Citation Nr: 22014642 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-06 843 DATE: March 14, 2022 ORDER Entitlement to veteran readiness and employment (VR&E) benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code, is denied. FINDING OF FACT The Veteran successfully pursued and was presumably awarded a Juris Doctor degree during the pendency of the appeal; the weight of the evidence is against a finding that the Veteran's service-connected disabilities impair his ability to prepare for, obtain, or keep employment in his chosen occupation. 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 served on active duty in the United States Army from February 1982 to March 1986, from October 1978 to May 1988, and from May 1990 to March 2009. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an August 16, 2017, administrative decision issued by a Department of Veterans Affairs (VA) Vocational Rehabilitation Counselor (VRC). When the Veteran submitted his January 2018 substantive appeal to the Board (VA Form 9), he requested the opportunity to testify at a hearing before the Board. He was scheduled for a Board virtual tele-hearing to be held in February 2022. That hearing was subsequently cancelled by the Veteran. Thus, the Veteran's request for a hearing is deemed withdrawn and the Board will proceed with the adjudication of the claim on appeal. Entitlement to VR&E benefits 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. When the Veteran filed his claim for VR&E benefits, he indicated that he was in his third year of law school and that he was using education benefits under Chapter 33 (post 9/11 GI Bill) benefits to obtain his Juris Doctor degree. He further indicated that had enough Chapter 33 entitlement remaining to cover the costs associated with finishing law school but that he needed assistance preparing for and paying for the California Bar Examination. 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 need rehabilitation because of an employment handicap. 38 U.S.C. § 3.102; 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. In the instant case, the Veteran's service-connected disabilities combine to a 100 percent evaluation. The Veteran therefore meets the threshold percentage requirement for entitlement to a program of vocational rehabilitation. However, to meet the remaining requirements for a program of vocational rehabilitation, he must also be determined by VA to need 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 meet this second requirement because he does not have an employment handicap for VA vocational rehabilitation purposes. At the time the Veteran applied for VR&E benefits, he was full-time student at Pacific Coast University School of Law in pursuit of a Juris Doctor degree. See August 2017 Counseling Record Narrative Report. Important for this case, the Veteran stated that he had enough entitlement remaining under Chapter 33 to pay for his law school education but that he was seeking VR&E benefits under Chapter 31 to pay for the expenses associated with preparing for and taking the California Bar Examination. Id. The Veteran completed an individual counseling session with a VRC in August 2017. In the corresponding evaluation report, the VRC noted that the Veteran had previously received a Master of Science degree in Disaster Management/Risk Analysis at Touro University where he graduated Summa Cum Laude in 2007 and that he also had a Bachelor's degree in Political Science and a minor in Sociology. Id. The VRC discussed the impact of the Veteran's service-connected and nonservice-connected disabilities on his employability and opined that the Veteran's disabilities do not impair his ability to prepare for, obtain, and/or maintain employment consistent with his abilities, aptitudes, and interests. Id. In other words, the VRC found that the Veteran did not have an employment handicap and that he was employable based on his educational background (i.e., a Bachelor's degree, a Master's degree, and a pending Juris Doctor degree), his past work experience (i.e., as a Human Resource Specialist), and his transferrable skills. Id. The applicable regulations state that an employment handicap does not exist where the individual does not have an impairment in the ability to prepare for, obtain, or keep employment, or has overcome the impairment of employment by having employment in an occupation consistent with his abilities, aptitudes, and interests. While the Veteran asserts that his service-connected disabilities significantly impair his ability to obtain and maintain employment, the record nevertheless demonstrates that he was successfully enrolled as a full-time student in pursuit of a law degree at the time of his application for VR&E benefits. There is no indication the record that the Veteran did not successfully complete his legal education. Likewise, there is no indication in the record that the Veteran did not take or that he failed the California Bar Examination. Lastly, the record before the Board does not contain any evidence nor assertion from the Veteran that he has experienced difficulties obtaining or maintaining suitable employment in his chosen field since he graduated from law school. Additionally, records reveal that the Veteran had previous full and part-time employment prior to law school and while pursuing undergraduate and graduate education. At no time was it indicated that service connected disabilities interfered with any of this work or study. During the August 2017 evaluation with the VRC, the Veteran indicated that he left his previous full-time job as a Human Resource Specialist because of stress due to his long commute to work. However, the VRC noted in the evaluation report that the Veteran's disability factors did not preclude him from returning to or maintaining employment with his former employer. Likewise, there is no indication in the record that the Veteran was having difficulty finding employment at the time he applied for VR&E benefits. Rather, the record reflects that the Veteran was