Citation Nr: 1019012 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 07-07 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether discontinuance of Department of Veteran's Affairs vocational rehabilitation and employment services under Chapter 31, 38 United States Code was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from February 1983 to August 2003. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). FINDING OF FACT The evidence of record shows that the Veteran's vocational goal of becoming a general contractor is reasonably feasible. CONCLUSION OF LAW The criteria for entitlement to VA vocational rehabilitation benefits under Chapter 31, Title 38, United States Code, for the Veteran's pursuit of training as a general contractor, have been met, and therefore discontinuance of vocational rehabilitation and employment services was improper. 38 U.S.C.A. §§ 3101, 3102, 5103, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 21.1, 21.35, 21.40, 21.198 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). However, such duty is applicable to claims filed in association with Chapter 51 of Title 38 of the United States Code. It follows that because the statute at issue in this matter is found in Chapter 31 of Title 38 of the United States Code, VA's duties to notify and to assist the Veteran are not applicable to this claim. See, e.g., Barger v. Principi, 16 Vet. App. 132, 138 (2002). Without deciding whether the notice and development requirements have been satisfied in the present case, this law does not preclude the Board from adjudicating the issue involving the Veteran's claim as the Board is taking action favorable to the Veteran by finding that the discontinuance of Vocational Rehabilitation (VR) and Employment Services was improper. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Generally, basic entitlement to a program of rehabilitation services is met when a Veteran has a service-connected disability that is rated at 20 percent or more disabling and it is determined that the Veteran needs rehabilitation to overcome an employment handicap. 38 C.F.R. § 21.40. An April 2004 rating decision granted service connection for panic disorder without agoraphobia, rated as 30 percent disabling; degenerative joint disease of the left knee, postoperative, rated as 20 percent disabling; impingement syndrome of the right shoulder, postoperative, rated as 10 percent disabling; cervical strain, rated as 10 percent disabling; degenerative disc disease of the lumbar spine, rated as 10 percent disabling; allergic rhinitis, rated as noncompensable; pulmonary sarcoidosis, rated as noncompensable; hypertension, rated as noncompensable; scar, left knee, rated as noncompensable; scar, right shoulder, rated as noncompensable; and tinea pedis, rated as rated as noncompensable. The combined disability evaluation was 60 percent. The purpose of VR services is to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. See 38 U.S.C.A. §§ 3100, 3101 (West 2002); 38 C.F.R. §§ 21.1(a), 21.35(b), 21.70, 21.71 (2009). The three "basic requirements" for eligibility for Chapter 31 VR training are set out in 38 C.F.R. § 21.1(b). The first requirement is that of a basic entitlement to services under 38 C.F.R. § 21.40. 38 C.F.R. § 21.1(b)(1). The second requirement is that the services necessary for training and rehabilitation must be identified by VA and the Veteran. 38 C.F.R. § 21.1(b)(2). Third, an Individualized Written Rehabilitation Plan will be developed in order for a veteran to achieve the goals set forth by the program that will lead to employability. See 38 C.F.R. §§ 21.1(b)(3), 21.80, 21.84 (2009). Here, there is no issue raised that the Veteran did not initially meet the basic entitlement to Chapter 31 vocational rehabilitation program entitlement. A June 2004 letter from the RO stated that the Veteran met basic eligibility requirements, and this finding has never been challenged by VA or the Veteran. Rather, the dispositive issue is whether the Veteran's properly granted VR benefits were properly interrupted, and then discontinued. In that regard, the purpose of discontinued status is to identify situations in which termination of all services and benefits received under Chapter 31 is necessary. 38 C.F.R. § 21.198 (2009). VA will discontinue the Veteran's case and assign the case to discontinued status following assignment to interrupted status as provided in 38 C.F.R. § 21.197 for reasons including but not limited to the following: (1) the veteran does not initiate or continue the rehabilitation process; (2) unsatisfactory conduct and cooperation; (3) end of eligibility and entitlement occurs; (4) medical and related problems; (5) the veteran voluntarily withdraws from the program; and/or (6) the veteran fails to progress in the program. The Veteran's service personnel records show that he served on active military service for 20 years and 6 months. For all but 4 months of that period, his primary specialty was listed as aircraft crew chief craftsman, and he served as a Sergeant for the majority of his career, retiring at the rank of Master Sergeant. The Veteran received the Air Force Commendation Medal, the Air Force Achievement Medal, the Noncommissioned Officer (NCO) Professional Military Education Ribbon with two oak leaf clusters, the Small Arms Expert Marksmanship Ribbon/Rifle, the National Defense Service Medal with one service star, the Air Force Overseas Short Tour Ribbon, the Air Force Overseas Long Tour Ribbon, the Air Force Training Ribbon, the Air Force Longevity Service Award with four oak leaf clusters, the Air Force Outstanding Unit Award with three oak leaf clusters, and the Air Force Good Conduct Medal with five oak leaf clusters. In addition, the Veteran received an extensive military education, including over 22 weeks of advanced technical training such as Jet Engine Mechanic, Jet Engine Technician (F-15), Aircraft Maintenance Specialist (F-15), Air Force Specialty Internship, and F-15 Aircraft Maintenance Engine Starting Systems. His training also included over 20 weeks of leadership training, such as Organization Maintenance, NCO Prepatory, NCO Leadership School, Dedicated Crew Chief Course, U.S. Air Force NCO Academy, and F-15 Dedicated Crew Chief. After the Veteran was enrolled in the VR program, he indicated that his goal was to become a general contractor, and was interested in education in heating, ventilation, and air conditioning (HVAC); carpentry; plumbing; and construction. He reported that his disability prevented him from bending for long periods of time or lifting heavy objects for long periods of time. A July 2004 counselling narrative summarized the Veteran's scores on aptitude, interest, and ability testing. The Veteran "scored highest in electronic, mechanical/fixing, carpentry, and mathematics. In terms of occupational scales, he scored highest for the following occupations: telephone repair technician, tool and die maker, electrician, radio/TV repairer, machinist, and electronics technician." The narrative repeated the Veteran's desires to become a general contractor, and the Veteran reported that he had already applied for a contractor's license. He stated that he believed he needed training in plumbing, HVAC, electrical wiring, and construction. The VR counsellor stated that the demands of a home repair business seem inconsistent with his disabilities. The Veteran insists he will have assistance for any heavy lifting and could work at his own pace if he owns his own business. He would not accept big jobs that he cannot handle. [The Veteran] believes he will work well with customers and will set his own pace. He enjoys the troubleshooting aspects of repair. The summary stated that the Veteran had already begun the research process regarding home repair, had reviewed the training offered at a local community college, and had contacted the local Chamber of Commerce to obtain assistance in establishing a small business. The VR counsellor then stated that The [V]eteran does not have any work experience in the field of home repairs. It appears to be a big undertaking to gain knowledge in construction, plumbing, HVAC, and electricity but the [V]eteran seems to be determined to gain academic training to correspond with his interests. There seems to be a big local demand for workers in the construction industry and he would have no trouble gaining experience as a helper. The question remains whether or not his shoulder and back conditions will preclude him from working in construction-home repair. The Veteran does need work experience before opening his own business. . . . . . . . Again, his plan seems to require training in a wide range of areas to be successful if he is going to perform much of the work himself. . . . It may be more beneficial for the [V]eteran to select a specialty rather than trying to tackle the entire construction field at this time. In August 2004, the Veteran was referred for a functional limitation evaluation to determine whether achieving his vocational goal was reasonably feasible. An October 2004 VR medical employment evaluation stated that the Veteran had no limitations in walking, stooping, bending, and twisting; was limited to climbing four flights of stairs; was limited to lifting 40 to 60 pounds; and was limited to standing 75 percent of the time. The examiner stated that the Veteran was currently employable. A functional capacity evaluation dated the same day reported that the Veteran was able to lift in the Very Heavy strength category both Floor to Knuckle and Knuckle to Shoulder. He demonstrated that he can walk and stoop unlimited. He demonstrated th[e] ability to stand and walk in the constant [physical demand capability]. He also demonstrated the ability to carry 50 pounds and climb stairs in the frequent [physical demand capability]. The examiner stated that the Veteran had no restrictions or modifications and was physically capable for employment and vocational rehabilitation. In a November 2004 VR case note, the Veteran reiterated his desire for training in HVAC, electrical, civil engineering, and safety so that he could become a general contractor. The VR counsellor "explained that employment in any of these areas seems to be contraindicated based on [V]eteran's disabilities." For this reason, the counsellor "refused to provide [V]eteran training in the areas of his choice and [V]eteran was not satisfied." In a December 2004 letter, the VR counsellor stated that the Veteran's claim for VR benefits had been stopped because the Veteran had not contacted the counsellor since November 2004. The letter stated that the counsellor would "be happy to meet with [the Veteran] to discuss other vocational goals but I am not willing to discuss employment in home repair or general contractor." An April 2005 VR case note stated that the Veteran "continued to want to discuss being a general contractor even though he has no skills or experience in any of the specialties. Veteran reported that he was physically able to do the jobs in electrician, HVAC, and safety." In a May 2005 letter, the VR counsellor stated that the Veteran's VR program had been interrupted in December 2004 because the Veteran "failed to pursue a feasible vocational goal." A June 2005 VR case note stated that the VR counsellor could not concur with HVAC or electrician due to the physical demands of those positions. Veteran has a lifting limitation of 40-60 pounds and yet HVAC is listed as heavy lifting. Electricians are required to work above the shoulders frequently and to kneel, stoop and squat which would aggravate both his shoulder and his knee. [VR counsellor] explained that the vocational goal has to be consistent with the physical limitations of [V]eteran and his abilities, aptitudes and interests. In a second June 2005 VR case note, the Veteran stated that he wanted to appeal the VR counsellor's decision. The Veteran reiterated his desire to become a general contractor and stated that he needed certificate programs in HVAC, electrician, civil engineering, plumbing, and safety. The counsellor stated that "[m]ost of these fields would not be suitable for [V]eteran based on his [service-connected disabilities]." A June 2005 letter stated that the VR counsellor "could not concur" with the Veteran's plan to become a general contractor and that the Veteran was "not interested in an alternative plan." The letter stated that if the Veteran did not contact the VR counsellor to discuss the Veteran's interest in the VR program, the Veteran's VR benefits would be discontinued. In a July 2005 letter, the VR counsellor stated the Veteran's VR benefits had been discontinued because "[w]e were not able to develop a vocational plan." The evidence of record shows that the Veteran's vocational goal of becoming a general contractor is reasonably feasible. The VR counsellor cited only two reasons why this objective was not acceptable for VR benefits: the Veteran's physical ability and the amount of training required. With regard to the Veteran's physical ability, the VR counsellor's decision stated that the Veteran was not qualified for the training because he "has a lifting limitation of 40-60 pounds and yet HVAC is listed as heavy lifting. Electricians are required to work above the shoulders frequently and to kneel, stoop and squat which would aggravate both his shoulder and his knee." As to the "kneel, stoop and squat" requirement, the October 2004 employment evaluations specifically stated that the Veteran was not limited at all in walking, stooping, bending, and twisting. In addition, the employment evaluation specifically stated that the Veteran did not have any restrictions. As such, the VR counsellor's conclusion that the Veteran could not frequently kneel, stoop, or squat are not consistent with the evidence of record. As to the lifting requirement, the VR counsellor repeatedly focused on the requirement to be able to lift "very heavy" objects as part of employment in the Veteran's proposed industry. However, the October 2004 VR medical employment evaluations stated that the Veteran could lift up