Citation Nr: A24040366 Decision Date: 07/24/24 Archive Date: 07/24/24 DOCKET NO. 200827-158777 DATE: July 24, 2024 ORDER Entitlement to additional Veteran Readiness and Employment (VR&E) benefits, other than employment services, to include retroactive reimbursement of education expenses associated with obtaining a master's degree, pursuant to 38 U.S.C. Chapter 31, is denied. FINDINGS OF FACT 1. The Veteran was determined to be eligible for VR&E benefits in October 2014 and participated in an Individualized Written Rehabilitation Program (IWRP) for employment as an athletic trainer or related occupation. 2. The Veteran has obtained an associate degree in sports medicine and a bachelor's degree in public health. 3. A master's degree program was not reasonably necessary to achieve the goals and objectives of a VR&E program; namely, to obtain and maintain suitable employment. 4. The Veteran does not meet all of the conditions required for retroactive induction into the VR&E program. CONCLUSION OF LAW The criteria for entitlement to additional VR&E benefits, to include retroactive induction into a VR&E program for the reimbursement of education expenses incurred while pursuing a master's degree, have not been met. 38 U.S.C. §§ 3100, 3101, 3102, 3105; 38 C.F.R. §§ 21.40, 21.47, 21.50, 21.51, 21.282. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1986 to July 1991. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2019 decision issued by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania. The Veteran timely appealed to the Board in August 2020, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). 38 C.F.R. §§ 20.201, 20.202(b)(1). Under the direct review option, the Board may only consider the evidence of record at the time of issuance of the AOJ decision on appeal. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after the rating decision was promulgated. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claim. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As a final introductory matter, the Board notes that the Veteran listed several decision dates on his VA Form 10182. Thereafter, in May 2021, he clarified that it was the September 2019 decision that he was appealing. The Board has characterized the issue on appeal accordingly. Entitlement to VR&E services The Veteran has requested additional VR&E benefits under the provisions of Chapter 31, Title 38, of the United States Code, including reimbursement of educational expenses incurred while pursuing a master's degree at Liberty University. See August 2020 VA Form 10182; May 2021 Correspondence. The provisions of Chapter 31 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. In that regard, the purpose of such services is to provide a level of training that facilitates suitable employment. 38 U.S.C. § 3100; 38 C.F.R. §§ 21.1, 21.70. An individual may be inducted into a rehabilitation program on a retroactive basis. If the individual is retroactively inducted, VA may authorize payment pursuant to § 21.262 or § 21.264 for tuition, fees, and other verifiable expenses that an individual paid or incurred consistent with the approved rehabilitation program. In addition, VA may authorize payment of subsistence allowance pursuant to §§ 21.260, 21.266, and 21.270 for the period of retroactive induction, except for any period during which the individual was on active duty. In accordance with 38 C.F.R. § 21.282, a program of rehabilitation and assistance may be approved retroactively when all the following conditions are met: (1) The past period is within - (i) A period under § 21.40(c) during which a servicemember was awaiting discharge for disability; or (ii) A period of eligibility under §§ 21.41 through 21.44 or 38 U.S.C. § 3103. (2) The individual was entitled to disability compensation under 38 U.S.C. Chapter 11 during the period or would likely have been entitled to that compensation but for active-duty service. (3) The individual met the criteria for entitlement to vocational rehabilitation benefits and services under 38 U.S.C. Chapter 31 in effect during the period. (4) 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 38 C.F.R. §§ 21.80 through 21.88, and §§ 21.92 through 21.96). (5) VA has recouped any benefits that it paid the individual for education or training pursued under any VA education program during any portion of the period. (6) An initial evaluation was completed under 38 C.F.R. § 21.50. (7) A period of extended evaluation is not needed to be able to determine the reasonable feasibility of the achievement of a vocational goal. See 38 C.F.R. § 21.282(c). The effective date for retroactive induction is the date when all of the entitlement conditions are met. 38 C.F.R. § 21.282(d). In this case, the evidence reflects that the Veteran applied for VR&E services in September 2014. He was found entitled to VR&E benefits due to a serious employment handicap in October 2014. He agreed to and signed an IWRP in November 2014 with the goal to obtain employment as an athletic trainer or in a related occupation. As part of that plan, he was approved to complete an associate degree in sports medicine and a bachelor's degree in athletic