Citation Nr: 1038296	
Decision Date: 10/12/10    Archive Date: 10/22/10

DOCKET NO.  06-22 148	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, 
Wisconsin


THE ISSUE

Entitlement to vocational rehabilitation benefits and training as 
a paralegal (a non-lawyer legal assistant) under Chapter 31, 
Title 38, United States Code.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans 
Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Francis, Counsel 

INTRODUCTION

The Veteran served on active duty from May 1955 to October 1958. 

This appeal comes before the Board of Veterans' Appeals (Board) 
from a July 2002 decision of the Department of Veterans Affairs 
(VA) Vocational Rehabilitation and Counseling (VR&C) division of 
a Regional Office (RO). 

The Veteran testified before the Board sitting at the RO in April 
2009.  A transcript of the hearing is associated with the claims 
file. 

In August 2009, the Board remanded the appeal for further 
development.  



FINDING OF FACT

The vocational rehabilitation goal of employment as a paralegal 
(non-lawyer legal assistant) is not reasonably achievable.  


CONCLUSION OF LAW

The criteria for entitlement to Chapter 31 vocational 
rehabilitation program benefits for the specific goal of 
employment as a paralegal have not been met.  38 U.S.C.A. 
§§ 3100, 3101, 3102 (West 2002); 38 C.F.R. §§ 21.1, 21.35, 21.40, 
21.53 (2010).  






REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a 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. 2010); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159 and 3.326(a) (2010).  

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his or 
her representative, if any, of any information, and any medical 
or lay evidence, that is necessary to substantiate the claim.  
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must 
inform the claimant of any information and evidence not of record 
(1) that is necessary to substantiate the claim; (2) that VA will 
seek to provide and; (3) that the claimant is expected to 
provide.  See 38 C.F.R. § 3.159(b)(1).  This notice must be 
provided prior to an initial unfavorable decision on a claim by 
the agency of original jurisdiction.  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 
18 Vet. App. 112 (2004).  

The RO received the Veteran's current claim for Chapter 31 
vocational rehabilitation benefits in January 2002.  The notice 
and assistance statutes are generally applicable to all claims 
filed on or after the date of enactment of relevant legislation 
on November 9, 2000, or filed before the date of enactment but 
not yet final as of that date.  The Board must make a 
determination as to the applicability of the various provisions 
of the VCAA to a particular claim.  Holliday v. Principi, 
14 Vet. App. 280 (2000).  

In this case, the RO acknowledged the Veteran's claim in 
correspondence in February 2002 and scheduled an appointment with 
a benefits counselor.  However, the correspondence did not 
provide the criteria for eligibility and process for the benefit 
program prior to the initial decision on the claim in July 2002.  
Therefore, the Board must determine whether the absence of timely 
notice was prejudicial to the Veteran.  

Veteran applied for but was denied vocational rehabilitation 
benefits in April 1984 because he did not have an employment 
handicap.  In May 1989, a VA counselor reviewed the disability 
evidence and determined that the Veteran had an employment 
handicap and initiated the appropriate evaluation procedures.  
The Veteran's program was placed in a discontinued status by 
multiple panel decisions in 1992, 1994, 1995, and 1996 because 
the Veteran's goal was not feasible as a result of his treatment 
for substance abuse and failure to cooperate with evaluation 
procedures.  On appeal in April 1999, the Board concluded that 
the discontinuance was proper.  Throughout this adjudication, the 
Veteran was informed of the eligibility criteria and requirements 
of the counseling process.  Following the initial decision in 
July 2002, the Veteran submitted written statements, records of 
admission to a community college, private medical records, and 
testimony at a Board hearing.  Although subsequent adjudicative 
documents may not substitute for adequate notice, the eligibility 
criteria, evaluation process, and reasons for an adverse 
determination were provided to the Veteran and his representative 
in a March 2003 statement of the case and in supplemental 
statements of the case in June 2006 and January 2010.  The Board 
concludes that the Veteran was not prejudiced by the notice error 
because he demonstrated actual knowledge of the criteria 
including the requirement that his vocational goal be reasonably 
achievable in view of his disabilities and circumstances.  

In addition, VA has obtained all relevant, identified, and 
available evidence and has notified the appellant of any evidence 
that could not be obtained.  VA has also obtained medical 
examinations and professional counseling assessments.  Thus, the 
Board finds that VA has satisfied both the notice and duty to 
assist provisions of the law.

The Veteran served in a U.S. Army armor and reconnaissance units.  
He contends that he is eligible for Chapter 31 vocational 
rehabilitation education and an intern program to gain employment 
as a paralegal (legal assistant).  

