Citation Nr: 21023048 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-05 864A DATE: April 20, 2021 ORDER Entitlement to vocational rehabilitation and employment (VR&E) benefits under the provisions of Chapter 31, Title 38, United States Code, is denied. FINDING OF FACT The Veteran’s only service-connected disability is right knee strain, evaluated as 10 percent disabling; he has not been shown to have a serious employment handicap. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits have not been met. 38 U.S.C. §§ 3100, 3101, 3102; 38 C.F.R. §§ §§ 21.1, 21.32, 21.33, 21.35, 21.40, 21.50, 21.51. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 2000 to August 2007. He also had service in the Army National Guard, to include a period of active duty for training from June 1999 to August 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2017 determination by the VR&E Division of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. Entitlement to VR&E benefits under the provisions of Chapter 31, Title 38, United States Code. Vocational rehabilitation services are intended to enable Veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. 38 U.S.C. § 3100; 38 C.F.R. §§ 21.1, 21.70. Generally, a Veteran is entitled to vocational rehabilitation benefits if the individual has a service-connected disability or combination of disabilities rated 20 percent disabling or more, and VA determines that he or she is in need of rehabilitation because of an employment handicap. 38 C.F.R. § 21.40(a). However, if a Veteran has a service-connected disability or combination of disabilities rated less than 20 percent disabling, then VA would need to determine that he or she is in need of rehabilitation because of a serious employment handicap. 38 C.F.R. § 21.40(b). VA defines an employment handicap as an impairment of an individual’s ability to prepare for, obtain, or retain employment consistent with the Veteran’s abilities, aptitudes, and interests. The impairment must result in substantial part from one or more service-connected disabilities. This means that the disability (or disabilities) must have an identifiable, measurable, or observable causative effect on the individual’s overall vocational impairment, but need not be the sole or primary cause of the employment handicap. 38 C.F.R. § 21.51. In each case where an employment handicap is found, a separate determination must be made of whether the individual has a serious employment handicap. A serious employment handicap exists when a Veteran has a significant impairment of the ability to prepare for, obtain, or retain employment consistent with their abilities, aptitudes, and interests; the effects of the significant impairment are not overcome; and the service-connected disability (or disabilities) contributes in a substantial part to the Veteran’s overall significant vocational impairment. 38 C.F.R. § 21.52. The Veteran seeks VR&E services to receive additional education and/or assistance in acquiring suitable employment in the field of law enforcement or engineering. See May 2017 Rehabilitation Needs Inventory (RNI). His only service-connected disability is right knee strain, evaluated as 10 percent disabling. As a result, he can only be found entitled to VR&E benefits if he has a serious employment handicap. The Veteran previously applied for Chapter 31 vocational rehabilitation benefits in November 2013 and July 2015. His participation in the vocational rehabilitation program was denied in January 2014 because he did not have a serious employment handicap, and denied in September 2015 because his service-connected disability did not contribute to his difficulty getting or keeping a job. In January 2014, the Veteran was provided a vocational evaluation. The vocational rehabilitation counselor (VRC) noted that the Veteran had left his last job because his family could not relocate; therefore, he resigned to move back to his family. See also January 2014 RNI. The VRC indicated that the Veteran met the criteria for an employment handicap because his service-connected disability contributed in substantial part to vocational impairment and he had not overcome the effects through further education, transferable skills, or obtaining and maintaining suitable work. However, it was further noted that he did not have a serious employment handicap. The VRC noted that the Veteran had an extensive work history within his pattern of interests and had been able to obtain and maintain employment within his field. The VRC noted that he left his last job voluntarily to relocate with his fiancée and that his service-connected condition did not limit his ability to perform the tasks of the jobs he had held and in which he had experience. No additional barriers were found. In September 2015, the Veteran was provided another vocational evaluation. It was again noted that he had left his last position voluntarily to relocate with his fiancée. The VRC noted that the Veteran completed an Associate of Arts (A.A.) degree in 2014 from Pasco Hernando State College, and the law enforcement academy in 2015. Following the interview, the VRC determined that Veteran met the criteria for an employment handicap because his service-connected disability contributed in substantial part to vocational impairment and the Veteran had not overcome the effects through further education, transferable skills, or obtaining and maintaining suitable work. Again, however, it was noted that the Veteran did not have a serious employment handicap. The VRC noted that while the Veteran lacked a completed bachelor’s degree, he had an extensive work history within his pattern of interests and had been able to obtain and maintain employment within his field. The VRC noted that the Veteran’s service-connected condition did not limit his ability to perform the tasks of the jobs he had held and in which he had experience, and that the Veteran has no history of a psychiatric diagnosis, no reliance on government programs, no legal history, and no history of alcohol/substance abuse. The Veteran had another vocational evaluation in May 2017. The VRC noted that the Veteran had been unemployed since July 2013 because he had chosen to be a stay-at-home parent rather than pursue employment. Following the interview, the VRC determined that the Veteran did not meet the criteria for an employment handicap. In doing so, the VRC noted that the Veteran had a service-connected disability of the right knee, and non-service-connected disabilities, including loss of one eye/vision 20/40 in the other eye, paralysis of the ulnar nerve, tinnitus, and sleep apnea The VRC noted that the Veteran had a vocational impairment because service-connected and non-service-connected disabilities would impair him from preparing for, obtaining, or maintaining employment. However, in determining that the Veteran had a vocational impairment, the VRC found that his service-connected disability did not contribute in substantial part to his vocational impairment. The VRC opined that the service-connected disability was not the cause of the impairment and that it did not have an identifiable, measurable, or observable causative effect on the overall vocational impairment. Specifically, the VRC indicated that potential vocational impairments, including homelessness, lack of education or training, gaps in employment, lack of work history, or criminal record, were not caused due to the Veteran’s service-connected disability. Additionally, it was noted that the service-connected disability did not place the Veteran at an employment disadvantage. Finally, the VRC noted that the Veteran did not have a serious employment handicap. Pursuant to 38 C.F.R. § 21.50(b), the VRC determines (1) whether the individual has an employment handicap, (2) whether an individual with an employment handicap has a serious employment handicap, and (3) whether the achievement of a vocational goal is currently reasonably feasible. Here, the January 2014 and September 2015 evaluators found that the Veteran did not have a serious employment handicap. The Board finds these determinations are competent based on the VRCs’ professional qualifications, and probative in light of their consistency with the evidence of record. As noted, the May 2017 VRC found that the Veteran did not have an employment handicap. The applicable regulations state that an employment handicap does not exist where the individual does not have an impairment in the ability to prepare for, obtain, or keep employment, or has overcome the impairment of employment by having employment in an occupation consistent with his abilities, aptitudes, and interests. In this case, although the Veteran has described that his service-connected disability results in a functional impact, the record shows that he voluntarily resigned prior suitable employment to be a stay-at-home parent. The evidence of record further demonstrates that he has overcome impairment by obtaining a marketable A.A. degree in 2014 and completing the law enforcement academy in 2015. Furthermore, it appears that the Veteran has prior work experience and transferable skills that have enabled him to overcome the negative effects of his service-connected disability. The Board notes that because an employment handicap is a threshold requirement of having a serious employment handicap, the Veteran also does not have a serious employment handicap. 38 C.F.R. § 21.52(a). The Board has considered all of the Veteran’s statements and assertions. See, e.g., October 2017 Notice of Disagreement. The Board certainly understands the Veteran’s desire to obtain a higher degree. However, the record shows that he has the education, past work experience, and transferable work skills to qualify for suitable employment consistent with his abilities, aptitudes, and interests. 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 these services is to provide a level of training that facilitates suitable employment. 38 C.F.R. § 21.70. As the preponderance of the evidence is against a finding that the Veteran has a serious employment handicap, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, having carefully considered the Veteran’s claim, in light of the evidence of record and the applicable law, the Board finds that he is not entitled to vocational rehabilitation under Chapter 31. 38 C.F.R. § 21.40(b)(3). The appeal must be denied. DAVID A. BRENNINGMEYER 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.