training and public health. The Veteran was awarded his associate degree in sports medicine in May 2015 from Northampton Community College. In May 2018, he completed a bachelor's degree in public health from Temple University. In an August 2018 email, the Veteran informed his vocational rehabilitation counselor (VRC) that he would like to discuss attending graduate school. He stated that "[m]any of the positions [he] applied to require/preferred a master's degree and [he] would like to pursue this option for stronger employment chances/choices." In October 2018, the Veteran began pursuing certification as a Certified Exercise Physiologist (EP-C) or Certified Clinical Exercise Physiologist (CEP). See October 2018 email. The VRC approved reimbursement for the costs of the certifications. See February 2019 email. In a March 2019 email, the Veteran requested further information on applying for a master's degree. He indicated that the certification exams he was studying for would only "fluff" his resume, but not guarantee employment. He suggested that "our educational system mandates a master[']s degree, as unfair as it is, [and] employers applaud this and mandate [it]." In April 2019, he was deemed "job-ready" by the VRC and awarded employment adjustment allowance benefits. See, e.g., April 2019 Job Ready Assessment. In a June 2019 email, the Veteran again requested approval for graduate school. He asserted that he had been turned down for employment positions because a master's degree was required for employment. The VRC issued a July 2019 administrative decision letter which formally notified the Veteran that his request for additional education/training was being denied. In support of that decision, the VRC concluded the Veteran had the ability to obtain and maintain suitable employment after receiving the services outlined in his IWRP. In support, the VRC included 10 job postings related to the Veteran's occupational goal reflecting a minimum qualification of a bachelor's degree. The VRC concluded that a master's degree is not required to obtain employment in the field of athletic/fitness trainer. The Veteran submitted a VA Form 20-0995 (Supplemental Claim Application) in which he continued to claim that he was entitled to additional education in the form of a master's program. He argued that completion of a master's degree would give him access to employment with various health networks and private physician's groups. He asserted that individuals with a master's degree had an educational advantage over candidates with only a four-year degree. He went on to state that he wanted to be an exercise physiologist, not a trainer. He argued that personal trainers did not offer sustainable hours when first starting, did not have a bright outlook, and were triggering for his disabilities. He went on to offer his personal assessment of commercial gyms, stating that their members were predominantly "low to below mid class income members." He asserted that those income groups did not sign up for personal training. He also argued that he had little experience in personal or group training. He concluded that he was a viable candidate for any master's program that fell under public health, including athletic training, occupational therapy, or exercise physiology/exercise science. In the September 2019 decision here on appeal, the VRC again denied the Veteran's request for additional education/training. In support of that decision, the VRC concluded that the Veteran had well-developed transferable skills and education, including two degrees and work experience, to qualify him for employment that was consistent with his abilities, aptitudes, and interests. In his August 2020 notice of disagreement and May 2021 argument, the Veteran asserted that he was seeking approval for a program leading to a master of science in human performance and clinical cardiac rehabilitation program at Liberty University, which began in September 2019. He asserted that Temple University had changed the athletic training program to a master's program. He further stated that he was seeking reimbursement for the master's program at Liberty University. The question for the Board is whether the Veteran's pursuit of a master's degree was reasonably needed to achieve his goals and objectives; namely to achieve suitable employment. This is a question of "necessity." As outlined above, the VRC found that the Veteran's existing education, specifically a bachelor's degree, was sufficient for the Veteran to obtain and maintain employment consistent with his interests, aptitudes, and abilities. See July 2019 decision letter. Specifically, the VRC evaluated the record and found that the Veteran's bachelor's degree enabled him to obtain and maintain suitable employment as an athletic trainer. In doing so, the VRC conducted job market analysis and included several job announcements for which the Veteran might qualify with his then-current bachelor's degree. The Board notes that the VRC is an expert in the field, competent to assess the local labor market. There is no evidence that the VRC is not credible or otherwise provided the Veteran with an inadequate vocational assessment. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the expert's knowledge and skill in analyzing the data, and the medical conclusion the expert reaches . . . [and] [a]s is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators . . .."); 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 such, the Board assigns the VRC's findings great probative weight. The Board is cognizant of the Veteran assertion that he undertook a job search and determined that he was not qualified for employment with a bachelor's degree and additional certifications. See August 2018, March 2019, and June 2019 emails. However, the Board does not find that assertion persuasive. In this regard, a CareerLink screenshot shows the Veteran applied for only three jobs between July 2018 and August 2018, which were unrelated to his program goal (i.e., athletic trainer). Specifically, the document indicates that the Veteran applied for positions as a legal assistant/paralegal, human resources program specialist, and community health worker. Subsequently, CareerLink reflects that between April 2019 and June 2019, while in "job-ready" status, the Veteran only searched for jobs for one day and submitted no applications. Additionally, the Veteran was provided a CareerLink account. See April 2019 VR&E-General; July 2019 decision letter. He also chose not to receive alerts for job postings in his field of training. Id. The Board has also reviewed the Veteran's job log completed between April 2019 and June 2019 while on "job-ready" status. That log shows that the Veteran applied for approximately 21 jobs beginning in April 2019; however, 18 of the jobs were outside of his VR&E program goal (i.e., athletic trainer). For instance, the job log reflects applications for positions such as supervisory transportation security officer, land protection coordinator, direct care crisis worker, facilities manager, public health program administrator, Licensed Practical Nurse health coach, and field geologist/scientist. The Veteran applied for only three positions related to his program goal, including positions as a fitness assistant, exercise specialist, and performance coach. By contrast, as noted above, the VRC supplied multiple job announcements with a minimum education requirement of only a bachelor's degree. These included positions as a fitness trainer, personal and group fitness instructor, fitness consultant, and training specialist. Simply put, with the exception of the job applications noted above, there is no other evidence that he attempted to obtain employment consistent with his VR&E program goal of athletic trainer before requesting additional education. Instead, he applied for unrelated positions, with only a handful of applications related to his goal as an athletic trainer. Additionally, there is no indication in the record during the period on appeal that the Veteran fully availed himself of the employment services that were offered during "job-ready" service before attempting to attend a master's program. Finally, the Board acknowledges the Veteran's argument that he has little knowledge about personal training. However, the Board finds the Veteran's argument unpersuasive as it is directly contradicted by other evidence of record. Specifically, the Veteran reported in his October 2014 Rehabilitation Needs Inventory (RNI) that he was a personal trainer from August 1996 to September 2008. He described his duties as personal training, fitness, and post therapy. With respect to the criteria discussed above, the Board finds that retroactive induction into the VR&E program is not warranted, as not all of the conditions set forth in the regulation were met at the time of the decision here at issue. Specifically, the Board finds that condition (4), above, was not met. Condition (4) is satisfied when "VA determines that the individual's training received during the appeal period [was] reasonably needed to achieve the goals and objectives for the individual." 38 C.F.R. § 21.282(b), (c). For the reasons stated, the master's degree training at Liberty University was not reasonably necessary to achieve the Veteran's goals and objectives to obtain and maintain suitable employment as an athletic trainer or in a related occupation given the availability of jobs with a bachelor's degree. The Board acknowledges the Veteran's desire to obtain a master's degree. Undoubtedly, having an advanced degree would make one more marketable for some jobs in that field. In this regard, however, the Board emphasizes that the purpose of Chapter 31 VR&E services is not to provide a veteran with whatever level of education or career training he or she chooses. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment. 38 U.S.C. § 3100; 38 C.F.R. § 21.70. While the Veteran is to be congratulated for pursuing a master's degree program and furthering his employment objectives, upon consideration of the foregoing, the Board must conclude that the evidence of record is against his claim of entitlement to VR&E Chapter 31 benefits for that purpose. 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. 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.