Citation Nr: 1026770 Decision Date: 07/19/10 Archive Date: 07/28/10 DOCKET NO. 06-19 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to additional vocational rehabilitation training benefits, under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The Veteran had active service from September 1963 until October 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a 2005 denial of additional vocational rehabilitation benefits issued by the Department of Veterans Affairs (VA) Vocational Rehabilitation and Employment Division at the VA Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran agreed to and completed a Vocational Rehabilitation Program as established by his Individualized Written Rehabilitation Plan (IWRP); he has been rehabilitated to the point of employment and is currently employed. 2. The Veteran has been trained to the level generally recognized as necessary for occupational objective and the record does not establish that additional training to obtain a master's degree in ministry is required to achieve entry-level employability into the occupation. CONCLUSION OF LAW The criteria for establishing entitlement to additional vocational training under Chapter 31, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3100, 3101, 3102 (West 2002); 38 C.F.R. §§ 21.1, 21.70, 21.72 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009). The VCAA is generally applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. However, there is no indication that Congress intended the VCAA to revise the unique, specific claim provisions of Chapter 31, Title 38 of the United States Code. Cf. Barger v. Principi, 16 Vet. App. 132, 138 (2002). Accordingly, VCAA notice is not required in this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim). Notwithstanding the above notation, all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been provided ample opportunity to present evidence and argument in support of his claim. He has declined the option for a personal hearing. Applicable Law A person is entitled to vocational rehabilitation under United States Code Title 38, Chapter 31 if that person is a veteran with a service-connected disability compensable at a rate of 20 percent or more and that person is determined by VA to be in need of rehabilitation because of an employment handicap. See 38 U.S.C.A.§ 3102 (West 2002); 38 C.F.R. § 21.40 (2009). "Employment handicap" means impairment, resulting in substantial part from service-connected disability, 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 (West 2002); 38 C.F.R. § 21.35 (2009). The purpose of 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 independence in daily living and, to the extent possible, to become employable and to obtain and maintain suitable employment. 38 U.S.C.A. § 3101 (West 2002); 38 C.F.R. § 21.70 (2009). Rehabilitation to the point of employability may include the services needed to (1) valuate and improve a veteran's ability to undertake training; (2) train a veteran to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma, or certificate is generally necessary for entry into the occupation, e.g., an MSW for social work, a veteran shall be trained to that level. 38 U.S.C.A. §§ 3101, 3104 (West 2002); 38 C.F.R. § 21.72 (2009). An Individualized Written Rehabilitation Plan (IWRP) will be developed for each veteran eligible for rehabilitation services under Chapter 31. The plan is intended to assist in (1) providing a structure which allows VR&E staff to translate the findings made in the course of the initial evaluation into specific rehabilitation goals and objectives; (2) monitoring the veteran's progress in achieving the rehabilitation goals established in the plan; (3) assuring the timeliness of assistance by Department of Veterans Affairs staff in providing services specified in the plan; and (4) evaluating the effectiveness of the planning and delivery of rehabilitation services by VR&E staff. (b) A plan will be prepared in each case in which a veteran will pursue (1) A vocational rehabilitation program, as that term is defined in § 21.35(i). 38 U.S.C.A. § 3107 (West 2002); 38 C.F.R. § 21.80 (2009). The purposes of the IWRP are to (1) identify goals and objectives to be achieved by the veteran during the period of rehabilitation services that will lead to the point of employability; (2) plan for placement of the veteran in the occupational field for which training and other services will be provided; and (3) specify the key services needed by a veteran to achieve the goals and objectives of the plan. 38 U.S.C.A. § 3107 (West 2002); 38 C.F.R. § 21.84 (2009). The IWRP will be jointly developed by VA staff and the Veteran. The terms and conditions of the plan must be approved and agreed to by the counseling psychologist, the vocational rehabilitation specialist, and the Veteran. 38 C.F.R.§ 21.92 (2009). Merits of the Claim The Veteran now seeks additional vocational rehabilitation benefits, specifically to obtain a master's degree for counseling and teaching at the college level, as indicated in his July 2005 e-mail communication with VA. In essence, the Veteran contends that his original program objective was not to simply obtain "entry level employment in the occupational goal of a pastor or related profession" as indicated on his May 2003 IWRP. The Veteran essentially contends that he cannot be a pastor with only a bachelor's degree, or alternatively, that his original goal had been to obtain employment as a college level counselor and teacher, as indicated by his statements, including his June 2006 VA Form 9. The Veteran asserts that to achieve his original goal, in becoming a counselor and teacher, a master's degree, and not a bachelor's degree, is required. In this case, the Veteran's basic eligibility for vocational rehabilitation benefits is not at issue. It is uncontested that the Veteran has service-connected disabilities compensable at 20 percent or more, and was in need of rehabilitation