Citation NR: 9603399 Decision Date: 02/08/96 Archive Date: 02/20/96 DOCKET NO. 93-24 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to vocational rehabilitation training in accordance with the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.M. Flatley, Counsel INTRODUCTION The veteran had active service from January 1986 to January 1989, from November 1990 to June 1991, and from February to December 1992. CONTENTIONS OF APPELLANT ON APPEAL In essence, the veteran contends that he should receive vocational rehabilitation benefits under Chapter 31, as he was removed from school in service due to reasons beyond his control. He also maintains that his military obligations “wiped out” the memory of his education. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file and vocational rehabilitation and counseling folder. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence establishes that the veteran does not have an employment handicap, so as to establish entitlement to Chapter 31 vocational rehabilitation training. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran’s appeal has been obtained. 2. Service connection is in effect for human immunodeficiency virus (HIV) with positive serology and lymphadenopathy, rated at 30 percent, and gastroduodenitis with bleeding, rated at 10 percent. 3. The veteran has education and experience which qualifies him for suitable employment. He has a history of suitable employment. CONCLUSION OF LAW The veteran does not have an employment handicap and thus does not meet the criteria for entitlement to benefits under Chapter 31, Title 38, United States Code. 38 U.S.C.A. §§ 3100, 3101, 3102, 5107 (West 1991); 38 C.F.R. §§ 21.1, 21.40, 21.51 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Review of the record indicates that the veteran has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a). The Department of Veterans Affairs (VA) therefore has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990). In this regard, the Board is satisfied that all relevant facts have been properly developed and that the evidence currently of record provides an adequate basis upon which to address the merits of his claim. In pertinent part, the record shows that service connection has been granted for HIV and for gastroduodenitis with bleeding. Disability evaluations of 30 percent and 10 percent, respectively, have been assigned. A transcript from the Devry Institute of Technology shows that the veteran attended that facility from the Spring 1989 semester through the Summer 1990 semester and that he received an Associates Degree in Applied Science in Electronics. The veteran’s December 1992 application for vocational rehabilitation benefits indicates that he had previously applied for benefits under the Montgomery GI Bill, and a VA Counseling Psychologist’s report dated in March 1993 reflects the veteran’s report that he received his Associates Degree under Chapter 30, Title 38, United States Code. Currently, the veteran seeks to obtain benefits under Chapter 31, Title 38, United States Code. The law provides that a person shall be entitled to a rehabilitation program under the terms and conditions of Chapter 31, if such person is determined by the Secretary of Veterans Affairs to be in need of rehabilitation due to an employment handicap. 38 U.S.C.A. § 3102. An employment handicap is defined as an impairment of the veteran’s ability to prepare for, obtain, or retain employment consistent with his/her abilities, aptitudes, and interests. 38 U.S.C.A. § 3101; 38 C.F.R. § 21.51(b), (e). Impairment is defined as restrictions on employability caused by disabilities, negative attitude toward the disabled, deficiencies in education and training, and other pertinent factors. 38 C.F.R. § 21.51(c). The Board notes that the United States Court of Veterans Appeals (Court) has set aside as unlawful certain provisions of 38 C.F.R. § 21.51 which provided that to be considered an “employment handicap,” a service-connected disability must have materially contributed to the impairment of employability. See Davenport v. Brown, 7 Vet.App. 476 (1995). A comprehensive review of the veteran’s history and current situation was completed by a VA Counseling Psychologist in March 1993. The evaluation report notes that subsequent to his initial period of active service, the veteran worked in the telemarketing field through February 1992, including while attending school, and that he had a total of three years’ telemarketing experience. It was noted that his employment was interrupted upon entering active duty in November 1990 and was terminated when he entered active duty in February 1992. It was also noted that he had worked at an electronics company as a result of his training in that field. The veteran did not return to either place of employment subsequent to his last separation from service and subsequent to his learning of his positive HIV status. The veteran reported that since leaving service, he had not been employed due to his service-connected disability. On evaluation, the veteran also noted that he completed four years of art training in high school and that he received training in communications and electronics in service. The psychologist addressed the symptoms noted by the veteran, including his shortness of breath, difficulty sleeping, and depression regarding his health. It was noted that the veteran had no known physical limitations that would prevent him from performing any necessary physical activity. The psychologist also noted that it appeared that the veteran was experiencing depression regarding his HIV status and that his depression and attitude had contributed to his non- employment. The veteran reportedly participated in support group and individual support counseling. Career and personality testing revealed that his areas of interest were consistent with his educational and work history. The counseling psychologist concluded that the veteran continued to possess the skills of an electronic technician. It was noted that the veteran would like to revert to his high school interests and pursue a training program in art. The psychologist noted that the veteran experienced impairment to employability, but that his HIV positive status did not prevent him from using his education and training in pursuing employment in the electronics field. The psychologist concluded that the veteran had overcome the impairment of employability and did not have an employment handicap that would prevent him from obtaining or maintaining employment. It was noted that the veteran was participating in employment services associated with the Devry Institute and the Texas Employment Commission. Lastly, the veteran’s electronic skills were found to be current and viable in the employment market. It was found that the veteran had no employment handicap. Upon review of the record, the Board must also concludes that the veteran has no employment handicap. The Board recognizes the nature and extent of his disabilities, including his service-connected HIV. The Board also recognizes that there are psychological components associated therewith, as the veteran discussed with the counseling psychologist in March 1993. In this regard, the Board also points out that in the evaluation, the counseling psychologist referred to the veteran’s service-connected disorder and its impact on his employability. The record indicates, however, that the veteran’s service-connected HIV disorder is his primary disability, and that the veteran alleged that it had prevented him from being employed. As such, reference thereto with respect to the veteran’s employability is appropriate. Fundamentally, the Board stresses that an employment handicap must exist in order to receive Chapter 31 educational benefits. It is noted that while the psychologist made reference to unemployment associated with the veteran’s service-connected disabilities, consideration was also clearly afforded the veteran’s depression and attitude, which were found to be contributing to his non-employment. Applicable regulations provide for consideration of such factors. See 38 C.F.R. § 21.51(c). The Board emphasizes, however, that the fundamental question is whether an employment handicap exists due to the veteran’s overall disability. In this case, the Board concludes that the question has been answered adequately by the counseling psychologist. Generally, the record also shows not that the veteran is prevented from obtaining employment due to his disabilities, but that he would prefer to enter a different occupational field. He has expressed interest in obtaining an education more in keeping with his high school art training. It does not appear, therefore, that the veteran has been rendered unable to pursue his previously chosen field, but rather, would like to work in a different area. Although his disabilities, including his reported depression regarding his HIV, may have impacted to some extent on his desire to obtain employment, the record does not support a finding that an employment handicap exists, as defined above and with consideration of the relevant factors. Further, it is noted that prior to the veteran’s separation from service and learning that he was “HIV positive,” he worked steadily in the fields in which he had been trained or had experience. His stable work history appears to have been interrupted to some extent by his learning of his disability. As noted above, his disabilities as well as his attitude are factors for consideration in determining whether impairment, in defining an employment handicap, exists. 38 C.F.R. § 21.51(c). The Board also points out, however, that other pertinent factors are also for consideration. 38 C.F.R. §§ 21.50(c), 21.51(c)(1) (1995). In this regard, the Board stresses that the veteran’s current training and experience are considered consistent with testing of his interests and skills conducted at the time of his evaluation in March 1993. He is fully qualified in his current field of expertise and has marketable training and experience. The Board notes that the findings of the counseling psychologist provide no support for the veteran’s allegation that the memory of his education had been “wiped out.” The veteran simply would prefer training in the art field, and, importantly, has provided no indication that his disabilities would prevent him from a such career. Significantly, the psychologist noted that either of the veteran’s vocational goals, as an electronic technician or work in art, would be worthwhile. It appears, basically, that the veteran has chosen not to pursue employment in the field in which he has been trained. In light of the foregoing, the Board concludes that the veteran’s disabilities do not prevent him from obtaining or retaining employment consistent with his abilities, aptitudes, and interests. As such, an employment handicap has not been demonstrated as contemplated under 38 U.S.C.A. § 3102 and 38 C.F.R. § 21.51. The veteran’s claim, therefore, must be denied. The Board has considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). The evidence, however, does not represent an approximate balance of positive and negative evidence such as to warrant its application. Id. The preponderance of the evidence is against the claim. ORDER Vocational rehabilitation training in accordance with the provisions of Chapter 31, Title 38, United States Code, is denied. D. C. SPICKLER Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. - 2 -