Citation Nr: 22008050 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-67 087 DATE: February 11, 2022 ORDER The issue of entitlement to additional Veteran Readiness and Employment (VR&E) (formerly known as Vocational Rehabilitation and Employment) services under Chapter 31, Title 38, United States Code, other than employment services, to include pursuit of a master's degree, is denied. FINDINGS OF FACT 1. Through participation in the VR&E program, the Veteran received a bachelor of science degree in biology from The University of Wisconsin-La Crosse in May 2016. 2. Thereafter, the Veteran was accepted and enrolled in a master of science program, specifically a physician assistant (PA) program, offered by the Rosalind Franklin University of Medicine and Science (RFUMS). 3. The evidence does not demonstrate that, at the time the Veteran entered the PA program, his service-connected right shoulder, neck, low back, and/or right knee disabilities, or his tinnitus, hearing loss, and/or allergic rhinitis had worsened to the extent that the effects of the disabilities precluded him from performing the duties of the occupation for which he was previously found rehabilitated. 4. The Veteran's employment handicap and capabilities did not render 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 additional VR&E benefits, other than employment services, to include a master's degree in pursuit of a career as a PA, have not been met. 38 U.S.C. §§ 3100; 38 C.F.R. §§ 21.52, 21.72, 21.283, 21.284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from January 2003 to May 2006, to include overseas service in Iraq and Afghanistan. He had additional service in the United States Army Reserve, which service included a period of active duty from March 2008 to March 2009. His military decorations include the Combat Infantry Badge and the Purple Heart. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2017 administrative determination by a Department of Veterans Affairs (VA) VR&E Officer that the Veteran was not entitled to Chapter 31 benefits to complete a master's degree. The Veteran disagreed with that determination and subsequently perfected an appeal to the Board. In January 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Entitlement to Additional VR&E Benefits A review of the record shows that the Veteran was first scheduled to meet with a Vocational Rehabilitation Counselor (VRC) is February 2014 to determine whether he qualified for VR&E benefits. At that time, the Veteran completed a Career Scope Vocational Assessment and Rehabilitation Need Inventory (RNI) paperwork (VA Form 28-1902w). On his VA Form 28-1902w, the Veteran listed PA and radiation therapy as the jobs or career fields that he was most interested in; the Veteran also listed nuclear medicine technician on additional paperwork. A Counseling Record Narrative Report indicated that an Individualized Written Rehabilitation Plan (IWRP) would be developed. As justification for the selected plan, the VRC stated that the Veteran did not currently posses the necessary training/education to qualify for suitable employment. It was stated that through career research, the Veteran had documented his need for a bachelor's degree in biology to qualify for his long term goal of becoming a PA. The VRC then indicated that the Veteran would complete a bachelor's degree in biology, with a focus on PA, at the University of Wisconsin La Crosse; upon completion of this degree, it was agreed that the Veteran and the VRC would review the Veteran's eligibility for PA school or current employment options. In April 2014, an IWRP was completed, a review of which shows that the VR&E program was "[t]o obtain and maintain employment in the occupational group of [b]iology." Via letter dated June 7, 2016, the Veteran's VRC informed the Veteran that the evidence of record indicated that he is employable in a suitable job and, because the Veteran had completed all planned services, his case would be closed as "Rehabilitated." The Veteran was informed that the action would become final in 30 days if the VRC did not hear from the Veteran and that after that, the Veteran would have one year to appeal to the Board. On July 11, 2016, the Veteran was informed that his VR&E program had been interrupted because he had declined employment services. Via letter dated September 6, 2016, the Veteran was again informed that VR&E would be closing his case as "Rehabilitated." The Veteran was informed that he had 30 days to notify VR&E if he disagreed with that decision and one year to appeal to the Board. On October 17, 2016, the Veteran's VRC informed the Veteran that he had been declared rehabilitated. The VRC stated that that decision was based on the Veteran's successful completion of training under his rehabilitation plan. The VRC noted that the goal of the Veteran's plan was to obtain suitable employment; however, rather than pursue Chapter 31 employment services, the Veteran had decided to continue his education. The Veteran was informed that he could reapply for additional services in the future and the VR&E would provide employment services when the Veteran was ready to look for suitable employment. The Veteran was further informed that if he disagreed with that decision, he had one year within which to request Administrative Review, or he could file a formal appeal. In June 2017, the Veteran submitted a statement indicating his desire to dispute his recent VR&E case closure. Specifically, the Veteran expressed his disagreement with the VRC's finding that he was rehabilitated, noting that he had informed his VRC that his vocational goal was "to complete education requirements to become a physicians assistance." The Veteran reported that he was erroneously informed that he could not utilize VR&E benefits to obtain a master's degree and was not made aware that such benefit may be available to him to pursue a master's degree until he enrolled at in a PA program at Rosalind Franklin University of Medicine and Science (RFUMS) and was informed that other students in the program were receiving VR&E benefits. In response to the Veteran's June 2017 submission, a VR&E Officer conducted an administrative review of the Veteran's case on August 17, 2017, noting that the issue before him was entitlement to additional VR&E services and benefits to pursue a master's degree. The VR&E Officer set forth the pertinent facts of record, to include that the Veteran had been found entitled to Chapter 31 benefits and to have a serious employment handicap. The VR&E Officer then noted that an IWRP was developed in April 2014, the program goal of which was stated to be completion of a bachelor's degree in biology; it was further noted that in March 2016, the Veteran met with his VRC for his annual review, at which time he was informed that his IWRP approved training for a bachelor's degree in biology would qualify him for suitable employment and the need for additional education would not be authorized under Chapter 31. Ultimately, upon review of the evidence, the VR&E Officer denied that Veteran's request for additional VR&E benefits to pursue a master's degree. In October 2017, the Veteran filed a Notice of Disagreement, indicating his desire to appeal an August 2017 determination. Chapter 31 of Title 38 of the U.S. Code establishes a program of training and rehabilitation to assist veterans in overcoming employment handicaps. The purpose of the rehabilitation program is to provide "all services and assistance necessary to enable [veterans] 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(a). In this case, the Veteran's basic eligibility for VR&E benefits is not in dispute, as he has already received training under this program (and was participating in the program when the dispute leading to this appeal originated). Rather, the issue is whether he is entitled to additional training beyond that contemplated in his June 1998 IWRP. As noted, additional training was denied on several bases, the most notable of which the Board finds to be that the Veteran was considered employable in a field related to his academic study of law. Pertinent to this case, applicable regulations provide that a veteran is essentially rehabilitated in cases in which the goals of the rehabilitation program or a program of employment services have been substantially achieved. 38 C.F.R. § 21.196. Further, a veteran shall be determined to be rehabilitated to the point of employability when he is employable in an occupation for which a vocational rehabilitation program has been provided under 38 U.S.C. Chapter 31. 38 C.F.R. §§ 21.35(e), 21.283. Rehabilitation to the point of employability may include the services needed to evaluate and improve a veteran's ability to undertake training; and train him to the level generally recognized as necessary for entry into employment in a suitable occupational objective. 38 C.F.R. § 21.72. Where a particular degree, diploma, or certificate is generally necessary for entry into the occupation, a veteran shall be trained to that level. Id. It is also indicated that a veteran shall be declared rehabilitated when he or she has overcome the employment handicap to the maximum extent feasible as described in 38 C.F.R. § 21.283(c), (d), or (e). 38 C.F.R. § 21.283(a). Further, a veteran who has been found rehabilitated to the point of employability shall be declared rehabilitated when, among other things, he or she pursues additional education or training, in lieu of obtaining employment, after completing the prescribed program of training and rehabilitation services if (i) the additional education or training is not approvable as part of the veteran's rehabilitation program under this chapter; and (ii) achievement of employment consistent with the veteran's aptitudes, interests, and abilities will be enhanced by the completion of the additional education or training. 38 C.F.R. § 21.283(c). With respect to whether the Veteran was "rehabilitated" by virtue of his receipt of a bachelor's degree in 2106, the Veteran's VRC found the Veteran to be rehabilitated to the point of employability, noting that although the Veteran was not seeking employment at that time, he was considered marketable in a suitable field. In this regard, the Board points out that the Veteran's VR&E program goal, as set forth in his IWRP, was to "obtain and maintain employment in the occupational group of[ b]iology." Thus, although the Veteran's long term goal was to become PA, as noted above, a veteran is essentially rehabilitated in cases in which the goals of the rehabilitation program or a program of employment services have been substantially achieved. 38 C.F.R. § 21.196. Given that the Veteran obtained a bachelor's degree, which would allow for him to obtain and sustain employment in a biology-related field, the Board cannot conclude that the rehabilitation program goals were not substantially achieved. Furthermore, the additional training for which the Veteran seeks approval under the VR&E program was enrollment in a master's degree program offered by RFUMS. This would demonstrate that the Veteran was "rehabilitated" as defined by regulation, as he was pursuing additional education, in lieu of obtaining employment contemplated in the IWRP, after completing his prescribed program of training. As noted in the February 2012 Narrative Report, upon completion of the Veteran's bachelor's degree, the Veteran and his VRC would review the Veteran's eligibility for PA school or current employment options. In March 2016, the Veteran met with his VRC and an employment plan was developed, the program goal of which was to "acquire and maintain entry level employment in the occupational goal of[ b]iological technician or related." It was noted, however, the Veteran would be pursuing further schooling and that he had declined Chapter 31 employment services. Notably, the additional education was never approved as part of the Veteran's rehabilitation program; however, achievement of employment consistent with the veteran's aptitudes, interests, and abilities would have been enhanced by the completion of the additional legal education. See 38 C.F.R. § 21.283(c)(3). The Board thus finds that the Veteran was in fact "rehabilitated" when he enrolled in the master's degree program offered by RFUMS. See 38 C.F.R. § 21.283(c)(3). As to the Veteran's argument that obtaining a master's degree in order to become a PA had always been part of his vocational rehabilitation program goal, the Board points out that the 2014 IWRP makes no mention of continued studies after the Veteran obtained his bachelor's degree. Thus, although the Veteran had several times expressed his desire for additional schooling beyond a bachelor's degree, it is clear from the 2014 IWRP that only pursuit of a bachelor's degree was approved. Further, as demonstrated by the Narrative Report, the Veteran was made aware that the possibility of additional schooling would only be discussed upon completion of his bachelor's degree. There is no suggestion, however, that any additional schooling was deemed necessary. The Board understands that the Veteran believes that he was entitled to approval of additional training. To the extent that he claims a change in the program was warranted, the applicable regulation provides that the veteran, a counseling psychologist, or the vocational rehabilitation specialist may request a change in a plan at any time. 38 C.F.R. § 21.94. A change in the statement of a long-range goal may only be made following a re-evaluation of the veteran's rehabilitation program by the counseling psychologist. A change may be made when (1) achievement of the current goal(s) is no longer reasonably feasible; (2) the 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) the veteran fully participates and concurs in the change. 38 C.F.R. § 21.94(b). This regulation does not apply in this case because it does not appear that the Veteran, a counseling psychologist, or the vocational rehabilitation specialist had requested a change in the plan to encompass pursuit of a master's degree. Indeed, at each annual review, it was stated that no change in the IWRP was needed. Moreover, the master's program for which the Veteran seeks approval was to assist him in achieving his long term goal and could not have been considered to be in support of a different long-range goal. Furthermore, at the time that the Veteran received his bachelor's degree in May 2014, the specified program goal was feasible and the Veteran's circumstances had not changed nor had new information been developed which made rehabilitation more likely if a different long-range goal was established. The Veteran had instead decided to attend the master's degree program to enhance his education. The Board has also considered the applicability of 38 C.F.R. § 21.72(b)(2), which provides that a higher level of training is appropriate in order to offset a competitive disadvantage for veterans with serious employment handicaps. 38 C.F.R. § 21.72(b)(2). At the time that the Veteran entered the master's degree program, the Veteran was considered to have a serious employment handicap. However, pursuant to 38 C.F.R. § 21.72(b)(2), a higher level of training is available only when (1) the veteran is preparing for a type of work in which he or she will be at a definite disadvantage on competing with nondisabled persons for jobs or business, and the additional training will help to offset the competitive disadvantage; (2) the number of feasible occupations are restricted, and additional training will enhance the veteran's employability in one of those occupations; or (3) the number of employment opportunities with feasible occupations are restricted. Here, the Board cannot say that the criteria of 38 C.F.R. § 21.72(b)(2) have been met. There is no indication that the Veteran would have been at a definite disadvantage competing with nondisabled persons for biological technician or biology-related positions. Moreover, web documents regarding employment statistics for biological technicians, which were submitted at the time of the Veteran's initial appointment with his VRC, show that approximately 80,000 jobs existed in 2012 and that job opportunities were projected to increase 10 percent over the next 10 years. Furthermore, the Bureau of Labor Statistics identifies multiple occupations for workers with a biology degree. See https://www.bls.gov/ooh/field-of-degree/biology/biology-field-of-degree.htm. Thus, it cannot be said the number of feasible occupations is restricted, or that employment opportunities within those feasible occupations was restricted. The Board also points out that in order to obtain reentrance into rehabilitation to the point of employability, i.e., to 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 then) 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/she previously was found rehabilitated; or (3) the occupation for which he/she previously was found rehabilitated under Chapter 31 is found to be unsuitable on the basis of her specific employment handicap and capabilities. 38 C.F.R. § 21.284. Here, the Board finds that entitlement to reentrance into a rehabilitation program at the time that the Veteran started the master's degree program was not warranted. In the instant case, the Veteran is service-connected right shoulder, neck, low back, and right knee disabilities, as well as for tinnitus, hearing loss, and allergic rhinitis. The evidence does not suggest, and the Veteran has not asserted, that any of these service-connected conditions had increased in severity during the time he was enrolled in the undergraduate degree program or at any time leading up to his entrance into the master's program. The evidence also does not demonstrate that these disabilities had worsened to the extent that their effects, considered in relation to other facts, precluded the Veteran from performing the duties of the occupation for which he previously was found rehabilitated; nor does the evidence show that the occupation for which the veteran previously was found rehabilitated under Chapter 31 was unsuitable on the basis of his specific employment handicap and capabilities. 38 C.F.R. § 21.284(a)(2), (3). Lastly, the Board has considered the argument raised by the Veteran's attorney during the January 2021 Board hearing that the matter must be remanded because the Veteran was never deemed rehabilitated. However, as discussed above, the evidence clearly establishes that such a finding was made. Thus, the attorney's argument does not support remand in this case. The Veteran's attorney has also argued that there was no discussion as to whether the suitable entry level employment met the requirements of the Veteran's IWRP. The Board similarly disagrees with this argument. Indeed, as set forth in the March 2016 employment plan, the Veteran had a goal of acquiring and maintaining entry level employment in the occupational goal of biological technician or related. This falls squarely within the Veteran's IWRP goal of obtaining a bachelor's degree in biology. The Veteran's attorney also indicated that the Veteran had relied on bad advice on the part of VA regarding the availability of VR&E benefits for pursuit of a master's program. Again, the Board points out that it was discussed early in the rehabilitation process that consideration of additional training would be addressed upon completion of the Veteran's bachelor's degree. To the extent that the Veteran believes he was misled in any way, the Board is sympathetic. However, nothing in the record suggests that the Veteran was in fact misinformed or in any way told that VR&E benefits are categorically not available for pursuit of a master's degree. Further, even if the Veteran was in any way misinformed, any misinformation then provided cannot now serve as a basis for establishing eligibility for additional VR&E benefits where it does not otherwise exist. Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (benefits cannot be awarded on the basis of the VA's failure to provide a veteran with accurate information pertaining to eligibility). Upon consideration of the foregoing, the Board's finds that the evidence is neither evenly balanced nor approximately so with regard to whether additional VR&E benefits for completion of a master's degree are warranted. Rather, the evidence persuasively weighs against such a finding. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, as the evidence of record is persuasively against the Veteran's claim, entitlement VR&E Chapter 31 program benefits to complete a master's degree must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.