Citation Nr: 1026456 Decision Date: 07/15/10 Archive Date: 07/28/10 DOCKET NO. 08-23 155A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from July 19, 2006 through January 20, 2007. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 decision of the Vocational Rehabilitation and Employment Division (VR&E) of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Tucson, Arizona, which denied entitlement to VR&E services. The Board notes that in the substantive appeal (VA Form 9) received in August 2008 and pertaining to his claim for vocational rehabilitation training benefits, the Veteran requested a Travel Board hearing at the RO. A notation in his vocational rehabilitation file shows that he was contacted by VA in August 2009 and advised of his options for a personal hearing. He indicated he would like a videoconference hearing. By letter dated in December 2009, the Veteran was advised that his videoconference hearing was scheduled for February 2010. The record reflects that the Veteran failed to report for this scheduled hearing. Not having received a request for postponement, and pursuant to 38 C.F.R. § 20.704(d), the Board will proceed with its adjudication of these appeals "as though the request for a hearing had been withdrawn." 38 C.F.R. § 20.704. The Board notes that the Veteran's claims for service connection for bipartite patella, right, with oblique tear of posterior horn of medial meniscus; whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a sleep disorder; and for a rating in excess of 10 percent for degenerative arthritis, left acromioclavicular joint, status post distal clavicle resection, have been addressed in a separate Board decision. FINDINGS OF FACT 1. The Veteran is service connected for shin splints, right; bilateral tinnitus; degenerative arthritis, left acromioclavicular joint, status post distal clavicle resection; patellofemoral syndrome, left knee, status post patellar tendon repair; surgical scar, left shoulder; and surgical scar, left knee; and each of his six service-connected disabilities has been assigned a 10 percent disability rating. 2. The Veteran's service-connected disabilities do not prevent him from obtaining and retaining employment consistent with his abilities, aptitudes, and interests; and as the effects of an employability impairment have been overcome, he does not have a serious employment handicap. CONCLUSION OF LAW The criteria for establishing entitlement to vocational rehabilitation benefits, under Chapter 31 of Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3100, 3101, 3102, 5107 (West 2002); 38 C.F.R. §§ 21.1, 21.40, 21.50, 21.51 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). With regard to the Veteran's claim for vocational rehabilitation services, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the notice and duty to assist provisions of the VCAA are relevant to Chapter 51 of Title 38 of the United States Code, and do not apply in vocational rehabilitation benefits which are governed by Chapter 31. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) and Lueras v. Principi, 18 Vet. App. 435 (2004). VA vocational rehabilitation programs have their own provisions that address notification and assistance. Under 38 C.F.R. § 21.420(a), "VA will inform a veteran in writing of findings affecting receipt of benefits and services under Chapter 31." The Veteran was sent a copy of the decision denying his claim, and a statement of the case showing the evidence considered and the reasons why the claim remained denied. The RO has obtained relevant VA records and information regarding the Veteran's employment status. Accordingly, that Board finds that the Veteran has been informed in writing of findings affecting his receipt of vocational rehabilitation benefits and services. II. Factual Background and Analysis The purpose of vocational training under Chapter 31 is to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the extent feasible, to become employable and to obtain and maintain suitable employment. 38 U.S.C.A. § 3100; 38 C.F.R. § 21.1. A veteran who meets the criteria for basic entitlement may be provided a program of rehabilitative services which may include medical, diagnostic, counseling, educational, vocational, and/or employment services, among other services, as are determined to be needed and appropriate. 38 C.F.R. § 21.35(i). The applicable law and VA regulations provide that a person shall be entitled to rehabilitation benefits under Chapter 31 if such person is a veteran who has a service-connected disability rated at 20 percent or more that was incurred or aggravated in service on or after September 16, 1940, and is determined by VA to be in need of rehabilitation because of an "employment handicap." 38 U.S.C.A. § 3102(1)(A), (B); 38 C.F.R. § 21.40(b). A person is also entitled to rehabilitation benefits under Chapter 31 if such a person is a veteran who has a service- connected disability rated at 10 percent or more that was incurred or aggravated in service on or after September 16, 1940, and is determined by the Secretary to be in need of rehabilitation because of a "serious employment handicap." 38 U.S.C.A. § 3102(2)(A), (B); 38 C.F.R. § 21.52. The term "serious employment handicap" means a significant impairment, resulting in substantial part from a service- connected disability rated at 10 percent or more, of a veteran's ability to prepare for, obtain, or retain employment consistent with such veteran's abilities, aptitudes, and interests. See 38 U.S.C.A. § 3101(7). The veteran's service-connected disability(ies) must contribute in substantial part to the individual's overall significant vocational impairment. This means that the disability(ies) must have an identifiable, measurable, or observable causative effect on the overall significant vocational impairment, but need not be the sole or primary cause of the serious employment hardship. 38 C.F.R. § 21.52(a)(3(i). The record reflects that for this Veteran, service connection has been established for shin splints, right; bilateral tinnitus; degenerative arthritis, left acromioclavicular joint, status post distal clavicle resection; patellofemoral syndrome, left knee, status post patellar tendon repair; surgical scar, left shoulder; and surgical scar, left knee, and each of his six service- connected disabilities has been assigned a 10 percent disability rating. He has no other service-connected disabilities. Therefore, in order to warrant entitlement to vocational rehabilitation benefits, the Veteran must be in need of rehabilitation because of a serious employment handicap. For the reasons noted below, the Board concludes that the Veteran does not have a serious employment handicap. In the present case, the Veteran essentially alleges he has physical difficulties due to his service-connected disabilities that cause him to have a serious employment handicap. He claims that he should be entitled to vocational rehabilitation training so that he can attend graduate school, obtain a master's degree in diplomacy, and become an intelligence analyst. The record reflects that he earned a B.A. degree in international affairs from the University of Georgia in August 2005. Of record are several letters written in May 2006, on behalf of the Veteran, including by a friend, a professor, a nurse, and his pastor, recommending that he be admitted into officer candidate's school (OCS) in the Army. He entered service in July 2006, and was accepted into OCS, but was discharged from service in January 2007, reportedly due to his physical difficulties. He has submitted copies of emails, dated in March 2008, which appear to show his inquiries and responses received regarding several employment positions, including intelligence assistant with the Navy, that he applied for, but was not selected for. Received from the Veteran in March 2008 was his application for vocational rehabilitation (VA Form 28-1900). He indicated he was employed by VA as a GS-5. In a counseling record - personal information (VA Form 28-1902) dated in April 2008, the Veteran indicated he wanted to discuss with a counselor attending graduate school and obtaining a masters degree, and that he was interested in being an intelligence analyst or in the Federal civil service. An April 2008 Rehabilitation Needs Inventory (VA Form 28- 1902w) indicates the Veteran wished to obtain additional education and training so that he could earn a masters/graduate degree, and that he was interested in working in the intelligence/national security field. He was employed full time from April 2007 to the present as a program support assistant with VA, and employed part time from July 2007 to the present as a loss prevention officer with Marriott. He indicated that these were both permanent positions. Previously he worked full time as a front desk clerk from January to June 2007, and as an assistant store manager from August to November 2007. During his time in the military, he was in basic training from July through October 2006, and was an officer candidate in OCS from October 2006 through January 2007. With regard to educational history, the Veteran indicated that he graduated from high school in 2000, and attended UGA from January 2004 through August 2005 and studied international affairs. The subjects he liked included politics, government, and international affairs, and he disliked math and science. He reported that because of his service-connected shoulder and knee he could not do "physical aspects" because of these disabilities. He indicated that his service-connected disabilities affected him in the following areas of work: job performance, job satisfaction, job opportunities, and missed work time. He indicated that his disabilities were not improving, were not stable, and were worsening, and that he was having orthopedic problems with his disabilities. A May 2008 Employment Handicap and Serious Employment Handicap Worksheet (VA Form 28-0799) showed that the Veteran's impairments due to his service-connected disabilities included impairments of walking, standing, climbing, crouching, kneeling, carrying, lifting, pushing, pulling, and gripping. There was a finding that he was still able to retain employment, and that his employment was consistent with his demonstrated abilities, aptitudes, and interests, and his employment did not aggravate his disabilities. His employment was found to be stable and his employment did utilize his developed skills and education. There were findings made that he had overcome his impairments to employment, that he did not have an employment handicap, and that he did not have a serious employment handicap. After considering the evidence of record, the Board does not find any evidence of a serious employment handicap. While the Veteran does have six service-connected disabilities, none of these disabilities has been rated as more than 10 percent disabling. VA examinations show that he has maintained full time employment since his discharge from service, and he has alleged no impact by his service-connected disabilities on his post-service employment. He has indicated that he is employed full time by VA as a program support assistant and works part time as a loss prevention officer. While he desires to attend graduate school and obtain a masters degree in diplomacy in order to become an intelligence officer, there is no indication in the record, including in the documents he submitted showing he was denied employment as an intelligence analyst, showing that he has a serious employment handicap due to his service-connected disabilities. Rather, the evidence of record shows that the Veteran has not been significantly impaired in his ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes, and interests. See 38 U.S.C.A. § 3101(7). While he has multiple service-connected disabilities, there is no indication that such disabilities (mostly physical) have contributed to any significant vocational impairment. The Board concludes that the preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities cause him a serious employment handicap. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the Veteran is not entitled to vocational rehabilitation training under Chapter 31. Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs