Citation Nr: 1803802 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 10-10 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether denial of additional benefits under the Vocational Rehabilitation and Employment (VR&E) program under the provisions of Chapter 31, Title 38, of the United States Code was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran had active military service from June 1974 to June 1978, from March 1979 to January 1986, and from July 1986 to September 1995. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2009 decision that he is not entitled to additional vocational rehabilitation benefits. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The purpose of vocational rehabilitation services provided in Chapter 31, Title 38 of the United States Code is to enable veterans with service-connected disabilities to become employable and to obtain and maintain suitable employment. 38 U.S.C. § 3100. A veteran who meets the criteria for basic entitlement may be provided a program of rehabilitative services which may include medical, diagnostic, counseling, educational, vocational, or employment services, among other services, as are determined to be needed and appropriate. 38 C.F.R. § 21.35(i). A veteran shall be determined to be rehabilitated to the point of employability when he is employable in an occupation for which a vocational rehabilitation program has been provided under 38 U.S.C. Chapter 31. 38 C.F.R. §§ 21.35(e), 21.283. Rehabilitation to the point of employability may include the services needed to evaluate and improve a veteran's ability to undertake training; and train him to the level generally recognized as necessary for entry into employment in a suitable occupational objective. 38 C.F.R. § 21.72. The purpose of "rehabilitated" status is to identify those cases in which the goals of a rehabilitation program or a program of employment services have been substantially achieved. 38 C.F.R. § 21.196(a). A veteran shall be declared "rehabilitated" when he has overcome the employment handicap to the maximum extent feasible as described in 38 C.F.R. § 21.283 . The term "suitably employed" includes employment in the competitive labor market, sheltered situations, or on a nonpay basis which is consistent with a veteran's abilities, aptitudes and interests if the criteria contained in paragraph (c)(1) or (2) of 38 C.F.R. § 21.283 are otherwise met. See 38 C.F.R. § 21.283 (b). A veteran will be found rehabilitated to the point of employability when he (1) is employed in the occupational objective for which a program of services was provided or in a closely related occupation for at least 60 continuous days; (2) is employed in an occupation unrelated to the occupational objective of a veteran's rehabilitation plan for at least 60 continuous days if a veteran concurs in the change and such employment follows intensive, yet unsuccessful, efforts to secure employment for a veteran in the occupational objective of a rehabilitation plan for a closely related occupation contained in a veteran's rehabilitation plan; is consistent with a veteran's aptitudes, interests, and abilities; and utilizes some of the academic, technical or professional knowledge and skills obtained under the rehabilitation plan; or, (3) pursues additional education or training, in lieu of obtaining employment, after completing his prescribed program of training and rehabilitation services if the additional education or training is not approvable as part of a veteran's rehabilitation program under this chapter; and achievement of employment consistent with a veteran's aptitudes, interests, and abilities will be enhanced by the completion of the additional education or training. 38 C.F.R. § 21.283 (c). After a veteran has been given rehabilitation services under Chapter 31 and found to be rehabilitated, he or she must meet certain conditions to for reentrance into a rehabilitation program. An additional period of training or services will be provided only if: (1) the veteran has a compensable service-connected disability and either; (2) current facts, including any relevant medical findings, establish that the Veteran's service-connected disability has worsened to the extent that the effects of the service-connected disability considered in relation to other facts preclude him or her from performing the duties of the occupation for which he or she was previously found rehabilitated; or (3) the occupation for which the veteran was previously found rehabilitated under Chapter 31 is found to be unsuitable on the basis of the Veteran's specific employment handicap and capabilities. 38 C.F.R. § 21.284 (a). Here, the evidence reflects that the Veteran reentered into a vocational rehabilitation program in August 2004 after he was determined to need additional training to get into an occupation consistent with his interests, aptitudes, and disabilities. His program goal was "to acquire and sustain employment as an illustrator or related," and to that end he obtained a Bachelors of Fine Arts degree in December 2007. In July 2008 he reported he had applied to more than 300 jobs but had not been hired. He requested self-employment training through the vocational rehabilitation program. In January 2009 he began a job as a paraprofessional at a middle school. In March 2009 the Veteran was notified that he had been moved to rehabilitated status. In a November 2009 statement the Veteran argued that he does not have employment in his career field and requested additional vocational rehabilitation benefits. A December 2009 administrative review denied additional benefits. The Veteran submitted a statement in December 2009 arguing that he does not work in a field closely related to being an illustrator nor does he utilize skills and training he received in vocational rehabilitation. The Veteran reported that he quit working as a school paraprofessional in January 2013. At his February 2013 Board hearing the Veteran testified that he lifted students weighing more than 100 pounds and his back and shoulder conditions had worsened during the course of his employment. He also reported working with some students who were violent, causing him increased stress and depression. The Board notes that since being found to be rehabilitated in 2009, the Veteran has been granted service connection for asthma and bronchitis, right and left wrist tendonitis, gastroesophageal reflux disease, and chest wall pain syndrome. His right shoulder disability rating was increased to from 10 percent to 20 percent and his rating for major depressive disorder was increased from 30 percent to 70 percent, both effective in 2016. He has also been service-connected for cervical spine strain, right elbow tendonitis bursitis, hemorrhoids, recurrent dermatitis, postoperative removal of cyst from tongue, and left buttock nevus since 1997. The Board agrees that the Veteran was properly found to be rehabilitated in 2009. Although a school paraprofessional is not a closely related occupation to the career in illustration he was trained for under the vocational rehabilitation program, it does meet the requirements of 38 C.F.R. § 21.283(b)(2). Specifically, the Veteran was employed as a school paraprofessional for at least 60 continuous days. Although the Board acknowledges that he has expressed a preference to work as an illustrator, as he pursued and accepted the school paraprofessional position of his own accord, he is found to concur in the change. Further, the evidence reflects that his employment as a school paraprofessional follows an "intensive, yet unsuccessful, efforts to secure employment" as an illustrator. In contacts the Veteran had with his vocational rehabilitation employment coordinator, the Veteran reported he had regularly been applying for illustrator positions and had gotten at least one interview in the year he searched for jobs after earning his degree. The employment coordinator offered assistance in helping the Veteran prepare job applications. In his July 2008 application for additional training the Veteran himself reported he had applied for more than 300 jobs since completing his degree. Additionally, the Board finds that the Veteran's school paraprofessional job is consistent with his aptitudes, interests, and abilities. At his Board hearing the Veteran reported he enjoyed the job, despite that it was very stressful. He has not indicated that he did not have the aptitude or ability to perform the job, and has reported that he left the job not due to any deficiency in his performance, but because he felt it was worsening his back, shoulder, and mental conditions and he did not want to transport students in his personal vehicle, which he had been told was going to be a requirement added to his job duties. Finally, the Board finds that the position "utilizes some of the academic, technical or professional knowledge and skills obtained under the rehabilitation plan." The Veteran's resume suggests that he had taken previous college classes, but that the bachelor of arts degree he obtained in the vocational rehabilitation program was his first college degree. While the Veteran's coursework for his college degree may have mainly included art classes (including children's book illustrating), he also received credit for written and oral communication, math, and humanities classes. In a December 2009 statement the Veteran described his job as including helping students with toileting, performing personal hygiene, shopping, using public transportation, cooking, and counting money. While he may not have used his artistic training extensively, if at all, in the position, having a college degree allowed him to meet federal standards for paraprofessionals, and he would have utilized the non-artistic knowledge and skills gained by completing a college degree in working with students as a school paraprofessional. Based on the forgoing, the Board finds that the Veteran was correctly found to be rehabilitated for purposes of the vocational rehabilitation program. However, even after a finding of rehabilitation, a Veteran may be granted reentrance into a rehabilitation program if certain conditions are met. Here, the Veteran has alleged that his service-connected cervical spine and shoulder conditions as well as his service-connected depression worsened during his time as a school paraprofessional, due to the physical requirements of lifting students and the stress from dealing with some of the students. In a February 2013 statement, the Veteran's spouse recalled that the Veteran would come home from work as a school paraprofessional with back pain and his depression was exacerbated. The Board finds there is insufficient evidence to determine whether his service-connected disabilities have worsened to the extent that the effects considered in relation to other facts preclude him from performing the duties of school paraprofessional or that the occupation is now unsuitable on the basis of the Veteran's specific employment handicap and capabilities. The Board also notes that the Veteran has since reported holding a number of other jobs since he quit working as a school paraprofessional in 2013. Specifically, at his January 2015 VA mental health examination he reported he worked from July to November 2013 as a VA benefits briefer before being furloughed. He then worked from January to April 2014 as a graphic designer administrative assistant before leaving the job, reporting he felt mistreated by the employer. He then worked from June to November 2014 doing landscaping, but found the job to be too physically taxing. At his December 2016 VA mental health examination he reported he had sporadically taught art and organic gardening classes at his local recreation center. He also worked one day a week as an elderly caregiver. At his March 2017 VA mental health examination he reported working two to four hours a week as a caregiver for an autistic teenager and intermittently teaching art classes at the recreation center. He reported he had also started an organic gardening business but the endeavor was too physically taxing and stressful so he discontinued it. Accordingly, a remand is warranted to accomplish additional development to ensure a complete evidentiary record suitable to allow fully informed appellate review of the issue on appeal. A comprehensive vocational assessment and functional capacity evaluation should be afforded the Veteran to ascertain the current extent of the physical and mental limitations caused by his service-connected disabilities. The AOJ should then ensure that the record is complete and readjudicate the Veteran's claim with consideration of the updated facts and the Veteran's current service-connected disability picture. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a functional capacity evaluation to determine the current limitations caused by his service-connected disabilities and their effect on his ability to perform the job duties of a school paraprofessional. 2. Thereafter, readjudicate the Veteran's pending claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).