Citation Nr: 21071748 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-00 002A DATE: December 1, 2021 ORDER Entitlement to Vocational Rehabilitation and Employment (VR&E) services, other than employment services, to include further education, pursuant to 38 U.S.C. Chapter 31, is granted. Entitlement to VR&E services, specifically employment and licensing assistance services, pursuant to 38 U.S.C. Chapter 31, is granted. FINDING OF FACT The Veteran's service-connected disabilities contribute in substantial part to a vocational impairment, and he has not overcome the effects of such impairment. CONCLUSION OF LAW The criteria for a determination that the Veteran has an employment handicap for VR&E benefits purposes have been met. 38 U.S.C. §§ 3101, 3102, 3111; 38 C.F.R. §§ 21.50, 21.51. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to August 1982 and from December 1990 to April 1991. The Veteran had multiple dates of service with the Army National Guard, the Air National Guard, and the Army Reserves. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2016 letter of determination issued by the Department of Veterans Affairs (VA). The Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in October 2019. A transcript of the hearing is associated with the electronic claims file. In June 2020, the Board remanded the claims for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 1. Entitlement to VR&E services, other than employment services, to include further education, pursuant to 38 U.S.C. chapter 31, is remanded. 2. Entitlement to VR&E services, specifically employment and licensing assistance services, pursuant to 38 U.S.C. chapter 31, is remanded. The Veteran claims entitlement to VR&E services pursuant to 38 U.S.C. chapter 31. 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. 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. § 3102; 38 C.F.R. § 21.40. The Board notes that the Veteran's interests and capabilities must be considered when determining "suitable employment." See, e.g., 38 C.F.R. § 21.50(c). 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 the instant case, the Veteran meets the threshold requirement for entitlement to a program of vocational rehabilitation. The Board must next consider whether the Veteran is in need of rehabilitation because of an employment handicap. As will be discussed below, the evidence is at least in equipoise and, resolving all doubt in the Veteran's favor, the Board finds that the Veteran meets the requirement of having an employment handicap for VR&E purposes. The Vocational Rehabilitation Counselor (VRC) denied the Veteran's claim for VR&E benefits, asserting that the Veteran's current skills and education made him "suitable for a variety of sedentary positions." See Counseling Record Narrative Report, dated June 2018, October 2016. Evaluating VRCs noted that the Veteran was seeking career options in both healthcare and education. Id. While both the October 2016 and June 2018 VRCs attested that the Veteran was capable of finding suitable employment within his interests, aptitudes, and abilities, with his current education and transferrable skills, neither provided specific examples of such positions and how the Veteran's current function meets the essential job functions of such positions. 38 C.F.R. §§ 21.51, 21.52, 21.72, 21.78. In its June 2020 remand, the Board noted that the Veteran stated that his knees limit his ability to ambulate greater than 200 feet or stand longer than 10 to 20 minutes at a time. See October 2019 Hearing Transcript. Moreover, the Veteran has asserted that he was unemployable as due to his service-connected disabilities. See May 2017 Correspondence. As such, the Board found that a new VRC assessment was necessary to determine not only whether the Veteran was currently able to obtain and maintain suitable employment consistent with his aptitudes, abilities, and interest, with his current education and transferrable skills, but also whether any employment was feasible in light of the Veteran's disabilities and symptomatology. 38C.F.R. §§21.53, 21.70. Pursuant to the June 2020 remand, the Veteran was afforded a VR&E evaluation in January 2021. The VRC noted that the Veteran reported service-connected bilateral knee pain, as well as treatment for his nonservice-connected neck, eye, back, and hand disabilities. The VRC also reported the Veteran's desire to return to his prior job as a nurse and his belief that he could ultimately return to work. However, the VRC referenced VA treatment records that document physical therapy. The Veteran reported that he walks one block twice daily and that the physical therapist recommended a progressing exercise routine, water therapy, and walking therapy. Despite the VRC's concerns of the feasibility of the Veteran's vocational goal of being a nurse due to chronic pain, the VRC determined that the Veteran did not have an employment handicap. The VRC opined that the Veteran could obtain a job in sedentary career fields, such a business, health care administration, customer service, etc. Significantly, the record contains an August 2021 rating decision which awarded a total disability evaluation based upon individual unemployability (TDIU) effective January 1, 2011. In making this decision, the RO explicitly determined the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board notes the findings of the August 2021 rating decision directly conflict with those of the VRC, who determined the Veteran could overcome his vocational impairment if he obtained a sedentary job. In light of the August 2021 award of a TDIU, the Board finds the Veteran has an employment handicap for VR&E purposes as defined by 38 C.F.R. § 21.51, and the appeal is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.