to 60 pounds and could frequently carry 50 pounds while climbing stairs. In addition, the evaluations stated that the Veteran could lift in the "Very Heavy" strength category from the floor to his shoulders. As such, the medical evidence of record shows that the Veteran's lift capacity was only mildly impaired. Furthermore, the Veteran specifically and repeatedly stated that he wished to pursue a career as a general contractor, not as a specialist. The job of a general contractor is very different from one of a specialist in any of those fields, and it is predominantly managerial and problem-solving in nature. While general contractors will personally engage in physical labor, they also manage teams of workers to accomplish the tasks, and thus are not required to do all of the work themselves. The Veteran himself pointed this out to the VR counsellor and specifically stated that he would have assistance available for any lifting that was too difficult for him, and that he would not take jobs that he was unable to perform. As such, the Veteran's relatively minimal limitations in lifting, standing, and climbing stairs would not necessarily impact a career as a general contractor. With regard to the amount of training required, the Board emphasizes the Veteran's long and exemplary military service. The Veteran served for 20 years in a role that involved extensive knowledge in maintaining and repairing jet fighters for the U.S. Air Force. The Veteran's skill and aptitude in this role is demonstrated by the awards which he received during his service, including the Air Force Commendation Medal, the Air Force Achievement Medal, the Air Force Outstanding Unit Award with three oak leaf clusters, and the Air Force Good Conduct Medal with five oak leaf clusters. In addition, the record shows that the Veteran quickly advanced to the rank of Sergeant and eventually achieved the commendable rank of Master Sergeant. As a result of his ranks, the Veteran became an aircraft crew chief and was responsible for managing a team of personnel to maintain advanced jet fighter aircraft. The Board takes judicial notice that the position of Master Sergeants is focused largely on leadership and management. Such a rank is not only evidence of the Veteran's skill and training, but also of his ability to successfully manage a team of workers. The evidence shows that the U.S. Air Force was sufficiently confident in the Veteran's leadership abilities to provide him with nearly two months of training at the U.S. Air Force NCO Academy. Leadership positions like Master Sergeant are only given to those who have proven themselves capable of high levels of responsibility. As such, the Veteran's service record provides ample evidence that the Veteran is capable of successfully completing training in "a wide range of areas" such as HVAC, electrical work, and plumbing. In summary, the evidence of record shows that the U.S. Air Force believed the Veteran was capable, not only of personally repairing and maintain one of the most advanced fighter aircraft in the world, but of leading and managing a team of other specialists to keep those aircraft operational, even in times of war. Given those qualifications, the Board finds that the Veteran is more than adequately qualified to manage and assist plumber, electricians, and other laborers on home repair and construction projects. Thus, the Board finds that there is a reasonable doubt as to whether the Veteran's vocational goal is reasonably feasible. The Veteran's physical disabilities are not so severe that they would prevent him from doing most of the work required by a general contractor, and the Veteran has the leadership skills to delegate that work which is beyond his endurance to others. Though the Veteran will certainly require a large amount of training in several specialized areas, his military record clearly demonstrates that he is capable of successfully completing this training. Accordingly, the Board finds that the vocational goal of finding and maintaining employment as a general contractor is reasonably feasible, and the criteria for vocational rehabilitation benefits in pursuing this goal under the provisions of Chapter 31, Title 38, United States Code are met. See 38 U.S.C.A. § 3102; 38 C.F.R. §§ 21.1, 21.40. ORDER The Veteran's vocational goal of finding and maintaining employment as a general contractor being suitable and reasonably feasible, discontinuance of VR and employment services was not proper, and the appeal seeking resumed entitlement to vocational rehabilitation benefits in pursuing this goal under the provisions of Chapter 31, Title 38, United States Code, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs