Citation Nr: 1804934 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-20 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether achievement of a vocational goal is reasonably feasible for purposes of entitlement to vocational rehabilitation and training (VR&E) under Chapter 31, Title 38, United States Code. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to April 1988 and from July 1989 to January 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from August 2014 and February 2015 administrative decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Those determinations discontinued VR&E services based on a finding that the Veteran's vocational goal was infeasible. In August 2015, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's service connected back disability is rated as 60 percent disabling; and he has been found unemployable due to service-connected disabilities, with receipt of a total disability rating based on individual unemployability since August 2003. 2. The Veteran's non-service-connected disabilities include an acquired psychiatric disorder. 3. The Veteran's vocational goal is not feasible due to his service-connected and non-service-connected disabilities. CONCLUSION OF LAW Achievement of the Veteran's vocational goal is not reasonably feasible for the purpose of vocational rehabilitation and training. 38 U.S.C. §§ 3100, 3101, 3102, 3106, 5107 (2012); 38 C.F.R. §§ 21.35, 21.40, 21.50, 21.53, 21.70 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA only applies to claims for benefits filed under Chapter 51 of Title 38, United States Code, which does not include vocational rehabilitation benefits. See e.g. Barger v. Principi, 16 Vet. App. 132, 138 (2002); Lueras v. Principi, 18 Vet. App. 435 (2004); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). However, the provisions of VA vocational rehabilitation benefits under Chapter 31 of Title 38, United States Code, contain their own notice and assistance provisions. Specifically, 38 C.F.R. § 21.420 (a) provides that VA will inform a veteran in writing of findings affecting receipt of benefits and services under Chapter 31. Effective August 5, 2009, regulations concerning VA's responsibility to provide notification and assistance regarding information or evidence needed for an individual to substantiate a claim for vocational rehabilitation benefits were codified at 38 C.F.R. §§ 21.32, 21.33 (2017). See 74 Fed. Reg. 31854 (July 6, 2009). The basic requirements of the duty to notify and assist under 38 C.F.R. §§ 21.32 and 21.33 are substantially identical or similar to the VCAA requirements for VA's compensation program. In any event, with respect to the Veteran's vocational rehabilitation claim herein, VA has met all regulatory duty to notify and duty to assist provisions. See 38 C.F.R. §§ 21.32, 21.33 (2017). The Veteran was provided with the governing law and regulations regarding Chapter 31 benefits. See also July 2014 and February 2015 VR&E Program Orientation forms signed by the Veteran. He was provided with an interview to assess his needs and to address entitlement and feasibility. He also has actual knowledge of what is necessary to substantiate his claim given that he has previously received VR&E benefits under Chapter 31. See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). II. Entitlement to VR&E Benefits Chapter 31 of Title 38, United States Code (Chapter 31), 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. §§ 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. § 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. §§ 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. § 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. §§ 3101(8), 3106(a); 38 C.F.R. §§ 21.50, 21.53. According to the record in this case, the Veteran has a long history with respect to VR&E services provided under Chapter 31. Following discharge from service in 1990, the Veteran applied for Chapter 31 benefits. Service connection for a back disability was in effect, and was rated as 40 percent disabling at that time. A July 1990 Counseling Record - Narrative Report shows that the Veteran obtained a three-year "Bible diploma" from Baptist Bible College in Springfield, illinois and subsequently obtained his Bachelor's degree through the external degree program at Liberty University. His Bachelor's degree is in church ministry and pastoral counseling. The report also notes that the Veteran had recently completed the Master's degree program in counseling from Liberty University. His primary purpose in requesting vocational rehabilitation services at that time was in attempt to obtain his "Licensed Professional Counseling" certificate through the State of Virginia. The July 1990 narrative report also indicates that the Veteran's service-connected back disability "obviously places significant restrictions on the Veteran's physical capacities and suggests that he would need a fairly sedentary work environment." According to the Veteran, he was not retained in his previous job because he was unable to bend and lift and could not be trained in CPR; and, the only gainful employment that he had been able to obtain since is that of a private caregiver. The Veteran was found to have an employment handicap, and that it was feasible that he could attain his goal of obtaining counseling licensure. Accordingly, a rehabilitation plan was prepared, which indicated that the program goal was to obtain and maintain employment as a Licensed Professional Counselor. The Veteran was found to have been "rehabilitated" in October 1991, after 3 and a half months of employment as a Vocational Rehabilitation Specialist at a VARO. However, according to a March 1995 VR&E memo, the Veteran felt that the goals of his original rehabilitation plan had not been achieved and that he should be permitted to continue with his training. Although the Veteran continued to be employed at the VARO, he felt his rehabilitation goal had not been achieved because he was not given an opportunity to complete 200 hours of paid supervision during 4,000 hours of post-graduate degree experience, a pre-requisite to becoming a Licensed Professional Counselor in the State of Virginia. The memo further reflects that the school the Veteran attended did not offer the above opportunity so the Veteran's Vocational Rehabilitation Specialist developed a plan for employment assistance, which amended the vocational goal to include "or a related position in the counseling field." The Veteran agreed to, and signed, the plan in May 1991 and obtained employment in July 1991. The Veteran's case manager and counseling psychologist agreed that the Veteran had substantially obtained his goal of his rehabilitation program, and further entitlement was not warranted. The Veteran appealed that determination to the Board. In January 1997, the Board denied the Veteran's claim and characterized the issue as "entitlement to additional vocational rehabilitation benefits under Chapter 31." The Veteran appealed to the United Statement Court of Appeals for Veterans Claims (CAVC). In January 1999, the Court dismissed the Veteran's request for money damages, and vacated the Board's January 1997 decision and remanded the case to the Board for consideration of the matters raised in the Court's Order. Meanwhile, the Veteran's 40 percent rating for the service-connected back disability was subsequently increased to 60 percent, effective from April 16, 1997. Also, the Veteran continued to work as a VR&E counselor at VAMC. In October 1999, the Board addressed whether the Veteran's initial period of vocational rehabilitation benefits under Chapter 31 was properly discontinued as he had been placed in "rehabilitated status." The Board found that the Veteran did not overcome his employment handicap to the maximum extent feasible as the goal of his rehabilitation program was not substantially achieved. Accordingly, the Board concluded that the Veteran's initial period of vocational rehabilitation benefits under Chapter 31 was not properly discontinued as he was not properly placed in "rehabilitated status." The Board reasoned that the Veteran's occupation as a VA counselor was not a "closely related occupation" to that of a licensed professional counselor, and as such, rehabilitation had not been substantially achieved. To that limited extent only, the appeal was granted, and the case was sent back to the RO. The limited relief granted by the Board's October 1999 decision is that the Veteran was not properly placed in "rehabilitated" status based on an underlying finding that the goal of his rehabilitation plant (to obtain and maintain employment as a licensed professional counselor or in a related position in the counseling field) was not substantially achieved. The October 1999 decision granted no further entitlement or relief other than to hold that the Veteran's rehabilitation program was improperly terminated on that basis. The decision does not address feasibility to obtain the goal of rehabilitation or direct what should happen should the Veteran be unwilling or unable to achieve the goal. In response, the RO created a new rehabilitation plan in January 2001, with a program goal of "Employment as a Licensed Professional Counselor, in a Pastoral Counseling setting, (or position of similar responsibility). The first objective was to obtain a Doctor of Ministry degree plus pre-requisite courses (42 total credits), and cover tuition, books, fees, supplies, and subsistence allowance at Liberty Baptist Theological Seminary. Additional objectives included internship and related work experience to meet the qualifications for licensure as a professional counselor with payment for supervision , subsistence allowance and fees. The Veteran was to complete 4000 hours of work experience and 200 hours of face-to-face supervision, and obtain a passing score on the National Counselor exam. An additional objective involved medical service and the Veteran was required to maintain an appropriate level of physical and mental health. A May 2001 Counseling Narrative Report notes that the Veteran's goals and interests had changed since he had begun work with VA. He expressed interest in working in a clinical postoral setting, providing counseling/therapeutic services in a hospital or pastoral care facility. He had been taking classes toward this objective while concurrently working. A new plan was developed so that the Veteran could complete his Doctorate of Ministry, which included reimbursement for tuition, books, and supplies, and payment of subsistence allowance and employment assistance. The Veteran continued to work at the VAMC and attended classes to achieve his rehabilitation goal, but in August 2003, he notified his VR&E officer that he was no longer able to work due to his service-connected back pain. As such, in September 2003 correspondence, the VR&E officer notified the Veteran that his rehabilitation program would be interrupted, and that his case would be discontinued at the end of the month unless the Veteran changed his mind prior to the end of that month and wanted to return to an employment search. At that time, the VR&E officer expressed disappointment in the Veteran's decision to not pursue employment going forward and suggested that, from a rehabilitation perspective, the Veteran should have a great deal of flexibility in employment options given his level of training, education and work experience. In a September 2003 follow-up email, the Veteran agreed that he had been provided with the training needed to become employed, but that he was physically unable to work. The Veteran filed a claim for a total rating based on unemployability which was granted, and made effective from August 2003, his last date of employment. In support of his claim, he submitted a July 2003 letter from his chiropractor who deemed his spinal conditions of intervertebral disc syndrome, spinal stenosis and degenerative disc disease to cause permanent impairment without resolution of his condition. The chiropractor also noted that the Veteran's associated persistent pain affected his ability to sit for prolonged periods, and his period of incapacitation result in difficulty completing job assignments in a timely manner. In December 2003 correspondence, the Veteran asked the RO to clarify whether he could keep his 100 percent unemployability rating and work part time to earn wages up to, but not in excess of, the poverty threshold. In June 2004, the Veteran filed an application for VR&E services. According to a June 2004 Counseling Record, the Veteran expressed interest in the Independent Living Program since he was not capable of working. Generally, a veteran shall be provided a program of independent living (IL) services if it is determined that he or she has a serious employment handicap under 38 CFR § 21.40 (b), resulting in substantial part from a service-connected disability, and that achievement of a vocational goal is not feasible. Such program is designed to enable the veteran to achieve maximum independence in daily living. See 38 U.S.C. §§ 3104, 3109, 3120. Services and assistance that may be provided pursuant to an IL program include "services necessary to enable a Veteran to achieve maximum independence in daily living." 38 U.S.C § 3104 (15). The term "independence in daily living" means the ability of the veteran, without the services of others or with a reduced level of the services of others, to live and function within his or her family or community. 38 C.F.R. § 21.160 (b). Services which may be authorized as part of an Individual Independent Living Program (IILP) include: (1) any appropriate service which may be authorized for a vocational rehabilitation program; and, (2) independent living services offered by approved independent living centers and programs which are determined to be necessary to carry out the plan including: (i) evaluation of independent living potential; (ii) training in independent living skills; (iii) attendant care; (iv) health maintenance programs; and, (v) identifying appropriate housing accommodations. 38 C.F.R. § 21.160 (d). Under 38 C.F.R. § 21.90, the purpose of an Individualized ILP (IILP) is to identify the steps through which a veteran, whose disabilities are so severe that a vocational goal is not currently reasonably feasible, can become more independent in daily living within the family and community. 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). As noted above, the June 2004 VR&E counseling narrative report notes that the Veteran was interested in pursuing the Independent Living Program (ILP) because he was not capable of working. The report further notes that the Veteran had not overcome the effects of the impairment of employability because the Veteran's disabilities prevented him from holding down any type of job. The report indicates that the Veteran's employment handicap is serious because it is chronic and severe in nature and the Veteran has needed treatment on and off for several years. The report found that achievement of a vocational goal was not feasible, but the Veteran would be referred for an ILP assessment. An ILP report was prepared in July 2004, and the Veteran's IL plan was approved in November 2004. The report notes that the Veteran had previously been working on his doctorate in Ministry, but further achievement of this goal would not be funded by the VR&E program since he was in receipt of a 100 percent unemployability rating, and had not indicated that he is planning to return to work once his degree is obtained. Per the ILP, the Veteran was provided with a laptop computer, printer/scanner, up to 4 continuing education classes related to computer use, and a guitar with weekly guitar lessons for three months. An April 2005 follow-up case management report notes that the Veteran was using his computer and found it beneficial. He had not taken on any guitar lessons, but nevertheless requested that VR&E provide him with additional equipment in order to play at church and other locations. The Veteran was teaching classes at a Bible college and was providing part time pastoring at a new church. He was reportedly working on his thesis and on completing his counseling licensure. The Veteran also requested a hot tub/spa to help with his back pain, and payment of $1300 for Sensory Integration Training to help with his self-diagnosed attention deficit disorder. According to a March 2006 Report of Contact, a New Mexico VA educational accreditation official notified the Veteran's VR&E caseworker that the Veteran was listed as the president of a bible college on the college's official website; and, that he had admitted that he was "running the college," even though he had previously informed the accreditation official in June 2005 that he had to discontinue his teaching due to his back problems. In April 2006, the Veteran's caseworker informed the Veteran that it was time to close his case since he had achieved most of his ILP goals successfully. The Veteran did not object. A January 2007 Special Report of Training indicates that the Veteran met the rehabilitation criteria for an independent living program. The report also notes that the Veteran was found not reasonably feasible for rehabilitation to employment based on the seriousness of his service-connected back disability. Also, per the Veteran's request, his caseworker referred the Veteran for dental treatment. According to the record, the Veteran subsequently obtained the necessary dental treatment from a private dentist, and then requested authorization for reimbursement for those services by VR&E. That claim was denied by the Board in a May 2008 decision based on a finding that the Veteran's private dental treatment was not determined by VA to be necessary to develop, carry out, or complete the Veteran's rehabilitation plan. In November 2008 and December 2010, the Veteran requested additional Chapter 31 benefits. In March 2011 correspondence, the Veteran asserts that VR&E never helped him reach the goal of his May 2001 plan which was employment in the field of psychology requiring a PhD in Psychology. Additionally, the Veteran maintains that he was let go from his last job [in 2003] because he was no longer able to carry out the duties of a counselor, "which are empathetic listening and attention to the veterans I served." The Veteran further asserted that, "This determination was made because I was experiencing the side effects from very strong pain medication due to my service-connected back conditions." Accordingly, the Veteran concluded that he cannot serve as a counselor, but must instead reach the goal of psychological tester, which would able him to work independently as a test administrator and evaluator, and which does not require the empathetic responses of a counselor engaged in therapy. A February 2009 memo indicates that the Veteran believes he can work even though he reported that his back condition was deteriorating. He did not feel it was necessary to obtain a note from his physician indicating that he could work. The memo also notes that the Veteran only wanted to work up to the poverty level so that he would not lose his IU benefits or impact his SSDI (social security disability benefits). A December 2012 memo from the president of a private counseling company notes that the Veteran was a former employee, but that he was no longer able to work for the company. The memo notes that although the Veteran had done a fair job counseling and completing his paper work, he had made some unforgivable mistakes that affected the company's reputation. The memo also notes that the Veteran was under complaint by the State's Counselor Board for not being understanding and empathetic toward his clients. The former employer found that the Veteran was not able to be emotionally present with his clients while he was under the influence of Oxycodone and Hydrocodone, of which he took a considerable amount for his back pain. In July 2014, the Veteran applied for VR&E services in a third State. In August 2014, a VR&E counselor determined that the Veteran's IL rehabilitated status should be overturned, and that the Veteran was entitled to Chapter 31 Vocational Rehabilitation services; however, the counselor found that the goal was not feasible at that time. Further, the counseling narrative indicates that the Veteran had a history of bipolar disorder, and due to his mental health condition, the Veteran was advised that he needed to establish mental health services and demonstrate at least six months of mental health treatment and stabilization. See August 2014 memo to the VR&E Officer, and August 2014 counseling narrative. In January 2015 correspondence, the Veteran objected to the finding of infeasibility. He asserted that he does not have a diagnosis of bipolar disorder, a condition that was to be "ruled out" years earlier, but never diagnosed, according to VA treatment records. The Veteran maintains that he has a diagnosis of anxiety disorder and has been compliant with that treatment. A January 2015 memo to the Veteran's vocational rehabilitation counselor from the VR&E Officer notes that the Veteran requested administrative review of the August 2014 decision of infeasibility, however, the VR&E Officer found that the negative feasibility determination was appropriate. See also, February 2015 VA memo. The Veteran appealed the determination of infeasibility to the Board. On his May 2015 VA Form 9, the Veteran asserts that VA should pay for $71, 524.85 to cover the cost of training, tuition, books, fees, and subsistence allowance because VR&E denied his request to seek a vocational goal under a Trial Work Period. At his August 2015 videoconference hearing before the undersigned, the Veteran testified that VA never enforced the Court's 2001 decision. Transcript, p. 7. The Veteran also asserts that he is entitled to services under 38 U.S.C. § 1163. The Board disagrees. First, as noted above, the Court's January 1999 vacated the Board's 1997 determination because the Board mischaracterized the issue on appeal. In October 1999, the Board issued a new decision, correctly identifying the issue on appeal, and finding that the RO improperly placed the Veteran in a rehabilitated status. As noted above, the October 1999 decision was limited to that extent only. Accordingly, the RO developed a new VR&E plan. See May 2001 Counseling Narrative Report. At that point, there was compliance with the Court's January 1999 decision and the Board's October 1999 decision. The reason the May 2001 plan was never completed is that the Veteran became unable to complete the plan when he became too disabled to work in 2003. At that point, the Veteran asserted that his service-connected back disability rendered him unemployable, and his doctor agreed. The Veteran's IU claim was granted, effective from the day following his last date of employment with VA in 2003. Since that time, the Veteran has requested additional VR&E services, but employment has been found to be infeasible. This is consistent with medical records showing that the Veteran's back condition continues to deteriorate. The Veteran has not provided any evidence to the contrary. The Veteran argues that he has been misdiagnosed with bipolar disorder, and that this error has resulted, in part, on his negative feasibility determination. The Board finds, however, that the exact diagnosis of the Veteran's acquired psychiatric disorder is not outcome determinative because the fact remains that the Veteran does, admittedly, have a generalized anxiety disorder which affects his ability to counsel patients effectively, as explained in greater detail above. In other words, it is undisputed that the Veteran has an acquired psychiatric disorder that affects his employability, and a determination as to the exact diagnosis is not relevant because it is the Veteran's mental health effect on employability rather than the exact diagnosis that is outcome determinative in this case. Accordingly, the record does not support a finding of employment feasibility. The Veteran argues that he is entitled to additional services under 38 U.S.C. § 1163. As noted above, a February 2009 VA memo indicates that the Veteran believes he can work even though he reported that his back condition was deteriorating. He did not feel it was necessary to obtain a note from his physician indicating that he could work. The memo also notes that the Veteran only wanted to work up to the poverty level so that he would not lose his IU benefits or impact his SSDI According to 38 U.S.C. § 1163, a veteran's total disability rating will be protected for a period of up to 12 months if the veteran begins to engage in a substantially gainful occupation. In other words, the total disability rating may not be reduced on the basis of the veteran having secured and followed a substantially gainful occupation unless the veteran maintains such an occupation for a period of 12 consecutive months. In addition, counseling services and placement and postplacement services (limited to those listed under 38 U.S.C. §§ 3104(a)(2) and 3104(a)(5)) shall be provided to a qualifying veteran regardless of whether he or she is participating in a Chapter 31 program. First, 38 U.S.C. § 1163 does not apply in this case because the Veteran has not indicated that he has secured substantially gainful (above the poverty threshold) employment for any period of time since 2003, which is prerequisite to obtaining the counseling and placement services under this section. In fact, the Veteran has indicated his desire to obtain only part time employment, with income below the poverty threshold, so that he can keep his unemployability benefits. Moreover, even if the Veteran were to obtain substantially gainful employment at some point in the future, the counseling and placement services described at 38 U.S.C. §§ 3104(a)(2) and 3104(a)(5)) are limited to just that, counseling services. Payment of tuition, fees, books, subsistence allowance, and training is not authorized under this section. In essence, the Veteran reported in 2003 that he could not work due to his service-connected back disability. Since that time, the Veteran's back disability has worsened, but the Veteran now claims that employment is feasible despite an increase in disability, and despite no indication of an intent to pursue gainful employment following completion of his currently desired program of education. The June 2014 narrative report indicates that the Veteran requires mental health services, and there is no indication that the Veteran has complied with this request. The Veteran wants VA to continue to pay for the Veteran to obtain additional degrees, but as noted by the VR&E counselors, the Veteran has not indicated a desire to obtain gainful employment once he obtains those degrees. Initially, the Veteran argued that he needed a psychology degree because he could not earn a living wage with only a counseling background; however, the Veteran has indicated that he wanted to his income level under the poverty threshold. Gainful employment is not feasible if the Veteran continues to maintain that he is unemployable due to service-connected disabilities and has no desire to achieve gainful employment. The purpose of the VR&E program is to rehabilitate to the point of obtaining and maintaining substantially gainful employment. Following the Board's October 1999 decision, VR&E developed a rehabilitation plan suitable to the Veteran, the goal of which was to obtain gainful employment in his chosen field of clinical pastoral care; however, the Veteran abandoned that plan in 2003 when he indicated that he was no longer employable. It would now amount to unjust enrichment to find employment feasible so as to pay for additional services when he has no intention of giving up his total rating to obtain and maintain gainful employment. It is inconsistent to argue that gainful employment is feasible, yet continue to maintain that a total disability rating based on unemployability is warranted because service-connected disabilities preclude gainful employment. ORDER The appeal is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs