Citation Nr: 20005335 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-18 199 DATE: January 23, 2020 ORDER Reentrance into a Vocational Rehabilitation and Employment (VR&E) Chapter 31 program following a determination of rehabilitation to the point of employability is denied. FINDINGS OF FACT 1. The Veteran previously participated in a VR&E program with a goal of employment as a Case Manager or Case Aide (or a similar position). 2. In January 2019, the Veteran was determined to be rehabilitated and suitably employed as a Constituent Services Representative (i.e., Military Liaison) with the United States House of Representatives, Congressman Aguilar’s office. 3. The Veteran’s service-connected disabilities have not worsened to the extent that the effects of those disabilities preclude him from performing the duties of the occupation for which he was previously found rehabilitated; the Veteran has overcome his employment handicap and his service-connected disabilities do not render him unsuitable for employment in the occupational objective for which services were previously provided by VA under the Chapter 31 VR&E program. 4. Even if the Veteran were found to have an employment handicap or be in need of additional VR&E services, he has not demonstrated that furthering his education through his pursuit of a higher degree (i.e., Master’s degree in Counseling or Business Administration) will enable him to overcome “total occupational impairment” resulting from his service-connected psychiatric disorder, to include posttraumatic stress disorder (PTSD) and residuals of a traumatic brain injury (TBI). CONCLUSION OF LAW The criteria for reentrance into a VR&E program following a determination of rehabilitation to the point of employability, pursuant to 38 C.F.R. § 21.284(a), have not been met. 38 U.S.C. § 3101; 38 C.F.R. §§ 21.35, 21.284. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 2002 to September 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an administrative decision issued by a Vocational Rehabilitation and Employment Counselor (VRC) at the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. VR&E Benefits The Veteran seeks reentrance into the VR&E program for additional education to obtain a Master’s degree in Counseling or a Master of Business Administration (MBA) degree in Accounting. Based on a comprehensive review of the claims file, the Board finds that the evidence of record does not support a finding that the Veteran currently needs additional eduction or vocational training. The Board has undertaken a detailed review of this complex record to address this multifaceted issue. Background The Veteran completed high school in 2002 and served in the United States Army from November 2002 to September 2009. He worked as an Asset Protection Manager at Home Depot from February 2013 to August 2013. In that role, he was responsible for preventing the loss of company merchandise and ensuring the security of the company’s facility. He then worked as a Bail Agent at Aladdin Bail Bonds from March 2014 to May 2015. In that role, he served as a liaison between courts and defendants and processing the funds required to release from custody defendants who were awaiting trial. On January 20, 2016, the Veteran attended an initial evaluation at the VR&E Office. Based on that evaluation, a VRC found that the Veteran was entitled to Chapter 31 services due to having an employment handicap (i.e., an impairment resulting in substantial part from a service-connected disability that affects a veteran’s ability to prepare for, obtain or maintain suitable employment that is consistent with his or her measured and/or demonstrated abilities, aptitudes, and interests). At the time of entitlement determination, the Veteran reported that he was unemployed. Entitlement was determined on the basis that he did not have a suitable education or the transferable work skills that would allow him to obtain and maintain suitable employment and that would not aggravate his service-connected disabilities. The Veteran’s case was moved to “Evaluation and Planning” status and was provided with a Next Step document to complete and return to the VRC. The Veteran researched a vocational area of interest and provided the VRC with documentation indicating that he was interested in pursuing a degree in Criminal Justice Administration. The VRC and the Veteran agreed on a vocational goal of Case Manager and/or Case Aid and the Veteran’s educational plan was developed on August 17, 2016, with his primary objective to complete a Bachelor’s degree in Criminal Justice Administration. The Veteran received vocational training via the University of Phoenix Online and graduated on February 13, 2018, with a Bachelor of Science degree in Criminal Justice Administration. During his educational training, the Veteran was provided with academic instruction, tuition, books, required supplies, subsistence allowance, and medical/dental referrals as needed. Upon graduation, the Veteran’s case was moved to “Job Ready Status” on April 26, 2018. The Veteran was referred to a VA-approved Employment Placement Coordinator with a goal to secure employment that was consistent with the goal of his rehabilitation plan. Upon receiving evidence of the Veteran’s continued job search, the VR&E Office provided the Veteran with two Employment Adjustment Allowance payments. Subsequently, the Veteran requested additional VR&E benefits to pursue a Master’s degree in Counseling. His request was denied in a decision letter with appellate rights, dated May 29, 2018. On January 15, 2019, the Veteran requested further education to obtain a Master of Business Administration (MBA) with a degree in Accounting. The VRC formally denied that request in a decision letter with appellate right, dated January 24, 2019. Specifically, the VRC determined that the Veteran had reasonably developed a skill set and educational training at the appropriate level to obtain and maintain employment that would not impact his service-connected disabilities. The VRC further determined that the Veteran had overcome the effects of his vocational impairment by qualifying for employment that was consistent with his interests, aptitudes, and abilities. The VRC noted that the Veteran had obtained part-time employment in May 2016 while going to school full time. Moreover, the VRC noted that the Veteran’s duties as a Military Liaison with a United States House of Representatives district office matched his vocational interest in Humanities. The VRC based this decision on labor market research showing that 50 percent of positions in the “Case Manager” or “Case Aid” field required a bachelor’s degree. The VRC also noted that ONET showed that 8 percent of these positions required an Associate’s degree. The VRC concluded that the Veteran had been rehabilitated to the point of employability and that additional VR&E benefits for the purpose of pursuing a Master’s degree in Counseling or an MBA degree in Accounting was not warranted. See 38 U.S.C. § 3101(5), 3104. In March 2019, the Veteran was provided a statement of the case (SOC) wherein a VRC and a Vocational Rehabilitation and Employment Officer (VREO) reviewed the Veteran’s case and continued to deny his request for reentrance into the VR&E program. In June 2019, the Veteran filed a substantive appeal with the Board via VA Form 9. Legal Criteria The purpose of training and rehabilitation benefits provided in Chapter 31 is to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. 38 U.S.C. § 3100. Generally, a Veteran is entitled to a program of vocational rehabilitation if he has a service-connected disability that is rated 20 percent disabling or more and is determined by VA to be in need of rehabilitation because of an employment handicap. 38 U.S.C. § 3.102; 38 C.F.R. § 21.40. An employment handicap will be found to exist when the individual has a vocational impairment, the individual has not overcome the effects of the impairment of employability through employment in an occupation consistent with his or her abilities, aptitudes, and interests, and his service-connected disabilities have contributed in substantial part to the overall vocational impairment. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. In order to obtain reentrance into a VR&E program following a determination of 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 was previously found rehabilitated; or (3) the occupation for which he or she was previously found rehabilitated under Chapter 31 is found to be unsuitable on the basis of his or her specific employment handicap and capabilities. See 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. Analysis The Board observes that service connection is currently in effect for the following disabilities: • PTSD and residuals of a TBI, rated 100 percent disabling; • migraine headaches, rated 30 percent disabling; • residuals of a right wrist navicular bone fracture with non-fusion, rated 10 percent disabling; and • a right wrist scar, rated 0 percent disabling. The Veteran has a combined disability rating of 100 percent beginning October 17, 2016. Thus, it is undisputed that he has compensable service-connected disabilities and meets the first requirement for reentrance into a VR&E program. Unfortunately, the Veteran does not meet the second and third requirements for establishing entitlement to reentrance into a VR&E program. In that regard, the evidence of record does not demonstrate that the Veteran’s service-connected disabilities have worsened to the extent that the effects of those disabilities preclude him from performing the duties of the occupation for which he was previously found rehabilitated. Moreover, the evidence of record reflects that he the Veteran has overcome his employment handicap, to the degree possible, and his service-connected disabilities do not render him unsuitable for employment in the occupational objective for which services were previously provided by VA under the Chapter 31 VR&E program. Since May 2016, the Veteran has maintained suitable employment as a Constituent Services Liaison (i.e., Military Liaison) with the United States House of Representatives, Congressman Aguilar’s Office. The Veteran works at a district office in San Bernardino, California, where he is responsible for helping veterans navigate issues within the VA Healthcare system (in this regard, the Veteran’s work in this field is greatly appreciated by the VA). The Board finds it significant that the Veteran is currently employed (and has been employed since May 2016) as this evidence suggests that he is capable of performing the duties of the occupation for which he was previously found rehabilitated and that his service-connected disabilities do not prevent him from maintaining suitable employment on the basis of his specific employment handicap and capabilities. Furthermore, a VR&E program is responsible for “train[ing] the veteran to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma, or certificate is generally necessary for entry into the occupation…the veteran shall be trained to that level.” See 38 U.S.C. §§ 3101(5), 3104; 38 C.F.R. §§ 21.72, 21.78. In the instant case, the VRC determined that the Veteran did not require further training to obtain employment that was suitable based on his service-connected disabilities. The VRC denied the Veteran’s request for additional education because the Veteran was found to have the suitable educational level required to obtain a position as a Case Manager and/or Case Aide with his Bachelor’s degree in Criminal Justice Administration. The VRC made this determination based on Labor Market Analysis (LMA) from the Department of Labor, which currently identifies that “[p]eople starting in this career usually have a Bachelor’s degree, no work experience, and no on the job training.” In addition to the LMA, the VRC noted that there were two recent positions in the Veteran’s career field that he was personally considered qualified for by local employers and that he was selected to fill one of those positions but that he declined the job offer. The VRC concluded that the Veteran had overcome the effects of his vocational impairment as evidenced by completing his Bachelor of Science Degree in Criminal Justice Administration and qualifying for employment that was consistent with his skillset and training level. See 38 U.S.C. § 3102; 38 C.F.R. § 21.51. The Board finds that this evidence weighs heavily against the claim. The Board has considered all of the Veteran’s statements and assertions. The Veteran essentially claims that he began working for Congressman Aguilar’s district office on a part-time basis to have a source of income while he pursued his Bachelor’s degree. He asserts that he has continued working at the district office even after receiving his Bachelor’s degree because the office allows him to go to all of his medical appointments with the VA. See January 2019 notice of disagreement and May 2019 VA Form 9 statements. The record does not provide any indication that the Veteran is unable to perform the duties of his position on a full-time basis, if given the opportunity. In this case, it appears that the Veteran is currently working 30 hours per week by choice and that he has continued his employment with Congressman Aguilar’s district office because it affords him the opportunity to attend all of his VA medical appointments. The VRC found that the Veteran’s current employment was suitable based on his service-connected disabilities. In any event, it is very unclear as to how new degree would help the Veteran overcome an employment handicap. Given his 100% rating for PTSD, the Veteran clearly needs all of his VA medical appointments. The problems he is having now would be the same problems he would have following the completion of this new degree. While the Board would encourage the Veteran to obtain any degree he wishes, it is unclear as how this new degree would allow the Veteran to overcome a 100% rating, which indicates a “total occupational impairment”. It is important for the Veteran to understand that a 100% rating for PTSD will cause the Veteran many serious problems. It is the very basis of a 100% finding. The Veteran also suggests that jobs in the field of Criminal Justice Administration will likely aggravate his service-connected psychiatric disorder. Even if true, how is it overcome by a degree in counseling or an MBA degree in Accounting? The Board observes that the Veteran’s service-connected psychiatric disorder is already rated 100 percent disabling for symptoms that result in total occupational and social impairment. While the Veteran’s psychiatric disorder clearly impacts his ability to work, the Board finds it significant that the Veteran’s psychiatric symptoms have not prevented him from obtaining and maintaining suitable employment in an occupation consistent with his abilities, aptitudes, and interests. After conducting a thorough evaluation of the Veteran’s case, the VRC and VREO agreed that the Veteran had overcome his employment handicap and was, to the degree possible for a Veteran with a 100% rating for PTSD, rehabilitated. See March 2019 statement of the case. Even if the Veteran were found to have an employment handicap or be in need of additional VR&E services, he has not demonstrated that furthering his education through his pursuit of a higher degree (i.e., Master’s degree in Counseling or Business Administration) will enable him to overcome “total occupational impairment” resulting from his service-connected psychiatric disorder, to include PTSD and residuals of a TBI. The Board observes that an individual may overcome the effects of the impairment of employability through employment in, or qualifying for employment in, an occupation consistent with his/her abilities, aptitudes and interests. This situation includes an individual who qualifies for a suitable job, but who does not obtain or maintain the job for reasons within his/her control. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. In this case, the Veteran is currently employed and has chosen not to pursue other full-time or part-time employment opportunities at this time. Furthermore, the Veteran has a Bachelor’s degree that allows him to maintain suitable employment that is consistent with his abilities, aptitudes, and interests. He has neither asserted nor demonstrated that his service-connected disabilities prevent him from performing the duties of the occupation for which he was previously found rehabilitated and the evidence of record reflects that he does not have an employment handicap – as evidenced by his ability to perform the current duties and responsibilities of the Military Liaison position at Congressman Aguilar’s district office. The Board commends the Veteran for wanting to pursue a higher degree. However, simply allowing the Veteran to pursue a higher degree when he is capable of maintaining current employment frustrates the purpose of receiving VR&E benefits. The Board emphasizes that the purpose of Chapter 31 VR&E services is not to provide the claimant with whatever level of career training he chooses should his interests or career objectives change. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. 38 C.F.R. § 21.70. However, the Board sincerely hopes that the Veteran understands that his current circumstances do not meet the statutory and regulatory requirements to allow for the award of the benefits requested. For the reasons discussed above, the Board finds that the statutory requirements for entitlement to Chapter 31 VR&E benefits have not been met because the Veteran does not have an employment handicap for VR&E purposes and is therefore not in need of rehabilitation. In reaching this determination, the Board has considered the benefit of the doubt doctrine but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, after consideration of all the evidence, the Board agrees with the prior determinations made by the VRCs and the VREO. The evidence of record preponderates against the claim, and the Board concludes that the Veteran is not entitled to VR&E benefits under Chapter 31. The claim on appeal is denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael L. Marcum, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.