Citation Nr: 18160030 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-26 581 DATE: December 20, 2018 ORDER Entitlement to reentrance into the VA vocational rehabilitation and employment (VR&E) program following a determination of rehabilitation per 38 C.F.R. § 21.284(a) is granted. FINDINGS OF FACT 1. Service connection is in effect for the following disabilities: a low back disability, rated at 60 percent; migraine headaches, rated at 30 percent; general anxiety disorder, rated at 30 percent; right lower extremity radiculopathy, rated at 30 percent; cervical strain, rated at 10 percent; tinnitus, rated at 10 percent; gastroesophageal reflux disease (GERD), rated at 10 percent; an unstable surgical scar of the low back, rated at 10 percent; a tender surgical scar of the low back, rated at 10 percent; and right plantar fasciitis with calcaneal spurs, left plantar fasciitis with calcaneal spurs, left ear sensorineural hearing loss, status post septoplasty, right forearm scar, low back surgical scar, and osteomyelitis associated with the microdiskectomy, each rated as noncompensable. 2. The occupation of computer programmer in the information technology field with an Associate degree education level for which the Veteran was previously found rehabilitated under Chapter 31 is unsuitable based on specific employment handicap and capabilities. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for reentrance into rehabilitation to the point of employability following a determination of rehabilitation per 38 C.F.R § 21.284(a) are met. 38 U.S.C. §§ 3101, 3103, 3117; 38 C.F.R. §§ 21.35, 21.284. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service in the U.S. Marine Corps from September 1994 to October 2004. This matter is on appeal from an April 2015 decision. VR&E Benefits In order to obtain reentrance into rehabilitation to the point of employability, i.e., receive an additional period of training or services, the evidence must show the following: (1) the veteran has a compensable service-connected disability and either; (2) the current facts, including any relevant medical findings, establish that the service-connected disability has worsened to the extent that the effects of the service-connected disability considered in relation to other facts precludes him or her from performing the duties of the occupation for which he or she previously was found rehabilitated; or (3) the occupation for which he or she previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of his or her specific employment handicap and capabilities. 38 C.F.R. § 21.284. Rehabilitation to the point of employability means that the Veteran is employable in an occupation for which a vocational rehabilitation program has been provided under the VR&E program. 38 C.F.R. § 21.35. The Veteran seeks reentrance into the VR&E program for additional education to obtain a Bachelor’s degree in the field of information technology. He asserts that the information technology position (i.e., computer programmer) for which he was previously found rehabilitated is currently unsuitable due to his specific employment handicap and capabilities. The Veteran contends that he had excessive absences due to service-connected migraines from 2011 to 2014 and is now unable to work in the information technology field despite an improvement of migraines because the information he previously learned in school and in the information technology field was now outdated and not applicable to the current job market. For the entire period at issue in this case, the Veteran is service-connected for the following: a low back disability, rated at 60 percent; migraine headaches, rated at 30 percent; general anxiety disorder, rated at 30 percent; right lower extremity radiculopathy, rated at 30 percent; cervical strain, rated at 10 percent; tinnitus, rated at 10 percent; GERD, rated at 10 percent; an unstable surgical scar of the low back, rated at 10 percent; a tender surgical scar of the low back, rated at 10 percent; and a number of noncompensable disabilities. Thus, it is undisputed that he has a compensable service-connected disability. After review of the record, the Board finds that the evidence is in equipoise on the question of whether the occupation for which the Veteran was previously found rehabilitated under Chapter 31 is now unsuitable on the basis of his specific employment handicap and capabilities so that the criteria for reentrance into rehabilitation to the point of employability are met. In October 2015, a VA vocational rehabilitation panel determined that the Veteran did not need additional VR&E services because he was capable of preparing, obtaining, and retaining suitable and gainful employment in the information technology field due to having earned two Associate in Applied Science degrees and his self-report that service-connected disabilities have improved. This evidence suggests that the occupation for which the Veteran was previously found rehabilitated under Chapter 31 remains suitable in consideration of the Veteran’s specific employment handicap and capabilities. However, in a May 2015 memorandum, the facility chief information officer (FCIO) of the VA Montana Healthcare System explained that not working in the computer programming field for any length of time leaves a person handicapped when seeking employment, and the expectations of hiring authorities was that any candidate for a software programming vacancy have at least a bachelor’s degree with an emphasis in particular programming languages involving healthcare, analytics, finance or web application development. The FCIO noted that the Veteran had worked at the VA Montana for several months as a contract programmer developing an application for the facility leadership but his time as a contractor was punctuated by periods of absence due to bouts of debilitating migraines. The FCIO recommended that the Veteran further his education by obtaining a bachelor’s degree and build upon his experience and current skills through an internship to become a successful computer programmer. In an undated letter received in July 2015, the Veteran's former instructor for web programming from 2010 to 2012 wrote that the Veteran was consistently highly motivated and passionate about his work but missed several days of class due to migraines. The instructor noted that, since the Veteran had properly treated his migraines, he had tried to update his skills for computer programming because he had forgotten a significant amount of knowledge from the formal education previously received and recommended that the Veteran obtain a bachelor's degree to make him employable in the field. In a May 2015 letter, a treating physician wrote that the Veteran would need additional vocational rehabilitation because his previous course of study had been some time ago and he would need retraining and refreshment in his education. The physician added that a job like teaching or in a self-employment field where he would be able to change positions frequently would be best from a physical standpoint. Thus, the evidence shows that a prolonged (i.e., multi-year) period of disability due to service-connected migraine resulted in excessive absences from school and work and an inability to secure or maintain gainful employment in the computer programming field since previously obtaining vocational rehabilitation for information technology with now outdated computer programming education and knowledge. The Veteran is also in receipt of a TDIU, which reflects a determination by VA that he is unable to obtain substantially gainful employment due to service-connected disabilities after considering his education and past work experience. There is conflicting evidence on the question of whether the Veteran would be unlikely to obtain gainful employment in the information technology field with the previously obtained Associate degree education and work experience unless he obtained additional education and training or education (i.e., a bachelor’s degree). There is also evidence suggesting that he would be unlikely to obtain gainful employment in another field of employment unless he received education and/or training for that field and it allowed for frequent changes of physical position presumably due to service-connected low back, neck, and lower extremity disabilities. In consideration of the foregoing, the Board finds that the former position of a computer programmer with an Associate degree education level for which the Veteran received vocational rehabilitation and was deemed rehabilitated is no longer suitable after considering the Veteran’s specific employment handicap and capabilities. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for reentrance into rehabilitation to the point of employability following a determination of rehabilitation per 38 C.F.R § 21.284(a) are met. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel