Citation Nr: 1754888 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-03 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to additional vocational rehabilitation and employment (VRE) benefits under the provisions of Chapter 31, Title 38, of the United States Code in support of obtaining a Master's Degree in Information Technology. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from September 2003 to September 2007, with additional service in the Navy Reserve from September 2007 to June 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 determination by the Department of Veterans Affairs (VA) Vocational Rehabilitation and Employment Division (VRE) in Phoenix, Arizona. The appeal was subsequently transferred to St. Paul, Minnesota, which has jurisdiction. In the November 2015 substantive appeal form, the Veteran requested a videoconference hearing before a Veterans Law Judge. However, in written email correspondence dated October 2017, the Veteran, through his representative, withdrew the hearing request. Review of the procedural and administrative history of this appeal indicates that the Veteran's representative was provided the opportunity to submit a brief in support of this issue. FINDINGS OF FACT 1. The Veteran's service-connected disabilities include: PTSD, rated as 70 percent disabling; irritable bowel syndrome, rated as 30 percent disabling; gout, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; lumbar spine disc disease, rated as 20 percent disabling; a right shoulder disability, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and urticaria, rated as 10 percent disabling. The combined service-connected disability rating is 90 percent from May 17, 2016. 2. The evidence of record does not show that a Master's Degree is necessary to obtain and maintain employment in his chosen field. CONCLUSION OF LAW The criteria for entitlement to vocational rehabilitation benefits pursuant to Chapter 31 in support of obtaining a Master's degree have not been met. 38 U.S.C. §§ 3100, 3102 (2012); 38 C.F.R. §§ 21.1, 21.32, 21.33, 21.35, 21.40, 21.50, 21.51 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The notice procedures contained in the VCAA do not apply in cases where the applicable chapter of Title 38 of the United States Code contains its own notice provisions, which is the case here. Barger v. Principi, 16 Vet. App. 132 (2002). For VRE benefits, VA must inform a veteran in writing of findings affecting receipt of benefits and services under Chapter 31. Such written notice must inform the Veteran of how the decision was made, how the decision could affect his VA benefits, how he could apply for additional VRE benefits and what he could do if he disagreed with the decision. 38 C.F.R. §§ 21.32, 21.420(a). In the September 2015 administrative decision, the Veteran was notified that his request for additional VRE benefits was granted; however his specific goal of obtaining a Masters had been denied. Although the Veteran was not provided with the additional notice concerning how the decision was made, how it could affect benefits, how to apply for additional VRE benefits, and how to appeal, he was subsequently provided with another September 2015 letter, which provided notice of these facts. The claim was then readjudicated based on all the evidence in an October 2015 statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As such, the duty to notify in this case has been satisfied. The Board also finds that the duty to assist has been satisfied in this case. The Veteran's VRE folder, which contains all information and evidence necessary to adjudicate this appeal, has been obtained. There is no evidence of any further outstanding records relevant to the Veteran's current claim. As such, the duty to assist in this case has been satisfied. Merits of the Vocational Rehabilitation Claim Chapter 31 of Title 38, United States Code, sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3100 et seq. (2012). The intended purpose of VA vocational rehabilitation services is to enable service-connected disabled veterans to achieve maximum independence in daily living and, to the maximum extent feasible, become employable and obtain and maintain suitable employment. 38 U.S.C. § 3100 (2012); 38 C.F.R. § 21.70 (2017). Generally, a veteran seeking Chapter 31 vocational rehabilitation training will initially be assigned a specific case status of "applicant," and if he or she attends the appointment for an initial evaluation, progresses to "evaluation and planning" status. See 38 C.F.R. § 21.180. During evaluation and planning status, it is determined whether the veteran has an employment handicap and whether achievement of a vocational goal is feasible, and a plan is developed. See 38 C.F.R. § 21.184. When a decision concerning achievement of a vocational goal cannot be made during the initial evaluation, the veteran may be assigned to "extended evaluation" status, and extended evaluation status is continued whenever a veteran is receiving rehabilitation services prescribed in the Individualized Extended Evaluation Plan (IEEP). 