Citation Nr: 21014050 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-01 462 DATE: March 11, 2021 ORDER Achievement of a vocational goal is not reasonably feasible; entitlement to Vocational Rehabilitation and Employment (VR&E) services pursuant to 38 U.S.C. Chapter 31 is denied. FINDING OF FACT The preponderance of the evidence indicates that the severity of the Veteran’s service-connected disability renders achievement of a vocational goal infeasible. CONCLUSION OF LAW Achievement of a vocational goal is not reasonably feasible for the purpose of VR&E benefits; the criteria for entitlement to VR&E benefits are not met. 38 U.S.C. §§ 3100, 3101, 3102, 3106; 38 C.F.R. §§ 21.35, 21.40, 21.50, 21.53, 21.70. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from February 1982 to June 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 decision issued by the Vocational Rehabilitation and Employment (VR&E) Division of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); however, a transcript was not produced due to an inaudible recording. In December 2020, the Veteran was offered the opportunity for another hearing, and advised that if he did not respond within 30 days, the Board would assume he did not desire a new hearing and would proceed with adjudication. The Veteran did not respond, and thus the Board will proceed with adjudication. Entitlement to VR&E services pursuant to 38 U.S.C. Chapter 31. The Veteran seeks entitlement to VR&E benefits under the provisions of 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, become employable and obtain and maintain suitable employment. 38 U.S.C. § 3101; 38 C.F.R. § 21.70. 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 disabilities (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). Any reasonable doubt as to feasibility will be resolved in the veteran’s favor. 38 C.F.R. § 21.57(c)(1). Turning to the specific facts of the Veteran’s claim, the Veteran is service connected for a closed head injury with cerebellar hemorrhage and brain abscess, currently rated 100 percent disabling. Initially, the Board observes that the Veteran’s basic eligibility for vocational rehabilitation benefits is not at issue here. It is uncontested that the Veteran has service-connected disabilities compensable at a level of 20 percent or more, and that he is in need of rehabilitation to overcome both an employment handicap and a serious employment handicap. See April 2015 Counseling Record Narrative Report. He therefore meets the basic eligibility requirements for vocational rehabilitation benefits. The Veteran was determined to be in need of rehabilitation to overcome a serious employment handicap due to service-connected disabilities. This fact is not in dispute. Rather, his claim for VR&E benefits has been denied on the basis that his particular vocational goal is not reasonably feasible. See May 2015 decision. Therefore, the next inquiry is whether achievement of the Veteran’s desired vocational goal of attaining a Doctor of Philosophy (Ph.D.) is “reasonably feasible.” See 38 C.F.R. §§ 21.35(h), 21.50(b)(3), 21.53(d). On the August 2015 Rehabilitation Needs Inventory, the Veteran indicated that he has difficulties with short-term memory, information processing, and inability to respond quickly due to his service connected closed head injury. His reported work history shows that he quit a development coordinator position due to eroding intellectual performance. He has not worked since approximately August 2000. The Veteran received a VRC evaluation in April 2015. The Veteran again reported that his head injury resulted in short term memory issues, information processing, inability to respond quickly to information, and ataxia resulting in slow typing skills. Additionally, the Veteran reported right side weakness. He reported some improvement with medication management. Upon assessment, the VRC noted the Veteran’s service-connected disability impairs his ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes, and interests. The Veteran is limited in his ability to stay on task, memory and concentration, interpersonal relations, orientation difficulties, ataxia, and difficulty with multi-tasking and synthesizing information. As such, the VRC found that the Veteran has a serious employment handicap, specifically noting the severity of the disabling conditions and the Veteran’s long period of unemployment. The VRC specifically determined that the limitations from his disabilities would make feasibility uncertain. As feasibility was not certain, the determination was deferred pending additional information. In May 2015, the VRC spoke with the Veteran’s wife regarding his ability to return to work. The Veteran’s wife reported concerns with the Veteran continuing with a VR&E program. She spoke about the Veteran’s continued impulsive behavior, social limitations, confusion, and inappropriate social interactions. She asserted that the Veteran’s neurologist “sugarcoats” his limitations and that the Veteran is a good actor. She stated that many do not realize how serious his condition is. Upon reassessment, the VRC found that the Veteran’s condition rendered any vocational goal unfeasible. See May 2015 Counseling Record Narrative Report. The VRC arrived at this assessment by considering the current condition, wife’s statement, and medical records of the Veteran. The VRC noted that the Veteran requires family assistance for appointment reminders, scheduling, directions, as well as simple reminders to eat, cook, and follow through on a task. The VRC further noted the reported interpersonal difficulties reported by the Veteran’s wife. The VRC indicated that the Veteran’s psychologist encouraged long term volunteering before attempting full-time employment, and his therapist indicated he is learning skills to prepare for a program but has not achieved the level for this education. He was offered Independent Living Services in lieu of education and employment services, but he declined these services. The VRC’s assessment is consistent with the medical evidence of record. Notably, the Veteran underwent a neuropsychological evaluation in April 2014. The attending physician noted the Veteran relies on his wife to organize and manage his medications and finances. It was further noted the Veteran continues to experience occasional difficulty with navigating to unfamiliar places. Following neuropsychological testing, it was noted he continues to exhibit significant difficulty with aspects of executive dysfunction, including cognitive monitoring, disinhibition, working memory, mental flexibility, as well as slowed processing speed for complex tasks. He also continues to demonstrate a dysexecutive pattern of memory performance characterized by inefficient mental organization during initial acquisition, subsequently impaired retrieval, and significant susceptibility to intruding information during recognition. Also commensurate with prior testing performance, language, visuospatial perception, and basic attention abilities were within expectation. A February 2015 speech pathology consult notes the Veteran is currently reliant on his wife to give him reminders, keep on top of appointments, and handle the finances. A March 2015 functional assessment indicates the Veteran presents with mild-moderate executive function impairment in organization, sequencing, attention to details when shifting attention, and deterioration of performance with increasing processing load. His initiation of tasks was good, he plans somewhat, persists without complaints, and requested clarification when necessary. His speed of information processing for task completion was within normal limits for all tasks; however, with extra time accuracy may have been improved. In April 2015, the Veteran’s speech-language pathologist noted he experiences difficulty with management of multiple pieces of information for effectively planning. He requires moderate cues for the use of his smartphone as a cognitive prosthetic device. In May 2015, the Veteran reported his mood is fine and denied depression and anxiety. He indicated that he wanted to return to school to complete a Ph.D. in urban development and obtain a full-time teaching position. The attending physician recommended volunteering before starting a full-time position. In contrast, and with regard to the evidence favorable to the Veteran, the Veteran submitted a letter dated March 2015 in July 2015 from a biology professor at St. Leo University. The professor indicated that he has known the Veteran for more than ten years, and that for the past two years the Veteran has demonstrated his ability to recall and discuss his experience working with state and regional agencies. According to the professor, he was also able to demonstrate his knowledge of Florida’s environmental state and regional regulatory agencies. The professor opined that if the Veteran can complete a doctoral program, it would provide evidence of his competence in a particular area of study which may allow him to pursue a career in academia. Upon review of all of the evidence of record, including the Veteran’s lay statements, the Board concurs with the determination of the VR&E Counselor, and finds that the weight of the evidence is against a finding that the Veteran’s particular vocational goal of attaining a Ph.D. is reasonably feasible at this time. In this making this determination, the Board has carefully and sympathetically considered the evidence of record, but unfortunately, finds that the evidence weighs against the benefit sought. The Veteran’s service-connected disability demonstrates that it is not feasible for him to obtain a Ph.D. and maintain full-time work in a teaching position. It was acknowledged that the Veteran relies on his wife for various activities of daily living, including medication management, directions, and appointment reminders. Additionally, it was reported he has a past history of inappropriate interpersonal skills. It was further noted the Veteran reported he left his previous employment in August 2000 due to eroding intellectual performance. Moreover, the Veteran is unable to manage his financial affairs. As such, the Board finds that his cognitive and behavioral deficits indicate that his vocational goal of attaining a Ph.D. is not feasible. The Board is cognizant of the Veteran’s assertions regarding his sincere belief his vocational goal is reasonably feasible. See, e.g., December 2015 VA Form 9. Moreover, the Board has considered the March 2015 buddy statement provided by the Veteran’s biology professor. However, the Board finds that the lay assertions made in support of the Veteran’s claim are not entitled to more weight than the objective findings rendered by trained vocational counselors in evaluating the Veteran’s claim. After evaluating the Veteran, the VRC made a negative feasibility determination. This determination was based on the fact that the Veteran had significant health issues that impose limitations on his activities. The Board considers it significant that the VRC have extensive specialized training in vocational rehabilitation. That adds to the probative weight of their assessments. See Black v. Brown, 10 Vet. App. 297 (1997) (an opinion rendered by one with specialized training may be considered more probative than a non-specialist’s finding). The Board also places significant weight on the medical evidence indicating the Veteran exhibited significant difficulty with aspects of executive dysfunction, sequencing, attention to details when shifting attention, including cognitive monitoring, disinhibition, working memory, mental flexibility, and deterioration of performance with increasing processing load. As a final matter, the Board emphasizes that the purpose of Chapter 31 VR&E services is not to provide the claimant with whatever level of career training the he chooses should his interests or career objectives change. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. 38 C.F.R. § 21.70. In short, the Board finds that the totality of the evidence of record shows that the Veteran’s achievement of his desired vocational goal of attaining a Ph.D. is not reasonably feasible. See 38 C.F.R. §§ 21.35(h), 21.50(b)(3), 21.53(d). The Veteran was not interested in pursuing Independent Living Services in lieu of education and employment services, despite being offered the opportunity to do so. The Board notes that the Veteran is already in receipt of a Master’s degree in Urban Planning and a Master of Business Administration. Ultimately, as the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, Associate 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.