The purpose of training and rehabilitation benefits provided in 
Chapter 31, Title 38, United States Code, is to provide for all 
services and assistance necessary 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.  38 
U.S.C.A. § 3100.  As applicable in this case, the aim of the 
provision is to provide such services necessary to enable 
veterans with service-connected disabilities to become employable 
and to obtain and maintain suitable employment

A service-disabled veteran must meet three basic requirements to 
be eligible for receipt of Chapter 31 vocational rehabilitation 
benefits:  (1)  VA must find that the Veteran has basic 
entitlement to services as prescribed by 38 C.F.R. § 21.40; (2)  
the services necessary for training and rehabilitation must be 
identified by VA and the Veteran; and (3) an individual written 
plan must be developed by VA and the Veteran describing goals of 
the program and the means through which these goals will be 
achieved.  38 U.S.C.A. § 3102; 38 C.F.R. §§ 21.1(b)(1-3),  21.40.  

Regarding the first requirement, as pertinent to this case, the 
regulation requires that the following two conditions are met:  
(1) The Veteran has a service-connected disability, and the 
disability is rated either 20 percent or more; or, if the Veteran 
filed an original claim prior to November 1, 1990, the disability 
is rated at a compensable level which may be less than 20 
percent, and (2) the Veteran is in need of rehabilitation to 
overcome an employment handicap.  38 C.F.R. § 21.40

An "employment handicap" is defined as an 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. § 21.35(a).  The term "vocational goal" is 
defined by statute as gainful employment consistent with the 
veteran's abilities, aptitudes, and interests.  38 U.S.C.A. § 
3101(8).  

The term "achievement of a vocational goal is reasonably 
feasible" is defined under 38 C.F.R. § 21.35(h)(2).  Under that 
provision, in order to find that the achievement of a particular 
vocational goal is reasonably feasible, the facts must show that 
the effects of the veteran's service-connected and non-service-
connected disabilities, when considered in relation to his 
circumstances, do not prevent successful pursuit of a vocational 
rehabilitation program and successful employment.  38 C.F.R. § 
21.35(h)(2).  The criteria for determining that the achievement 
of a vocational goal is reasonably feasible for the Veteran are: 
(1) a vocational goal must be identified; (2) the veteran's 
physical and mental conditions must permit training to begin 
within a reasonable period; and (3) the veteran must possess the 
necessary educational skills and background to pursue the goal, 
or will be provided service by VA to develop such necessary 
skills as part of the program.  38 C.F.R. § 21.53(d).

Service personnel records showed that the Veteran was not in 
combat.  The Veteran received a general discharge under other 
than honorable conditions for unsuitability as a result of 
repetitive minor offenses and poor military performance.   

The Veteran has the following service-connected disabilities:  
residuals of fractures of two bones of the left hand, rated as 10 
percent disabling; and left wrist strain, rated as 10 percent 
disabling.  The Veteran's significant non-service-connected 
disabilities including multiple joint and spinal arthritis, a 
central nervous system disorder, and mental health disorders 
including anxiety, depression, and posttraumatic stress disorder.  
In a May 2002, a VA counseling psychologist determined that the 
Veteran had an impairment of employability due in part to 
service-connected disability.  Based on the foregoing, the 
Veteran is in need of rehabilitation to overcome an employment 
handicap.  This is not in dispute.

In July 2002, a VA vocational rehabilitation counseling 
psychologist noted that the Veteran continued to express a 
vocational interest in participating in a two-year paralegal 
technician program at the Milwaukee Area Technical College.  The 
counselor noted that "while the Veteran demonstrates the 
interest, aptitude, and ability to pursue such program 
academically, this would not be an appropriate program for him 
for a number of reasons."  The counseling psychologist 
enumerated reasons for this as:

(1) The job outlook for two-year paralegal graduates in the 
local market is poor because of the surplus of 
professionally trained lawyers who often start working in 
this area as paralegals.
(2) The Veteran had not been successful in Chapter 31 
supported training previously provided to him on the 
terminal curricular level. 
(3) Were the Veteran to complete such a program 
successfully, he would be 67 years old on completion. 

The counseling psychologist further concluded that the Veteran's 
successful completion of any vocational goal was not reasonably 
feasible.  The counseling psychologist stated that this 
determination was based on a review of the Veteran's 18-year 
involvement with VA counselors; a medical consultant's opinion, a 
determination by the Social Security Administration, and a recent 
comprehensive vocational evaluation at Goodwill-Milwaukee.

The record shows that at the time of the July 2002 decision, the 
Veteran had had a long history of poor compliance with VA 
counselors, such as showing up late or not at all.  VA treatment 
and examination records throughout the period of the late 1990s 
and early 2000s up to the time of the RO's July 2002 decision 
show that the Veteran's noncompliance with requirements of the 
vocational rehabilitation programs had little to do with any 
physical impairment, but rather had mostly to do with his 
behavior in the noncompliance with the counseling process 
requirements.  VA medical records during this period show that 
the Veteran's behavioral problems were attributable in large part 
to the severity of diagnosed mental/psychiatric disorders during 
that time, and in particular, significant alcohol abuse symptoms. 

VA treatment records in the late 1990s and early 2000s included 
numerous diagnoses of psychiatric conditions including 
anxiety/mood disorder, depressive disorder, possible 
posttraumatic stress disorder, rule out psychosis, alcohol abuse, 
and polysubstance abuse.  A May 2000 VA psychiatric outpatient 
note contains a history that at that time the Veteran had 
recently been diagnosed as having alcohol dependence, and 
psychosis.  

In November 2001, the Social Security Administration determined 
that the Veteran was able to perform only a partially reduced 
range of light work not to include prolonged bilateral fingering 
functions as were necessary in his former occupation as a tailor.  
The Veteran was determined to be severely disabled as a result of 
psychiatric and physical impairments and was awarded Social 
Security supplemental income benefits.  

In September 2002, the Veteran submitted the results of entrance 
placement testing and tuition receipts from the Milwaukee Area 
Technical College that suggested that the Veteran had been 
admitted for an unspecified course of study.   

The severity of the Veteran's psychiatric disability picture at 
the time of the RO's July 2002 decision denying this claim is 
reflected in a May 2002 VA mental health clinic initial 
assessment, and a September 2002 VA psychiatry outpatient note.  
Both of these VA treatment records showed the diagnosis of 
anxiety/mood disorder not otherwise specified, and polysubstance 
abuse.  The treatment provider noted problems with relationships, 
legal problems, and problems with employment; with limited social 
support.  The provider assigned a Global Assessment of 
Functioning (GAF) score of 40, indicating substantial psychiatric 
impairment in reality testing or communication, or major 
impairment in several areas, such as work or school, family 
relations, judgment, thinking or mood.  The provider concluded 
that the Veteran was unable to work.  See Diagnostic and 
Statistical Manual for Mental Disorders, Fourth Edition, of the 
American Psychiatric Association (DSM- IV).

The clinical records during the period up to the time of the RO's 
July 2002 decision showed the considerable severity of the 
Veteran's psychiatric/alcohol abuse, which was a factor in the 
Veteran's behavioral problems that resulted in his noncompliance, 
and ultimately, the finding that achievement of his vocational 
goal was not reasonably feasible for the Veteran at that time.

In contrast, the record since that decision reflects a 
significant improvement in the Veteran's psychiatric/behavioral 
condition impacting the feasibility of achievement of a 
vocational goal.  Review of private records of treatment and VA 
examination reports since 2002 showed that the Veteran did not 
report nor did clinicians observe symptoms related to a 
psychiatric or alcohol/substance abuse problem.  

Private records of treatment dated from June 2004 to August 2006 
showed that the Veteran's physician specifically noted on 
psychiatric history review that most symptoms previously 
associated with his diagnosed mental health disorders were not 
present.  The Veteran did complain of "anxiousness/stress-
occasional-stable."  The examiner made no reference to any 
findings of alcohol abuse problems or behavior problems.  

In a December 2006 VA mental health examination, the Veteran 
described his current complaints as limited to anxiety and 
depression of a mild severity and duration.  He reported that he 
had worked successfully for 40 years as a tailor.  He reported 
social relationships with friends and family and participation in 
church and a civil rights organization as a volunteer.  The 
examiner diagnosed anxiety disorder, not otherwise specified, and 
noted that that the Veteran had mild psychosocial and 
environmental problems.  The examiner a GAF score for anxiety 
disorder of 65, indicating some mild symptoms but generally 
functioning well.    

The reports of the three VA examinations in December 2006 and 
January 2007 showed no indications of any of the behavior-related 
problems associated with the noncompliance-type behavior shown 
throughout the earlier record.  There is no indication that the 
Veteran ever arrived late or previously missed an appointment for 
any of these examinations.  The report of the January 2007 VA 
joints examination showed that the Veteran reported that he was 
currently working as a volunteer in an office, and that he did 
paperwork and used a computer in that work.  He reported that 
some of the volunteer activities were only limited by his wrist, 
hand and arm symptoms.