38 C.F.R. § 21.188. Generally, a veteran is entitled to rehabilitation services under 38 U.S.C. Chapter 31 when he either (1) has a service-connected disability rated as 20 percent or more disabling and is determined to be in need of rehabilitation to overcome an employment handicap, or (2) has a service-connected disability rated as 10 percent disabling and is determined to be in need of rehabilitation to overcome a serious employment handicap. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.40. An "employment handicap" is an impairment of a veteran's ability to prepare for, obtain, or retain employment consistent with his or her abilities, aptitudes, and interests. The impairment must result in substantial part from one or more service-connected disabilities. 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 U.S.C.A. §§ 3101(1), 3102; 38 C.F.R. §§ 21.35(a), 21.51. In each case in which an employment handicap is found, a separate determination must be made with respect to whether that impairment constitutes a "serious employment handicap." 38 U.S.C.A. § 3106(a); 38 C.F.R. § 21.52(a). A serious employment handicap exists where an individual has a significant vocational impairment (i.e., a significant impairment of the ability to prepare for, obtain, or keep employment consistent with his abilities, aptitudes, and interests); the effects of the significant vocational impairment are not overcome; and a service-connected disability contributes in a substantial part to the individual's overall significant vocational impairment. 38 C.F.R. § 21.52. In each case in which a veteran has either an employment handicap or serious employment handicap, the VA must determine the reasonable feasibility of achieving a vocational goal. 38 C.F.R. § 21.53(a). A "vocational goal" is defined as gainful employment consistent with a veteran's abilities, aptitudes, and interests. 38 U.S.C.A. §§ 3101(8), 3106(a); 38 C.F.R. §§ 21.50, 21.53. A vocational goal is "reasonably feasible" when the following criteria are met: (1) a vocational goal must be identified; (2) a veteran's physical and mental conditions must permit training to begin within a reasonable period; and (3) a veteran must possess the necessary educational skills and background to pursue the goal or will be provided services by VA to develop such necessary educational skills as part of the program. 38 C.F.R. § 21.53(d). The phrase "achievement of a vocational goal is reasonably feasible" means the effects of a veteran's disabilities (service and nonservice-connected), when considered in relation to his circumstances, do not prevent him or her from successfully pursuing a vocational rehabilitation program and successfully becoming gainfully employed in an occupation consistent with a veteran's abilities, aptitudes, and interests. 38 C.F.R. § 21.35(h). In contrast, the phrase "achievement of a vocational goal is not currently reasonably feasible" means the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances at the time of the determination: (i) prevent the veteran from successfully achieving a vocational goal at that time; or, (ii) are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. Id. A VA counseling psychologist (CP) or a Vocational Rehabilitation Counselor (VRC) determines whether achievement of a vocational goal is reasonably feasible. 38 C.F.R. § 21.53(g). VA must determine the feasibility of achieving the vocational goal sought in each case in which a veteran has a serious employment handicap. 38 C.F.R. § 21.53(a). In making the determination as to the feasibility of a vocational goal, VA must offer the veteran an initial evaluation under the provisions of 38 C.F.R. § 21.50. However, where such determination cannot be made on the basis of information developed during the initial evaluation, an extended evaluation is required. See 38 C.F.R. § 21.57. The determination of the reasonable feasibility of a veteran achieving a vocational goal must be made at the earliest time possible during an extended evaluation, but not later than the end of the period of evaluation. Any reasonable doubt as to feasibility will be resolved in the veteran's favor. 38 C.F.R. § 21.57(c)(1). Turning to the specific facts of the Veteran's claim, the Veteran has the following service-connected disabilities: PTSD, rated as 70 percent disabling; irritable bowel syndrome, rated as 30 percent disabling; gout, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; lumbar spine disc disease, rated as 20 percent disabling; a right shoulder disability, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and urticaria, rated as 10 percent disabling. The combined service-connected disability rating is 90 percent. The Veteran also has nonservice-connected allergic rhinitis, sleep apnea, personal history of TBI, and insomnia. The Veteran previously received Chapter 31 services and holds a Bachelor's Degree in Computer Information Systems. He was found successfully rehabilitated in February 2014 as he secured full-time employment as an Applications