wrists, forearms, knees and left forehead, sustained in the June 2007
bicycle accident and an
essential activity or function which was within the scope of the VA
rehabilitation course.” R. at 13.
However, the Board concluded that there is no proximal causal connection
between the veteran’s conceded additional disability and an essential activity or function of the VA vocational rehabilitation program without adequate examination or explanation of whether an individual’s commute to and from rehabilitation classes is an essential activity or necessary component of the vocational rehabilitation program and the scope of services listed in 38 U. S.C. § 3104. Therefore, the Board’s conclusion as to proximate cause was premature–§ 3.361(b) informs VA’s proximate
7

cause determination and is not irrelevant in this case. Therefore, the
Board’s failure to consider the “essential activity” language in light of section 3104(a) is not harmless error.
See 38 U.S.C. § 7261(b)(2) (requiring the Court to take due account of prejudicial error). Remand will
provide the Board the opportunity to assess proximate causation after full
consideration of the
veteran’s argument that a vocational rehabilitation participant’s commute
to and from rehabilitation
classes is an essential activity or function of the program.
On remand, Mr. Conniff will be free to submit additional evidence and
argument in support
of his claim, and the Board is required to consider any such evidence and
argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board
following the remand herein
ordered will constitute a new decision that, if adverse, may be appealed
to this Court on the filing
of a new Notice of Appeal with the Court not later than 120 days after the
date on which notice of
the Board’s new final decision is mailed to the appellant. See Marsh v.
West, 11 Vet.App. 468, 472
(1998).

III. CONCLUSION
Based on the foregoing, the Court SETS ASIDE the Board’s May 31, 2011,
decision with
respect to the section 1151 claim and remands the matter for
readjudication consistent with this
decision.
DATED: January 2, 2013
Copies to:
Judy J. Donegan, Esq.
VA General Counsel (027)
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