Citation Nr: 22017771 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 17-25 698 DATE: March 26, 2022 ORDER A change in the Veteran Readiness and Employment (VR&E) training program under Chapter 31 of Title 38 of the United States Code (U.S.C.) to obtain a child development associate (CDA) certificate is granted. FINDING OF FACT The evidence of record persuasively supports a change to the intermediate objectives or services provided under the individualized written rehabilitation plan (IWRP) in this case to carry out the agreed long-range goal of employment in the occupational field of child day care administrator or related occupation. CONCLUSION OF LAW The criteria for a change in the VR&E training program to obtain a CDA certificate are met. 38 U.S.C. §§ 3100, 3101; 38 C.F.R. §§ 21.1, 21.80, 21.86, 21.92, 21.94. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1989 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2016 determination by the VR&E Division of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to a change in the VR&E training program under Chapter 31 to obtain a CDA certificate. The Veteran contends that VA wrongly denied a change to the vocational rehabilitation program when he requested to pursue a CDA so that she could pursue employment in family childcare. He asserts that the CDA certificate will allow him to reach his vocational goal to work as a childcare provider. He states that pursuit of a degree exacerbates his service-connected disabilities. The arguments as set forth by the Veteran amount to a request to change an intermediate objective or services rather than a change in the long-range goal. 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 or more, 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). VA and the veteran must develop a written plan describing the veteran's employment goals and the program through which those goals will be achieved. 38 C.F.R. § 21.1(b)(3). An IWRP will be developed for each veteran eligible for rehabilitation services under Chapter 31. The plan is intended to assist in: (1) providing a structure which allows vocational rehabilitation and counseling staff to translate the findings made in the course of the initial evaluation into specific rehabilitation goals and objectives; (2) monitoring a veteran's progress in achieving the rehabilitation goals established in the plan; (3) assuring the timeliness of assistance by VA staff in providing services specified in the plan; and (4) evaluating the effectiveness of the planning and delivery of rehabilitation services by the vocational rehabilitation and counseling staff. 38 C.F.R. § 21.80. The terms and conditions of the plan must be approved and agreed to by a counseling psychologist, a vocational rehabilitation specialist, and a veteran. A vocational rehabilitation specialist or counseling psychologist designated as case manager has the primary role in carrying out VA responsibility for implementation of the plan. A counseling psychologist has the primary responsibility for the preparation of plans. 38 C.F.R. § 21.92. A veteran, a counseling psychologist, or a vocational rehabilitation specialist may request a change in the plan at any time. 38 C.F.R. § 21.94(a). A change in the statement of a long-range goal, however, may only be made following a reevaluation of a veteran's rehabilitation program by a counseling psychologist or vocational rehabilitation counselor. A change may be made when: (1) achievement of the current goal is no longer reasonably feasible; or (2) a 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) a veteran fully participates and concurs in the change. 38 C.F.R. § 21.94(b). A change in intermediate objectives or services provided under the plan may be made by the case manager when such change is necessary to carry out the statement of long-range goals. 38 C.F.R. § 21.94(c). In this case, the Veteran had previously been approved for a VR&E program after a vocational rehabilitation counselor (VRC) found the Veteran had a serious employment handicap and his vocational goal was reasonably feasible. At that time, he was service-connected for headaches, rated 30 percent disabling; cervical strain, rated 20 percent disabling; and depression, rated 10 percent disabling. In March 2010, an IWRP was developed between the Veteran and VRC. The IWRP noted a program goal of obtaining and maintaining employment in the occupational field of child day care administrator or related occupation. The first intermediate objective of the IWRP reads, in pertinent part, that the Veteran would complete an associate degree in early childhood development from the University of Akron. The estimated duration of services for this objective was from May 2010 to December 2012. The record shows that the Veteran began attending University of Akron pursuant to his IWRP. While pursuing his associate degree, the Veteran's service-connected headaches was increased to 50 percent in July 2011. The record shows that the Veteran reported problems completing his training due to his service-connected disabilities. The Veteran began working on a plan with the VRC to have his facility changed to an online program through the University of Cincinnati to accommodate his disabilities. At the time, he had 36 months and 11 days of entitlement remaining. It was originally anticipated that the Veteran would obtain his degree in one to two semesters. However, it was later revealed that it would take an additional 75 credit hours to complete his degree, creating an entitlement issue. See September 2013 Special Report of Training; February 2015 University of Cincinnati acceptance letter; January 2017 Statement of the Case. In August 2016, the Veteran submitted a request to change the objective of obtaining a degree in early childhood development to a CDA certificate from the University of Cincinnati. See August 2016 correspondence. In his request, he indicated that the certificate would allow him to obtain his program goal. He further indicated that the CDA would allow him to achieve his goal in a more reasonable time frame; specifically noting that the CDA can be obtained in two semesters. He also asserted that the online CDA program is more favorable to his service-connected migraines, as opposed to the in-class requirements for the degree program. In November 2016, the VRC denied the Veteran's request for a change in the vocational rehabilitation training program. The VRC determined that VR&E is not able to support CDA training as a standalone credential to reach the point of employability within early childhood education. The VRC indicated that an employment coordinator (EC) and simulated job postings require at least an associate's degree with a bachelor's degree in early childhood education being preferred. The Veteran disagreed with this decision in December 2016. The Veteran re-asserted that the CDA certificate will allow him to have more career opportunities and options, as well as the potential to make between $20,000 and $35,000 per year. The VRC upheld the denial in a January 2017 SOC. He again found that the CDA certification would be inadequate to reach the point of employability. He again noted that simulated job searches specifically cite that an associate degree is a minimal qualification, with a bachelor's degree preferred. The Veteran timely appealed to the Board. At his hearing in November 2021, the Veteran testified that his service-connected migraines were causing him to miss class days and he was not able to stay up to date on his assignments. See Hearing Transcript at p. 3. He went on to reassert that the CDA would allow him to complete his program goal in a faster period of time without impacting his service-connected disabilities. Id. Finally, he stated that the CDA would allow him to operate and own a childcare facility. Id at p. 4. Finally, in response to the undersigned Judge's request for documentation showing that a CDA would be sufficient for the Veteran to run a daycare (see Hearing Transcript at p. 5), the Veteran submitted a portion of Ohio Administrative Code 5101:2-13-07 titled "Provider responsibilities, requirements and qualifications for a licensed family child care provider." Specifically, as to education and training requirements for family child care providers, appendix B to the code specifically states that the provider shall have one of the following: (1) at least thirty clock hours of documented training in early childhood education or related field; (2) two years of college training verified by a transcript including two courses in child development; (3) a currently valid CDA credential issued by the national child development associate credentialing commission; (4) completion of a two year vocational child care training program approved by the state board of education verified by a transcript or diploma; (5) a pre-kindergarten associate certificate that is issued by the state board of education; (6) a Montessori preprimary/early childhood credential; (7) at least twelve months experience in caring for children twelve years or younger; or (8) designation as a career pathways level one. See OAC Ann. 5101:2-13-07 (emphasis added). After review of the record, the Board finds that the criteria for a change in the VR&E training program are met. In this regard, the persuasive evidence of record shows that the requested change is necessary to achieve the agreed upon long-range goal of obtaining and maintaining employment in the occupational field of family child care. In coming to this determination, the Board first acknowledges the VRC's findings that EC staff and simulated job postings revealed that, at minimum, the Veteran's program goal required an associate's degree. As such, a CDA by itself was an insufficient educational goal. Significantly, however, the VRC did not present any evidence, including the EC's findings or any examples of job postings, in support of this determination. Rather, the only evidence is the VRC's statements in the November 2016 decision and January 2017 SOC. The Board, therefore, finds the VRC's determinations to have little probative value as the findings are entirely conclusory without any accompanying support or rationale. Contrarily, the Veteran provided evidence supporting his claim that a CDA, by itself, would be adequate to support his program goal. Ohio Administrative Code 5101:2-13-07 specifically indicates that, despite the VRC's finding, a currently valid CDA certificate is sufficient for a family child care provider. Additionally, the Board recognizes that the proposed CDA course may be completed within two semesters; a timeframe more conducive to his remaining entitlement. Finally, the Board recognizes the Veteran's assertion that he may be better suited to take online classes due to his service-connected disabilities (rather than attending classes in person). As noted above, he reports of difficulties with in-person school, notably attendance and coursework completion, due to the severity of his service-connected migraines. See, e.g., August 2016 correspondence; November 2021 Hearing Transcript. The Board finds that the Veteran is credible to report his symptoms and the effects on his activities. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). This contention is further supported by the fact his disability rating was increased to 50 percent in July 2011, following the start of his IWRP. As such, the Veteran has persuasively indicated that an online program would be more favorable to the limitations imposed by his disabilities; as such, he has demonstrated how obtaining a CDA program online will enable him to overcome his serious employment handicap. The Board finds that, in light of the fact that the State of Ohio requires only a CDA for a child care provider, as well as consideration of the severity of his service-connected disabilities and remaining entitlement, it is likely that he will be able to successfully pursue an occupation as a child care provider were he to complete the CDA certificate, and thus such vocational goal is indeed consistent with his aptitude and abilities, and is reasonably feasible. While the VRC may assert that an associate's degree, at minimum, is required to complete the vocational goal, the VRC did not present any credible evidence in support of this determination that the Board can review. On a final matter, the Board notes that in October 2018 the Veteran's VR&E program was discontinued because the Veteran was awaiting a final determination on the CDA certification and "[VR&E] cannot maintain [the Veteran's] case as we wait for the decision on the appeal." Given the favorable decision herein, the Board finds this discontinuance is no longer appropriate and, therefore, should be reversed. In light of the discussion above, the Board finds there is an approximate balance of positive and negative evidence to support a change to the intermediate objectives or services provided under the IWRP in this case to carry out the agreed long-range goal of employment in the occupational field of child day care administrator or related occupation. The evidence persuasively supports the claim and the benefit-of-the-doubt doctrine is applicable. The appeal is therefore granted. GAYLE STROMMEN 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.