Citation Nr: 1320903 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-15 484A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to vocational rehabilitation benefits under the provisions of Chapter 31, Title 38, United States Code. (The issues of entitlement to service connection for arthritis and service connection for cirrhosis of the liver will be addressed in a separate decision). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to September 1977. This matter comes to the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2009 decision issued by the Vocational Rehabilitation and Counseling Division (VR&C) of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2013, the Veteran presented testimony at a Board videoconference hearing before the undersigned Acting Veterans Law Judge. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran has service connected disabilities rated 40 percent combined; he has a vocational impairment, but has overcome the impairment to obtain suitable employment and is not shown to have an 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 & Supp. 2012); 38 C.F.R. §§ 21.40, 21.51 (2012). REASONS AND BASES FOR FINDING 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 provisions of Chapter 31, Title 38, United States Code, are intended 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. Generally, a Veteran is entitled to a program of vocational rehabilitation if she has a service-connected disability that is rated 20 percent disabling or more, and is determined by VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.40. An employment handicap is defined as an impairment of the Veteran's ability to prepare for, obtain, or retain employment consistent with her abilities, aptitudes, and interests. 38 U.S.C.A. § 3101; 38 C.F.R. § 21.51(b). The term "impairment" is defined as a restriction on employability caused by the Veteran's service and non-service-connected disabilities, deficiencies in education and training, negative attitude towards the disabled, and other pertinent factors. 38 C.F.R. § 21.51(c). An "employment handicap" will be found to exist when the individual has a vocational impairment, the individual has not overcome the effects of the impairment of employability through employment in an occupation consistent with her abilities, aptitudes, and interests, and service-connected disabilities have contributed in substantial part to the overall vocational impairment. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.51. Here, the Veteran is service connected for PTSD, rated as 30 percent disabling; and for residuals, crush injury, left middle finger, rated as 10 percent disabling. The combined evaluation is 40 percent. The Veteran therefore meets the threshold requirements for entitlement to a program of vocational rehabilitation. However, in order to meet the requirements for entitlement to a program of vocational rehabilitation the Veteran must also be determined by VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.40. As will be seen, the Veteran does not meet this second requirement because he has overcome the effects of impairment of employability, and therefore does not have an "employment handicap" for VA vocational rehabilitation purposes. In his claim for vocational rehabilitation benefits (VA Form 28-1900), dated in January 2009, the Veteran stated that he had 13 years of education. The Veteran subsequently stated that he attended several colleges, but failed to earn a degree; the record reflects that the Veteran has completed 63 semester hours. He indicated that he is now the owner and manager of a dog grooming business. In his Rehabilitation Needs Inventory, VA Form 28-1902w, dated in February 2009, the Veteran stated that he expected the program to provide vocational training, equipment, and counseling to help him "to become more self sufficient in Pet Grooming Management Operations." The Veteran reported that he has worked off and on as a pet groomer and has been self employed since 1992. In the section provided for listing and describing his service-connected disabilities, he left blank the block in which he was to describe what he cannot do now because of his service-connected disabilities. He indicated that his disabilities were worsening; he noted that his attention span is limited. Of record is the report of a counseling psychologist dated in February 2009. This report includes both a detailed history provided by the Veteran, and the results of testing conducted by the psychologist. The Veteran reported that he owns his own pet grooming business; he has owned that business since 1992. He reported an interest in self employment track to continue and expand his pet grooming business. It was noted that the Veteran has a High School education and training in the military as a meteorological technician. The Veteran also reported that he attended several colleges and has earned a total of 63 credits; however, he does not possess a degree. It was noted that the Veteran's civilian work experience includes work as a meteorological technician and current employment as a pet groomer. It was noted that the Veteran has never participated in a vocational rehabilitation program under Chapter 31 or a similar program under sate vocational rehabilitation; however, he did document training under other VA educational benefits. Regarding his disabilities, the Veteran reported that he sees his primary care physician every six months for a checkup; he currently does not have a mental health care provider. He stated that, in 1988, he attended therapy which helped him work in his coping skills. He also reported seeing a psychiatrist for some time, but did not believe it to be necessary at this time. The Veteran reported leaving his civilian employment in 1992 because of difficulty with his "depression and stress." The Veteran reported that limitations imposed by the service-connected conditions include irritability, problems with sleep, restlessness and isolation. The Veteran stated that he was not able to pursue traditional employment due to his PTSD. He did not report any current of functional limitations associated with his service-connected and non-service-connected disabilities. Of record is a February 2009 Chapter 31 evaluation completed by a VA rehabilitation counselor. The counselor noted that the Veteran's PTSD and ankylosis of the middle finger contribute in substantial part to the Veteran's impairment of employment; he noted that a nexus can be drawn between limitations caused by the service-connected disability and impairment to employment. Based on the evidence of record, the evaluator determined that the Veteran has an impairment of employability caused by his service-connected disabilities, including irritability, problems with sleep, restlessness and isolation. The evaluator also determined that the Veteran's impairment results in substantial part from her service-connected PTSD and ankylosis of the middle finger; he noted that a nexus can be drawn between limitations caused by the service-connected disability. The evaluator next determined that the Veteran has overcome the effects of the impairment of employability. In this regard, it was determined that the Veteran has been above to develop and sustain his own pet grooming business; he has successfully maintained his business since 1992. The evaluator also determined that the VRC provided with Veteran with resources in regard to Small Business Administration, including information on the Patriot Express Loan; it was emphasized that SBA has resources including free/low cost online training. The evaluator determined that the Veteran does not have an "employment handicap" as defined in VA regulations; he noted that, as he has maintained self employment since 1992, he has overcome the limitations imposed by his service-connected disabilities. In light of this evidence, the evaluator concluded that the Veteran does not need any rehabilitation at this time. As noted above, the intent of Chapter 31, Title 38, United States Code, is 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. Generally, a veteran is entitled to a program of vocational rehabilitation if he has a service-connected disability that is rated 20 percent disabling or more, and is determined by VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.40. Here, the Veteran has a service-connected disability that is rated 30 percent disabling; the first requirement for entitlement therefore is met. However, VA has determined that there is no need of rehabilitation due to this Veteran's handicap. As explained in the February 2009 evaluation, the Veteran has been able, on his own, to become employable and to obtain and maintain suitable employment, and therefore does not need rehabilitation under Chapter 31 because those objectives have already been met. Because there is no need for rehabilitation, the second requirement has not been met, and the claim therefore must be denied. Moreover, the Board explicitly finds that the analysis in the February 2006 Chapter 31 evaluation that found that rehabilitation is not necessary is the correct analysis given the facts in evidence. It is evident that, because the Veteran has been able to obtain suitable employment, has been able to sustain that employment, and has even been able to become manager of the business, the statutory objectives of Chapter 31 have already been met, obviating the need for rehabilitation. He has not specifically disputed the determination that he has overcome the impairment of employability, but instead merely asserts that he desires educational assistance from VA to expand his business. In sum, the Board finds that the statutory requirements for entitlement to Chapter 31 benefits have not been met because the claimant is not in need of rehabilitation-he has overcome the effects of impairment of employability through employment in an occupation consistent with his abilities, aptitudes, and interests. 38 C.F.R. § 21.51(b) (2012). The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim. The Veteran is not entitled to vocational rehabilitation under Chapter 31. ORDER Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code, is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs