Citation Nr: 21041318
Decision Date: 07/08/21	Archive Date: 07/08/21

DOCKET NO. 19-10 153
DATE:  July 8, 2021

ORDER

Entitlement to Veteran Readiness and Employment (VR&E) benefits, other than employment benefits, to include the pursuit of an educational goal to obtain a bachelor's degree, pursuant to 38 U.S.C. Chapter 31 (Chapter 31) is denied.

FINDING OF FACT

1. The Veteran was found entitled to VR&E benefits with a serious employment handicap in the June 2020 vocational assessment but a feasibility determination regarding the Veteran's stated goal of successfully attaining a bachelor's degree in business was deferred pending an extended evaluation. 

2. In August 2020, the Veteran participated in an extended evaluation, which was recommended by his Vocational Rehabilitation Counselor (VRC), and entailed a 10-day work experience during which VR&E staff monitored his progress, identified and worked to overcome any barriers to his ability to work, and gathered information to be able to make a feasibility determination. 

3. The totality of the evidence shows that the severity of the Veteran's service-connected and nonservice-connected disabilities, as well as barriers to his physical, behavioral, and mental health, including mechanical reasoning, spatial and form perception, arithmetic computation, and work history, renders achievement of his educational goal of attaining a bachelor's degree infeasible.

CONCLUSION OF LAW

The criteria for entitlement to VR&E benefits, other than employment benefits, to include the pursuit of an educational goal to obtain a bachelor's degree, pursuant to Chapter 31 have not been met. 38 U.S.C. §§ 3100, 3101, 3102, 3104, 3106, 3107; 38 C.F.R. §§ 21.35, 21.40, 21.50, 21.53, 21.57, 21.70, 21.86. 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active duty from February 1976 to June 1978. 

This matter was previously before the Board in December 2019, at which time, the Board characterized the issue on appeal as entitlement to Vocational Rehabilitation and Employment benefits through the Department of Veterans Affairs (VA), other than employment benefits, to include pursuit of education to obtain a bachelor's degree, pursuant to Chapter 31. 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 December 2019, the Board remanded the matter on appeal for the Agency of Original Jurisdiction (AOJ) for the following actions: (1) associate with the claims file the Veteran's complete VR&E folder; (2) request from the Veteran any evidence in his possession regarding his attempts to obtain and complete his education and bachelor's degree; (3) ask the Veteran to provide the names and addresses of health care providers who have provided treatment for his service-connected disabilities and to associate such records with the claims file; (4) afford the Veteran a vocational rehabilitation evaluation to determine whether the Veteran's vocational or educational goal was feasible. 

As discussed by the Veteran's representative in the April 2021 informal hearing presentation, the record shows that the pertinent VR&E records and updated VA and private treatment records have been associated with the claims file, and that the Veteran has submitted various unofficial transcripts and eduction records that were in his possession. A VRC submitted an evaluation in June 2020, and an extended evaluation report was completed in September 2020 discussing the feasibility of the Veteran's stated educational goal. There was substantial compliance with the Board's December 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran is seeking Chapter 31 benefits in order to obtain a bachelor's degree. Specifically, in numerous statements throughout the appeal, including in the March 2019 Substantive Appeal to the Board (VA Form 9), the Veteran was requesting to use his Chapter 31 benefits in order to obtain a bachelor's degree so that he could work in real estate. Likewise, he has asserted during the appeal that he would like to work as a social worker, lawyer, or firefighter. Moreover, in the April 2021 informal hearing presentation, the Veteran's representative asserted that the Veteran is attempting to attain a four-year or a bachelor's degree in order to achieve his employment goal of working as a real estate agent, which required a bachelor's degree. 

The purpose of VA's rehabilitation program is to provide for services and assistance necessary to enable veterans with service-connected disabilities to achieve independence in daily living and, to the extent possible, become employable and obtain and maintain suitable employment. 38 U.S.C. § 3101; 38 C.F.R. § 21.70.

Generally, a veteran seeking Chapter 31 vocational rehabilitation training will initially be assigned a specific case status of "applicant," and if he or she attends the appointment for an initial evaluation, progresses to "evaluation and planning" status. See 38 C.F.R. § 21.180. During evaluation and planning status, it is determined whether the veteran has an employment handicap and whether achievement of a vocational goal is feasible, and a plan is developed. See 38 C.F.R. § 21.184. When a decision concerning achievement of a vocational goal cannot be made during the initial evaluation, the veteran may be assigned to "extended evaluation" status, and extended evaluation status is continued whenever a veteran is receiving rehabilitation services prescribed in the Individualized Extended Evaluation Plan (IEEP). 38 C.F.R. § 21.188.

