Citation Nr: 21066813 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-37 001 DATE: November 2, 2021 REMANDED The issue of entitlement to Veteran Readiness and Employment (VR&E) (formerly known as Vocational Rehabilitation and Employment) services under Chapter 31, Title 38, United States Code, other than employment services, to include pursuit of a Juris Doctor (JD) and/or Master of Business Administration (MBA) degree, is remanded. REASONS FOR REMAND The Veteran had active military service in the United States Army from June to November 1994. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2016 decision of a Department of Veterans Affairs (VA) Vocational Rehabilitation Counselor (VRC) in which the Veteran was informed that he was not entitled to Chapter 31 benefits for pursuit of a JD and/or MBA. The Veteran disagreed with that determination and subsequently perfected an appeal to the Board. The instant matter was then most recently before the Board in October 2020 at which time it was remanded for further development. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) in December 2020 in which it continued to deny the Veteran's claim for VR&E services. The matter was thereafter returned to the Board for further appellate consideration. Although the Board sincerely regrets the delay, additional development is required in order to comply with the previous remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The purpose of VA's rehabilitation program is to provide for services and assistance necessary to enable Veterans with service-connected disabilities to achieve independence in daily living and, to the extent possible, to become employable and to obtain and maintain suitable employment. 38 U.S.C. § 3101; 38 C.F.R. § 21.70. As discussed in the Board's October 2020 remand action, the Veteran is seeking entitlement to VR&E benefits in the form of a program of education to pursue a JD or MBA, which education he contends would enable him to be more competitive in the job market and to be gainfully employed. Notably, a February 2016 VRC found that that the Veteran was employable with his existing skills, training, and experience. The Board pointed out, however, that that same VRC, in November 2015, determined that the Veteran met the criteria for an employment handicap and that the Veteran had not overcome his employment handicap. It was also noted that the Veteran had stated that careers consistent with his requested additional education is his "true passion", but that the VRC, in denying the Veteran's claim, did not address how positions available with the Veteran's existing education and skills were also consistent with his interests in light of his subjective statement. Given this deficiency and the inconsistency in the VRC's findings, the Board found that a remand was necessary for the Veteran to be provided with a new VR&E assessment. Regarding the assessment to be provided on remand, the Board instructed that the VRC chosen to perform the evaluation was to determine (1) whether the achievement of a vocational goal consistent with the Veteran's current education, skills, and aptitudes continues to be reasonably feasible under 38 C.F.R. § 21.53; (2) whether the achievement of the Veteran's asserted education and employment goals are reasonably feasible under 38 C.F.R. § 21.53; and (3) whether the Veteran's requested change of the vocational rehabilitation employment goal to management positions requiring a JD, MBA, or other specific goal as communicated by the Veteran, is warranted in accord with 38 C.F.R. § 21.94. The VRC was further instructed to consider all of the evidence of record, to specifically include the Veteran's statements of professional interests. If it was determined that the Veteran's interests may be met with careers consistent with his current education, aptitudes, and abilities, the VRC was to address this. In December 2020, the Veteran was afforded a new VR&E assessment. Unfortunately, the VRC's narrative report suffers from the same deficiencies that rendered the prior VRC's assessment insufficient. At the outset, the Board notes that the December 2020 VRC determined that achievement of a vocational goal consistent with the Veteran's current education, skills, and aptitudes and achievement of the Veteran's asserted education and employment goals are reasonably feasible under 38 C.F.R. § 21.53. The VRC further noted that the Veteran is currently employed by Southern Glazer Wine and Spirits, which employment the VRC stated "appears to be within his interests, aptitudes, and abilities." Notably, however, the VRC's narrative report contains no discussion of the Veteran's specific skills or aptitudes. There is also no specific discussion of the Veteran's employment, to include his role at Southern Glazer Wine and Spirits or how that position aligns with the Veteran's interests, aptitudes, and abilities. Without a specific discussion of the Veteran's skills and aptitudes, it is unclear to the Board how the VRC reached the conclusion that the positions available to the Veteran with his existing education and skills, to include his position with Southern Glazer Wine and Spirits, were also consistent with his interests in light of his subjective statements. In this regard, the Board points out that the Veteran's interests and capabilities must be considered when determining "suitable employment." See, e.g., 38 C.F.R. § 21.50(c). The VRC's failure to discuss the Veteran's specific interests and aptitudes renders the determinations reached therein conclusory at best and thus, the narrative report is insufficient for the Board to rely upon in this case. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also cannot conclude that the narrative report complies with the terms of the Board's prior remand in that the VRC did not adequately explain how the Veteran's interests are met with careers consistent with his current education, aptitudes, and abilities, this should be specifically stated and addressed by the VRC. As such, another remand is necessary. See Stegall, supra. The Board also notes that the October 2020 remand action directed the AOJ to request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected disabilities and to attempt to obtain and associate these records with the claims file. Notably, the December 2020 narrative report contains a list of medical providers submitted by the Veteran. There is no indication in the record that the AOJ attempted to obtain records from any of these providers. On remand, the AOJ should undertake to ensure that all outstanding private and VA treatment have been obtained and associated with the claims file. The matter is REMANDED for the following action: 1. Review the list of medical providers submitted by the Veteran, as included in the December 2020 narrative summary, and ensure that all outstanding VA and private treatment records have been obtained and associated with the claims folder. If any records cannot be sought without the Veteran's authorization, request that the Veteran sign all necessary authorizations. 2. Refer that matter to the VRC who evaluated the Veteran in December 2020. The VRC should be asked to provide an addendum to the December 2020 narrative report that specifically addresses how the Veteran's education and experiences are adequate to obtain employment consistent with his abilities, aptitudes, and interests. A discussion of the Veteran's specific interests and aptitudes is necessary and the VRC is directed to the November 2015 CareerScopeŽ Summary Report in this regard. The VRC must also consider and discuss the Veteran's statement that becoming a lawyer has always been his "true passion." The VRC is further directed to consider and discuss the November 2015 narrative report in which a VRC found that the Veteran's service-connected disabilities "do significantly contribute to the overall impairment of the Veteran's ability to prepare for, obtain, and retain employment." If the VRC who evaluated the Veteran in December 2020 is unavailable, or if that VRC is unable to provide further commentary as directed above without performing an additional evaluation with the Veteran, the Veteran should be scheduled for a vocational rehabilitation evaluation that ascertains the current limitations caused by his service-connected disabilities and their effect on his ability to perform in his current occupational field and his proposed occupational field, to include making all findings necessary to determine whether the Veteran is entitled to VR&E services, other than employment service, to include pursuit of a JD and/or MBA. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.