Programmer Analyst. He is currently employed in the same position. Initially, the Board observes that the Veteran's basic eligibility for vocational rehabilitation benefits is not at issue here. It is uncontested that although the Veteran educational qualifications and experience that qualify him for employment in his current field and was previously rehabilitated, he currently is not suitably employed and he is in need of rehabilitation to overcome both an employment handicap and a serious employment handicap. See September 2015 Counseling Record/Narrative Report by a Vocational Rehabilitation Counselor (VRC). The VRC determined that the Veteran is in need of rehabilitation to overcome a serious employment handicap due to service-connected disabilities. This fact is not in dispute. Rather, the Veteran contests the proposed plan of vocational rehabilitation services, to include employee assistance services, vocational adjustment counseling services, mental health and cognitive rehabilitation services, development of reasonable accommodations on the job, and job development/job placement assistance; and the denial of the particular vocational goal of obtaining a Master's Degree in Information Systems. The particular vocational goal of obtaining a Master's Degree was denied because the proposed plan addresses the currently identified barriers to employment whereas attaining a Master's Degree would not. In other words, the particular goal of attaining a Master's Degree in Information Systems is not reasonably feasible at this time. See e.g., September 2015 and October 2015 decisions issued by the VR&E Division of the RO. Therefore, the next inquiry is whether achievement of the Veteran's desired vocational goal of attaining a Master's Degree is "reasonably feasible." See 38 C.F.R. §§ 21.35 (h), 21.50(b)(3), 21.53(d). That is the central issue in this case. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 50 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran has held his current position as an Application Programmer Analyst since September 2013. The Veteran contends that his psychiatric disability and IBS are severely impacting his abilities to perform his job as he stresses easily and has daily problems going to the restroom. See August 2015 Application for Vocational Rehabilitation. He reported that he used up all of his vacation and sick leave and has been under a lot of stress at work. Id. He indicated that he is much slower than his coworkers at performing tasks. Id. On the August 2015 Rehabilitation Needs Inventory, the Veteran indicated that he has a hard time coexisting with coworkers. He stated that he was absent multiple times during the year due to his disabilities. He further stated that he debated quitting. His reported work history shows that he quit a sales job because of high stress levels; he quit a data entry job because the company was going to fire him for excessive bathroom usage; and he quit a file clerk position because of the high stress level and constant migraines. As reported in the September 2015 Counseling Record Narrative Report, the Veteran reported interpersonal conflicts with team members which reportedly evolved into a shouting match. He further reported that his supervisor has counseled him on work productivity and not completing work within specified timeframes. His most recent work evaluation was "barely satisfactory." As a result of the work conflicts and difficulties, the Veteran engaged in employment search for positions such as Information Technology Specialist and Programmer Analyst II. For one IT Specialist position, the Veteran was not found to be among the best qualified; for the Programmer Analyst position, the Veteran interviewed, but was not selected; and for the other IT Specialist position, the Veteran did not meet the minimum education and/or experience requirements for the specialty and grade. The Veteran submitted his degree audit from the Master's Degree Information Systems Management program, which shows that he completed 44 percent of the program (12 out of 45 credits). The Veteran's cumulative grade point average is 0.33. The Board notes that the Veteran completed his Bachelor's Degree program with a 2.92 grade point average. Upon review of the evidence and interview with the Veteran, the VRC overturned the prior declaration of rehabilitated status and determined that the Veteran is experiencing health management issues that directly contribute to challenges with the performance of his duties as a Programmer Analyst. The VRC further determined that although the Veteran is skilled and qualified for the job, the problems with timely completion of work and interpersonal difficulties with coworkers directly impact the potential for job retention. The VRC determined that the Veteran has the education and work experience to qualify him for occupations in the Information Technology industry; however, he has a serious employment handicap based on the number and severity of disabling conditions, alcohol/substance abuse, unstable work history, extent