Citation Nr: 21075950 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 18-29 463 DATE: December 22, 2021 ORDER Entitlement to Veteran Readiness and Employment (VR&E) benefits other than employment services, to include pursuit of a Juris Doctor (J.D.), pursuant to 38 U.S.C. Chapter 31, is granted. FINDING OF FACT The Veteran has a serious employment handicap and requires additional education to become employable and to obtain and maintain suitable employment. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits, other than employment services, have been met. 38 U.S.C. §§ 3100, 3101, 3102, 3105; 38 C.F.R. §§ 21.40, 21.47, 21.50. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from March 1982 to March 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 determination issued by the Department of Veterans Affairs (VA) Regional Office. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. A transcript of the hearing is associated with the file. Entitlement to VR&E benefits other than employment services, to include pursuit of a J.D., pursuant to 38 U.S.C. Chapter 31. The Veteran has applied for VR&E benefits in the form of a program of education to pursue a J.D. Specifically, she wishes to pursue a career advocating for other Veterans. The intended purpose of VA vocational rehabilitation services is to enable service-connected disabled veterans to achieve maximum independence in daily living and, to the maximum extent feasible, become employable and obtain and maintain suitable employment. 38 U.S.C. § 3100; 38 C.F.R. § 21.70. In each case in which a veteran has either an employment handicap or serious employment handicap, the VA must determine the reasonable feasibility of achieving a vocational goal. 38 C.F.R. § 21.53(a). A "vocational goal" is defined as gainful employment consistent with a veteran's abilities, aptitudes, and interests. 38 U.S.C. §§ 3101(8), 3106(a); 38 C.F.R. §§ 21.50, 21.53. A vocational goal is "reasonably feasible" when the following criteria are met: (1) a vocational goal must be identified; (2) a veteran's physical and mental conditions must permit training to begin within a reasonable period; and (3) a veteran must possess the necessary educational skills and background to pursue the goal or will be provided services by VA to develop such necessary educational skills as part of the program. 38 C.F.R. § 21.53(d). The phrase "achievement of a vocational goal is reasonably feasible" means the effects of a veteran's disabilities (service and nonservice-connected), when considered in relation to his circumstances, do not prevent him or her from successfully pursuing a vocational rehabilitation program and successfully becoming gainfully employed in an occupation consistent with a veteran's abilities, aptitudes, and interests. 38 C.F.R. § 21.35(h). In contrast, the phrase "achievement of a vocational goal is not currently reasonably feasible" means the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances at the time of the determination: (i) prevent the veteran from successfully achieving a vocational goal at that time; or, (ii) are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. Id. A VA counseling psychologist (CP) or a Vocational Rehabilitation Counselor (VRC) determines whether achievement of a vocational goal is reasonably feasible. 38 C.F.R. § 21.53(g). VA must determine the feasibility of achieving the vocational goal sought in each case in which a veteran has a serious employment handicap. 38 C.F.R. § 21.53(a). In making the determination as to the feasibility of a vocational goal, VA must offer the veteran an initial evaluation under the provisions of 38 C.F.R. § 21.50. However, where such determination cannot be made on the basis of information developed during the initial evaluation, an extended evaluation is required. See 38 C.F.R. § 21.57. The determination of the reasonable feasibility of a veteran achieving a vocational goal must be made at the earliest time possible during an extended evaluation, but not later than the end of the period of evaluation. Any reasonable doubt as to feasibility will be resolved in the veteran's favor. 38 C.F.R. § 21.53(c). The Veteran's basic eligibility for vocational rehabilitation benefits is not at issue. She is currently service connected for posttraumatic stress disorder (PTSD) rated at 100 percent disabling. On the Veteran's rehabilitations needs inventory (RNI) form in July 2016, the Veteran stated her expectation was that the VR&E program would help her "update and enhance skills/education." The Veteran described an interested in job and career fields of "counseling in mental health." She reported receiving a degree in Psychology in 1994, as well as a real estate license and paralegal certification. The Veteran reported her only civilian employment history as a social service assistant at VA from August 2013 to October 2013. She indicated she left that position because it was "not to exceed position." The Veteran stated that during periods of unemployment three months or longer, she submitted applications for employment. The Veteran reported difficulties with insomnia, severe headaches, irritability, and anxiety as a result of her service-connected PTSD. She reported that her disability was worsening and not currently stable. The Veteran was provided an initial evaluation with a Vocational Rehabilitation Counselor (VRC) in July 2016. The VRC noted the Veteran's educational entitlement consisted of 9 months of remaining entitlement. The counselor noted the Veteran had a bachelor's degree in Psychology conferred in 1994, as well as a real estate license and paralegal certification that required continuing education. The VRC noted the Veteran was unemployed since October 2013. The counselor noted the Veteran's reports of her PTSD being aggravated by her work environment and co-workers as a social service assistant. The VRC ultimately determined the Veteran's service-connected disabilities contributed in substantial part to a vocational impairment and he had not overcome such impairment, as her disabilities materially impacted her ability to prepare for, obtain, or retain employment. The VRC further concluded the Veteran had an employment handicap as her PTSD contributed in substantial part to the vocational impairment and the Veteran has not overcome the effects of the impairment through further education, transferable skills, or obtaining and maintaining suitable work. The VRC also noted a serious employment handicap. The VRC remarked that the Veteran was rated 100 percent for PTSD and observed to cry when talking about her symptoms. She noted a history of homelessness and long period of unemployment. Finally, she found the achievement of a vocational goal was reasonably feasible. The Veteran was therefore found entitled to VR&E benefits. In August 2016, the VRC and the Veteran began developing a rehabilitation plan. See Veteran Plan Rationale, dated August 2016. The vocational goals noted were "counsel for military dependent minors dur to under-representation" and "counsel for minors in superior court." Both goals had an anticipated start date of September 2017 and anticipated completion date of June 2021. The plan noted that University of Southern California and University of California, Los Angeles were ideal universities due to programs that assist veterans. The plan also anticipates job growth for attorneys at 10 percent with a median salary of $75,000. In support, the file includes supporting documentation on attorneys from the Bureau of Labor Statistics and identified various job postings in the Veteran's desired fields. However, while the plan was being developed, the VRC went on a leave of absence. See Notice of Disagreement, dated December 2017; Hearing Transcript at 3. In doing so, the Veteran was informed that another VRC, K.H., would be the new contact. Id. Shortly thereafter, in the December 2016 decision on appeal, the interim VRC K.H. informed the Veteran that VA is unable to approve her request for VR&E benefits. In doing so, the decision indicates that the Veteran is able to obtain suitable employment with her current educational level and will not require further training to become employed. Following a review of the record, and resolving all doubt in the Veteran's favor, the Board concludes that a program of rehabilitation, specifically education benefits, is warranted in the instant case. The Board finds that the program denial in December 2016 was unwarranted. Here, as outlined above, the Veteran's VRC in July 2016 performed an initial evaluation and CareerScope Assessment before determining that the Veteran to has an employment handicap, a serious employment handicap, and specifically determined her PTSD contributed in substantial part to the vocational impairment and the Veteran has not overcome the effects of the impairment through further education, transferable skills, or obtaining and maintaining suitable work. The VRC then found the vocational goal was reasonably feasible and, therefore, found her entitled to VR&E benefits. However, as discussed above, while a plan was being developed, a new VRC was assigned to the Veteran's claim when her first assigned counselor took a leave of absence. This newly assigned VRC decided to deny the claim in December 2016, while a plan was being developed. In doing so, she found that the Veteran will not need further training as she is able to obtain suitable employment with her current education. However, the Board finds no evidence that this counselor re-evaluated the Veteran before denying her claim. Moreover, the VRC provided no adequate rationale for her contradictory determination, nor did she reconcile her decision with the prior findings in July 2016. Also pertinent to the instant appeal is the VRC in August 2016 identified the job growth potential for attorneys, as well as providing examples of current job postings consistent with the Veteran's desired goal. VRC K.H., on the other hand, identified no potential careers that the Veteran could pursue utilizing her current degree and work experience that would not be precluded by or aggravate her service-connected disabilities. Given the above, the Board places significant weight into the findings of the July 2016 VRC. The July 2016 VRC is a professional with education and experience determining employability of an individual, and as such, is competent to opine as to the employability of the Veteran; there is no evidence that the July 2016 VRC is not credible. Moreover, the July 2016 VRC made the assessment based upon an interest and aptitude inventory, the Veteran's education and work history background, and with consideration of the Veteran's needs related to her disabilities. As such, the July 2016 VRC assessment is afforded significant probative weight. See Black v. Brown, 10 Vet. App. 297 (1997). The Board gives no probative value to the findings of VRC K.H. in her December 2016 determination. Unlike the July 2016 findings, this counselor performed no evaluation, did not appear to consider the Veteran's needs, nor did she reconcile her findings with the previous determination. In light of the discussion above, the evidence demonstrates that the Veteran has a serious employment handicap, and she is unlikely to obtain suitable employment based on experience alone in light of her current level of education. As such, the Board finds the Veteran is entitled to benefits under a VR&E program. The appeal is therefore granted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.