in pursuit of a legal degree (albeit with the financial assistance of Chapter 33 benefits) and that, while he had enough entitlement to cover the costs of his law school eduction, he did not have enough entitlement to pay for the expenses associated with preparing for and taking the California Bar Examination. Having carefully considered the evidence of record, including the Veteran's statements, the Board finds that the statutory and regulatory requirements for entitlement to Chapter 31 VR&E benefits have not been met because the Veteran does not have an employment handicap and is therefore not in need of rehabilitation. The Board acknowledges that the record does not clearly reflect whether the Veteran successfully completed law school or whether he took and passed the California Bar Examination. Nevertheless, the Veteran filed his substantive appeal to the Board in January 2018 and has had nearly four years to submit evidence demonstrating that his service-connected (and nonservice-connected) have prevented him from completing his law school program, taking and/or passing the California Bar Examination, and obtaining and maintaining suitable employment. He has not provided any such evidence. The Veteran was even scheduled to testify at a Board hearing in February 2022, but that hearing was cancelled. The testimony elicited during that hearing could helped substantiate his claim or, at the very least, could have helped the Board better understand why the Veteran believed that he had an employment handicap preventing him from being able to obtain and maintain suitable employment. In this case, the record reflects that the Veteran wished to use VR&E benefits to pay for the costs associated with preparing for and taking the California Bar Examination. The Board finds it necessary to emphasize that the purpose of Chapter 31 VR&E services is not to provide the Veteran with whatever training he chooses or whatever funding he desires. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. Moreover, VR&E benefits are meant to help veterans overcome the impairments caused by their disabilities and to obtain and maintain suitable employment consistent with their aptitudes, abilities, and interests. Here, the Veteran was found by the VRC to have developed knowledge, skills, and abilities that would allow him to secure and maintain suitable employment. The record does not reflect that was unable to return to his former employer or that he was having difficulty obtaining or maintaining employment that would utilize his prior eduction, experience, or skills. While being an Active Member of State Bar is often a necessary prerequisite to working as a practicing attorney, the Board notes that there are many jobs that only require a Juris Doctor degree. The record does not demonstrate that the Veteran needed a Bar Membership to obtain and maintain suitable employment. This decision should not be taken as an indication that the Veteran would not have a problem with employment or his service-connected problems. The 100% rating is a clear indication of the problems. The Board acknowledges that the Veteran's disabilities impact him on a daily basis. It is for that reason that he is compensated by VA for the severity of his disabilities. However, the fact remains that he does not have an employment handicap for VR&E purposes. Likewise, 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). As a final matter, the Board has considered whether the Veteran's circumstances meet the requirements for retroactive induction into a rehabilitation program for the reimbursement of education expenses associated with preparing for and taking the California Bar Examination. As noted above, it is unclear whether the Veteran successfully completed law school and then took and/or passed the California Bar Examination in the fours that his appeal has been pending. However, the Board will assume, for the sake of argument, that the Veteran did graduate from law school and that he took and passed the California Bar Examination. Thus, the question then becomes whether he would be entitled to retroactive reimbursement for the costs associated with preparing for and taking the California Bar Examination. Retroactive induction into a rehabilitation program may be authorized for a past period under a claim for vocational rehabilitation benefits when all conditions contained in 38 C.F.R. § 21.282 are met. Included in these provisions is the requirement that VA determines that the individual's training and other rehabilitation services received during the period were reasonably needed to achieve the goals and objectives identified for the individual and may be included in the plan developed for the individual (see §§ 21.80 through 21.88, and §§ 21.92 through 21.98). See 38 C.F.R. § 21.282(c)(4). As the VRC of record, the reviewing Vocational Rehabilitation and Employment Officer, and the Board have determined, the Veteran does not have an employment handicap and is therefore not in need of rehabilitation. Significantly, when the Veteran applied for VR&E benefits, he already had a Bachelor's degree, a Master's degree, and a pending Juris Doctor degree. He also had a great deal of work experience and the VRC specifically indicated that the Veteran could return to his former employer if he wanted to do so. Because the Veteran had the prior education, experience, and skills to obtain and maintain suitable employment, and because he did not have an employment handicap for VR&E purposes, the Board finds that rehabilitation services were not reasonably needed to achieve the Veteran's goal and objectives. Thus, retroactive induction into the VR&E program is not warranted. The Board concludes that the evidence of record is against the Veteran's claim of entitlement to VR&E Chapter 31 benefits. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that there is not an approximate balance of positive and negative evidence regarding the claim; thus, the benefit of the doubt doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.