Citation Nr: 21068395 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-09 764 DATE: November 10, 2021 REMANDED Entitlement to veteran readiness and employment (VR&E) benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2004 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran seeks entitlement to VR&E benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code. Specifically, he asserts that his primary interest is to become a brand manager, product manager, or marketing manager, and his current level of education is not consistent with his interest. He also contends that his service-connected disabilities led to his termination from his last employer and have made his reemployment in his desired field impossible. He claims that he has a competitive disadvantage to similar applicants who do not have his service-connected disabilities. See August 2018 notice of disagreement (NOD). He requests assistance through the VR&E program to obtain an Master's degree in Business Administration (MBA). The Veteran was denied VR&E benefits in a December 2019 Board decision on the basis that he does not have an employment handicap for VA vocational rehabilitation purposes. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated and remanded the Board's decision. Specifically, the parties to JMR agreed that the Board did not adequately address whether the Veteran has an employment handicap pursuant to 38 C.F.R. § 21.51, and if so, whether he overcame that handicap, to include consideration of the Veteran's overall vocational impairment in accordance with the factors identified in 38 C.F.R. § 21.50(c). The case was returned to the Board for additional appellate review. Entitlement to VR&E benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code. The Veteran applied for VR&E benefits in March 2017 and underwent an assessment with a Vocational Rehabilitation Counselor (VRC). At that time, he was service connected for lumbosacral strain (20 percent disabling); left shin splints (0 percent disabling); and chronic sinusitis (0 percent disabling). He had a 20 percent combined disability rating from October 9, 2008. Based on a thorough vocational assessment of the Veteran, the VRC concluded that these disabilities did not result in an employment handicap and denied VR&E benefits. In a January 2018 rating decision, the RO granted entitlement to service connection for other specified trauma and stressor related disorder (10 percent disabling) and tinnitus (10 percent disabling). This ultimately resulted in an increase in the Veteran's combined disability rating from 20 percent to 40 percent, effective July 26, 2017. In April 2018, the VRC conducted an Administrative Review of the case. The VRC noted that the Veteran was able to complete his Bachelor's degree in Business Administration in 2012, and through that, he was able to obtain and maintain consistent employment from 2012 to 2017. The VRC also noted that the Veteran was seeking Chapter 31 benefits to obtain funding so that he could pursue an MBA. The VRC indicated the Veteran had limitations due to his service-connected disabilities but found that the general physical nature of the job in the business field for which he has experience was "sedentary to light. The VRC further indicated that, even though the Veteran was currently unemployed, the impairments from his service-connected disabilities did not affect his ability to perform the duties of employment in the business field. Based on a review of the evidence, the VRC concluded that the Veteran did not meet the criteria for an employment handicap under 38 C.F.R. § 21.51 because he has reasonably developed skills, education, training, and previous work experience that is consistent with his pattern of abilities, aptitudes, and interests and that he had overcome the impairments to employability because he could obtain and maintain suitable employment. In that regard, the VRC essentially found that the Veteran was choosing to further his education by pursuing an MBA rather than trying to obtain suitable employment consistent with his Bachelor's degree. The VR&E Officer assigned to this case concurred with the VRC's assessment. In July 2018, the Acting Director of VR&E issued a concurrence with the April 2018 Administrative Review. Specifically, the Acting Director agreed that the Veteran had overcome his impairment to employability through education, work experience, and transferrable skills, and thus, he did not have an employment handicap. The Acting Director noted that the Veteran's service-connected disability rating had increased from 20 percent to 40 percent in July 2017 but that "the disability-related barriers reported did not contradict the suitability of [the Veteran's] ability to return to his prior position. The Acting Director concluded that the Veteran's well-developed transferrable skills and work experience qualify him for alternative employment and that he did not need an MBA to find suitable employment. The Veteran was informed of this decision in August 2018. He subsequently appealed. The issue was readjudicated by the RO in its January 2019 statement of the case (SOC). However, several months later, the RO issued a May 2019 rating decision indicating that a clear and unmistakable error (CUE) had been found in the evaluation of the Veteran's service-connected sinusitis. The RO granted an increased rating of 10 percent for the Veteran's service-connected sinusitis, effective May 7, 2018. In December 2019, the Board issued its decision denying the Veteran's claim for VR&E benefits. In an October 2020 rating decision, the RO increased the rating of the Veteran's chronic sinusitis from 10 percent disabling to 50 percent disabling, effective March 9, 2019. This resulted in an increase in the Veteran's combined disability rating from 40 percent to 70 percent, effective March 9, 2019. 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. The purpose of such services is to provide a level of training that facilitates suitable employment. 38 C.F.R. § 21.70. However, given that there has been a significant change in the Veteran's overall disability picture concerning a possible employment handicap and an increase in the number of and severity of his service-connected disabilities, the Board finds a remand is necessary to provide the Veteran with an appropriate vocational evaluation by a VRC or other VR&E specialist to determine whether the Veteran currently suffers from an employment handicap and/or serious employment handicap. This matter is REMANDED for the following actions: 1. Arrange for the Veteran to be afforded an appropriate evaluation to ascertain the current limitations caused by his service-connected disabilities and their effect on his ability to obtain or maintain employment consistent with his interests, aptitudes, and abilities. The vocational assessment should be conducted by an appropriate VRC or other appropriate VR&E specialist to determine whether the Veteran has an employment handicap under 38 C.F.R. § 21.51 and/or a serious employment handicap under 38 C.F.R. § 21.52. The VRC or other appropriate VR&E specialist is directed to include consideration of the Veterans lay statements; the legal and factual arguments submitted by the Veteran's representative, and any relevant VA or private medical records, VA examination reports, and VR&E documents received since the Veteran filed his claim in March 2017. Following a thorough review of the record, the VRC or other appropriate VR&E specialist is requested to opine as to: Whether the Veteran has an impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his abilities, aptitudes, and interests; and if so: Whether the effects of that impairment have been overcome through employment in an occupation consistent with her abilities, aptitudes, and interests; and if so: Whether the Veteran's service-connected disabilities contribute in substantial part to, (have an identifiable, measurable, or observable causative effect on), his overall vocational impairment. If the Veteran is deemed to have an employment handicap, then the VRC or other appropriate VR&E specialist should render a separate determination as to whether the Veteran has a serious employment handicap under 38 C.F.R. § 21.52. If the Veteran is found to have an employment handicap or serious employment handicap, then the VRC or other appropriate VR&E specialist should then assess whether achievement of his vocational goal is reasonably feasible under 38 C.F.R. § 21.53. 2. Thereafter, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case (SSOC) and allow the applicable time for response. Then, return the case 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.