Citation Nr: 1318769	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  11-06 162	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to enrollment in a vocational rehabilitation training program under Chapter 31, Title 38, of the United States Code.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant-Veteran


ATTORNEY FOR THE BOARD

C. Bruce, Counsel

INTRODUCTION

The Veteran served on active duty from February June 3, 1981, to June 30, 2001.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2010 decision of a vocational rehabilitation counselor.

As support for this claim, in June 2011 the Veteran testified at a hearing at the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, before a Veterans Law Judge of the Board (Travel Board hearing).  That Veterans Law Judge, however, is no longer employed at the Board.  The law requires that a Veterans Law Judge that conducts a hearing on appeal must participate in any decision made on appeal concerning the claim or claims addressed during the hearing.  38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707.  If that Judge is no longer available, the Chairman of the Board has the authority to reassign the appeal to another Veterans Law Judge for a decision.  38 C.F.R. § 19.3.  In January 2012, the Veteran was notified of this and asked whether he wanted another hearing before a different Veterans Law Judge that would ultimately decide this appeal.  38 C.F.R. § 20.717.  In a response received at the Board in March 2013, the Veteran indicated he did not want another hearing and to consider his appeal on the existing evidence of record.


FINDINGS OF FACT

1.  Service connection has been established for left knee retropatellar pain syndrome, currently evaluated as 30-percent disabling, second-degree frostbite of the left second toe, currently evaluated as 20-percent disabling, mechanical low back pain, currently evaluated as 10-percent disabling, right knee retropatellar pain syndrome, currently evaluated as 10-percent disabling, hypertension, currently evaluated as 10-percent disabling, hypothyroidism, currently evaluated as 
10-percent disabling, gastroesophageal reflux disease, currently evaluated as 
10-percent disabling, and hemorrhoids, currently evaluated as 0-percent disabling, so noncompensable.  The Veteran has a combined 70 percent rating.

2.  His service-connected disabilities have not been shown to cause any functional limitations that he has been unable to overcome.

3.  He has not been shown to have an employment handicap.


CONCLUSION OF LAW

The criteria are not met for entitlement to vocational rehabilitation and training under Chapter 31 of Title 38 of the United States Code.  38 U.S.C.A. § 3102 (West 2002); 38 C.F.R. § 21.40 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA enhanced the procedural assistance that VA must provide Veterans in certain cases, including insofar as notifying them of the type of information and evidence needed to substantiate their claims and apprising them of their and VA's respective responsibilities in obtaining this supporting evidence.  The VCAA was codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and the implementing VA regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  If the VCAA is applicable, the Board must ensure that the required notice and assistance obligations have been satisfied.


There are some claims, however, to which the VCAA does not apply.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).  Specifically, the VCAA has been held not to apply to claims that ultimately turn on statutory interpretation.  Smith v. Gober, 14 Vet. App. 227, 231-2 (2000).  If the law, as mandated by statute, and not the evidence, is dispositive of the appeal, the VCAA is inapplicable.  Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).  In this circumstance, no amount of notice or assistance could help the Veteran to substantiate his claim.

Suffice to say that, in this particular instance, the RO sent the Veteran a letter in August 2010 in response to his application for VA Vocational Rehabilitation and Employment Benefits.  The letter advised him of the process of substantiating and completing his claim, including specifically as concerning what would occur from that point going forwards (e.g., indicating he would meet with a VA counselor, etc.) and in terms of what needed to be shown.  There also was Vocational, Rehabilitational and Employment (VR&E) Program Orientation in September 2010, among other development and assessment of his suitability for this VA training and benefit.

There is no issue as to providing him an appropriate application form or completeness of the application or in terms of evaluating his eligibility and duly informing him of what he needed to show and whose responsibility, his versus VA's, it was for obtaining evidence showing what he needed to show.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The Board therefore turns to addressing the merits of his claim.


Analysis

Vocational training under Chapter 31, Title 38, of the United States Code is intended 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 is entitled to a rehabilitation program under Chapter 31 if he or she 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).  Alternatively, a Veteran is entitled to a rehabilitation program under Chapter 31 if he or she 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.

An "employment handicap" is an impairment, resulting in substantial part from a disability described in section 3102(1)(A) of Chapter 31, of a Veteran's ability to prepare for, obtain, or retain employment consistent with the Veteran's abilities, aptitudes, and interests.  38 U.S.C.A. § 3101(1); 38 C.F.R. § 21.51(b).  Impairment is defined as restrictions on employability caused by the Veteran's service-connected and nonservice-connected disabilities, negative attitudes toward the disabled, deficiencies in education and training, and other pertinent factors.  38 C.F.R. § 21.51(c)(1).


An employment handicap does not exist when any one of the following conditions is present:

(i) The Veteran's employability is not impaired; this includes Veterans who are qualified for suitable employment, but do not obtain or retain such employment for reasons within their control;

(ii) the Veteran's employability is impaired, but his or her service-connected disability does not materially contribute to the impairment of employability; or

(iii) the Veteran has overcome the effects of the impairment of employability through employment in an occupation consistent with his or her pattern of abilities, aptitudes and interests, and is successfully maintaining such employment.  38 C.F.R. § 21.51(f)(2).

Evidence of the consistency of interests with training and employment may be based upon the Veteran's statements to a VA counseling psychologist during initial evaluation or subsequent re-evaluation, the Veteran's history of participation in specific activities; or information developed by VA through use of interest inventories.  38 C.F.R. § 21.51(c)(4).

The Veteran's abilities to obtain or retain employment are not impaired if he has a history of stable, continuous employment.  38 C.F.R. § 21.51(e)(2), (3).

Another requirement under 38 C.F.R. § 21.1(b) 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).

Finally, VA and the Veteran must develop a written plan describing the program goals and the means through which those goals will be achieved.  38 C.F.R. § 21.1(b)(3).


A Veteran having basic entitlement may be provided a program of rehabilitative services during the twelve-year period following discharge.  The beginning date of the twelve-year period is the day of a Veteran's discharge from active service, or, if later, the date VA notifies a Veteran of the grant of a compensable service-connected disability.  The ending date is twelve years from the beginning date.  38 C.F.R. §§ 21.41, 21.42, 21.44.

The Veteran's Chapter 31 benefits basic termination date is August 1, 2013, owing to the fact that his active military service ended on June 30, 2001.

His service-connected disabilities are left knee retropatellar pain syndrome, currently evaluated as 30-percent disabling, second-degree frostbite of the left second toe, currently evaluated as 20-percent disabling, mechanical low back pain, currently evaluated as 10-percent disabling, right knee retropatellar pain syndrome, currently evaluated as 10-percent disabling, hypertension, currently evaluated as 
10-percent disabling, hypothyroidism, currently evaluated as 10-percent disabling, gastroesophageal reflux disease, currently evaluated as 10-percent disabling, and hemorrhoids, currently evaluated as 0-percent disabling, so noncompensable.  He has a combined 70 percent rating for these disabilities.

As he has service-connected disabilities rated at 20 percent or more, he meets the initial criteria of 38 C.F.R. § 21.40(b).  But the question remains whether he also has been 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).

He has not been shown to have an employment handicap and, therefore unfortunately, is not entitled to vocational rehabilitation benefits under Chapter 31.


By way of history, the Board sees this is an appeal of a denial for re-application for vocational rehabilitation services.  He was found not to be entitled to services in May 2007 because he was suitably employed.  He re-applied in October 2007 and was found entitled to service, but the case was closed in December 2007 for failure to pursue.  He re-applied again in December 2008, only for the claim to be closed in January 2009 because he withdrew his application.  He re-applied for a third time in August 2010, and this appeal ensued after being denied in September 2010.

In his statements and pleadings, he has explained that he is requesting vocational rehabilitation to further his education so he can become a counselor or work in the field of human relations.

In his August 2010 rehabilitation needs inventory (RNI), he stated that he was then currently employed by BAT Associates as an environmental technician.  He described his position as inspecting various construction sites to ensure they adequately met environmentally mandated guidelines.  During his June 2011 Travel Board hearing he reported spending approximately 3 hours a day riding in a truck between various sites.  See Travel Board Hearing transcript, p. 16.  He further reported spending approximately 1-2 hours a day inspecting sites on foot.  See Travel Board Hearing transcript, p. 17.  He said his service-connected disabilities made his job difficult because the walking and riding in the truck bothered his knees and back while his frostbite and hypothyroidism made it difficult to deal with exposure to cold weather.  He added that the arthritis in his knees and back make it difficult to stand and walk for extended periods of time.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold.  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.

The hearing officer (Veterans Law Judge of the Board) fulfilled these two obligations during the hearing in the course of identifying the material issues, including as part of the Veteran's questioning and as evidenced by his responses.  Indeed, he demonstrated his actual knowledge of what needed to be shown to receive VA Vocational Rehabilitation and Training and other assistance, keeping in mind that he previously had started, though not completed, this process.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim).

The September 2010 Employment Capacities Form noted he could stand or walk for 0-2 hours, sit for 2-4 hours, drive a car for 1-3 hours, and occasionally carry 30 lbs.  It was further noted that he could use his arms and feet for repetitive motion, but could not squat, kneel, or crawl.  Restrictions due to environmental factors included an inability to deal with vibrations from machines and difficulty with cold weather.  He indicated he used medications to control some of his disabilities and that they did not have an effect on his job in a negative manner.  The examiner determined the Veteran was capable of full-time work despite his disabilities.  He was able to interact with people 6-8 hours a day while tolerating stress fairly well and maintaining control over anxiety with medications.  The examiner observed no deficit with regards to concentration and ability to focus.  The examiner concluded there was no significant history relevant to future employment and that the Veteran was mentally and physically stable and capable of working, even given his physical disabilities.  

The Counseling Record Narrative Report, which also is dated in September 2010, including the subsequent addendum, noted the Career Scope Vocational Assessment that the Veteran had taken in November 2007 had shown he was average in everything except clerical perception, where he scored above average, and that he showed interest in the scientific and humanitarian areas.  The examiner noted the Veteran's functional limitations as a result of his service-connected disabilities as well as his complaints that prolonged walking and standing aggravated his service-connected disabilities.  Indeed the examiner noted that his service-connected disabilities contributed in substantial part to his impairment in employment.  However, the examiner then noted that the Veteran had overcome his impairment of employability by obtaining and maintaining suitable civilian employment.  The Veteran had started working at Wal Mart immediately after separation from active duty service and had worked there until he took the job with his then current employer.  He reported making around $2200.00 a month and even more when able to work overtime.  He indicated he had not missed any days from work as a result of his disabilities and that as long as his contract was renewed he would not leave his current employment, despite the fact that he felt his current job aggravated his disabilities.  Finally he stated he had not completed any training since graduating high school and it was noted that his skills as an infantryman in the service were not transferrable given his current physical capacities.  

The examiner determined the Veteran's then current employment, which had maintained for the past two years, was suitable and consistent with his interests, aptitudes, and abilities.  He had overcome his impairment to employability and therefore did not have an employment handicap.  

The Veteran reported that he intended to get another doctor to provide an employment capacities examination because he believed his current job aggravated his disabilities.  But there is no suggestion this actually was done and the examiner, after waiting 10 days, provided an addendum opinion noting the Veteran contended that his current employment required him to ride in a car for 1-3 hours a day and walk and stand for 1-2 hours a day.  His September 2010 Employment Capacities form noted that he was capable of standing and walking for up to 2 hours a day and riding in a car for 1-3 hours a day.  Therefore, in a September 2010 letter noting the administrative decision, the Veteran's current employment was found to be suitable and as such vocational rehabilitation and employment services were determined not to be needed.  


When considering the totality of this evidence, there is not the required indication the Veteran's service-connected disabilities cause functional limitations that materially contribute to the impairment of his employability such that he has been unable to overcome it, and he thus is not shown to have an employment handicap.  This being the case, the need for vocational rehabilitation training under Chapter 31 of Title 38 of the United States Code has not been demonstrated, and vocational rehabilitation benefits resultantly are unwarranted.


ORDER

The claim of entitlement to vocational rehabilitation services under the provisions of Chapter 31 of Title 38 of the United States Code is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs