Citation Nr: 21067780 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-00 308 DATE: November 5, 2021 REMANDED The issue of entitlement to Veteran Readiness and Employment (VR&E) services, other than employment services, to include additional education to pursue a Doctor of Philosophy degree (PhD), pursuant to 38 U.S.C. Chapter 31, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1978 to April 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a letter of determination issued by the Department of Veterans Affairs (VA). Specifically, the Agency of Original Jurisdiction (AOJ) determined that the Veteran was employable with her existing education, aptitudes, and skills. The Veteran testified before a Veterans Law Judge at a Board hearing in April 2013. A transcript of that hearing has been associated with the Veteran's claims file. The Veterans Law Judge who presided over that hearing is no longer at the Board. In June 2018, the Veteran was offered the opportunity to testify at a new hearing. She did not respond to that offer in a timely manner. Thus, the Board assumes that the Veteran does not want another hearing and will proceed accordingly. The Board further notes that this matter was previously remanded for additional evidentiary development in June 2014. It appears that all available VR&E records have been associated with the record. As such, the Board finds that the AOJ has substantially complied with the directives of the June 2014 Board Remand. See Dyment v. West 13 Vet. App. 141, 146-47 (1999); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008). Entitlement to VR&E Benefits 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. The Board notes that a veteran's interests and capabilities must be considered when determining "suitable employment." See, e.g., 38 C.F.R. § 21.50(c). The Veteran in this case seeks entitlement to VR&E benefits in the form of a program of education to pursue a PhD. See Rehabilitation Needs Inventory (RNI), dated April 2012. Specifically, she contends that having a PhD will enable her to teach online courses. The Veteran has previously received VR&E benefits. An Individualized Written Rehabilitation Plan (IWRP) was developed on October 15, 2007 for a vocational goal of "social work." In August 2008, the Veteran obtained her Bachelor's degree in Social Sciences from Gardner Webb University. Subsequently, her plan was redeveloped for a goal of "business management" after it was determined that she had a serious employment handicap. In June 2010, the Veteran obtained her Master's degree in Business Administration from the University of Phoenix. While receiving employment services, the Veteran decided that she wanted to pursue a Doctorate degree at the University of Phoenix. A Vocational Rehabilitation Counselor (VRC) determine that the Veteran was employable with her Master's degree for which VR&E benefits were provided under her IWRP. In September 2011, the Veteran was deemed "Rehabilitated" under 38 C.F.R. § 21.283(c)(3) in that the Veteran was pursuing additional eduction or training, in lieu of obtaining employment, after completing her prescribed program of training and rehabilitation services. The Veteran reapplied for VR&E benefits to pursue additional education in 2012 and 2014. In both instances, the Veteran was evaluated by a VRC. However, after each evaluation, the VRC ultimately concluded that there was insufficient evidence to overturn the prior rehabilitated status determination and that the Veteran had sufficient eduction to obtain employment consistent with her abilities, aptitudes, and interests. Applicable law provides that, if a veteran has participated in a prior vocational rehabilitation program and been found "rehabilitated," he or she is barred from participation in another program. However, an exception exists if the veteran has a compensable service-connected disability and either 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 the veteran from performing the duties of the occupation for which the veteran previously was found rehabilitated; or the occupation for which the veteran previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of the veteran's specific employment handicap and capabilities. See 38 C.F.R. § 21.284(a) (emphasis added). A review of the record reveals that, at the time she was deemed "rehabilitated," she was in receipt of service connection for posttraumatic stress disorder (PTSD) (also claimed as depression, anxiety, mood swings, and isolation with nightmares), rated 30 percent disabling from April 25, 2006, and 50 percent disabling from November 12, 2008. Her combined disability rating was 30 percent from April 25, 2006 and 50 percent from November 12, 2008. Since she was deemed rehabilitated, the number of service-connected disabilities and the severity of those disabilities has increased significantly. Significantly, the Veteran is now service connected for the following disabilities: PTSD and Unspecified Anxiety Disorder: rated 30 percent disabling from April 25, 2006, 50 percent disabling from November 12, 2008, 70 percent disabling from May 22, 2019, and 100 percent disabling from November 21, 2019; Fatigue associated with anemia: rated 40 percent disabling from July 10, 2014; Right Lower Extremity Radiculopathy: rated 10 percent disabling from March 14, 2015 and 20 percent disabling from May 18, 2017; Degenerative Disc Disease (DDD) of the thoracolumbar spine with arthritis and intervertebral disc syndrome (IVDS): rated 20 percent disabling from August 2013, 10 percent disabling from April 23, 2015, 20 percent disabling from May 18, 2017, 10 percent disabling from April 11, 2018, and 20 percent disabling from October 15, 2019; Left Lower Extremity Radiculopathy: rated 10 percent disabling from March 14, 2015 and 20 percent disabling from October 15, 2019; Anemia associated with Pelvic Inflammatory Disease (PID): rated 0 percent disabling from March 31, 2008 and 10 percent disabling from December 9, 2018; Right Knee Strain: rated 10 percent disabling from October 15, 2019; Pelvic Inflammatory Disease (PID): post IUD Removal, rated 0 percent disabling from April 25, 2006; and Sexual Arousal Disorder associated with PID: rated 0 percent disabling from February 22, 2018. Her combined disability ratings are as follows: 30 percent from April 25, 2006; 50 percent from November 12, 2008; 60 percent from August 14, 2013; 80 percent from July 10, 2014; 90 percent from May 22, 2019; and 100 percent from November 21, 2019. She is also in receipt of a total disability rating based on individual unemployability (TDIU) since July 10, 2014, as well as Special Monthly Compensation (SMC). She also has numerous nonservice-connected disabilities. In this case, the evidence of record reflects that the Veteran's service-connected disabilities have worsened and that she has more service-connected disabilities than she did when she was last evaluated by the VRC. In that regard, the evidence potentially demonstrates that the Veteran's service-connected disabilities have worsened to the extent that the effects of those disabilities preclude her from performing the duties of the occupation for which the Veteran was found rehabilitated or that the occupation for which the Veteran was found rehabilitated is no longer suitable on the basis of the Veteran's employment handicap (and serious employment handicap) and capabilities. See 38 C.F.R. § 21.284(a); see, generally, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). While there is evidence in the record demonstrating that the Veteran is unable to obtain and maintain substantially gainful employment, the Board finds it necessary to remand this matter for clarification regarding whether the Veteran's service-connected disabilities preclude her from performing the duties of the occupation for which she previously was found rehabilitated; or whether the occupation for which the Veteran previously was found rehabilitated under Chapter 31 is unsuitable on the basis of the Veteran's specific employment handicap and capabilities. In light of the worsening (increase in number and severity) of her service-connected disabilities since she was last evaluated, the Veteran should be afforded a new VRC evaluation to determine whether she still wishes to pursue VR&E benefits; and if so, whether she meets the criteria for reentrance into a rehabilitation program under 38 C.F.R. § 21.284(a). This matter is REMANDED for the following actions: 1. Contact the Veteran and ask to her affirm whether she still wishes to pursue a doctorate degree and to explain why she believes that having a doctorate degree will enable her to overcome her current vocational impairment. Request that she submit any evidence in her possession regarding interference of her service-connected disabilities with her employment consistent with that which rendered her previously rehabilitated. All attempts to communicate with the Veteran should be clearly documented and associated with the file, along with any negative responses. 2. Following completion of the above, arrange for the Veteran to be afforded a vocational rehabilitation evaluation that ascertains the current limitations caused by her service-connected disabilities and their effect on her ability to perform in his occupational field as reflected by any existing signed IWRP and her proposed career change, as specifically asserted by the Veteran. It is noted that the Veteran is service-connected for PTSD and Unspecified Anxiety Disorder, rated as 100 percent disabling; Fatigue, rated 40 percent disabling; Right Lower Extremity Radiculopathy, rated 20 percent disabling; DDD of the Thoracolumbar Spine with Arthritis and IVDS, rated 20 percent disabling; Left Lower Extremity Radiculopathy, rated 20 percent disabling; Anemia, rated 10 percent disabling; Right Knee Strain, rated 10 percent disabling; PID, rated 0 percent disabling; and Sexual Arousal Disorder, rated 0 percent disabling. He has a TDIU from July 10, 2014 and a 100 percent combined disability rating from November 21, 2019. After evaluating the Veteran, the VRC is asked to determine the following: (1) Whether the Veteran's service-connected disabilities preclude her from performing the duties of the occupation for which she previously was found rehabilitated; or (2) Whether the occupation for which the Veteran previously was found rehabilitated under Chapter 31 is unsuitable on the basis of the Veteran's specific employment handicap and capabilities. See 38 C.F.R. § 21.284(a). Additionally, the evaluation should include an assessment of the Veteran's current employment handicap and/or serious employment handicap, as well as a determination on the following: Whether the achievement of the Veteran's vocational goal as reflected by any signed IWRP, or employment consistent with his prior rehabilitated status, continues to be reasonably feasible under 38 C.F.R. § 21.53; and Whether the Veteran's requested change of the vocational rehabilitation employment goal to utilize a PhD to teach online courses, or other specific goal as communicated by the Veteran, is warranted and feasible in accord with 38 C.F.R. § 21.94. A thorough rationale for all opinions afforded, considering all of the evidence of record, would be of significant assistance to the Board. 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.