to overcome an employment handicap. See 38 U.S.C.A. §§ 3101, 3102 (West 2002); 38 C.F.R. §§ 21.40, 21.51(b) (2009). It is also undisputed that the Veteran has in fact completed an approved program of vocational rehabilitation under Chapter 31, Title 38, United States Code. A March 2006 VA letter noted that the Veteran had completed his Vocational Rehabilitation and Employment program. Indeed, the record indicates that as part of his rehabilitation program, he earned a bachelor's degree from Trinity College of Florida, as reported by M.S., the registrar of that institution, in a September 2005 letter. As discussed immediately below, additional vocational rehabilitation benefits are not warranted in this case. The Veteran contends that he originally intended to become a counselor when he first applied for VA vocational rehabilitation benefits. Whatever his intention, however, the Veteran's May 2003 IWRP specifically indicated that the Veteran's program goal was to "obtain and maintain entry level employment in the occupational goal of a pastor or related profession." The noted intermediate objective to achieve this goal was to "complete his ordination this summer at [redacted] Church in Tampa." The noted secondary objective was to "complete a Bachelors Degree in Biblical Studies, Counseling Professional Track." Crucially, the Veteran and his counselor, in June 2003, signed his Vocational Rehabilitation Goals, which referenced his IWRP and specifically stated that his program was "[t]o obtain and maintain entry level employment in the occupational goal of a pastor or related profession." As the Veteran and his counselor signed these statements, the record indicates that they had both participated in the development of the plan. The IWRP and Vocational Rehabilitation Goals statement are clear. Contrary to the Veteran's assertions, there is absolutely no evidence of record demonstrating that the Veteran's IWRP was misworded, or that the Veteran's counselor misunderstood the Veteran's career goals at the time. The Veteran did make statements indicating that he was interested in a counselor career prior to accepting his IWRP. However, the record indicates that that was only one of several possible career objectives explored by the Veteran at that time. He reported in his September 2002 Rehabilitation Needs Inventory that he was interested in counseling, computers and teaching. Another March 2003 LMI Request Form also indicated investigation into work as an EEG technician and pharmacy technician. In an April 2003 Case Note, VRC D.M. noted that the Veteran wished to be a minister, as did subsequent documents. In a June 2003 VA Counseling Record - Narrative Report, VRC D.M. noted that the Veteran indicated that he wished to become a minister. Based on extensive research, VRC D.M. found that ministers needed to be ordained by a congregation, and that most hold at least a bachelors degree. Although the Veteran has argued that he must obtain a masters degree at a seminary to be a successful minister, the Veteran is already a working minister. A September 2005 letter from Rev. J.K. reported that the Veteran had been employed as a Chaplain at the Tampa Seafarers Center, Tampa Port Ministries, Inc. for more than sixty (60) consecutive days. The Veteran has met the goal of rehabilitation to the point of employability. Under 38 C.F.R. § 21.72, rehabilitation to the point of employability may include services to train the Veteran to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Although the Veteran currently claims that a master's degree is necessary to work as a pastor, the record fails to support such a claim. While a master's degree may certainly be preferred in the Veteran's chosen field, the record clearly shows that it is not necessary to obtain employment at an entry level. The Veteran is currently employed as a minister. He has achieved entry into his chosen occupational objective. As noted above, rehabilitation programs are intended to allow a veteran to reach the point of entry-level employability in a designated field. See 38 C.F.R. § 21.72 (2009). The Veteran has submitted a letter from T.B., Director of the Tampa Bay Baptist Association. T.B. wrote that "[e]ducational requirements vary greatly among Southern Baptist ministries. I strongly recommend that anyone going into a Southern Baptist ministry have at least a Master Degree from an accredited school." Although T.B. makes a strong recommendation, he does not find that such a degree is necessary to enter into ministry. The Veteran also submitted a letter from Reverend R.B. of the [redacted] who claimed that future pastors will need to have a Masters Degree at his church. Reverend R.B. further stated that from his experience, he believed that the Veteran would have difficulty getting a pastorate without a graduate level education. Although he claims that future pastors would need a Masters Degree, the current question is whether the Veteran would need one to be a pastor. At the present, Reverend R.B. indicates that it would be possible, though difficult, for the Veteran to get into the pastorate without a graduate degree. The Veteran's work supervisor J.D.K, [redacted] of Tampa Port Ministries, Inc. noted that the Veteran's preparation for higher education would be "extremely desirable" as the coursework is more targeted towards the specific type of ministry in which he continues to serve. Chaplain J.D.K. further noted that the Veteran's compensation is based upon continued voluntary support from donors and that his continued education would increase his prospects for permanent financial support. Chaplain J.D.K. also stated that the Executive Director position requires a Masters of Divinity and many years of business experience. Chaplain J.D.K's letter simply indicates that furthering his education would be desirable because it would increase the Veteran's employment prospects, including allowing him to qualify for the higher position as an Executive Director. However, it does not address the question of entry into such a profession. In contrast, a May 2003 VA Case Note indicates that VRC D.M. had spoken to Chaplain J.D.K. about how to obtain employment with the Corporate Chaplains of America. At that time, Chaplain J.D.K. reported that what was needed to get into either Corporate Chaplains or Port Ministries was a BS in theological training and ordination. Chaplain J.D.K. also indicated that other avenues included completing seminary or, in the case of Corporate Chaplains, completing a 155 hour video training program. At that time, Chaplain J.D.K. suggested completing a BS degree at Clearwater Christian College in Bible Studies. This note further indicates that all the training necessary for an entry level position as a pastor was a bachelor's degree, though other avenues were also open to achieve a pastor position. As has been noted previously, the Veteran has already achieved entry into the Tampa Port Ministries, Inc., under the tutelage of Chaplain J.D.K. The Veteran has thus already achieved entrance into the pastorate and is currently working in that capacity. Assisting the Veteran in achieving any additional advancement beyond entry level is not contemplated by the rehabilitation program. See 38 C.F.R. § 21.72 (2009). The Veteran has also submitted several job postings which included requirements for a masters degree to apply for the position of chaplain, or in the case of the I Am Corporate Chaplains of America, a Master of Divinity was preferred educational requirement. Of the job postings submitted by the Veteran, the record does not indicate whether they are entry level positions. Furthermore, the Executive Director position, addressed by Chaplain J.K, requires, in addition to a masters degree, many years of experience, indicating that it is not an entry level position. Additionally, the RO has associated with the claims file additional pastor job postings that do not require a graduate degree. The fact that the Veteran cannot qualify for some pastor positions is meaningless to the Board's inquiry. It appears to be undisputed that the Veteran's bachelor's degree qualifies him for some pastor employment; indeed he has already achieved such employment. The Veteran also submitted e-mail correspondence from J.C. of Trinity College, including one dated January 6, 2006. J.C. stated that to his knowledge "only a select few denominations require graduate/seminary degrees in order to Pastor churches. As you know there are many pastors who have little to no formal education. As far as employees of the college, only those in teaching positions are 'required' to have a graduate degree." This correspondence supports the Board's finding that a graduate degree is not necessary to be a pastor. Indeed, J.C. indicates that a formal education is not even necessary. Crucially, there is no evidence of record demonstrating that the Veteran's bachelor's degree is insufficient to obtain entry-level employment as a pastor. The record is undebatable that the Veteran has already been employed as a pastor. The main point of his contention, as indicated in his June 2006 VA Form 9 and his November 2006 statement by his representative, is that he does not make enough money as a pastor and that he wants to continue his education to be a counselor in order to make more money. As a matter of general knowledge, many professions that require a college education earn lower levels of income, especially at entry level. The Veteran chose this profession and that although his wages are currently lower than he would prefer, he has the potential to earn more as he gains experience, as is the case with most entry level jobs. Additionally, as indicated by research conducted by VRC B.B. in December 2005, the salary of a minister depends on the size of his church, but ministers do not join the ministry to make money. While impressed with the Veteran's ambition, and in agreement that further education or an advanced degree could potentially result in a more desirable position, funding for education training through VA vocational rehabilitation programs is intended only to the point that entry-level employment may be achieved. See 38 C.F.R. § 21.72(a)(2) (2009). This has clearly already been accomplished here. The Veteran is already employed as a pastor. No further benefits are called for. Furthermore, to the extent that the Veteran claims that he wanted to be a counselor and teacher, such contentions are not supported by his signed June 2003 Vocational Rehabilitation Guidelines and IWRP, which both specifically and unambiguously state that his goal was to be a pastor. Based on the foregoing analysis, VA has fulfilled its obligations under the Vocational Rehabilitation Program as memorialized in the Veteran's IWRP. The Veteran has earned a bachelor's degree and has been found to be qualified for an entry level employment as a pastor. Indeed, the Veteran has already achieved an entry- level position as a pastor. He currently requests additional benefits to advance in such a position, which was not contemplated by the regulations or the IWRP. No additional training is provided for or warranted. The benefit sought on appeal is accordingly denied. To the extent the Veteran argues that VA supplied the Veteran with misinformation upon which he relied, any contention that VA in fact misinformed the Veteran fails as a matter of law. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994); see also Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) (payment of government benefits must be authorized by statute; therefore, erroneous advice given by a government employee cannot be used to estop the government from denying benefits). ORDER Entitlement to additional vocational rehabilitation training benefits under Chapter 31, Title 38, United States Code is denied. ____________________________________________ L.B. CRYAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs