PREC 8-94 Vocational Assessments in Individual Unemployability Claims -- Poler v. Derwinski, No. 91-1113 (Vet.App. June 26, 1992) remanded Citation: Vet. Aff. Op. Gen Couns. Prec. 8-94, VAOPGCPREC 8-94, 1994 QUESTIONS PRESENTED: a. If no claim has been filed under the Vocational Rehabilitation program authorized by chapter 31, title 38, United States Code, does Vocational Rehabilitation Service, Veterans Benefits Administration (VBA) have statutory authority to evaluate a veteran for purposes of determining the individual's eligibility for compensation benefits under chapter 11, title 38, United States Code? b. If such statutory authority exists, is an implementing regulation also required pursuant to section 501(a)(3), title 38, United States Code? c. If Vocational Rehabilitation Service within VBA does not have statutory authority to provide a rehabilitation assessment for purposes of the VA compensation benefits program, is there statutory and regulatory authority for requesting an equivalent VA examination (e.g., a fee-basis consultation by a psychologist who specializes in vocational assessments)?
HELD: a. Vocational Rehabilitation evaluations conducted under authority of chapter 31, title 38, United States Code, may be provided only to eligible persons applying for benefits under that chapter and only for the specific purposes of that chapter. b. The Secretary has authority under section 501(a)(3), title 38, United States Code, to conduct a "vocational rehabilitation assessment" for purposes of determining the existence of facts to support an IU rating. Further, 38 U. S. C.
§ 512 authorizes the Secretary to delegate to any VA component the responsibility for making such assessments. c. Under, 38 U. S. C. § 513, the Secretary theoretically may, subject to procurement rules, contract with third parties for such assessments if he deems them to be necessary for proper administration of the compensation benefits program. However, as noted in the attached opinion, the Congress has previously considered and failed to enact legislation mandating use of such assessments. Therefore, Congress may perceive that administrative implementation of such a requirement by the Secretary is an attempt to circumvent the legislative will of Congress by providing for a procedure which the latter, to date, has rejected. d. If the Secretary elects to exercise all or any of the statutory authority cited in paragraphs (b) or (c) of this holding, the Secretary must, as a prerequisite, promulgate appropriate implementing regulations consistent therewith and with the dictates of due process. In particular, substantive regulations first would have to be promulgated detailing the scope, purpose, criteria for, and potential legal
effect of such assessments and should include a delegation of the task of administering the requirement to a particular agency activity. e. As to the case which precipitated this inquiry, we believe that the assessment agreed to by the parties and incorporated in the COVA remand may be conducted on an ad hoc basis by any agency activity competent to do so as informally designated by the Secretary. Absent such a consensual arrangement, however, and without appropriate regulatory authority, imposing that assessment on a case-by-case basis would violate due process and would be ultra vires. Moreover, absent a policy determination on the use of an employability assessment in deciding IU claims, and absent appropriate regulations, administrative procedures, and delegation of authority implementing such a policy, we would recommend against inviting or encouraging even consensual use of the assessment on an ad hoc basis in future cases. Among other legal concerns, such action could provoke claims of unequal treatment under the law. |
