VR&E Denied? How to Read the Decision and Challenge It

A VR&E decision should say what VA decided and why. Read it for the specific finding, because each reason has its own rule and its own fix. The most common ones:

• No employment handicap (or no serious employment handicap, if you're rated below 20%).
• Your vocational goal isn't "reasonably feasible."
• Your eligibility period ran out.
• VA approved VR&E but said no to a specific school, program or goal you asked for.
• VA won't cover a past period, such as school you already started and paid for.

If you're rated 20% or more, you need an employment handicap. If you're rated below 20%, you need a serious employment handicap (38 C.F.R. § 21.40). Under 38 C.F.R. § 21.51, a counselor finds an employment handicap only when all three of these are true:

• You have an impairment of your ability to prepare for, get or keep a job.
• You haven't overcome it by working in, or qualifying for, a suitable job. A job you qualify for but can't get or keep for reasons beyond your control doesn't count against you.
• Your service-connected disability contributes "in substantial part" to that impairment. It doesn't have to be the only or main cause.

Evidence that can answer this finding: what your conditions actually stop you from doing at work, missed work or accommodations, jobs you lost or couldn't keep, a doctor's statement about work limits, and anything showing your current job doesn't fit your abilities and limits. If your rating has gone up since the decision, that can matter too, because the threshold is different below and above 20%.

VA must decide whether reaching a vocational goal is reasonably feasible (38 C.F.R. § 21.53). It is feasible when a goal has been identified, your physical and mental conditions let training start within a reasonable time, and you either have the skills and background you need or VA will provide services to build them.

Two parts of the rule help Veterans. "Any reasonable doubt shall be resolved in favor of a finding of feasibility." And a finding of infeasibility without an extended evaluation "requires compelling evidence which establishes infeasibility beyond any reasonable doubt." If VA called your goal infeasible without an extended evaluation, check what evidence it relied on.

If you left active duty on or after January 1, 2013, there's no time limit on your eligibility. If you left before then, the basic period generally ends 12 years after the later of your notice of separation or your first VA rating, and it can be extended if a counselor finds a serious employment handicap (VA eligibility page).

Check the dates VA used: your discharge date, the date of your first rating, and whether VA considered a serious employment handicap before saying the period ended.

Sometimes VA approves VR&E but won't approve the program you want, or won't cover school you already started. A Veteran can sometimes be brought into the program retroactively (38 C.F.R. § 21.282). When that happens, VA may pay tuition, fees and other verifiable expenses you paid or owed that fit the approved program, and subsistence allowance for that time.

VA can do this only if every condition in § 21.282(c) is met. Among them: the past period was within your eligibility period, you were entitled to compensation then, you met the Chapter 31 entitlement rules in effect then, VA finds the training was reasonably needed and can be part of your plan, VA has recouped any other education benefits it paid for the same period, and an initial evaluation has been done.

If VA denied a past period, find which condition it said wasn't met. Keep your enrollment records, tuition statements and proof of what you paid.

Under 38 C.F.R. § 21.416, you have one year from the date VA issues notice of the decision to choose one of these:

• Higher-Level Review (VA Form 20-0996). A more senior reviewer looks again at the same evidence. No new evidence. Fits when the problem is how VA applied the rules to what it already had.
• Supplemental Claim (VA Form 20-0995). VA decides again with new and relevant evidence. For VR&E, the rule doesn't require the usual complete application form, and no hearing is provided.
• Board appeal (VA Form 10182). A Veterans Law Judge decides, on the Direct Review, Evidence Submission or Hearing docket.

For VR&E decisions, follow the mailing instructions in your decision letter. HLR, Supplemental Claim, or Board Appeal? compares the options side by side, and VA's appeal deadline guide explains how the one-year window is counted. You choose the option.

Veterans Service Organizations and county Veterans service officers help with VR&E at no cost. If your rating is close to the 20% line, a higher rating can change which employment-handicap test applies, so it's worth checking your compensation decision too. The free decision check reads a rating decision letter and shows the issues to look at and your deadlines.

ClaimScope is software, independent of VA. This is general information, not legal advice. No outcome is guaranteed.