Citation Nr: 9818912 Decision Date: 06/19/98 Archive Date: 06/23/98 DOCKET NO. 97-30 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to additional vocational rehabilitation training to a higher level than is usually required for employment in her occupational field under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from June 1977 to October 1978, and from April 1980 to April 1988, with evidence of additional active service from February 1972 to September 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal of decisions of the Seattle, Washington, regional office (RO), denying the veteran’s request for additional vocational rehabilitation training. The veteran submitted additional evidentiary material directly to the Board at the April 1998 hearing. The veteran has submitted a waiver of review of this evidence by the RO. REMAND The veteran contends that she is entitled to additional vocational rehabilitation training. She notes that she has received approval to pursue a master’s degree in psychology. However, she argues that a doctorate is required in order to achieve her goal of becoming a clinical psychologist. She notes that she is a transsexual, and she believes that extra training is required in order to overcome the inevitable discrimination she believes she will face when she seeks employment. She states that a doctorate is required in order to establish an individual practice as a clinical psychologist, and to avoid having to undergo the scrutiny and background checks that would accompany the hiring process. In addition, she states that the entry-level degree in her chosen field is a doctorate, and that her employment opportunities would be at best limited if she begins her job search with only a master’s degree. There is conflicting evidence in the record as to whether a higher degree program is feasible given the veteran’s psychiatric impairment, and if it is feasible, whether because of the serious employment handicap, a higher level of training is necessary than that which would be required for an entry-level position. A review of the evidence indicates that service connection is in effect for schizophrenic reaction, paranoid type/competent. A 70 percent evaluation is assigned for this disability. The record further reflects that the veteran applied for Chapter 31 vocational rehabilitation benefits in December 1993. Her stated vocational goal was to complete a doctorate in psychology. The veteran was afforded a psychiatric examination in February 1994. The examiner was of the opinion that, at the present time, it was unlikely that the veteran would succeed at a vocational rehabilitation program, especially one as ambitious as a graduate program in psychology. A May 1994 statement from the veteran’s private psychiatrist noted that she had made significant progress over the past few months, and expressed support for a vocational rehabilitation program on a part-time basis. The veteran’s Department of Veterans Affairs (VA) Counseling Psychologist (CP) submitted a recommendation in April 1994. The CP found that achievement of the veteran’s desired vocational objective was currently infeasible, but encouraged the veteran to reapply. In response to this decision, the veteran appeared before the Vocational Rehabilitation Panel (VRP) in May 1994. The VRP found that the goal of a doctorate in psychology was not realistic at that time, but did recommend that the veteran enter a plan of Independent Living Services as the first incremental step in reaching her goal. She was informed that successful completion of this step could lead to continuation to the next step. A November 1994 narrative report from a VA Vocational Rehabilitation Counselor is contained in the claims folder. The veteran was noted to have first applied for evaluation of vocational training needs and job placement potential in June 1994, and to have stated an interest in pursuing a doctoral degree in psychology. The report noted that the occupation of clinical psychologist/counseling psychologist was expected to grow faster than average for all occupations. Competition was keen, and few opportunities existed for entry level candidates in private practice. For those with master’s degrees, a specialist in school psychology would have the best prospect. Psychologists who offered services directly to the public, such as a clinical psychologist in private practice, were required to have a doctoral degree in order to be licensed by the state of Washington. The veteran’s lack of any work experience since service discharge, the transgender issue and her chronic psychiatric disability presented the potential for a negative reaction by prospective employees. The impact of the veteran’s service connected disability was clearly documented. The counselor reported that he had talked to the veteran’s treating psychiatrist, who was of the opinion that the veteran was now stable enough to pursue vocational rehabilitation. A November 1994 report by the CP concluded that the veteran appeared to have the academic ability to complete an advanced degree program and that potential employers in the counseling field would probably be fairly “excepting” of this veteran’s issues. In November 1994, the VRP noted that the information from the November 1994 narrative report was very supportive of an attempt at vocational rehabilitation for the veteran. The veteran was believed to be much improved and that a plan should be developed incrementally. The VRP concluded that an Individualized Extended Evaluation Plan (IEEP) should be formulated. The VRP stated that satisfactory completion of this plan would enable the veteran to advance to her long- term goal. A November 1994 Rehabilitation Plan noted that the veteran was to participate in prerequisite psychology and counseling classes, and a GRE preparation course. A May 1996 report of the VRP notes that the veteran and her therapist had appeared and presented evidence in favor of her contention that a doctorate was required in order to be employed. The panel found that the veteran clearly needed master’s level training to be followed by a significant job search. Self-employment was to be considered only after all avenues had been explored and failed. The veteran was notified by letter in May 1996 that the VRP had found that it was feasible for her to proceed toward a vocational goal. She was informed that she would not be supported to pursue a doctorate, but would be supported to pursue a master’s degree in a well-established program. A terminal master’s degree program would also not be supported. A May 1996 narrative report from the CP noted that the veteran was still interested in pursuing a doctorate. She also noted that she would be undergoing gender change surgery in the next few months, and would then require six months to recover. The CP did not believe that it appeared feasible for the veteran to pursue Chapter 31 services. The veteran appeared at a hearing before a member of the Board in April 1998. She testified that a vocational rehabilitation plan to obtain a doctorate in psychology was necessary to place her in a competitive employment position. Transcript at page 2. (T. at 2). She argued that she had been promised by the VRP in May 1994 that she would be allowed to pursue a doctorate if she successfully completed the first steps of the evaluation program, but that after successful completion of the first step, the VRP informed her that she would be approved only for a master’s degree, and not for a doctorate. T. at 5-6. She had applied for acceptance at three stand-alone master’s programs, but had not been admitted. T. at 7-8. The veteran stated that the psychology field was highly competitive at the graduate school level, and also in the employment sector, and that only one in three graduates at the master’s level were able to obtain jobs in their fields. She noted that she would have the added disadvantage of facing discrimination from potential employers due to her transsexualism. T. at 10. The veteran stated that if she was not able to find a job through an employer, a doctorate would allow her to become licensed and set up a private practice where she could be self-employed. T. at 11. The veteran noted that even though the job market was highly competitive, it was possible to find employment in the field of psychology with just a master’s degree, but this would not be an adequate education to become a clinical psychologist. She believed that she needed a doctorate in order to have a competitive edge in the job market. T. at 13. The claims folder has not been associated with the record before the Board. Accordingly, the claim is REMANDED for the following: 1. The RO should associate the claims file with the vocational rehabilitation folder. The RO should contact the veteran and ask her to submit all copies of relevant documents she has in her possession that are not already associated with the claims file. 2. The RO should obtain the veteran’s psychiatric treatment records. The veteran should supply the name(s), address(es), date(s) of treatment, etc. and any authorization(s) necessary to complete this development. 3. The RO should schedule the veteran for a VA psychiatric examination to determine the severity of her psychiatric disability and to determine whether the veteran has a serious employment handicap. 4. A counseling psychologist should again review the record and, if helpful, interview the veteran, to determine the feasibility of her completing a Ph.D. program pursuant to 38 C.F.R. § 21.53 (1997) and, if so, and if a serious employment handicap exists, determine whether an advanced degree is warranted pursuant to 38 C.F.R. § 21.72 (b)(2) (1997). 5. After the development requested above has been completed to the extent possible, the RO should again review the veteran’s request for additional vocational rehabilitation training benefits. If the benefits sought on appeal remain denied, in whole or in part, the veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. If the benefit sought on appeal is not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until she is notified by the RO; however, the veteran is advised that failure to cooperate by reporting for examinations may result in the denial of her claim. 38 C.F.R. § 3.655 (1997). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. THOMAS J. DANNAHER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1997). - 2 -