and complexity of needed rehabilitated services and difficulties with communicating. He further determined that reasonable feasibility for training and employment is established and proposed the following services to address the Veteran's needs: employee assistance services, vocational adjustment counseling services, mental health and cognitive rehabilitation services, development of reasonable accommodations on the job, and job development/job placement assistance. In September 2015, the VR&E Officer conducted an administrative review and concurred with the VRC's decision. The VR&E Officer determined that the Veteran has marketable job skills achieved through education and work experience and his identified needs can be addressed through the proposed program of services. He further determined that the Veteran does not require a Master's Degree in order to qualify for jobs in the IT industry. Upon review of all of the evidence of record, including the Veteran's lay statements, the Board concurs with the determination of the VRC Counselor and VR&E Officer, and finds that the weight of the evidence is against a finding that the Veteran's particular vocational goal of attaining a Master's Degree is reasonably feasible at this time. In this making this determination, the Board has carefully and sympathetically considered the evidence of record, but unfortunately, finds that the evidence weighs against the benefit sought. Although there is some evidence in support of the Veteran being able to complete a Master's Degree in Information Systems, such as the fact that he has completed 44 percent of the Master's curriculum, the fact that the Veteran is currently on probation with the school (last attended in 2014) due to academic challenges is evidence against finding such. Moreover; the effects of his disabilities, when considered in relation to his circumstances, would ultimately prevent him from becoming "gainfully employed" in a "better job" regardless of additional education. 38 C.F.R. § 21.35 (h). In this regard, the Veteran's employment history shows that the Veteran has routinely quit his job because of reported stress and constant bathroom usage caused by his service-connected psychiatric disability and IBS. As reflected by the record, the Veteran's employment level is not a barrier to the Veteran maintaining employment in the IT industry. The barrier is the Veteran's ability to meet the demands of the job and effectively manage work related stressors. The proposed program services (employee assistance services, vocational adjustment counseling services, mental health and cognitive rehabilitation services, development of reasonable accommodations on the job, and job development/job placement assistance) would address the Veteran's barriers to employment and provide assistance that would develop strategies to mitigate the effects of his disabilities in the workplace, and if necessary, assist the Veteran in securing a more suitable job placement. The evidence does not show that attaining a Master's Degree would address the Veteran's rehabilitation needs. In contrast, the evidence shows that the Veteran would be at risk of further vocational adjustment difficulties without addressing the apparent core issues, which the proposed program of services would address. The Board is cognizant of the Veteran's assertions regarding his sincere belief his vocational goal of attaining a Master's Degree is reasonably feasible. However, the Board considers it significant that the VRC and VR&E Officer have extensive specialized training in vocational rehabilitation. That adds to the probative weight of their assessments. See Black v. Brown, 10 Vet. App. 297 (1997) (an opinion rendered by a one with specialized training may be considered more probative than a non-specialist's finding). The Board emphasizes that the purpose of Chapter 31 VA vocational rehabilitation services is to provide a level of training that facilitates suitable employment. The weight of the evidence is against a finding that the Master's degree sought would achieve this goal. 38 U.S.C.A. § 3100; 38 C.F.R. § 21.70. In short, the Board finds that the totality of the evidence of record shows that the Veteran's achievement of his desired vocational goal of attaining a Master's Degree in Information Technology is not reasonably feasible. See 38 C.F.R. §§ 21.35 (h), 21.50(b)(3), 21.53(d). The proposed program of services, to include employee assistance services, vocational adjustment counseling services, mental health and cognitive rehabilitation services, development of reasonable accommodations on the job, and job development/job placement assistance is reasonably feasible as it address the Veteran's identified barriers. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the appeal. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Additional VRE benefits under the provisions of Chapter 31, Title 38, of the United States Code in support of obtaining a Master's Degree in Information Technology is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs