Citation Nr: 22016002 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-03 971 DATE: March 21, 2022 ORDER Entitlement to Veteran Readiness and Employment (VR&E) services under the provisions of Chapter 31, Title 38, United States Code (Chapter 31) is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran had service-connected disabilities with a combined rating of 100 percent. 2. At the time of his application for VR&E benefits, the Veteran had completed training in biochemistry and had marketable and transferable skills. 3. The evidence persuasively establishes that the Veteran has overcome any impairment to employability to which his service-connected disabilities have substantially contributed; he qualifies for employment consistent with his abilities, aptitudes, and interests. 4. The evidence persuasively establishes that the Veteran does not have an employment handicap. CONCLUSION OF LAW The criteria for entitlement to VR&E services pursuant to 38 U.S.C. Chapter 31 have not been met. 38 U.S.C. §§ 3100, 3101, 3102; 38 C.F.R. §§ 21.40, 21.50, 21.51, 21.52. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from May 2002 to May 2013. His many decorations include the Afghanistan Campaign Medal, the Iraq Campaign Medal, and the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 decision issued by the VR&E Division of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California. In December 2021, the Veteran was notified of the time and place of a Board hearing he had requested in connection with the present appeal. See 38 C.F.R. § 20.704(b). He failed to appear, however, and no motion for rescheduling has been received. Accordingly, the Board will process his appeal as though the request for hearing has been withdrawn. 38 C.F.R. § 20.704(d). Entitlement to VR&E services under the provisions of Chapter 31. The Veteran seeks to establish entitlement to VR&E services. He seeks such services to receive additional education and training in the field of Doctor of Pharmacy. Specifically, he contends that available positions, such as medical assistant or medical equipment preparer, as well as his current training and experience are not conducive to his health. See February 2019 VA Form 9. The provisions of Chapter 31, Title 38, United States Code are intended 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 C.F.R. § 21.1. For a veteran with 20 percent disability, basic entitlement to Chapter 31 benefits requires that the veteran be found by VA to be in need of rehabilitation because of an employment handicap. 38 C.F.R. § 21.40(b). An employment handicap means an impairment, resulting in substantial part from a service-connected disability rated at 20 percent or more, of a veteran's ability to prepare for, obtain, or retain employment consistent with such veteran's abilities, aptitudes, and interests. 38 U.S.C. § 3101(7); 38 C.F.R. § 21.35(g). The determination of whether an employment handicap exists has been specifically delegated by regulation to the discretion of a VA counseling psychologist (CP) or vocational rehabilitation counselor (VRC). 38 C.F.R. §§ 21.50(b), 21.51. 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, or qualifying for employment in, an occupation consistent with his 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. Here, the Veteran is service connected for cardiomyopathy, rated as 100 percent disabling; reactive airway disease and obstructive sleep apnea, rated as 50 percent disabling; primary insomnia, rated as 30 percent disabling; right shoulder degenerative joint disease, rated as 10 percent disabling; gastroesophageal reflux disease (GERD), rated as 10 percent disabling; and left ankle strain, right ankle strain, bilateral lattice peripheral retinal degeneration, hypertension, erectile dysfunction, and migraine headaches, each rated as noncompensably (0 percent) disabling. His combined evaluation is 100 percent. He therefore meets the threshold requirements for entitlement to a program of vocational rehabilitation. However, as noted, in order to fully meet the requirements for entitlement to a program of vocational rehabilitation, he must also have been 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 his August 2017 Rehabilitation Needs Inventory (RNI), VA Form 28-1902w, the Veteran stated that he wanted to receive help from VR&E for a better quality of life while working in a medical setting and paying his tuition, books, and supplies. He specifically indicated he had been accepted to Creighton University for the Doctor of Pharmacy program. He noted his military position was Hospitalman First Class, where he was responsible for providing medical care to wounded Marines and Sailors on the battlefield, supervised 163 junior hospitalmen, managed a $24 million budget of medical supplies, and managed 35 different pharmacies. He noted that his military work history provided him skills in management of over $4,000,000 of narcotics and medications spread over 35 locations, prescribing and dispensing medications to both military and civilian personnel, and administration of thousands of vaccines in both a hospital and combat environment. He reported no post-military employment, but rather indicated he attended Arizona State University from January 2014 to May 2014 for the Veterans Upward Bound program. He then attended Maricopa Community College from May 2014 to May 2016 and Coastline Community College from September 2016 to May 2017 for biochemistry. He indicated that he also had nurse assistant and environmental health technician certificates/licenses. He went on to note that his service-connected disabilities degraded job performance, job satisfaction, job opportunities, and manager relations, and that he missed worked time. He also noted that while his disabilities were currently stable, some were improving and some were worsening. However, he did not specify which disabilities were improving or worsening. At an August 2017 VA vocational evaluation, the VRC considered the Veteran's education and work history, as well as his symptoms and impairment due to the service-connected disabilities, which had a combined rating of 100 percent, and determined that the Veteran did not have an employment handicap. As such, he was not entitled to receive VR&E services. The VRC assessed that the Veteran had vocational impairment due to disabilities but had overcome his impairments through his experience and education. The VRC further assessed that the service-connected disabilities contributed in a substantial part to the vocational impairment. In this regard, the VRC noted that the Veteran's service-connected and non-service conditions impose restrictions in positions that are physically demanding, and that may irritate or aggravate his service-connected disabilities. The VRC indicated that the Veteran would be best served in working a sedentary job with accommodations that would not irritate or aggravate his disabilities. The VRC went on to state that the service-connected disabilities place him at an employment disadvantage compared to similarly circumstanced veterans; specifically, the service-connected disabilities are the cause of the vocational limitation as he is unable to obtain, maintain, or prepare for employment in the civilian labor market that does not aggravate his disabilities. The VRC determined, however, that the Veteran had overcome the effects of his vocational impairment. The VRC acknowledged that the Veteran was not currently employed but noted that the Veteran was pursuing a Doctor of Pharmacy degree from Creighton University, and had successfully completed training in biochemistry from Maricopa Community College and Coastline Community College. The VRC noted that the Veteran was also able to utilize his transferable skills from the military, including supervisory skills, background in personnel management, and budge management. The VRC determined, therefore, that the Veteran did not meet the criteria for an employment handicap due to having overcome his impairment to employment because he qualified for employment that was consistent with his abilities, aptitudes, and interests. In this regard, it was noted that the Veteran had completed additional training as an environment health technician, worked as a nurse assistant, and is further qualified for entry-level sedentary/administrative positions. The VRC noted that the Veteran was only interested in utilizing Chapter 31 benefits for educational purposes. The VRC further found that there were no factors found which would cause the Veteran to need intensive rehabilitation services to overcome significant barriers to improvement in a measurable, observable way. As such, the Veteran also did not have a serious employment handicap. Given the Veteran's desire to pursue further education, the VRC discussed tuition assistance, grants, student loans, and VA Chapter 30/33 and Yellow Ribbon programs with the Veteran. The VRC also referred the Veteran to the Career Source One Stop Career Center for resume preparation, job interview skills, and placement assistance. After review of all the lay and medical evidence of record, the Board finds that the criteria for entitlement to VR&E services under Chapter 31 have not been met. As stated above, a VRC is specifically delegated the authority, by VA regulation, to determine whether the Veteran has an employment handicap. In this case, the VRC had sufficient facts and data for the determination that the Veteran did not have an employment handicap and provided a sound rationale for that determination. For these reasons, the Board finds that the August 2017 assessment by the VRC that the Veteran did not have an employment handicap is of significant probative value. The Veteran has not presented persuasive evidence to show that he has an employment handicap and is entitled to VR&E services. The record reflects that following his separation in May 2013, he was enrolled in school continuously since January 2014. The Veteran did not submit any evidence documenting any attempts to obtain employment prior to enrollment at Arizona State University, to include the number and status of job applications filed, or any rejection letters of employment. The Board finds that the statutory 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. 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 desire to pursue further education and training as he contends that his health will continue to deteriorate to the point his ability to drive, walk, stand, or breath independently will be compromised, therefore limiting his career options. See February 2019 VA Form 9. Unfortunately, his contentions in that regard are hypothetical and VR&E services cannot be based on unrealized events or what might occur in the future. Indeed, there is no indication in the current record that such education and training through the VR&E program are needed to obtain suitable, gainful employment at this time. The Board emphasizes that the purpose of Chapter 31 VA vocational rehabilitation services is not to provide the participant with whatever level of career training he chooses. 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 contain an approximate balance of negative and positive evidence. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After consideration of all the evidence, the Board finds that the evidence is persuasively against the claim. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.