Citation Nr: 21063410 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-34 278 DATE: October 14, 2021 ORDER Entitlement to re-entrance into the veteran readiness and employment (VR&E) program following a determination of rehabilitation, pursuant to 38 C.F.R. § 21.284(a), is denied. FINDINGS OF FACT 1. Service connection is currently in effect for the following disabilities: right ankle sprain, rated 10 percent disabling; right knee mild degenerative arthritis and chondromalacia patella, rated 10 percent disabling; and tinnitus, rated 10 percent disabling. The Veteran's combined disability rating is 20 percent from March 4, 2008, and 30 percent from April 26, 2016. 2. It is not established that the Veteran's service-connected disabilities have worsened to the extent that he is precluded from performing work duties; the occupation for which he previously was found rehabilitated under Chapter 31 is not shown to be unsuitable. CONCLUSION OF LAW The criteria for reentrance into rehabilitation to the point of employability following a determination of rehabilitation, pursuant to 38 C.F.R. § 21.284(a), have not been 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 served on active duty in the United States Navy from January 2002 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 administrative decision issued by the Vocational Rehab and Employment (VR&E) Division of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. When the Veteran filed his May 2018 substantive appeal to the Board (VA Form 9), he requested the opportunity to testify at a Board hearing. A Board hearing was subsequently scheduled to be held on August 12, 2021. On June 7, 2021, the Veteran, through his representative, submitted a written statement indicating that he was "waiving this hearing." As a result, the Board hearing was cancelled. Under these circumstances, the Veteran's request for a Board hearing is deemed withdrawn, and the Board will proceed with appellate review of this case. Legal Criteria Claims involving VR&E services are governed by Chapter 31. 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. 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. 38 C.F.R. § 21.35. Background The Veteran earned his Bachelor of Business Administration degree in finance and accounting from Florida International University (FIU) in 2010. He applied for VR&E benefits in April 2011. He completed and evaluation and was placed on a plan of services that would enable him to obtain and maintain employment in the business/finance (or a related) field. On January 25, 2015, the Veteran secured employment as a Corrections Officer with job duties that included working with a team of officers to enforce rules and maintain order within jails/prisons; supervising the activities of inmates; aiding in the rehabilitation and counseling of offenders; inspecting the conditions of the facilities to ensure that they meet established standards; searching inmates for contraband items; and reporting inmate misconduct. His prior classes and degree helped him obtain the permanent full-time position with benefits. The Veteran's file was placed into Rehabilitated Status on February 18, 2016. In June 2017, the Veteran reapplied for VR&E benefits. He completed a Rehabilitation Needs Inventory (RNI) indicating that he was seeking VR&E benefits to pursue a Master's degree in forensic accounting. He indicated that his current job as a Corrections Officer resulted in him working in a stressful environment that aggravated his mental disabilities and that he was began pursuing an advance degree through an online program at Maryville University in January 2017. On August 1, 2017, the Veteran underwent an evaluation with a Vocational Rehabilitation Counselor (VRC) to assess whether the prior declaration of rehabilitation should be set aside. After reviewing the evidence of record and evaluating the Veteran, the VRC prepared a Counseling Record Narrative Report. In that report, the VRC provided the following assessment: [I] did not find any evidence of his disability rating for his disabilities warranting a higher rating. [The] Veteran is being provided mental health treatment as well as medications and he is taking them as prescribed. He is also prescribed medication for physical pain. The Veteran is requesting further eduction but seems to have enough job experience and education to find suitable employment on his own. He found the Correction Officer [job] on his own merit. While his present job may not be suitable due to his mental health and physical disabilities, he does have enough administrative, computer, and knowledge of finance and accounting and should be able to find suitable employment in the field of business, finance, or accounting. Furthermore, job availability within the area he lives offers job openings in business administration, accounting, and finance, all [of] which he is able to perform as stated in the resume he provided [and] as evidenced in the file. Moreover, he has a competent resume that shows skills in finance, security, administration, and accounting. Therefore, overturning this case will not be granted. On August 2, 2017, a letter was sent to the Veteran denying his request for reentrance into the VR&E program and explaining his appellate rights. In that letter, the VRC indicated that the file could not be reopened because the Veteran's circumstances did not meet the criteria for overturning the previous rehabilitation determination. In October 2017, the Veteran filed a notice of disagreement (NOD) with the August 2017 administrative decision. He asserted that his Individualized Written Rehabilitation Plan (IWRP) stated that his training goal was to obtain employment in Finance or a related field; that he was unable to find employment in that field after college; and that he ultimately accepted a job as a Corrections Officer. He claimed that he had since applied to more than 50 positions in Finance or a related field but that he had not been successful in securing any of those jobs. He further indicated that all employers stated that he did not have the requisite skills for employment with them as a Finance major. Lastly, the Veteran asserted that his job as a Corrections Officer was not well-suited for his personality and that it did not utilize the skills that he gained while in college. He noted that his combined disability rating was now 30 percent and that his service-connected tinnitus impacted his perception of noise because of the constant ringing in his ears. He also noted that his job required him to stand on a regular basis which exacerbated his physical disabilities. He indicated that his nonservice-connected posttraumatic stress disorder was aggravated by the constant hostility he experienced while working with inmates. The Veteran concluded that he was employed, without proper counsel, in a field unrelated to his intended employment goal; he was not employed in a field that was in line with his aptitudes, interests, and abilities, and he was not employed in a field that required the use of the skills that he learned during his previous rehabilitation training. In March 2018, the VRC met with the Veteran. The Veteran expressed his intent to appeal the VRC's August 2017 decision. Per the corresponding report of contact, the VRC noted that the Veteran had a Bachelor's degree in finance and accounting from FIU and that he was currently pursuing a Master's degree in accounting at Maryville University. The VRC noted that the Veteran was currently employed as a prison guard but that he felt that the job was no longer suitable. According to the report, the VRC expressed to the Veteran that VR&E services would help him find a job that was consistent with his background in accounting, finance, or business administration. According to the VRC, the Veteran declined the offer and instead requested tuition coverage for the Master's program. The VRC explained to the Veteran that VR&E services would not pay for a Master's degree if he was able to find suitable employment with a Bachelor's degree in finance or accounting. Following the issuance of a statement of the case (SOC), the Veteran filed a VA Form 9 in May 2018. In his appeal to the Board, the Veteran made the following assertion: I came to VR&E with hopes [of] obtaining a skill set that would allow me to provide for myself and family. Little did I know, I did not possess any transferrable skills that would have been marketable in South Florida that would assist me in gaining quality of life. I have been always interested in working with people and number, as this is what I did during my time in the military. My VR&E Counselor knew of my desire in working in the financial accounting field which would have helped me in assisting firms in their accounting needs. Once I earned my Business Administration degree and started looking for work in this field, I discovered that the employment market requires Masters Degrees in many of [the] employment opportunities. I have been struggling to make ends meet [sic] to provide for my family. I had to take a job totally out of the field that I was trained for just to avoid becoming homeless. I have been so depressed about this whole situation because every day I am in harm's way dealing with federal inmates. This situation has cause[d] me sleepless nights and stressful long days. IF VR&E had assisted me with researching the finance field thoroughly, my counselor would have realized that financial degrees...[are] not marketable without a specialize [sic] focus. I'm requesting this appeal be approved so I can obtain financial funding to earn a Master's degree in Accounting. The Veteran's case is now before the Board on appellate review, and the question for the Board is whether reentrance into the VR&E program following a determination of rehabilitation, pursuant to 38 C.F.R. § 21.284(a), is warranted. Analysis The Veteran seeks reentrance into the VR&E program for additional education so that he may pursue a different path than the one he was pursuing with his previous Chapter 31 benefits. The Veteran has a Bachelor's degree in finance and accounting, but he seeks to obtain a Master's degree in Accounting so that he can become a Certified Public Accountant. The Veteran is currently service connected for the following: right ankle sprain, rated 10 percent disabling; right knee mild degenerative arthritis and chondromalacia patella, rated 10 percent disabling; and tinnitus, rated 10 percent disabling. The Veteran's combined disability rating is 20 percent from March 4, 2008, and 30 percent from April 26, 2016. Thus, it is undisputed that the Veteran has a compensable service-connected disability. See 38 C.F.R. § 21.284(a)(1). However, after review of the record, the Board finds that the evidence weighs against finding that the remaining criteria for reentrance into the VR&E program have been met. First, the Board finds that the Veteran's service-connected disabilities have not worsened to the extent that they preclude him from performing the duties of the occupation for which he or she previously was found rehabilitated. See 38 C.F.R. § 21.284(a)(2). The Board acknowledges that the Veteran's combined disability rating increased from 20 percent to 30 percent during the appeal period. Nevertheless, that increase was based on the addition of tinnitus to the list of the Veteran's service-connected disabilities. In reviewing the VR&E file, the VRC indicated that the medical records did not substantiate degeneration of the Veteran's mental or physical conditions. See May 2018 SOC. The VRC further noted that the Veteran's newly service-connected tinnitus disability would not prevent him from finding employment in accounting, finance, management, or business administration. Id. Thus, while some of his service-connected disabilities are progressive in nature and may have worsened over time, the evidence of record overwhelmingly demonstrates that they did not worsen to such extent that he was unable to perform the mostly sedentary duties of a position in fields of finance, accounting, or business administration. Additionally, the Board finds no indication in the record that the occupation for which the Veteran previously was found rehabilitated under Chapter 31 is now unsuitable on the basis of his specific employment handicap and capabilities. See 38 C.F.R. § 21.284(a)(3). The VRC in this case did not identify any deficiencies in education that would limit his ability to find suitable and gainful employment. In fact, the VRC found that the Veteran's Bachelor's degree in finance and accounting would allow him to work in a sedentary capacity in various settings. See May 2018 SOC. The VRC specifically found that "[a] review of the local job market shows numerous positions for which he could qualify" based on having a Bachelor's degree in finance and accounting. Id. The VRC also observed that the Veteran had previously worked as an administrative assistant while in the military and that he was proficient with computer and office software program. Id. The VRC found that the Veteran had transferrable and marketable skills, along with sufficient education, to find suitable employment in accounting, finance, management, or business administration. Id. According to the VRC, the Veteran was simply choosing not to leave his current employment while pursuing an advanced online degree. Id. Thus, even when considering the impact of the Veteran's service-connected and nonservice-connected disabilities, the Board believes that the evidence of record overwhelmingly demonstrates that he is able to obtain and maintain suitable employment with his Bachelor's degree in finance and accounting. To the extent that the Veteran's current job as a Corrections Officer aggravates his disabilities and is no longer "suitable," the evidence of record suggests that it was the Veteran's choice to pursue that employment opportunity. It further appears that the VRC has offered the Veteran employment services and assistance in obtaining a more suitable job (i.e., one that does not aggravate his service-connected and nonservice-connected disabilities). Despite these efforts, it appears as though the Veteran does not want to pursue employment that would utilize or require a Bachelor's degree in finance and accounting. Rather, it appears that he would prefer to pursue a Master's degree in accounting so as to improve his "quality of life." While the Veteran is encourage to obtain new goals and promotion, a change in the Veteran's interests or employment goals, including a desire to pursue additional education to obtain higher levels of employment, is not a basis for reentrance into a vocational rehabilitation program. Based on a comprehensive review of the claims file, the Board finds that the record contains sufficient evidence that the Veteran has the requisite education and reasonably developed skills to attain and sustain employment in the fields of finance, accounting, or business administration with his Bachelor's degree in finance and accounting. The Veteran did not provide evidence that he thoroughly or aggressively searched for positions that only required the candidate to possess a Bachelor's degree. While the Veteran claims that he applied for more than 50 jobs and was ultimately rejected, it appears that he was found qualified for the jobs (presumably with a Bachelor's degree) but not selected for reasons that were not related to his qualifications. Likewise, the Veteran did he demonstrate that he could not obtain employment in the fields of finance, accounting, or business management without a Master's degree in accounting. Significantly, the Veteran did not submit any evidence demonstrating that he would only be hired if he had a Master's degree. The VRC reviewed the local labor market and determined that there were "numerous positions for which [the Veteran] could qualify" with his Bachelor's degree in finance and accounting. The VRC has the professional qualifications to assess the local labor market. Thus, the VRC is competent to render an opinion on this matter. In this case, the VRC has offered a credible opinion indicating that the Veteran could have obtained suitable employment but instead chose to pursue an advanced degree. Conclusions Based on a comprehensive review of the record, the Board finds that the criteria for reentrance into the VR&E program following a determination of rehabilitation, pursuant to 38 C.F.R. § 21.284(a), have not been met. While the Veteran certainly has compensable service-connected disabilities, the objective medical evidence of record does not demonstrate that these disabilities have worsened to the extent that they preclude the Veteran from performing the duties of the occupation for which he previously was found rehabilitated. Likewise, the Board finds that the general occupation (i.e., finance, accounting, and business administration) for which he previously was found rehabilitated is not found to be unsuitable on the basis of his specific employment handicap and capabilities. The Veteran in this case earned a Bachelor's degree in finance and accounting and chose employment as a Corrections Officer. He was deemed rehabilitated because he had overcome his employment handicap and because he had found suitable employment in an occupation that was consistent with his interests, aptitudes, and abilities. However, when that occupation began to exacerbate his disabilities, the Veteran chose to pursue an advanced degree to improve his quality of life. Despite the VRC's offer of assistance in finding a job that is consistent with his prior education and skills (i.e., a Bachelor's degree in finance and accounting), the Veteran instead expressed his preference to obtain a Master's degree in accounting. The Veteran is commended for wanting to advance his career. Undoubtedly, a Master's degree is more marketable than a Bachelor's degree. However, the Board emphasizes that the purpose of Chapter 31 VR&E services is not to provide the Veteran 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. Here, the Veteran had suitable employment and when that employment became unsuitable, he chose to pursue an advanced degree rather than apply for other suitable jobs that were consistent with his prior training, skills, and eduction. The evidence simply does not demonstrate that the Veteran exhausted all of the resources and opportunities available to him to obtain employment that would utilize his Bachelor's degree in finance and accounting. Accordingly, the Board finds that the requirements for overturning the previous rehabilitation determination have not been met. The Board recognizes that the Veteran will probably not agree with this outcome. 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. If the Veteran's service-connected disabilities worsen, or he believes that his disabilities have reached a level of severity where he needs VR&E services to obtain suitable employment, he is encouraged to reapply for VR&E services at a future date. 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 VRC. The evidence of record preponderates against the claim, and the Board concludes that the Veteran is not entitled reenter the VR&E program at this time. 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.