Citation Nr: 18160293 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-18 446A DATE: December 26, 2018 REMANDED Entitlement to benefits under Chapter 31, Title 38, United States Code (U.S.C.) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service in the U.S. Coast Guard from July 1985 to May 1986 and from July 1989 to October 2012. This matter is on appeal from an October 2013 decision. In June 2016, the Board remanded the appeal to satisfy the Veteran’s request for a videoconference Board hearing. In March 2017, the Veteran testified at a videoconference Board hearing before the undersigned. Chapter 31 Benefits For a veteran to receive training and rehabilitation services under Chapter 31, of Title 38 of the United States Code, he or she must be determined by VA to be in need of rehabilitation because of an employment handicap. 38 C.F.R. § 21.40 (a)(3). The determination of whether an employment handicap exists is not a medical question and has been specifically delegated by regulation to the discretion of a VA counseling psychologist (CP) or vocational rehabilitation counselor (VRC). 38 C.F.R. §§ 21.50 (b), 21.51. An employment handicap will be found to exist only if the CP or VRC determines that the individual meets three conditions: (1) the veteran must have a vocational impairment, that is an impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests; (2) the effects of that impairment must not have been overcome through employment in an occupation consistent with his or her abilities, aptitudes, and interests; and (3) the service-connected disability or disabilities must contribute in substantial part to the individual's overall vocational impairment, meaning that the disabilities must have an identifiable, measurable, or observable causative effect on the overall vocational impairment, but need not be the sole or primary cause of the employment handicap. 38 C.F.R. § 21.51. At the October 2013 and November 2015 vocational rehabilitation evaluations performed in connection with the appeal, the VRC determined that the Veteran did not meet the criteria for an employment handicap on the basis that he had overcome his impairment and could attain further-related employment based on his education and experience (i.e., several years of experience in the field of management and human resources while in the Coast Guard); however, since the November 2015 vocational rehabilitation evaluation, service connection has been established for an unspecified anxiety disorder and adjustment disorder with depressed mood with a 30 percent rating effective from April 23, 2014, urticaria with a 30 percent rating effective from November 1, 2012, bilateral pes planus with a 0 percent rating effective from November 1, 2012, and two separate 20 percent ratings for left lower extremity radiculopathy effective from November 1, 2012. Also, an increased rating of 20 percent was granted for the service-connected back disability effective from August 31, 2016, and an increased rating of 10 percent was granted for both the service-connected left and right Achilles tendonitis effective from November 1, 2012. The combined disability rating was increased to 90 percent effective from November 1, 2012. See November 2017 rating decision. At the March 2017 Board hearing, the Veteran testified that the service-connected disabilities were degenerative and required frequent medical care at VA. He also testified that he had not used his 1990 Bachelor’s degree in electrical engineering or 1997 Master’s degree in telecommunications for nearly 20 years and now wanted a career in graphic design because he could not stand or sit for prolonged periods and believes that he could be employable in the graphic design field. The Veteran further testified that he had exhausted his education benefits under the Post-9/11 G.I. Bill and desired vocational rehabilitation services to obtain additional education and supplies to obtain work in graphic design. In an April 2017 private vocational rehabilitation consultation report, a private vocational rehabilitation counselor provided a thorough summary of the Veteran’s functional impairments and work history and opined that the Veteran was unable to perform sedentary work or work at any exertional level. The private vocational rehabilitation consultant further opined that the symptoms and physical limitations from the service-connected back disability and service-connected left lower extremity radiculopathy would preclude the Veteran from being able to perform the essential work functions of his past work or any competitive job in the national economy. The private vocational rehabilitation counselor added that the Veteran has been incapable of sustaining gainful and competitive employment since October 2012. In light of the additional evidence developed since the November 2015 vocational rehabilitation evaluation, the Board finds that there is insufficient evidence currently of record to decide whether the Veteran is entitled to VR&E services because it is unclear whether the Veteran now has an employment handicap as defined by VA regulatory criteria and, if so, whether any vocational goal is reasonably feasible; therefore, a remand for further vocational rehabilitation evaluation from a VRC or CP is required. The matter is REMANDED for the following actions: 1. Schedule another vocational rehabilitation evaluation by a VRC or CP to determine whether the Veteran has an employment handicap or a serious employment handicap as defined by VA regulatory criteria and, if so, whether achievement of a vocational goal is reasonably feasible. When evaluating the Veteran, the VRC/CP should consider the April 2017 private vocational rehabilitation consultant report included in the record that opined that the Veteran was precluded from performing the essential work functions of his past work or any competitive job in the economy. The VRC/CP should provide a complete rationale for any conclusions reached. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel