Citation Nr: 0812841 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-36 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. (The issues of entitlement to service connection for a right hip disability, chronic sinusitis, sarcoidosis, and entitlement to an increased initial rating for bilateral pes planus, chronic bilateral sacroileitis, arthritis of the cervical spine, gastroesophageal reflux with esophagitis and duodenitis, chondromalacia, right knee, chondromalacia, left knee, Achilles tendonitis, right foot, Achilles tendonitis, left foot, residual scarring of the right foot, hallux valgus, right foot, hallux valgus, left foot, and prostatism, are the subject of a separate decision.) REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Nancy Rippel, Counsel INTRODUCTION The veteran served on active duty from August 1972 to April 1976; he had other periods of active service, including from January 1985 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 determination by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the veteran's request for vocation rehabilitation and employment (VRE) services. The veteran perfected his appeal with this decision in May 2007. FINDINGS OF FACT 1. Uncontroverted current VA vocational rehabilitation opinion evidence found that the veteran did not have an employment handicap. 2. The evidence does not demonstrate that during the course of this appeal the veteran's employment ability was impaired. CONCLUSION OF LAW The requirements for entitlement to vocational rehabilitation training in accordance with the provisions of Chapter 31, Title 38, United States Code, are not met. 38 U.S.C.A. §§ 3101, 3102 (West 2002); 38 C.F.R. §§ 21.40, 21.51 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The Board finds, however, that specific VCAA notice was not required in this case because the notification procedures for Chapter 31 claims was not affected by this change in law. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice not required in case involving a waiver request). The United States Court of Appeals for Veterans Claims (Court) has also recognized that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The Board finds that all relevant evidence necessary for the equitable disposition of the appeal was obtained and that additional efforts to notify or assist the appellant in this case is not required. The purpose of vocational training under Chapter 31, Title 38, United States Code, is to enable veterans with service- connected disabilities to become employable to the maximum extent feasible and to obtain and maintain suitable employment. 38 U.S.C.A. § 3100 (West 2002); 38 C.F.R. § 21.1 (2007). VA regulations provide that a person shall be entitled to a rehabilitation program under Chapter 31 if such person is a veteran who (a)(1) has a service-connected disability rated at 20 percent or more that was incurred or aggravated in service on or after September 16, 1940; (2) is hospitalized for a service-connected disability and has a disability that will likely be compensable at a rate of 20 percent or more; or (3) has a service-connected disability which is compensable, or is likely to be compensable at less than 20 percent, if the individual filed an original application for Chapter 31 before November 1, 1990, and (b) is determined by VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102 (West 2002); 38 C.F.R. § 21.40 (2007). An employment handicap is "an impairment of the veteran's ability to prepare for, obtain, or retain employment consistent with the veteran's abilities, aptitudes, and interests." 38 C.F.R. § 21.51(b) (2007). The term "impairment" is defined as a restriction on employability caused by disabilities, negative attitude towards the disabled, deficiencies in education and training, and other pertinent factors. 38 C.F.R. § 21.51(c). The law provides that an "employment handicap" does not exist when any one of the following conditions is present: (i) The veteran's employability is not impaired; this includes veterans who are qualified for suitable employment, but do not obtain or retain such employment for reasons within their control; (ii) the veteran's employability is impaired, but his or her service-connected disability does not materially contribute to the impairment of employability; or (iii) the veteran has overcome the effects of the impairment of employability through employment in an occupation consistent with his or her pattern of abilities, aptitudes and interests, and is successfully maintaining such employment. 38 C.F.R. § 21.51(f)(2). The veteran's service-connected disability need not be the sole or primary cause of the employment handicap, but it must materially contribute to the impairment as described above in 38 C.F.R. § 21.51(c)(1). Therefore, its effects must be identifiable, measurable, or observable. 38 C.F.R. § 21.51(c)(3). Evidence of the consistency of interests with training and employment may be based on the veteran's statements to a VA counseling psychologist during initial evaluation or subsequent re-evaluation, the veteran's history of participation in specific activities; or information developed by VA through use of interest inventories. 38 C.F.R. § 21.51(c)(4). The veteran's abilities to obtain or retain employment are not impaired if he has a history of current, stable, continuous employment. 38 C.F.R. § 21.51(e)(2), (3). The law and regulations also provide that a separate determination addressing whether a "serious employment handicap" exists shall be made in each case in which an employment handicap is found. 38 U.S.C.A. § 3106(a) (West 2002); 338 C.F.R. § 21.52(a). VA regulations define a "serious employment handicap" as a significant impairment of a veteran's ability to prepare for, obtain or retain employment consistent with such veteran's abilities, aptitudes, and interests. 38 C.F.R. § 21.52(b). In reviewing a Board determination concerning Chapter 31 vocational rehabilitation benefits the Court has noted that "the Secretary is given broad authority to make awards and determine the scope of services and assistance." Kandik v. Brown, 9 Vet. App. 434, 438 (1996). The Court further noted that such determinations are only set aside in cases found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In this case, the pertinent evidence of record shows that service connection has been established for multiple disabilities, including sacroileitis, arthritis of the cervical spine, bilateral pes planus, tinnitus, hypertensive cardiomyopathy, gastroesophageal reflux disease, dermatophytosis, and migraines, each rated at 10 percent. The following service-connected disabilities are noncompensable: chondromalacia of the knees, bilateral Achilles tendonitis, bilateral hallux valgus, calcifications of the right hilum, hypertension, hemorrhoids, mild prostatism, and scars from appendectomy and right foot resection. The veteran's combined service- connected disability rating is 60 percent. The veteran originally applied for VRE benefits in July 2004. Counseling records reflect he was working as a high school teacher but had a serious handicap. However, services were suspended in December 2004 because the veteran did not wish to pursue the application process. He completed his VA Form 28-1900. He sought benefits again in October 2006. Benefits were denied in November 2006 because the veteran did not appear for the scheduled appointment to determine his eligibility. He made reapplication in November 2006, and appeared for his scheduled meeting in December 2006. The veteran underwent orientation for the evaluative process as reflected in his VA Form 22-1902b. He did not complete the Rehabilitation Needs Inventory (RNI) or other requested paperwork that he was asked to complete for the interview. During the interview, the veteran reported that he was employed by the FAA as a Logistics Manager at $4,700.00 per month. He had a Master's Degree in Management. He was a GS- 12. A December 2006 VA counseling record authored by the VA counseling psychologist noted that the veteran, in essence, requested entitlement to VA vocational rehabilitation benefits for obtaining his Doctorate. He was obtaining the degree presently from the University of Phoenix, using his Chapter 30 educational benefits to pay for the courses. The veteran reported discomfort during prolonged standing, with no other functional limitations noted. The counselor concluded that the service-connected disabilities currently had a minimal impact on his employability. Impairment to employment was noted as back pain. Noting that he currently worked for the FAA as a Logistics Manager, the counselor concluded that the veteran overcame his impairment using transferable skills. He reported he was not in danger of losing his job due to his service-connected disabilities. Thus, the counselor concluded he had overcome the effects of his impairment of employability through continuous, stable employment. While the counselor gave the veteran the opportunity to provide medical evidence that he could no longer perform duties required of his present job, or a letter from his employer, the veteran stated he did not feel he could provide this documentation. Thus, the counselor concluded that the veteran did not have significant difficulties at his present job. He noted the veteran had made no plans to seek employment elsewhere. He encouraged the veteran to reapply should the circumstances change. In the December 2006 denial letter, the veteran was advised that he did not have an employment handicap because he had no impairment of employability. The counselor concluded the veteran did not meet the criteria for an employment handicap. The counselor found that the veteran was not in need of VA Vocational Rehabilitation services under Chapter 31. In his substantive appeal, the veteran stated that his service-connected disabilities affected his work. He reported that he took a downgrade from a GS13 to a GS 12 due to his reflux. He provided no documentation to support this statement. He felt the GS-13 position was more compatible with his interests, aptitudes and abilities. He felt the doctorate degree would allow him to obtain a position for which he is compatible. Based upon the evidence of record, the Board finds it is not demonstrated that during the course of this appeal the veteran's employment ability was impaired. Nor is it shown that his ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes and interests was impaired as a result of disability. The veteran has had ongoing work as a logistics manager for the FAA. He has also been studying for another degree. He has had steady employment with the FAA for a few years now. While he urged in his substantive appeal that he needed his Doctorate for advancement, this does not indicate an employment handicap. Although he avers that he voluntarily downgraded due to his reflux, he has worked as a manager for a few years. Additionally, the VA Counseling Psychologist directly noted that the veteran would not complete paperwork that would give additional necessary information in this claim. The purpose of vocational training under Chapter 31 is to enable veterans with service-connected disabilities to become employable to the maximum extent feasible and to obtain and maintain suitable employment. While the veteran met the service-connected disability criteria for basic entitlement to vocational rehabilitation training, the Board finds there is no probative evidence of an employment handicap. The veteran's belief as to the increased employment opportunities possibly available to him with an additional degree is considered to be plausible; however, the opinion of the vocational rehabilitation and employment counselor/ clinical psychologist, uncontroverted by other vocational or medical evidence, is considered to warrant a higher degree of probative weight. This evaluator is considered to have a greater level of expertise as to such matters as a result of training and experience, and has opined that, with his education and work history, the veteran did not have an employment handicap as a result of service- connected disabilities because he overcame impairment. To the extent that the veteran asserts his claim should be considered under the provisions of 38 C.F.R. § 21.72 and 38 C.F.R. § 21.284 for rehabilitation to the point of employability, as he is found not to have an employment handicap these provisions are not applicable to his claim. He is employed consistent with his background, and he has not met the criteria for basic entitlement and such additional issues as to rehabilitation to the point of employability are not considered to be relevant. In essence, the Board finds basic entitlement is required prior to application of any regulations addressing the adequacy of rehabilitation. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the veteran's claim. ORDER Entitlement to vocational rehabilitation training under the provisions of Chapter 31 is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs