Citation Nr: 21029787 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-28 799 DATE: May 17, 2021 ORDER Entitlement to Veteran Readiness and Employment (VR&E) benefits other than employment services, to include pursuit of a Master of Business Administration (MBA) degree, pursuant to 38 U.S.C. Chapter 31 (Chapter 31), is denied. FINDING OF FACT The Veteran is currently employed in a suitable, management-level stable government position; he has overcome any impairment of employment to which his service-connected disabilities have substantially contributed. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits other than employment services, to include pursuit of an MBA degree, pursuant to Chapter 31 are not met. 38 U.S.C. §§ 3100, 3101, 3102; 38 C.F.R. §§ 21.40, 21.50, 21.51, 21.52, 21.70, 21.72, 21.94. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from February 1983 to May 1996. He also had active duty service with the United States Navy from May 1996 to May 1997; his discharge was under Other than Honorable conditions, and this period of service is dishonorable for VA purposes. The Veteran is a Gulf War Era Veteran who also served during Peacetime. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of the hearing is associated with the claims file. This matter was previously before the Board in November 2019, at which time the Board characterized the issue on appeal as entitlement to vocational rehabilitation and employment benefits. The Board notes that 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 front page of this decision. In November 2019, the Board remanded the matter on appeal for the Agency of Original Jurisdiction (AOJ) to associate with the claims file the Veteran's complete vocational rehabilitation and employment folder, which included the April 2016 letter of determination; to ask the Veteran to identify any and all health care providers who have provided treatment for his disabilities and to submit any evidence in his possession regarding attempts to obtain and retain employment in the field of management; and, to afford the Veteran a vocational rehabilitation evaluation that ascertains the current limitations caused by his service-connected disabilities and their effect on his ability to perform his occupational field as reflected by any existing signed individualized written rehabilitation plan (IWRP). The record shows that the pertinent vocational rehabilitation records have been associated with the claims file. The AOJ sent the Veteran a letter in September 2020 asking him to identify and submit the relevant evidence, and he underwent a vocational rehabilitation evaluation in November 2020. There was substantial compliance with the Board's November 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to VR&E benefits to apply towards a master's degree program, such as the MBA he received in April 2018. Specifically, although the Veteran has been employed in a management position as a housekeeping aid supervisor, he contended during the August 2019 Board hearing that a more senior management position, such as would be afforded with an MBA, would limit his interaction with angry customers. The Veteran testified that he attempted to obtain these positions with his current training, but that he had been unsuccessful in obtaining them. He further testified that the purpose of benefits and programs under Chapter 31 was to offer all services and assistance necessary to enable veterans with service-connected disabilities to achieve to the maximum extent feasible to become employable and to obtain and maintain suitable employment. Furthermore, in the November 2020 rehabilitation needs inventory form (RNI or VA Form 28-1902w), the Veteran asserted that he wanted to use the last 12 months of his VR&E benefits and that he was interested in pursuing a career in network marketing, entrepreneurship, and direct sales. The Board notes that the pertinent laws and regulations state that 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. Rehabilitation to the point of employability may include the services needed to train a Veteran 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). To obtain reentrance into rehabilitation to the point of employability, i.e., receive an additional period of training or services, the evidence must show the following: (1) the veteran has a compensable service-connected disability and either (2) the current facts, including any relevant medical findings, establish that the service-connected disability has worsened to the extent that the effects of the service-connected disability considered in relation to other facts precludes the veteran from performing the duties of the occupation for which he or she previously was found rehabilitated; or (3) the occupation for which the veteran previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of his or her specific employment handicap and capabilities. 38 C.F.R. § 21.284. 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. A veteran, a counseling psychologist, or a vocational rehabilitation specialist may request a change in the plan at any time. 38 C.F.R. § 21.94(a). A change in the statement of a long-range goal, however, may only be made following a reevaluation of a veteran's rehabilitation program by a counseling psychologist or vocational rehabilitation counselor (VRC). A change may be made when: (1) achievement of the current goal is no longer reasonably feasible; or (2) a veteran's circumstances have changed or new information has been developed which makes rehabilitation more likely if a different long-range goal is established; and (3) a veteran fully participates and concurs in the change. 38 C.F.R. § 21.94(b). A change in intermediate objectives or services provided under the plan may be made by the case manager when such change is necessary to carry out the statement of long-range goals. 38 C.F.R. § 21.94(c). 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). The record shows that the Veteran's current service-connected disabilities combine to a 100 percent evaluation, and that at least one disability has been rated as 20 percent disabling since April 30, 2008. The Veteran therefore met the threshold requirement for entitlement to a program of vocational rehabilitation, which is also reflected in this participation in the VR&E program from 2013 to 2017 pursuant to a signed IWRP where he was able to complete the objectives of his plan. Specifically, the record shows that the Veteran utilized Chapter 31 benefits during this time to attain a bachelor's degree in management with small business entrepreneur specialization, which he received in December 2016. However, the Veteran asserts that he is entitled to additional VR&E benefits to be applied toward an MBA degree, which he has already completed in 2018. The Board notes that to meet the requirements 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 obtain a master's degree in management or an MBA because he does not have an employment handicap for VA vocational rehabilitation purposes. The most up-to-date evidence of record, including the May 2017 statement of the case (SOC), the August 2019 Board hearing transcript, August 2020 and October 2020 psychiatric evaluations of the Veteran's posttraumatic stress disorder (PTSD) symptoms, April 2018 and November 2020 VA Forms 28-1902w, the November 2020 vocational rehabilitation evaluation report, and the December 2020 supplemental statement of the case (SSOC), shows that the Veteran has been employed as a housekeeping aid for a VA Medical Center (VAMC) from July 2012 to the present and that he was promoted to a supervisor in this position. He described his job duties as supervising staff during swing shift. He stated that he worked full-time, that this position was permanent, and that he earned an average gross monthly salary of $5,200.00. Previously, he was employed full-time as a Veterans Service Officer (VSO) from December 2007 to December 2019, where he earned $6,500.00 per month. Likewise, he worked in room service for a resort from January 2000 to December 2012, and held a second job as an office technician for a government entity from October 2005 to December 2007. In the November 2020 RNI, the Veteran asserted that he used administrative and clerical skills in his previous employment and that he has continuously had between two and four jobs at a time from January 2000 to December 2019. In this VA Form 28-1902w, the Veteran also noted that he received a bachelor's degree in December 2016 in business management, and that he was enrolled in graduate school between January 2017 and April 2018, when he earned an MBA degree. He reported that his service-connected PTSD with major depression, migraine headaches, diabetes mellitus type II, and neuropathy in all limbs affected his job performance, job satisfaction, job opportunities, and co-worker and manager relations, as well as caused him to have missed work time. Lastly, the Veteran noted that he was convicted of a felony in 1997, spent three years in prison, and is required to register as an offender for the rest of his life. In addition to this evidence, the record contains a December 2016 report of contact form (VA Form 119), in which the Veteran met with a VRC and assistance VR&E Officer to discuss his participation in the VR&E program. During the discussion, the Veteran reported that he owned a restaurant in the Philippines that was fairly successful and that he had a plan to open a second location, with the ultimate goal of opening a hotel and restaurant upon retirement. As noted above, the Veteran participated in the VR&E program from 2013 to 2017 based on an IWRP whose objectives included attaining a bachelor's degree in business management. However, in a November 2017 closure statement, VR&E staff determined that the Veteran received a maximum rehabilitation gain as he earned such a degree in December 2016, was suitably employed and was qualified and capable of obtaining employment in a suitable occupation, had overcome the impairments to employment that were noted during the initial evaluation, and he received a significant and measurable gain from the programs under Chapter 31. Thus, the Veteran's case was closed as he had attained the maximum rehabilitation gain. The record shows that the Veteran applied for re-entry into the VR&E program in February 2018. At the time, he asserted that his bachelor's degree did not improve his employment status, and that he had applied for supervisory and/or managerial positions on numerous occasions but that he was not successful. The AOJ denied the Veteran's re-entry into the VR&E program in April 2018 based on very similar reasons noted in the November 2017 closure statement. See 38 C.F.R. § 21.284. Following the Board's November 2019 remand instructions, the Veteran underwent a vocational rehabilitation evaluation in November 2020. After reviewing the pertinent records, which included the Veteran's VR&E documentation and his VA and private treatment records, and performing a face-to-face virtual interview, the VRC determined that the Veteran did not meet the criteria for entitlement to additional VR&E benefits or re-entry into the program. Specifically, the VRC concurred with the previous determinations by the VR&E program staff that the Veteran had overcome his impairments to employment. The VRC noted that although the Veteran attained the MBA degree on his own, or outside of the services of VR&E, in April 2018, this degree was not required for the Veteran to obtain suitable employment. The VRC explained that the services rendered under his previous IWRP, which supported him through a Bachelor of Science in Business Management, was more than sufficient to meet the Veteran's needs. Additionally, the VRC noted that the medical evidence would not substantiate the limitations from his service-connected disabilities as he successfully retired from the VSO position less than a year ago and he continues to work for the VAMC, where he has been employed since 2012. The VRC expressly noted that the Veteran was promoted to supervisor in the housekeeping division. The Board notes that a supervisory position is a management-level position. Overall, the VRC determined that the Veteran has the education, history of long-term employment, and transferable work skills to obtain, qualify, and/or maintain suitable employment within his aptitudes, interests, and abilities. The VRC noted that a review of the VA and private treatment records demonstrates that the Veteran is maintaining his service-connected disabilities, and that his current employment would be considered suitable and continues to not aggravate his disabilities. During the virtual evaluation, the Veteran presented as articulate and well-dressed, and had the ability to obtain employment that is well within his limits and under his control. In additional to the above finding, the VRC noted that the Veteran and the VRC had a long discussion and explanation about the VR&E program and how decisions are made. The VRC noted that the Veteran reported a better understanding of the process, and that at the end of the meeting the Veteran appeared content. It was the VRC's impression that the Veteran was not interested in further appeal and was ready to move on, and that the Veteran reported that he will be retiring from the VAMC position soon and moving back to the Philippines. Given this evidence, the Board finds that entitlement to additional Chapter 31 benefits, to include for an MBA degree, is not warranted. Specifically, the record shows that the Veteran is currently employed in a suitable, management-level, stable government position, and that he has overcome any impairment of employment to which his service-connected disabilities have substantially contributed. Specifically, the Veteran's original objective in attaining a bachelor's degree in business management was achieved in December 2016, and he was determined to have received the maximum gain from the VR&E program in 2017. The record shows that the Veteran already attained an MBA degree in April 2018, which the November 2020 VRC has determined was not required for the Veteran to obtain suitable employment. Moreover, the record also shows that the Veteran has held multiple jobs simultaneously during the appeal period, including being a supervisor in housekeeping aid for a VA medical facility, a VSO, and an owner of a successful restaurant. Thus, the Veteran has been employed in a managerial-level position, which is suitable employment within his aptitudes, interests, and abilities, and he has overcome any impairment of employment to which his service-connected disabilities have substantially contributed, due in part, because of his participation in the VR&E program. 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 in receipt of a 100 percent combined rating, the record nevertheless demonstrates that he has been able to successfully obtain and maintain employment in various positions for long periods of time. Overall, the Veteran has not reported that his current employment is at risk. As such, the Board finds that the statutory requirements for entitlement to additional Chapter 31 VR&E benefits, to include toward obtaining an MBA degree, have not been met because the Veteran does not have an employment handicap and is therefore not in need of further rehabilitation. See 38 C.F.R. §§ 21.72, 21.94. 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 wanted to use the last 12 months of his VR&E benefits as he was interested in pursuing a career in network marketing, entrepreneurship, and direct sales. However, the Board emphasizes that the purpose of Chapter 31 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 claim must be denied. Caroline B. Fleming 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.