Citation Nr: 1324022	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  09-37 304A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia


THE ISSUE

Whether the achievement of the Veteran's vocational goal of employment as a pastor is reasonably feasible for purposes of entitlement to vocational rehabilitation and training under Chapter 31, Title 38, of the United States Code.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Finn, Counsel



INTRODUCTION

The Veteran served on active duty from April 1965 to January 1968 and from September 1968 to December 1985.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2009 administrative decision of a vocational rehabilitation counselor at McGuire VA Medical Center (VAMC).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Service connection is in effect for a number of disabilities that, together, have a combined rating of 100 percent but with diabetic retinopathy rated as the most severely disabling.

2.  The effects of these service-connected disabilities do not prevent the Veteran from successfully pursuing a vocational rehabilitation program with the expectation of being gainfully employed in an occupation consistent with his abilities, aptitudes, and interests - especially as a pastor.


CONCLUSION OF LAW

Achievement of a vocational goal is shown to be reasonably feasible.  38 U.S.C.A. §§ 3100, 3101, 3102, 3106 (West 2002); 38 C.F.R. § 21.53 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminarily, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Even assuming its applicability to this particular claim at hand, however, the Board need not discuss whether there has been compliance with these obligations since the Board is fully granting the requested benefit.

The Veteran and his representative essentially contend that the attainment of a vocational goal - especially that of pastor - is reasonably feasible, in turn entitling the Veteran to vocational rehabilitation and training under Chapter 31, Title 38, of the United States Code.

The provisions of Chapter 31, Title 38, of the 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 obtain and maintain suitable employment.  38 U.S.C.A. § 3100.  The Veteran's basic eligibility for Chapter 31 benefits is not in question; he has a serious employment handicap.  However, VA must determine the reasonable feasibility of achieving a vocational goal in each case where a Veteran has either an employment handicap or a serious employment handicap.  VA is not required to provide rehabilitation training services when achievement of a vocational goal is not found to be medically feasible.  38 C.F.R. § 21.53(e)(2).

The term "vocational goal" is defined by statute as gainful employment consistent with the Veteran's abilities, aptitudes, and interests.  38 U.S.C.A. § 3101(8).  In order to find that the achievement of a particular vocational goal is reasonably feasible, the facts must show that the effects of the Veteran's service-connected and nonservice-connected disabilities, when considered in relation to his or her circumstances, do not prevent successful pursuit of a vocational rehabilitation program and successful employment.  38 C.F.R. § 21.35(h)(2).

Review of the evidentiary records reflects the Veteran has the following 
service-connected disabilities:  diabetic retinopathy rated as 90-percent disabling; renal insufficiency with hypertension associated with insulin-dependent diabetes mellitus rated as 80 percent disabling; insulin-dependent diabetes mellitus rated as 40-percent disabling; diabetic neuropathy of the left lower extremity associated with the insulin-dependent diabetes mellitus rated as 20-percent disabling; anemia also associated with the insulin-dependent diabetes mellitus, rated as 10 percent disabling; hearing loss rated as 0-percent disabling, i.e., noncompensable; periodontal disease secondary to the insulin-dependent diabetes mellitus also rated as noncompensable; and impotence associated with the insulin-dependent diabetes as well rated as noncompensable.  He therefore has a combined rating of 100 percent (see 38 C.F.R. § 4.25) and is entitled to special monthly compensation (SMC) under 38 U.S.C.A. § 1114, subsection (k), and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ and loss of use of one eye having only light perception.

His nonservice-connected disabilities consist of hand and feet cramps, residuals of injury to the right middle finger, bunions of the feet (so both), and sinusitis.

In his March 2009 Rehabilitation Needs Inventory (RNI), on VA Form 28-1902w, the Veteran indicated he was most interested in pastoral leadership, counseling, and public speaking.  He had never participated in a program of vocational rehabilitation prior to submitting his application.  He wanted to attend Newburgh Theological Seminary and College.  His educational goals consisted of obtaining a Bachelor of Arts Degree in pastoral leadership, master of arts in pastoral leadership, doctorate of theology, and doctorate of ministry.

His civilian employment history was as a computer specialist/programmer until retiring on February 1, 2003.  He acknowledged being legally blind and resultantly unable to drive automobiles.  He was receiving Social Security Disability Income (SSDI).

In January 2009 the Veteran was examined by Dr. S. H. who determined the Veteran was capable of returning to work effective April 15, 2009, for up to 8 hours per day (so for a full day).  There were no restrictions as to sitting and standing, albeit some restriction in walking.  This commenting physician indicated the Veteran was visually impaired with diabetes.

A May 2009 initial evaluation, in part, reflects that the Veteran had a "serious employment handicap" and was eligible for benefits under Chapter 31, but that his vocational goal was not then currently reasonably feasible.  His "serious employment handicap" was because of the number of his disabling conditions, severity of his disabling conditions, long or substantial periods of unemployment, and a pattern of reliance on government support programs.  (See March 2009 Employment Handicap & Serious Employment Handicap Worksheet).

In July 2009, the Veteran was denied vocational rehabilitation and employment services.  The evidence used to reach the decision consisted of that concerning his medical conditions, the requested degrees, and work history.  Specifically, the counselor, who prepared the Chapter 31 Initial Evaluation Report stated, in part, that the Veteran had significant visual impairment that the physician did not address requiring a high "degree of assistive technology in order to compensate for his visual deficits[,] and this coupled with what appears to be fragile diabetes, a chronic renal condition, constant fatigue, and his age would appear to make maintaining a consistent pattern of employment difficult.....These issues when coupled with the fact that the Veteran has already attended a non-traditional Seminary in the 1980's and was ordained but still did not become employed in the field even after he retired from the service, appear to make completion of another similar program and subsequent employment less likely."  She also noted that he will not keep his SSDI if he worked, but that Clergy jobs were expected to increase in Virginia by 18.2 percent in the next year.  Salary range for someone in the Clergy field with a bachelor's degree ranged from $36,000 to $49,000.  She also expressed concern that he would require transportation from his wife.


In a July 2009 statement, the Veteran contended he was medically able to preach, speak, and teach to his Church audiences.  He also asserted that further study in theology or religion would allow him to be more educated in the subject matter, more competitive in the market, and prepare him for public speaking to audiences.  He mentioned as well that he had started his course work, but was struggling financially to pay for the courses.  He added that he was then currently involved in unpaid church ministries, which included operating two (2) gospel music internet radio stations that played gospel music twenty-four (24) hours a day, 7 days a week, 365 days a year.  He also was working on publishing religious books.  He indicated he spoke occasionally at churches and before religious organizations.  

VA treatment records dated from December 2008 to April 2009 reflect that the Veteran reported just minimal problems with activities of daily living (ADLs).  He was able to use the stove and read the dials even with use of a magnifying glass.  (See VA treatment record dated in December 2008).  An April 2009 VA treatment record, however, noted that he had maintained effective renal function over the past couple of years.  A May 2009 VA treatment record noted that he had serious, but not end-stage kidney disease.

With regard to transportation concerns, the Veteran's representative argued that paid pastor positions typically provide housing at, or in close proximity to, the church to allow ready access by the parishioners.  It is unclear from the record the exact nature of the degree or certification that the Veteran obtained in the 1980's to become a minister, but it does not appear to be a bachelor's degree.  He is an ordained minister with credentials to perform marriages, funerals, and other related events.  He is using his own funds to prepare academically in pursuing his degree.  (See December 2011 Written Statement).  The facts of this case however compel the finding that his educational pursuits are reasonably feasible, particularly in light of Dr. S. H.'s finding that the Veteran was capable of returning to work and given the market for clergy in Virginia.  The Veteran's successful completion of course work preparation speaks volumes as to his potential, particularly when combined with the fact that he already volunteers in these types of activities proving that he is physically capable of these endeavors.  Under the circumstances, then, the Board finds that the totality of the evidence is in favor of his claim.


ORDER

The appeal is granted.



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

Department of Veterans Affairs