Citation Nr: 1328495 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10-49 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to vocational rehabilitation and employment (VRE) benefits under the provisions of Chapter 31, Title 38, of the United States Code. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1991 to August 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's request for VRE services. The Veteran filed a notice of disagreement with the decision in October 2010, and in response the Phoenix, Arizona RO issued him a statement of the case in November 2010. The Veteran perfected his appeal to the Board with the filing of a substantive appeal in December 2010. In February 2011, the Veteran appeared at the Phoenix RO and testified at a videoconference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's education file. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran seeks to establish his entitlement to VRE benefits, essentially to have VA provide additional training. The evidence of record indicates that the Veteran has been employed full time as a senior engineer since 2006, with reportedly a flexible work schedule in order to allow him to attend counseling sessions and a quiet office space to allow him to perform the duties of his position. The Veteran has multiple, compensable service-connected disabilities, the most severe of which is posttraumatic stress disorder (PTSD). The Veteran's contends that his current employment is unsuitable given his ongoing and recurring difficulties he is having to maintain his job on account of his PTSD (he specifically cites to the impact his PTSD is having on his ability to maintain a high-level security clearance required for his job), and that it is unsustainable because it requires him to engage in activities that exacerbate his condition. To support his claim, he submitted statements dated in 2008, 2009, and 2010 from his work supervisor and mental health treatment providers. He states that his ability to work is not in question; rather, his current employment situation was inducing stress reactions and doing him harm. He objects that the VA vocational rehabilitation counselor denied his claim on the fact that he was employed and failed to address the suitability of his current job. He applied for VA VRE benefits in order to move into a different line of work. The purpose of Chapter 31 VA vocational rehabilitation services is to provide a level of training that facilitates suitable employment. 38 U.S.C.A. § 3100; 38 C.F.R. § 21.70. A veteran is entitled to participate in a rehabilitation program under Chapter 31 if he or she has a service- connected disability or combination of disabilities rated at 20 percent or more and is determined by the Secretary to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.40(a). VA defines an employment handicap as an impairment of a veteran's ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes, and interests. The impairment must result in substantial part from one or more service- connected disabilities. 38 U.S.C.A. § 3101(1); 38 C.F.R. §§ 21.35, 21.51. The service-connected disabilities must have an identifiable, measurable, or observable causative effect on a veteran's overall vocational impairment, but need not be the sole or primary cause of the employment handicap. 38 C.F.R. § 21.51. The VA denied the Veteran's application for VRE services in October 2010 on the basis that he already had a suitable job because he was employed as a senior engineer and did not require VRE services at that time. It was felt that he was able to prepare for, obtain, and maintain employment in an occupation consistent with his abilities, aptitudes, and interests in accordance with 38 C.F.R. § 21.51. On a counseling record dated in October 2010, it was concluded that he had impairment of employability to which service- connected disability contributed in substantial part but that the Veteran had overcome the effects of impairment of employability and therefore did not have an employment handicap under 38 C.F.R. § 21.51. Since the VA decision denying the Veteran's VRE claim, it appears that the Veteran's PTSD has worsened. In a January 2013 letter, the Veteran describes further emotional stress placed on him at work to include additional full security clearance investigations primarily on account of his PTSD (he said he had been subjected to four investigations in the past four years when other employees were subjected to the same only once in a 10-year period). Also, in a September 2012 rating decision, the RO granted an increased rating for PTSD, from 50 percent to 70 percent, based in part on a VA examination conducted in May 2012. The Veteran's combined service-connected disability rating is currently 80 percent. The examination report is not before the Board, which has reviewed the Veteran's vocational rehabilitation folder and records contained in the Virtual VA system (i.e., records uploaded to the electronic version of his claims file). Presumably, it is contained in the Veteran's claims file, and such should be obtained and associated with the vocational rehabilitation folder before a decision may be made on this claim. Further, in recognition of the apparent worsening of PTSD, another assessment should be conducted by a vocational rehabilitation counselor (or counseling psychologist) to determine whether the Veteran has the ability to prepare for, obtain, and keep suitable employment consistent with his abilities, aptitudes, and interests, despite the presence of his service-connected disabilities, particularly PTSD, and whether he has overcome the effects of his impairment of employability. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's claims file with his vocational rehabilitation folder. 2. Arrange for an evaluation, in light of the Veteran's apparent worsened service- connected PTSD, by a vocational rehabilitation counselor or counseling psychologist to determine whether the Veteran has an employment handicap (see 38 C.F.R. § 21.51), and if so, whether he has a serious employment handicap (see 38 C.F.R. § 21.52) and whether the achievement of a vocational goal was currently reasonably feasible (see 38 C.F.R. § 21.53). All counseling records/ narrative reports should be associated with the vocational rehabilitation folder. 3. Following completion of the foregoing requested development and after completion of any other development deemed warranted by the record, the RO should adjudicate de novo the Veteran's claim seeking Chapter 31 VRE benefits. If the decision remains adverse to the Veteran, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).