Additionally, a variety of situations may arise in the course of a rehabilitation program in which a temporary suspension of the program is warranted, and the veteran's case is thereby assigned an "interrupted" status. 38 C.F.R. § 21.197(a). In each case, VA must first determine that the veteran will be able to return to a rehabilitation program or a program of employment services following resolution of the situation causing the interruption. Id. Assignment to "interrupted" status is made when VA determines that a suspension of services being provided is necessary; and either a definite date for resumption of the program is established or the evidence indicates the veteran will be able to resume the program at some future date, which can be approximately established. 38 C.F.R. § 21.197(b). In situations where termination of all services and benefits received under Chapter 31 is necessary, the veteran's case is assigned a "discontinued" status. 38 C.F.R. § 21.198(a).

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 VA counseling psychologist (CP) or a VRC determines whether achievement of a vocational goal is reasonably feasible. 38 C.F.R. § 21.53(g). Any reasonable doubt as to feasibility will be resolved in the veteran's favor. 38 C.F.R. § 21.57(c)(1).

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) a 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 phrase "achievement of a vocational goal is reasonably feasible" means the effects of a veteran's disabilities (service and nonservice connected), when considered in relation to the circumstances, do not prevent him or her from successfully pursuing a vocational rehabilitation program and successfully becoming gainfully employed in an occupation consistent with a veteran's abilities, aptitudes, and interests. 38 C.F.R. § 21.35(h).

In contrast, the phrase "achievement of a vocational goal is not currently reasonably feasible" means the effects of the veteran's disabilities (service and nonservice-connected), when considered in relation to the veteran's circumstances at the time of the determination: (i) prevent the veteran from successfully achieving a vocational goal at that time; or, (ii) are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. Id. 

In making the determination as to the feasibility of a vocational goal, VA must offer the veteran an initial evaluation under the provisions of 38 C.F.R. § 21.50. However, where such determination cannot be made on the basis of information developed during the initial evaluation, an extended evaluation is required. See 38 C.F.R. § 21.57. The determination of the reasonable feasibility of a veteran achieving a vocational goal must be made at the earliest time possible during an extended evaluation, but not later than the end of the period of evaluation. A CP or VRC are responsible for determining the need for a period of extended evaluation. 38 C.F.R. § 21.57(d).

Following a thorough review of the evidence of record, the Board finds that entitlement to VR&E benefits to pursue an educational goal of obtaining a bachelor's degree is not warranted. The reasons follow. 

Initially, the Board notes that the Veteran's basic eligibility for vocational rehabilitation benefits is not at issue, as he has service-connected disabilities compensable at 20 percent or more and is in need of rehabilitation to overcome an employment handicap. Specifically, the record shows that service connection has been established for a scar, status-post nasal laceration (rated as noncompensable or zero percent disabling) and anxiety disorder, which was rated 30 percent disabling prior to March 9, 2016, and as 50 percent disabling thereafter. The combined disability rating for the Veteran's service-connected disabilities has been 50 percent since March 9, 2016. Moreover, the June 2020 Counseling Record-Narrative Report (Counseling Record) reflects that the Veteran was found to have a serious employment handicap by the VRC. Therefore, the facts establish that the basic eligibility requirements for vocational rehabilitation benefits are met.

In fact, the record shows that the Veteran has utilized Chapter 31 benefits, since at least 2014, when he was previously determined to have a serious employment handicap following a June 2014 initial vocational evaluation. The evidence, including multiple notifications from the VRC in 2015, 2016, and 2017, shows that although his VR&E services were proposed to be discontinued and interrupted on several occasions, he was participating in the VR&E program. Furthermore, VR&E retroactively reimbursed him for several classes he took at two academic institutions that led to certain certificate degrees. See 38 C.F.R. § 21.282. 

In the June 2020 Counseling Record, the VRC discussed the communication and interactions between the Veteran and VR&E staff between March 2020 and when the evaluation occurred in June 2020. The Counseling Record reflects that the Veteran reported that he had completed an Associate of Arts (AA) degree in business in 2010 and an AA degree in social and behavioral sciences. His vocational training included a trucking driver's license, and he also held professional certificates in real estate, accounting, and business. However, the report further showed that the Veteran earned a certificate of achievement in business in June 1987 and such certificates in escrow in 1998 and real estate broker in January 2014. This report also showed that he had an AA in business in 1990, rather than in 2010, as stated elsewhere in the report, and another AA degree in general studies/social and behavioral science, which he earned in December 2019. His skills certificates included accounting assistant (July 2010), A+ certification training (March 2013), real estate sales (January 2015), and real estate agent (January 2015). The VRC noted that the Veteran had been attending classes at two colleges for approximately 30 years. The Veteran reported that he was currently taking classes at these two academic institutions. The VRC also noted that it was not until May 2020 that she had discovered that the Veteran had earned two AA degrees even though the record shows that this VRC has been providing VR&E services to the Veteran for several years. 

The VRC documented it was unknown if the Veteran had transferrable skills from training, but he did not have any viable military transferrable skills for civilian employment. He reported that he was unemployed and that his last dates of employment were from February 2005 to March 2006. He earned a salary of $4,300.00 per month working as a bulk truck driver, and his duties included driving, making deliveries, operating trucks, and loading equipment. He stated that he left that job because this work increased his anxiety. He reported that he had mandatory overtime work and that this job had a lot of pressure and deadlines. The Veteran stated that the job involved heavy lifting and repetitive stooping and bending. He reported that he was let go unjustly, as he was accused of deserting his job. The VRC determined that the Veteran's disability factors precluded his ability to return to this previous type of work. 

Based on this evaluation, and after considering the Veteran's work history, education, transferrable skills, aptitudes, interests, and abilities, the VRC determined that, although the Veteran had an employment handicap and a serious employment handicap, the feasibility of achieving this stated educational and vocational goal could not be determined. Specifically, the VRC recommended an extended evaluation, as the feasibility is in question due to the Veteran's lack of employment history. The VRC noted that, presently, the Veteran's physical, behavioral, and mental health posed as barriers. The VRC documented that the Veteran had attempted to complete a Bachelor of Science degree in business and had been enrolled in school for close to 30 years. The VRC noted that the Veteran was previously at an additional academic institution but was expelled due to a low grade point average (GPA) and he was not allowed to return to this school unless his GPA improved. The VRC stated that this would require retaking numerous classes. The Veteran told the VRC that he wished to pursue a business or social work degree. The VRC determined that an extended evaluation was warranted to establish the baseline of exacerbation to service-connected disabilities in a workplace setting, where the Veteran's worker traits would be assessed, and he would be provided with aptitude testing and interest testing. 

The extended evaluation, which consisted of a 10-day work experience, was conducted in August 2020. The vocational evaluator, who was a different individual than the VRC who completed the June 2020 Counseling Record, submitted a September 2020 vocational evaluation report based on the August 2020 extended evaluation. Following a thorough evaluation, which included observations of the Veteran's work participation over a 10-day period, review of his medical and educational records, consideration of his past work history and transferrable skills, and analysis of various diagnostic assessments tools, the evaluator identified the Veteran's assets and barriers. Specifically, his strongest vocational assets were: untimed cognitive processing/general learning ability, spelling, vocabulary, work pace, fine finger dexterity, manual dexterity, ability to follow simple diagrammatic instructions, and sorting and inspecting skills. The evaluator determined these assets and abilities were average. The Veteran also demonstrated the ability to handle money and make correct change, had average sales aptitude and behavioral/personality characteristics that relate to success in sales occupations, was able to lift and carry 25 pounds, and had stable physical tolerances. He accepted supervision in an appropriate manner and had a positive punctuality and participation pattern. He also reported minimal to no pain or discomfort or difficulty with concentration. He reported that he was an exceptional time manager and that he had a readiness to pursue work/training. He also had a license to drive and had obtained a high school diploma and two AA degrees in business. 

However, the evaluator found the Veteran's barriers or cautions included: timed cognitive processing/general learning ability, demonstration of ability to follow oral English directions, reading comprehension, arithmetic computation level, spatial and form perception, mechanical reasoning, and planning and organization skills. These factors were all found to be below average. The evaluator documented the Veteran also demonstrated difficulty following complex diagrammatic instructions, had below average rapid proofreading ability comparing numbers with numbers and names with names for errors, had below average speed and accuracy in performing tasks related to clerical work, had the ability to type six (6) correct words per minute, had below average knowledge of supervisory practices and business concepts, experienced difficulty following instructions on tasks, showed below average knowledge of desirable and undesirable attitudes/behaviors of sales people in various fields, and had difficulty with tasks requiring short term memory. Furthermore, the evaluator noted that the Veteran's recent work history varied and was short term. The Veteran reported having environmental aversions to cold, heat, dust, fumes, noise, and smog. He also reported that he was not ready to return to full-time work. 

The evaluator recommended that the Veteran take adult basic education training to improve his academic skill levels in reading comprehension and mathematics. The evaluator also recommended that the Veteran take basic computer skills training and that he should have a position that accommodated for periodic sitting and standing. The Veteran reported that he wanted to work as a firefighter or a lawyer. The evaluator stated that the Veteran could currently be employed as an office assistant, customer service representative, and a shipper and receiving clerk based on his physical tolerances, stamina, and endurance, as well as his demonstrations of academic levels and occupational aptitudes during the evaluation. The evaluator noted that the Veteran could also benefit from vocational training as a billing and posting clerk and/or insurance claims and policy processing clerk. However, the evaluator noted that most of the Veteran's occupational inventories showed a dramatic variance of career choices from his stated goals of being a lawyer or a firefighter. 

Based on the June 2020 initial evaluation and the August 2020 extended evaluation findings, the VRC again determined in a December 2020 supplemental statement of the case (SSOC), that the Veteran was not entitled to VR&E benefits to pursue a bachelor's degree. The Board notes that in the December 2020 SSOC, the VR&E Officer (VREO) agreed with the VRC's assessment that the Veteran's goal of obtaining a bachelor's degree was not feasible. 

In January 2021, the Veteran contended that he was entitled to Chapter 31 benefits to pursue a bachelor's degree. Furthermore, in the April 2021 informal hearing presentation, the Veteran's representative stated that the Veteran's interests were antithetical to the clerical, processing clerk, shipping and receiving clerk, and customer service representative positions, which were noted by the VRC and the September 2020 evaluation report as possible employment options for the Veteran. The Veteran's representative also asserted that based on the evidence and conclusions of his case, it must be concluded that when considering the effects of the Veteran's service-connected disabilities, he is not a good candidate for continued VR&E training or for employment. However, the representative continued by stating that the same evidence and conclusion would lead a reasonable mind to conclude that Veteran's tenacity, determination, and perseverance had led him to overcome the many educational obstacles in his path for over 30 years. The representative noted that according to the evidence, it seems that the Veteran was a poor candidate to earn an associate degree and his many certificates, but he had overcome every obstacle, and must be afforded the opportunity to achieve his employment goals of being a real estate agent, which requires a bachelor's degree. The representative stated that the Veteran must be afforded the opportunity to succeed, which also means the opportunity to fail. 

Upon review of all of the evidence of record, including the statements from the Veteran and his representative, his work history, stated vocational and educational goal, clinical evaluations of his service-connected and nonservice-connected disabilities, and the barriers identified in the September 2020 evaluation report, the Board concurs with the determinations of the VR&E VRC and VREO, and finds that the weight of the evidence is against a finding that the Veteran's particular stated goal of successfully attaining a bachelor's degree in business is reasonably feasible at this time. In this making this determination, the Board has carefully and sympathetically considered the evidence of record, but finds that the evidence weighs against the benefit sought. The evidence demonstrates that the Veteran would have difficulty obtaining a bachelor's degree in business due to his service-connected psychiatric disorder. However, it is his nonservice-connected disabilities and symptoms, namely, his difficulty with short-term memory, and below average timed cognitive processing/general learning ability, demonstration of ability to follow oral English directions, reading comprehension, arithmetic computation level, spatial and form perception, mechanical reasoning, and planning and organization skills, that renders achievement of this goal infeasible.

The Board is cognizant of the Veteran's assertions regarding his sincere belief his goal is reasonably feasible. Furthermore, the Board acknowledges the April 2021 statements from the Veteran's representative that the Veteran should be given an opportunity to succeed in obtaining a bachelor's degree, even if it means that he might fail at such an endeavor. However, the Board finds that the lay assertions made in support of the Veteran's claim are not entitled to more weight than the objective findings rendered by trained vocational counselors in evaluating the Veteran's claim. After evaluating the Veteran, the VRC and the September 2020 vocational evaluator made negative feasibility determinations. The VREO concurred with the VRC's determination in the December 2020 SSOC. These determinations were based on the fact that the Veteran had cognitive, mental, and memory problems, as well as life circumstances, which imposed limitations on his ability to successfully obtain a bachelor's degree. The Board considers it significant that the VRC, September 2020 evaluator, and the VREO have extensive specialized training in vocational rehabilitation. That adds to the probative weight of their assessments. See Black v. Brown, 10 Vet. App. 297 (1997) (an opinion rendered by one with specialized training may be considered more probative than a non-specialist's finding).

As a final matter, the Board emphasizes that the purpose of VR&E services is not to provide the claimant with whatever level of education and career training he chooses should his interests or career objectives change. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. 38 C.F.R. § 21.70. However, the Board finds that the totality of the evidence of record shows that the Veteran's achievement of his desired goal of obtaining a bachelor's degree in business is not reasonably feasible for all the reasons laid out above. See 38 C.F.R. §§ 21.35(h), 21.50(b)(3), 21.53(d). 

Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application, and the claim for entitlement to VR&E benefits, other than employment benefits, to include the pursuit of an educational goal to obtain a bachelor's degree, under Chapter 31 is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

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.