Citation Nr: 21031064 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 19-02 649 DATE: May 20, 2021 ORDER Entitlement to Vocational Rehabilitation and Employment (VR&E) benefits, to include benefits other than employment service, under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code is denied. FINDINGS OF FACT 1. The Veteran currently meets the threshold service-connected disability requirement for a program of vocational rehabilitation. 2. The Veteran does not currently have an employment handicap for VR&E purposes. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 2011 to March 2015. A June 2020 Board decision remanded this appeal for further development. That development has been accomplished, and the appeal has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to Vocational Rehabilitation and Employment (VR&E) benefits, to include benefits other than employment service, under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code. The Veteran seeks entitlement to VR&E benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code. Specifically, in his April 2018 application for VR&E benefits, the Veteran asserted that he was entitled to benefits because he needed a bachelor's degree to continue to be marketable as a medical support assistant in his current position with the Long Beach VA Medical Center (VAMC). The purpose of training and rehabilitation benefits provided in 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. In the instant case, the Veteran's service-connected disabilities combine to no less than a 40 percent evaluation since April 2018, and therefore meets the threshold requirement for a program of vocational rehabilitation. However, 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. 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 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 Board finds that the Veteran does not meet this second requirement because he does not have an employment handicap for VA vocational rehabilitation purposes. The Veteran applied for VR&E benefits in April 2018, and his claim was denied in a September 2018 administrative decision letter. At that time, it was determined that the Veteran did not have an employment handicap and that he was currently suitably employed as a staff assistant at the Long Beach VAMC. The September 2018 administrative decision relied on a September 2018 vocational counseling record which detailed that the Veteran had neither a serious nor a general employment handicap. The September 2018 vocational counseling record found that the Veteran had successfully maintained employment as a medical staff assistant with the VA since 2015. The Veteran's employment was considered suitable based on his skills, interests, and abilities. It was further detailed that the Veteran was without a serious employment handicap of alcohol abuse, drug abuse, or severely disabling conditions. The counseling record found that the Veteran did not need monitoring or guidance to stay on track, was a stable member of his community, had no problems with communication, and had no substantial period of unemployment. Further, the Veteran self-reported no aggravations from his current employment to his service-connected disabilities. The Board has considered all of the Veteran's statements and assertions, as well as all of the evidence of record, and finds that the Veteran does not have an employment handicap as defined by the applicable regulation. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. As discussed earlier, 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. Here, there simply is no evidence of periods of unemployment or employment not consistent with the Veteran's abilities or aptitudes. Indeed, the Veteran himself has not asserted that his employment is unsuitable or incompatible with his own abilities or aptitude. He asserts only that he wishes to complete his higher-level degree to be more marketable in his current employment. The Board also notes that the Veteran was provided several opportunities to provide medical evidence of aggravation to his service-connected disabilities as a result of his employment and/or to simply justify his entitlement to VR&E benefits to which he failed to respond. For the reasons discussed above, the Board finds that the statutory requirements for entitlement to Chapter 31 VR&E benefits have not been met. The Veteran does not have an employment handicap for VR&E purposes and is therefore not in need of rehabilitation. Furthermore, because an employment handicap is a threshold requirement of having a serious employment handicap, the Board finds that the Veteran also does not have a serious employment handicap. 38 C.F.R. § 21.52 (a). 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). The evidence of record preponderates against the claim, and the Board concludes that the Veteran is not entitled to VR&E benefits under Chapter 31. The claim on appeal is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Peden 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.