In an April 2009 Board hearing, the Veteran stated that in 
addition to being accepted for studies at a community college, 
the Veteran submitted to his counselor two letters from local 
attorneys who stated that they would hire the Veteran in a 
apprenticeship program.  These letters are not of record nor have 
they been mentioned in VA counselor reports.  The Veteran stated 
that he did not complete the community college program because of 
circumstances beyond his control.  The Veteran objected to the 
discontinuance of a vocational rehabilitation program because of 
his age.  

In August 2009, the Board remanded the claim for the RO to obtain 
current VA outpatient treatment records and a current vocational 
rehabilitation assessment. 

In October 2009, the Veteran underwent a VA general medical 
examination.  The physician diagnosed degenerative arthritis of 
the cervical and lumbar spine, left hand and wrist disorders, and 
hepatitis C infection.  The physician referred to a concurrent VA 
functional capacity evaluation and noted that the multiple joint 
and spinal disorders would not preclude participation in a 
sedentary training program.  

In November 2009, the Veteran underwent a VA neuropsychiatric 
assessment.  The psychologist noted the Veteran's reports the he 
completed two years of college pre-law study and that he 
currently studied music, performed volunteer work for a civil 
rights organization, and worked on tailoring projects.  Testing 
showed average intellectual abilities, low-average working 
memory, and mild dyslexia.  The psychologist noted that these 
difficulties would not preclude training as a paralegal.  

In December 2009, the Veteran completed a VA career assessment 
inventory that identified many areas of interest but did not 
assess the associated abilities or aptitude.  

In January 2010, a VA psychologist counselor performed an 
additional assessment as directed in the Board's remand.  The 
counselor noted the history of claims and adjudication for a 
vocational rehabilitation program prior to 2002 and the results 
of the VA examinations and assessments in 2009.  Although the 
counselor noted that past diagnoses of organic brain disorders 
and personality traits are generally permanent, the counselor 
concluded that the physician and mental disabilities noted by the 
examiners would not preclude participation in a paralegal 
training program.  There was no evidence since 2002 of substance 
abuse.  The counselor also noted that the Veteran displayed a 
high or very high level of interest in every area suggested by 
the career assessment inventory including those areas common to 
paralegal work.  The counselor also noted that the Veteran 
retired in 2002 at age 65 and had not attempted to engage in any 
form of employment since that time. 

To address feasibility of achieving the goal of training and 
employment as a paralegal, the counselor also considered the non-
disability circumstances relevant to this area of employment.  
The counselor acknowledged that age discrimination in hiring is 
illegal and that the current job market for paralegal employment 
is variable and is not an appropriate consideration.  The 
counselor reviewed the Veteran's self-reported legal history and 
obtained county court records since 1994.  In VA examinations in 
May 1999, May 2000, and May 2002, the Veteran reported that he 
had been convicted on four occasions of forgery or bank fraud and 
was incarcerated for several years in five states.  County court 
records showed that the Veteran was convicted of an unspecified 
felony in 1994 and for felony theft-false representation in the 
amount of $5,000 to $10,000 in 2005.  The Veteran has unsatisfied 
judgments in connection with the latter conviction, a 1998 civil 
claim over $2,000, a 2000 civil claim for over $4,000, and a 2005 
civil claim over $1,000.  

The Court records cite a state statute that prohibits 
discrimination against a job applicant because of a conviction 
record but that an employer may refuse to hire an applicant on 
the basis of a conviction if the circumstances of the conviction 
substantially relate to the particular job.  Wis. Stat. Ann. 
§ 111.335 (2010).  The counselor also obtained an opinion from 
the VA regional counsel regarding the likelihood of employment as 
a paralegal in view of this legal history.  The regional counsel 
advised the counselor that the history would likely be a barrier 
to legal employment generally, and that VA would not hire a 
paralegal with a similar legal history.  Notwithstanding the 
impact of the Veteran's disabilities, the counselor concluded 
that the circumstances associated with the Veteran's legal 
history and his 10 year period of unemployment would not be 
overcome by possession of a paralegal degree.  The counseling 
psychologist concluded that it was not reasonably feasible for 
the Veteran to achieve the rehabilitation goal of employment as a 
paralegal. 

The Board considered whether the Veteran's home state required 
licensure or professional association membership for employment 
as a paralegal.  It does not.  The National Federation of 
Paralegal Associations (NFPA) published a model plan for 
licensure of paralegals.  See 
www.paralegals.org/associations/2230/files/Licensed_Paralegal_Pla
n.pdf (last visited Oct.5, 2010).  Under this plan, applications 
are rejected if the applicant has been convicted of a felony.  An 
existing license can be denied or revoked in cases of fraud, 
dishonestly, misrepresentation, or unethical conduct or 
conviction of a felony involving moral turpitude.  The Supreme 
Court of Wisconsin considered a petition by the Board of 
Governors of the Bar of Wisconsin to establish a mandatory 
licensure and regulation of paralegals.  The proposed rule 
prohibited licensure of a person convicted of a crime of moral 
turpitude.  In April 2008, the Supreme Court of Wisconsin denied 
the petition because expanding regulatory and enforcement 
agencies was not appropriate in the economic climate at the time.  
The Supreme Court of Wisconsin ordered consideration of a 
voluntary program.  Wis. Sup. Ct. No. 04-03 (Apr. 24, 2008). 

In a February 2010 response to a January 2010 supplemental 
statement of the case, the Veteran objected to the RO's 
recitation of his legal history as not relevant and based on 
unverified hearsay.  The Veteran also objected to the use of 
unsigned VA electronic medical records and the citation of his 
claim number using only the last three digits.  The Veteran 
contended that he was unable to properly respond.  

The Board first concludes that there was substantial compliance 
with the August 2009 remand instructions because additional VA 
examinations were obtained and because a thorough vocational 
assessment was performed by a VA vocational rehabilitation 
psychologist based on the entire record.  The Board also rejects 
the Veteran's due process objections.  The Veteran does not deny 
accuracy of the legal history cited by the RO.  Moreover, the 
history was developed from reports by the Veteran to clinicians 
and from court records that have been associated with the claims 
file.  Regarding the unsigned electronic medical records and 
abbreviated claim references, VA employs the electronic system 
with digital signature features as a regular practice.  VA uses 
abbreviated claims numbers under certain circumstances to protect 
the private information of claimants.   Courts presume that, in 
the absence of clear evidence to the contrary, public officials 
have discharged their official duties.  Ashley v. Derwinski, 2 
Vet. App. 62, 64 (1992).
  
In this case, the clinicians are presumed to take responsibility 
for the ownership and accuracy of their electronic reports unless 
there is evidence to the contrary.  Moreover, the Veteran does 
not dispute the findings of the medical examinations or that the 
examination reports and supplemental statement of the case do not 
apply to his claim.  

The Board concludes that the achievement of the Veteran's 
vocational rehabilitation goal of training and employment as a 
paralegal is not reasonably feasible.  The Board concludes that 
the limitations imposed by the Veteran's service and non-service 
connection disabilities alone do not preclude achievement of this 
or other occupational goals that involve sedentary or light 
physical work.  The Board notes that the Veteran displayed a 
broad range of occupational interests.  This decision by the 
Board is limited only to the specific goal at issue: training for 
employment as a paralegal.  However, the Board concludes that 
when the disabilities are considered in relation to the 
circumstances of a legal history of convictions for fraud, 
misrepresentation, and unsatisfied judgments, achievement of this 
specific goal is not reasonable feasible.  

The Board acknowledges that the standard of reasonably feasible 
contemplates that an employer of legal services might conceivably 
and under unique circumstances have a position that does not 
require proven qualities of honesty and truthfulness, and that 
the employer may be willing to impose safeguards and supervision 
to accommodate an employee with a record of felony convictions.   
However, in applying the reasonableness standard, the Board 
places greatest probative weight on the opinion of the 
professional VA vocational counselor and the opinion of the VA 
regional counsel who considered the entire record and the locally 
accepted standards in the Veteran's state of residence.  Even 
though employment as a paralegal of a person with a history of 
convictions of a felony is not strictly precluded, the applicable 
state law does permit denial of employment if the felony 
convictions are substantially related to the job.  A national 
paralegal association and the Wisconsin State Bar both support 
the denial of licensure as a paralegal to those convicted of 
crimes of moral turpitude.  

In this case, the Board concludes that qualities of honesty, 
truthfulness, and good moral character are generally required in 
the paralegal profession as indicated in the model plan for 
licensure by the NFPA and by the Wisconsin Supreme Court decision 
that encouraged a voluntary registration plan.  Therefore, it is 
not reasonably feasible that the Veteran would be able to secure 
employment in this specific occupational field.  The Board does 
not suggest that a vocational rehabilitation program is not 
reasonable feasible in any other vocational goal suitable to the 
Veteran's interests, aptitude, abilities, and circumstances.  

As the preponderance of the evidence is against this claim, the 
"benefit of the doubt" rule is not for application, and the 
Board must deny the appeal.  See 
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).


ORDER

Entitlement to vocational rehabilitation benefits and training, 
as a paralegal (a non-lawyer legal assistant) under Chapter 31, 
Title 38, United States Code is denied.  



____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs