Citation Nr: 0001510 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 97-18 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a program of vocational rehabilitation under Chapter 31, Title 38, of the United States Code. [The Board has issued a separate decision on issues of entitlement to service connection and increased disability ratings for several disorders]. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from July 1975 to July 1995. This appeal comes before the Board of Veterans' Appeals (Board) from a November 1997 decision of the Wichita, Kansas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied entitlement to a program of vocational rehabilitation. The veteran has also appealed to the Board claims for entitlement to service connection for a neck disability, a back disability, disability of the knees and legs, disability of the feet, diabetes mellitus, migraine headaches, and hearing loss, and claims for increased disability ratings for hypertension, skin disorders including tinea pedis and xerosis, and maxillary sinusitis. Those issues are addressed in a separate Board decision. REMAND The veteran is seeking entitlement to a program of vocational rehabilitation. Under the applicable law and regulations, a veteran is entitled to a program of rehabilitation if the veteran 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 (West 1991 & Supp. 1999). An employment handicap is defined as an impairment of the veteran's ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes, and interests. 38 U.S.C.A. § 3101 (West 1991 & Supp. 1999); 38 C.F.R. § 21.51(b) (1999). Impairment is defined as restrictions on employability caused by disabilities, negative attitudes toward the disabled, and other pertinent factors. 38 C.F.R. § 21.51(c)(1) (1999). The applicable law further specifies that an employment handicap which entitles the veteran to assistance under the Chapter 31 program exists when all of the following conditions are met: (i) The veteran has an impairment of employability; this includes veterans who are qualified for suitable employment, but do not obtain or retain such employment for reasons not within their control; (ii) The veteran's service-connected disability materially contributes to the impairment of employability; (iii) The veteran has not overcome the effects of the impairment of employability through employment in an occupation consistent with his or her pattern of abilities, aptitudes and interests. 38 U.S.C.A. § 3102 (West 1991 & Supp. 1999); 38 C.F.R. § 21.51(f)(1) (1999). Furthermore, an employment handicap does not exist when any of the following conditions is present: (i) The veteran's employability is not impaired; this includes veterans who are qualified for suitable employment, but do not obtain or retain such employment for reasons within their control; (ii) The veteran's employability is impaired, but his or her service- connected disability does not materially contribute to the impairment of employability. (iii) The veteran has overcome the effects of the impairment of employability through employment in an occupation consistent with his or her pattern of abilities, aptitudes and interests, and is successfully maintaining such employment. 38 U.S.C.A. § 3102 (West 1991 & Supp. 1999); 38 C.F.R. § 21.51(f)(2) (1999). The type of disabilities that may be considered in determining whether a veteran is eligible for vocational rehabilitation benefits was affected by a 1995 decision by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court"), and by a 1996 change in the applicable statute. In the case of Davenport v. Brown, 7 Vet. App. 476 (1995), the Court struck down certain regulatory language as inconsistent with the relevant statute. The Court's decision had the effect of allowing both service-connected and non-service-connected disabilities to be considered in determining whether the veteran had an employment handicap. In 1996, the United States Congress changed the statute. In Pub. L. 104-275, Title I, § 101, Oct. 9, 1996, 110 Stat. 3324, Congress reestablished the requirement that a veteran's employment handicap must be the result of his service-connected disabilities in order for the veteran to be entitled to Chapter 31 vocational rehabilitation benefits. The veteran applied for vocational rehabilitation benefits in January 1996. The RO denied the veteran's claim in February 1996. The RO indicated that the veteran did not have the required rating of 20 percent or more for service-connected disabilities. The veteran did not appeal the 1996 decision. In September 1997, after the RO had increased his combined ratings for service-connected disabilities to 40 percent, the veteran reapplied for vocational rehabilitation benefits. The RO denied his claim in November 1997, and the veteran appealed that denial. Thus, the veteran's current appeal is based on his second claim for vocational rehabilitation benefits, which he filed in September 1997, after the 1996 change in the statute. Therefore, only his service-connected disabilities may be considered in determining whether he has an employment handicap for purposes of establishing entitlement to vocational rehabilitation. When the RO denied the veteran's second claim for vocational rehabilitation benefits in November 1997, the veteran's disabilities which had been found to be service-connected were hypertension, glaucoma, maxillary sinusitis, skin disorders, described as tinea pedis and xerosis, and residuals of a stress fracture of the distal part of the left tibia. Subsequently, in a March 1998 rating decision, the RO awarded service connection for tinnitus. In a separate decision that is being issued concurrently with this remand, the Board has awarded service connection for low back strain, bilateral pes planus, and left ear hearing loss. In interviews, hearing testimony, and written submissions, the veteran has indicated that he obtained a Bachelor of Arts degree, with a major in English, prior to entering service. He had twenty years of active service. He reports that during service he was a research and development officer, and that he developed training models for combat situations, using computer systems and software. He reports that after service, in 1996, he worked for a private engineering company as a technical editor. He indicates that he left that employer after several months, when he did not receive a salary increase that the employer had promised he would receive following a probationary period. He reports that he sought other employment, but that he was not hired until February 1998, when he got a job with the United States Department of Commerce. He reports that he worked as an information service specialist, answering questions about Department of Commerce data. He reports that after working there a month and a half, he learned that he would not receive the salary he had been promised. He reports that he discussed the situation with his supervisor, and continued to work, but that he left the job after eleven months, anticipating a job offer from a private telecommunications company with whom he had interviewed. He reported that he did not get the job with the telecommunications company. He indicated that he heard from one of the people he had listed as references, and that this person told him that the person at the telecommunications company who talked to the reference repeatedly noted that the veteran was a disabled veteran. The veteran has reported that a number of potential employers have noted his medical conditions, and have not offered him employment. The veteran asserts that the limitations resulting from his service-connected disabilities have prevented him from finding suitable employment. He reports that the manifestations that limit him in working include blurred vision, very weak night vision, difficulty driving at night, severe headaches, chest pain, dizziness, frequent nose bleeds, constant itching, taking numerous daily medications, and attending monthly medical appointments. A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that the veteran's claim for entitlement to vocational rehabilitation benefits is plausible and well grounded within the meaning of 38 U.S.C.A. § 5107. The Board finds, however, that additional evidence is needed to assist in determining whether the veteran meets the requirements for eligibility for vocational rehabilitation benefits. The veteran has presented evidence regarding the academic credentials that employers expect in candidates for employment comparable to the duties that the veteran performed during service. The evidence in the claims file does not provide sufficient information regarding the relationship between the veteran's service-connected disabilities and difficulty obtaining or retaining suitable employment. In addition, the veteran has not had the opportunity to present arguments in support of his vocational rehabilitation claim since the RO and the Board have found that additional disabilities are service-connected. The veteran has indicated that he left two positions that he has held since service due to salary disputes. He has also stated, however, that his service-connected disabilities have contributed to his difficulty obtaining employment. The veteran should be given the opportunity to submit supporting evidence, such as a written statement from the reference he mentioned, or from other witnesses, as to the apparent effects of the veteran's disabilities on his ability to obtain employment. In addition, the veteran should receive a VA medical examination to determine the current manifestations of his service-connected disabilities, and to obtain a medical opinion as to how the service-connected disabilities affect the veteran with regard to the skills needed for employment. Accordingly, this case is REMANDED for the following: 1. The RO should give the veteran the opportunity to submit supporting evidence such as a written statement from the reference he mentioned, or from other witnesses, as to the apparent effect of the veteran's disabilities on his ability to obtain employment. 2. The RO should schedule the veteran for a VA medical examination. The examining physician should be asked to describe the current manifestations of the veteran's service-connected disabilities due to hypertension, glaucoma, sinusitis, skin disorders including tinea pedis and xerosis, residuals of a fracture of the left tibia, tinnitus, low back strain, bilateral pes planus, and left ear hearing loss. The examiner should be asked to provide an opinion as to how the veteran's service-connected disabilities affect the skills needed for employment. After the completion of the foregoing development, the RO should review the case. If the decision on any issue remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JEFF MARTIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998).