Citation Nr: 21026023 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 12-33 878A DATE: April 29, 2021 ORDER The September 2012 decision declaring the Veteran rehabilitated for the purposes of the Vocational Readiness and Employment (VR&E) program under the provisions of Chapter 31, Title 38 of the United States Code, was proper, the appeal is denied. FINDING OF FACT The Veteran’s employment handicap and capabilities have not rendered him unsuitable for employment in the occupational objective for which services were provided by VA under the Chapter 31 VR&E program. CONCLUSION OF LAW The criteria for a finding that the Veteran is rehabilitated pursuant to Chapter 31, Title 38 of the United States Code have been met and the appeal is denied. 38 U.S.C. § 3100; 38 C.F.R. §§ 21.283, 21.284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to October 1970. The Veteran has appealed a September 2012 administrative decision of the Vocational Readiness and Education (VR&E) division at the Department of Veterans Affairs (VA) Regional Office (RO), which determined that the Veteran was rehabilitated for purposes of the VR&E program under the provisions of Chapter 31, Title 38, of the United States Code. In October 2008, the RO’s VR&E division determined that the Veteran met the qualifications for basic entitlement to Chapter 31 benefits. In December 2008, the Veteran was provided an Individualized Written Rehabilitation Plan (IWRP), with a program goal to become employed as a substance abuse counselor or in a related career, by completing a certificate training program in the area of substance abuse counseling, with an anticipated completion date of December 2009. The Veteran subsequently requested additional training, namely, a bachelor’s degree, to attain his educational goal of “Addiction Therapist,” and in an October 2009 opinion, an assistant VR&E officer agreed with him. He opined that the Veteran was not “job ready” as his IWRP and Chapter 31 services, as delivered, did not “present a reasonable opportunity for suitable and sustainable employment.” Thus, the Veteran’s IWRP was redeveloped to include the completion of a BA degree in psychology with an emphasis on addiction counseling. An IWRP, dated in April 2012 and signed by the Veteran and his Vocational Rehabilitation Counselor (VRC), reflects the same DOT (Dictionary of Occupational Titles) code and title, and program goal for entry level employment as a substance abuse counselor or related career, as was stated in the prior 2008 IWRP. Just prior to earning his degree in May 2012, the Veteran expressed an interest in attaining a post-baccalaureate degree in Public Health Administration at Morehouse College in Atlanta, Georgia, starting in the fall 2012. In a Special Report of Training in July 2012, the Veteran expressed a desire to be a counseling psychologist, a profession that he claimed requires a master’s degree. In an August 2012 VR&E letter, the Veteran’s VRC notified him that VA had determined that he was now employable in the anticipated goal of the vocational rehabilitation plan as written and delivered, and that he had “elected to follow additional self-directed and confusing education achievement that is not supported by VA” resulting in his case being “closed as a positive rehabilitation outcome.” The VRC informed the Veteran that VA decided to move his program to “rehabilitated status.” In a September 2012 VR&E letter, the Veteran’s VRC notified him that he had successfully completed training under his rehabilitation plan and was thus being declared rehabilitated. The VRC stated that the goal of the plan was for the Veteran to obtain a suitable job, and that the Veteran had been offered help in getting a job because it was felt he was “job ready.” It was noted that rather than looking for a job, the Veteran decided to continue his education. In October 2012, the Veteran asserted that he had not reached the occupational goal of substance abuse “counselor” and related careers, that the objective of a bachelor’s degree in psychology was insufficient to obtain that occupational goal, and that the DOT code and title (076 Therapists) had not been attained. In January 2013 the Veteran maintained that his VRC developed his rehabilitation plan without consideration for the scope of practice as it related to substance abuse counselor; that his vocational rehabilitation plan had not provided him the required education and training to practice as a substance abuse counselor in his state of California; that his IWRP was not based on current labor market information as it related to the degree of training and education required to obtain the goal of substance abuse counselor; that his IWRP was written without consideration for necessary licensure or certification as described by the Board of Behavioral Scientists for California; and that he had not overcome the employment handicap to the maximum extent feasible in accordance with 38 C.F.R. § 21.283(c)(3)(i) and should not be declared rehabilitated under the presently prescribed program of training. Essentially, the Veteran is requesting a change in his IWRP, to enable him to continue training so that he may meet the requirements for licensure or certification to be a substance abuse counselor in his home state. The regulations permit a change to the plan “when such change is necessary to carry out the statement of long-range goals.” 38 C.F.R. § 21.94(c). In August 2014, the Veteran submitted information obtained via the internet, which pertains to new licensing requirements (effective in 2012) for those interested in counseling practice in California. Such requirements include “foundational educational requirements” of a master’s degree. Moreover, in a September 2014 statement, the Veteran’s representative argued that the state of California mandated that licensed or certified substance abuse counselors have a master’s degree or higher from a regionally accredited institution of higher education in the field of counseling, psychology, or a closely related field of study. He also claimed that although they pertained to substance abuse counseling, the job placement advertisements provided to the Veteran by the VR&E were not equivalent to the description of DOT 076 (Therapist) jobs or equivalent to a substance abuse counselor. In March 2015, the Board remanded the appeal, in pertinent part, for further review and evaluation of the Veteran by a Vocational Rehabilitation Counselor or Counseling Psychologist (CP) to determine whether achievement of a vocational goal was reasonably feasible in light of new licensing and certification requirements in the state of California and, if so, whether a change to the Veteran’s rehabilitation program was needed to achieve the stated vocational goal of substance abuse counselor or a related career. In April 2016, a VRC determined that achievement of the vocational goal stated in the 2012 Individualized Written Rehabilitation Plan (IWRP) was not currently feasible and stated that the feasibility determination was based on the total disability determination by the Social Security Administration in July 2010, the 100 percent rating for service-connected PTSD, and the nature and history of his physical and mental health conditions, job search and work history; however, a VRC had already determined that the vocational goal was reasonably feasible at the time that the 2012 IWRP was made, and the Veteran has since earned a Bachelor’s degree in psychology (i.e., May 2012). There is no suggestion of a worsening of disabilities since the 2012 IWRP; therefore, denial of additional education and/or training under the Veteran’s vocational rehabilitation program on the basis that achievement of the vocational goal is not reasonably feasible is not appropriate under the facts presented in this particular case. In November 2020, a VRC reviewed the Veteran’s history and interviewed the Veteran. The VRC opined that the Veteran was qualified to enter the labor market in his chosen vocational goal of Substance Abuse Counselor or a related career. She noted that if the Veteran were to pursue employment specifically as a Substance Abuse Counselor he would be most competitive if he earned certain certificates. She noted that such could be supported through VRE and the Veteran wound not require an entitlement extension as the services provided would not require an entitlement extension. The VRC provided a list of currently open positions in California that she thought that the Veteran would be qualified for with his current level of education and experience. She opined that the services rendered under the Veteran’s previous IWRP, which supported him in obtaining a BA in psychology, was sufficient to meet the Veteran’s needs and prepare him for employment that is consistent with the identified vocational goal, as well as his interests, aptitudes and abilities. The VRC noted that during the interview the Veteran presented as articulate and having the ability to obtain employment that is well within his limits and under his control. She further opined that the Veteran’s stated long-term goal of Substance Abuse Counselor, or a related career, agreed upon in the 2012 IWRP can be achieved with the Veteran’s current level of education and training. The Chapter 31 vocational rehabilitation program is intended to provide eligible veterans with compensable service-connected disabilities all services and assistance necessary to enable them to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment. 38 C.F.R. § 21.1. The IWRP goal of obtaining a bachelor’s degree in counseling psychology was accomplished in May 2012. The Veteran was provided counseling on how to use his education to seek suitable and sustainable employment. At that time the Veteran provided a current resume and sample cover letter that demonstrated that he was employable using his education and past work experience. His VRC provided him a variety of job openings at that time, but he did not apply for any of them. Based on these factors, the VRC determined that the Veteran was rehabilitated. The November 2020 VRC also found that the Veteran was rehabilitated. She opined that the Veteran’s stated long-term goal of Substance Abuse Counselor, or a related career, agreed upon in the 2012 IWRP can be achieved with the Veteran’s current level of education and training. Here the evidence of record indicates that VA has provided the Veteran the education, counseling and general support necessary to become employable and to obtain and maintain suitable employment as contemplated by 38 C.F.R. § 21.1. Under 38 C.F.R. § 21.283(c)(3) a Veteran is considered rehabilitated to the point of employability if he pursues additional education in lieu of obtaining employment after completing his prescribed program of training and rehabilitation services if the additional education is not approvable as part of the Veteran’s rehabilitation program and achievement of employment consistent with the Veteran’s aptitudes, interests and abilities will be enhanced by the completion of the additional education. (Continued on the next page)   The Board finds that the Veteran has been rehabilitated as defined by 38 C.F.R. § 21.283(c)(3). Following completion of his IWRP goal of receiving a bachelor’s degree in counseling psychology the Veteran went on to additional education that was not approvable as part of the Veteran’s rehabilitation program and the additional education enhanced the Veteran’s ability to achieve employment consistent with the Veteran’s aptitudes, interests and abilities. The Board points out that the additional education is not approvable because on completion of the Veteran’s IWRP, the Veteran was found to be employable without additional education. Once the VR&E benefits have assisted the Veteran in becoming employable consistent with the Veteran’s aptitudes, interests and abilities, it does not provide for additional training to achieve a higher degree. The Board complements the Veteran on continuing his education beyond the bachelor’s degree he received with the help of VR&E benefits, however, the evidence indicates that the upon completion of his VR&E assisted education and counseling the Veteran was employable and that he was rehabilitated as defined by VA regulations. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim for the Chapter 31 benefits sought, that doctrine is not for application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-57 (1990). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.