BVA9501339 DOCKET NO. 93-06 799 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to Department of Veterans Affairs (VA) vocational rehabilitation training under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from May 1987 to September 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 1992 determination by a counseling psychologist of the Vocational Rehabilitation and Counseling Division at the Winston-Salem, North Carolina, Regional Office (RO). The veteran initiated an appeal by filing a notice of disagreement dated in September 1992. A statement of the case was issued in October 1992, and the veteran's substantive appeal was received in January 1993. The veteran is represented by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL It is contended by an on behalf of the veteran that the veteran's service-connected asthma results in an employment handicap which warrants entitlement to VA training and rehabilitation under Chapter 31, Title 38, United States Code. Specifically, it is maintained that the veteran is unable to work as an orthotic technician although she has prior experience in that field because the fumes aggravate her asthma. Additionally, the veteran reports that she is unable to obtain an office job, although she has a business degree, because it is too difficult to get a job due to an abundance of others with the same educational background. She also relates that she tried secretarial work, but found that she could not handle taking the numerous phone calls. It is also alleged that other jobs such as restaurant work would also aggravate her asthma because of the physical exertion necessary and exposure to smoke. The veteran indicates that she is interested in social work , psychology and special education with children. She wishes to pursue a graduate degree in that field. DECISION OF THE BOARD The 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, Chapter 31 file, and Chapter 35 file. 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 is against entitlement to VA training and rehabilitation benefits under Chapter 31, Title 38, United States Code. FINDINGS OF FACT 1. The veteran had active military service from May 1987 to September 1991. 2. Service connection has been established for the following disabilities: asthma, rated as 30 percent disabling; postoperative residuals of fibrocystic disease of the right breast (noncompensable); residuals of right shin splints (noncompensable); residuals of left shin splints (noncompensable). 3. The veteran's secretarial training and college degrees in business administration qualify her for sedentary office-related employment. 4. The veteran does not have an employment handicap. CONCLUSION OF LAW The legal criteria have not been met for VA training or rehabilitation under Chapter 31, Title 38, United States Code. 38 U.S.C.A. §§ 3101, 3102 (West 1991); 38 C.F.R. §§ 21.40, 21.51 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Since the veteran in the present case has a service-connected disability rated as twenty percent or more disabling, she will be entitled to vocational rehabilitation training under Chapter 31, Title 38, United States Code, if it is determined that she is in need of rehabilitation because of an "employment handicap." 38 U.S.C.A. § 3102(1) (West 1991); 38 C.F.R. § 21.40 (1993). An "employment handicap" is an impairment of the veteran's ability to prepare for, obtain or retain employment consistent with his or her abilities, aptitudes and interests. 38 U.S.C.A. § 3101(1) (West 1991). The term "impairment" means the restrictions on employability caused by the veteran's disabilities, deficiencies in education and training, negative attitudes toward the disabled and other pertinent factors. 38 C.F.R. § 21.51(c)(1) (1993). It should also be noted that an employment handicap does not exist if the veteran's employability is not impaired, or his or her employability is impaired, but service-connected disability does not materially contribute to it, or if 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 he or she is successfully maintaining such employment. 38 C.F.R. § 21.51(f)(2) (1993). The Board emphasizes here that, by regulation, an employment handicap does not exist if employability is not impaired, such as when a veteran is qualified for suitable employment, but does not obtain or retain suitable employment for reasons within his or her control. 38 C.F.R. § 21.51(f)(2)(i) (1993). In the present case, the record shows that the veteran graduated from high school in 1980. She was enrolled in a secretarial science program at a technical college in 1982 and 1983. She received an Associate in Applied Sciences degree in 1987 in the field of business administration. In 1991, the veteran was awarded a Bachelor's Degree in Business Administration. College transcripts show a speciality in management. Additionally, during the veteran's period of military service, she received training and worked as an orthotic specialist. She also has reported that she worked for several years as a weaver. The veteran maintains that she is unable to continue in the field of orthotics because the plaster fumes aggravate her service- connected asthma. She further reports that she is unable to continue in her prior occupation as a weaver due to the effect of lint on her asthma. In view of the nature of the veteran's disability, the Board finds these assertions to be reasonable and credible. The Board agrees that the veteran's asthma limits the types of employment which she can undertake to those which do not require great physical exertion and which do not expose her to environmental elements which aggravate her disability. However, it is also clear from the record that the veteran is well-educated. She has received training in secretarial work and has been awarded two college-level degrees in business administration. The veteran argues that some types of business employment (such as working in a restaurant) are not feasible. Assuming that this is true for the sake of the veteran's argument, the fact remains that there are still a vast number of business-related occupations which would involve only sedentary work and which would not expose her to fumes, smoke, etc. After carefully reviewing the record, the Board concludes that the preponderance of the evidence is for a finding that, although the veteran is not currently employed, the reason she is not currently employed is not because she suffers from an employment handicap. She has adequate post-high school education which qualifies her for less-sedentary office related work, and it is clear from her correspondence and counseling interviews that she has the valuable skill of being able to express herself well both orally and in writing. The fact that the veteran suffers from a serious disability is not in question. However, as outlined above, the evidence shows that she is currently qualified for suitable employment based on her education. Moreover, the Board believes that the reasons for her current unemployment are essentially within her control. In this regard, it appears that the veteran has not in good faith explored all of the available types of employment for which she is qualified because she would rather pursue a graduate degree in the field of social work with emphasis on dealing with children. The Board observes here that such work might possibly prove more stressful and require more physical exertion than the sedentary office work for which she is already qualified. At any rate, since the veteran is in fact qualified for employment, but unemployed due to reasons essentially within her control, it cannot be said that she has an employment handicap as defined by the law and regulations governing entitlement to rehabilitation services. 38 U.S.C.A. §§ 3101(1), 3102 (West 1991); 38 C.F.R. §§ 21.40, 21.51 (1992). ORDER The appeal is denied. EUGENE A. O'NEILL 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.