Citation Nr: 1133239 Decision Date: 09/08/11 Archive Date: 09/15/11 DOCKET NO. 08-32 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to VA Vocational Rehabilitation Employment (VRE) training services, under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1983. This appeal arises from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. FINDINGS OF FACT 1. The Veteran has a Masters Degree in Student Affairs and a Masters in Vocational Rehabilitation Counseling. 2. He was employed by the State of Kentucky as a Vocational Rehabilitation Counselor. 3. The Veteran's educational background has adequately prepared him for entry into employment in a suitable occupational objective. The record does not establish that additional training is required to achieve entry-level employment. 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 & Supp. 2010); 38 C.F.R. §§ 21.1, 21.70, 21.72 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Relevant Laws and Regulations. 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 (2010). "Employment handicap" means an 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 (2010). The purpose of Chapter 31, Title 38, United States Code, is to provide for 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 (2010). Rehabilitation to the point of employability may include the services needed to (1) evaluate 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, the veteran shall be trained to that level. 38 U.S.C.A. §§ 3101, 3104 (West 2002); 38 C.F.R. § 21.72 (2010). Factual Background. In December 2007 the Veteran filed his claim for VA VRE services. He requested retraining for a job in Social Work as an adjustment counselor. The Veteran's service-connected disabilities include sarcoidosis, currently rated 30 percent disabling, (although at 60 percent between May 2008 and August 2010); sarcoid skin lesions, rated as 10 percent disabling; and osteopenia of the right and left elbow, rated separately as 10 percent disabling for each elbow. His vocational history included being a medical specialist in service, a trimmer in an auto style shop from 1984 to 1995, a Counselor at the Whitney Young Job Corps from 1998 to 2001, a Vocational Rehabilitation Counselor with the Kentucky Office of Vocational Rehabilitation from 2001 to 2007 and a VA Vocational Rehabilitation Counselor from June 2007 to November 2007. The Veteran was terminated from his position as a VA Vocational Rehabilitation Counselor, because his accuracy rate did not meet minimal standards and he failed to meet critical standards for customer service. After his VA employment ended in 2007, the Veteran apparently worked for a brief period, part time, as an insurance agent, and as part of a promotion team for a security system company. A January 2008 VA counseling record indicates the earned a bachelor's degree in general studies in 1996 and went on to earn a Masters degree in Student Affairs. In 2003 he earned a Masters degree in Vocational Rehabilitation Counseling. The VA Counselor concluded the Veteran was qualified for employment in a suitable occupation. If the Veteran were found entitled to services, the plan would focus on employment and not additional training. A February 2008 Counseling Record indicates the Veteran had not overcome the effects of his impairment, but he was prepared and qualified for employment in a suitable occupation. He had failed to obtain or retain employment for reasons beyond his control. His employment handicap was not characterized as serious, and there were no factors that constituted a significant vocational impairment. Minimal services were indicated to help the Veteran become suitably employed, and achievement of a vocational goal was considered currently feasible. The Veteran had the physical and mental capabilities to enter suitable employment and the training for jobs that did not require excessive physical exertion. His work history was stable. The counselor concluded that additional training could not be justified. He explained to the Veteran that a Individualized Employment Assistance Plan (IEAP) could be developed to assist him in his job search. Such a plan was developed for the Veteran to work with the Employment Coordinator to identify potential employment opportunities. Re-training was not authorized. In February 2008, the Veteran sent the VA Counselor an e-mail. He informed her he was forwarding a letter which indicated he was ineligible for VA Vocational Rehabilitation Counseling employment within the VA system, which he believed supported retraining. He also advised he was pursuing acceptance into a program for licensed Social Workers. A July 2008 letter to the Veteran indicates the decision that he had adequate training to obtain suitable employment was unchanged. The Veteran appealed that decision. The Veteran was offered employment services, but declined the offer for additional services. He wished to appeal the denial of his claim for educational benefits to pursue a Masters of Social Work degree. Analysis. The Veteran is seeking VRE benefits to enable him to pursue a Masters degree in Social Work. He already has two Masters Degrees in related fields. He was employed for three years as a Counselor and six years with the State of Kentucky as a Vocational Rehabilitation Counselor. He has demonstrated through his history of employment that he has overcome any employment handicap related to his service-connected sarcoidosis. He contends that being ineligible for consideration by VA for any Vocational Rehabilitation Counseling position makes him unemployable. He wishes to pursue training in addiction or marital counseling. The termination by VA was based on job performance deficiencies in the area of accuracy and customer service. There is nothing in the claims folder which indicates the Veteran's service connected disabilities played any role in his termination, and while the Veteran did indicate he was having "complications" of his service-connected sarcoidosis, that is not consistent with his letter of termination. There is no indication of any excessive absenteeism or inability to keep up with work requirements due to illness. It is the quality of his work which was found substandard. The Veteran has reported having little stamina, difficulty breathing after walking up stairs, etc. His positions as a Counselor were sedentary occupations. The exertional requirements of his former positions as a counselor and being a Social Worker appear to the Board to be similar in nature. The Veteran has continually emphasized his termination from his position at VA as evidence of his need for further training. As the VRE Counselor pointed out to the Veteran, there were other positions for Counselors available with the State and other agencies. In essence the handicap which the Veteran is seeking to overcome is not due to his service-connected disabilities, but due to his history of termination from his position as a VA employee. By definition, an employment handicap does not exist merely because a veteran's employability is impaired. To suffer from an employment handicap as defined by the regulations, a service-connected disability must materially contribute to the impairment of employability. See 38 C.F.R. § 21.52 (2010). The Veteran was successfully employed as a Counselor from 1998 to 2007. His current difficulties in obtaining employment do not relate to any worsening of his service-connected disabilities. They relate directly to his termination. Prior to that he was employed consistently for many years. The Veteran's education qualified him for a position in the counseling field and the Veteran found employment and maintained it for a number of years. See 38 C.F.R. § 21.72 (2010). In short, even though the Veteran has reported difficulties securing a counseling position due to his service-connected disabilities, he has not submitted evidence demonstrating that his service-connected disabilities have hampered his job search. Nor has he contended that he lacks the academic credentials to secure a position. Indeed, his credentials include two masters' degrees. Under these circumstance, the Board concludes that the record fails to establish that additional training is necessary for entry into employment in a suitable occupational objective. Accordingly, entitlement to re-training under Chapter 31, Title 38 United States Code is not warranted. ORDER Vocational training under Chapter 31, Title 38, United States Code, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs