Citation Nr: 21029734 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-32 988 DATE: May 14, 2021 ORDER Entitlement to Veteran Readiness and Employment (VR&E) services under the provisions of Chapter 31, Title 38, United States Code (Chapter 31) is denied. FINDING OF FACT The Veteran has overcome any impairment of employment to which his service-connected disabilities have substantially contributed and he is capable of finding gainful employment consistent with his abilities, aptitudes, and interests based on his transferrable skills, education, work experience, and training. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits under the provisions of Chapter 31 have not been met. 38 U.S.C. §§ 3100, 3101, 3102; 38 C.F.R. §§ 21.40, 21.50, 21.51, 21.52, 21.53, 21.70, 21.72. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from April 2010 to April 2014. In his May 2018 Substantive Appeal to the Board (VA Form 9), the Veteran indicated that he wanted to appear at a Board hearing. However, he later withdrew that request in a January 2019 statement. 38 C.F.R. § 20.704(e). Thus, there is no hearing request pending at the present time. This matter was previously before the Board in October 2020, at which time, the Board characterized the issue on appeal as entitlement to vocational rehabilitation and employment benefits. In June 2020, VA changed the name of the vocational rehabilitation and employment program to the Veteran Readiness and Employment (VR&E) program. Thus, the Board has recharacterized the issue as it appears on the first page of this decision. In October 2020, the Board remanded the matter on appeal for the Agency of Original Jurisdiction (AOJ) to associate with the claims file the Veteran's complete VR&E folder, which included the January 2018 letter of determination; to obtain copies of outstanding VA treatment records; to afford the Veteran a vocational rehabilitation evaluation; and, to issue a supplemental statement of the case (SSOC) if any benefit was denied by the AOJ. The record shows that the pertinent VR&E records and updated VA treatment records have been associated with the claims file. A Vocational Rehabilitation Counselor (VRC) submitted an evaluation in January 2021, and the AOJ issued an SSOC in January 2021. There was substantial compliance with the Board's October 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks Chapter 31 benefits in order to obtain employment in the nursing field. Specifically, in the January 2018 Rehabilitation Needs Inventory (RNI) form, he asserted that he left his previous position at a kidney dialysis center, where he worked as a patient care technician, in order to be a full-time nursing student because there were no part-time job positions available. Likewise, he contended in the March 2018 Notice of Disagreement (NOD) that his service-connected disabilities, and especially his acne with scarring and eczema, required him to work in a clean environment with air conditioning. The purpose of training and rehabilitation benefits provided under Chapter 31 is 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. 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. VA and the veteran must develop a written plan describing the veteran's employment goals and the program through which those goals will be achieved. 38 C.F.R. § 21.1(b)(3). 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 or her service-connected disabilities have contributed in substantial part to the overall vocational impairment. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. The terms and conditions of the plan must be approved and agreed to by a counseling psychologist, a vocational rehabilitation specialist, and the veteran. A vocational rehabilitation specialist or counseling psychologist designated as case manager has the primary role in carrying out VA responsibility for implementation of the plan. A counseling psychologist has the primary responsibility for the preparation of plans. 38 C.F.R. § 21.92. In each case in which a veteran has either an employment handicap or serious employment handicap, 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). 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) the 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). Rehabilitation to the point of employability may include the services needed to train him to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma, or certificate is generally necessary for entry into an occupation, he shall be trained to that level. 38 C.F.R. § 21.72(a)(2). The record shows that at the time the January 2018 determination letter was issued, the Veteran's service-connected disabilities combined to a 40 percent evaluation, with the Veteran's acne with scarring disability rated as 30 percent disabling. The Veteran's service-connected eczema disability, which was rated as 60 percent disabling since April 30, 2018, and his acne with scarring disability, which was rated as 30 percent disabling since April 13, 2014, were reduced to noncompensable (zero percent) evaluations, effective November 1, 2019. Thus, the current combined disability rating for the Veteran's service connected disabilities is 20 percent. Accordingly, even since November 1, 2019, the Veteran meets the threshold requirement for entitlement to a program of vocational rehabilitation. However, to be eligible for a program of vocational rehabilitation, he must also be 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. As will be discussed below, the Board finds that the Veteran does not currently meet this second requirement in order to receive Chapter 31 benefits because he does not have an employment handicap for VA vocational rehabilitation purposes. The evidence of record, including the January 2018 and January 2021 vocational rehabilitation evaluation reports, as well as the VA treatment records during the appeal, shows that the Veteran was previously employed until January 2017 as a patient care technician at a dialysis center. For example, in January 2018, a VRC noted that the Veteran was being provided with an initial evaluation for Chapter 31 benefits and that the emphasis of the evaluation was upon the Veteran becoming employed. See 38 C.F.R. § 21.50. The Veteran was requesting VR&E assistance in attaining a job in the nursing field. The Veteran submitted an RNI form (VA Form 28-1902w), which showed that he was employed at a dialysis center from May 2016 to January 2017, and that he was unemployed since that time because he was pursuing a course of study to receive a Bachelor of Nursing degree on a full-time basis. He also reported that that he was certified as a nursing assistant since 2016. In the January 2018 evaluation, the VRC noted that the Veteran had previously utilized VA educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill). The Veteran's interests and aptitudes were assessed based on the CareerScope Inventory profile. The VRC reviewed the Veteran's clinical records that showed the impact of his service-connected disabilities, as well as his responses to the in-person interview. Based on this evidence, the VRC determined that the Veteran was not entitled to Chapter 31 benefits, as he did not have an employment handicap. Specifically, the VRC noted that while the Veteran was unemployed, he was not working because he elected to leave his last job as a patient care associate at a dialysis center in order to return to school on a full-time basis. The VRC explained that the Veteran reported no problems in his last job at the dialysis center related to his service-connected disabilities. The VRC explained that the Veteran's service-connected disabilities did not interfere with his employment as he left this job not due to any disability issues but to return to school as a full-time student. As noted above, the Veteran asserted that he needed to be in a clean environment with air conditioning due to his acne with scarring and eczema disabilities in the March 2018 NOD. He also asserted that he suffered from depression that would soon require being medicated, that he was living paycheck to paycheck, and that he needed to provide for his family. In a January 2019 statement, the Veteran expressed disagreement with the January 2018 VRC's assessment that he could work at a dialysis center again because he pointed out that he did not have the license to perform dialysis. He stated that he was unable to find work as a patient coordinator technician or dialysis technician because he did not have such a license. The Veteran asserted that he did not have the education or training to obtain a suitable career that would help support himself and his family. He noted that he was recently awarded a combined disability rating for service-connected disabilities of 80 percent. The Veteran also noted that he would like to be in a profession with a clean environment to help keep his skin from breaking out. He noted that he had symptoms of cystic acne and eczema. The Veteran's previous representative made very similar assertions in a September 2020 informal hearing presentation. The Board notes that the combined evaluation of the Veteran's service-connected disabilities was 80 percent from April 30, 2018, until November 1, 2019, at which time, the combined disability rating was reduced to 20 percent A September 2020 VA psychology note showed that the Veteran finished his nursing degree in June 2020 and that he was not currently working; however, he spent his time at home working on a remodel project. The January 2018 VRC provided another vocational rehabilitation evaluation in January 2021 after reviewing the Veteran's VR&E and VA treatment records and conversing with the Veteran over the telephone and through electronic mail (e-mail). The VRC noted that the Veteran was being seen at a VA medical facility for treatment for mental health and anxiety. The Veteran's psychiatric symptoms, including depression and anxiety, are not service connected and thus, are not to be considered in assessing his entitlement to Chapter 31 benefits. The VRC noted that VA treatment records also showed that the Veteran completed his resident nurse courses. The VRC detailed the communication between the Veteran and the VRC in November 2020, December 2020, and January 2021, which included requesting updated an RNI form, CareerScope assessment, and additional paperwork to be completed by the Veteran in conjunction with the evaluation. Although the record shows that the Veteran did not provide the requested information, the Veteran informed the VRC that he completed his Bachelor of Science in Nursing (BSN) and that he utilized the Post-9/11 GI Bill benefits for such a degree until these benefits were exhausted in June 2020. The VRC noted that at the time of the December 2020 telephone conversation with the Veteran, he was not working. The VRC concluded that the Veteran was not entitled to Chapter 31 benefits in 2018 or in January 2021. The VRC explained that in 2018, the non-entitlement was based on the fact that the service-connected disabilities were not interfering with his employment. Since then, the Veteran had completed a bachelors in nursing, which would be needed for his goal of working in nursing. The VRC noted that the CareerScope results from 2018 showed that the Veteran's strongest interests were in Humanitarian and Scientific fields, which would support his goal of working as a registered nurse. Given this evidence, the Board finds that entitlement to Chapter 31 benefits is not warranted. Specifically, the record shows based on the Veteran's transferrable skills, education, work experience, and training, he has overcome any impairment of employment to which his service-connected disabilities have substantially contributed, and he would be employable with his current skills, experience, and education. As noted above, applicable regulations state that an employment handicap does not exist where the individual has overcome the impairment of employment by having employment in an occupation consistent with his abilities, aptitudes, and interests. While the evidence of record reflects that the Veteran's service-connected disabilities have caused some difficulties with aspects of his employment for which he is currently in receipt of a 20 percent combined rating, the record nevertheless demonstrates that his service-connected disabilities would not cause an impairment in his stated goal of working as a registered nurse. The VRC reached this opinion in January 2018 and January 2021 based upon an interview with the Veteran and a review of his records, to include his CareerScope Inventory results. Accordingly, the Board assigns the opinions of the VRC great probative weight. Moreover, the Board notes that working as a nurse would entail working in a clean and air-conditioned environment, which is a stated goal for the Veteran due to his service-connected skin disabilities. Additionally, the record shows that the Veteran has attained a BSN in June 2020, which is a necessary degree to be employed as a registered nurse. See 38 C.F.R. § 21.72(a)(2). Overall, while the Veteran is not currently employed, as evidenced by the December 2020 telephone conversation between him and the VRC, the record does not show that he previously left the dialysis center position due to any problem with employment or that this employment was at risk due to any service-connected disability. Rather, the evidence shows that he left this position to pursue his nursing degree full time. As such, the Board finds that the statutory requirements for entitlement to VR&E benefits have not been met because the Veteran does not have an employment handicap and is therefore not in need of rehabilitation as he has attained a degree and training necessary to obtain gainful employment in the field of nursing, which is consistent with his abilities, aptitudes, and interests. 38 U.S.C. § 3101(8). Finally, 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). In reaching this determination, the Board acknowledges the Veteran's assertion that he wants to use Chapter 31 benefits in order to advance his career or training to provide financially for his family. However, the purpose of VR&E services is not to provide the participant with whatever level of career training he wants or to be employed in a higher-paying job by receiving additional training or school. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment, which the Veteran currently possesses. 38 C.F.R. § 21.70. The Board has considered the benefit of the doubt doctrine, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, after consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim, and the Veteran's claim must be denied as he is not entitled to VR&E benefits under the provisions of Chapter 31. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.