BVA9505563 DOCKET NO. 92-55 030 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUE Entitlement to vocational rehabilitation subsistence allowance under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from April 1985 to July 1990. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision letter dated November 15, 1990, from the Fargo, North Dakota, Regional Office (RO). The notice of disagreement was received in May 1991. The statement of the case was sent to the veteran in July 1991. The substantive appeal was received in July 1991. This matter was previously before the Board and was remanded in December 1992 and April 1994 for development of an intertwined claim for an increased rating of the veteran's service-connected fracture, right fifth metatarsal, currently rated 10 percent disabling. That claim was denied in a rating decision dated June 18, 1993. A notice of disagreement regarding that decision was dated in February 1994. A statement of the case addressing that claim was sent to the veteran in May 1994, and the veteran was told of the necessity of filing a timely substantive appeal regarding that issue. Under the applicable laws and regulations, the appellant had 60 days following the May 1994 statement of the case in which to file a substantive appeal. 38 C.F.R § 20.302 (1994). A substantive appeal was not filed within 60 days. For this reason, the claim for an increased rating is not in appellate status. The Board notes the veteran's argument that, had VA acted quickly on his application for service connection for his fracture, right fifth metatarsal, post operative, he would have applied for vocational rehabilitation subsistence allowance under Chapter 31 prior to November 1, 1990, and his application for those benefits would have been considered under the provisions of the statute requiring only a 10 percent disability rating to establish eligibility for Chapter 31 benefits. The Board has reviewed the claims folder and notes the veteran's application for service connection for two disabilities, his foot disability and hearing loss, was received at the RO August 2, 1990. A letter to the veteran dated August 15, 1990, scheduled his various VA examinations for September 24, 1990. The examinations were held on that date, and in a rating decision dated October 11, 1990, the claims were adjudicated. The veteran was sent a letter advising him of the decision on his claims, as well as his appellate rights, on November 1, 1990. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends he is entitled to vocational rehabilitation subsistence allowance based on his disability rating of 10 percent for his service-connected fracture, right fifth metatarsal. He asks that he be afforded the benefit of the doubt. 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. 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 veteran is not entitled to vocational rehabilitation subsistence allowance. FINDINGS OF FACT 1. The veteran has one service-connected disability, fracture, right fifth metatarsal, currently rated 10 percent disabling. 2. The veteran filed his application for vocational rehabilitation subsistence allowance under Chapter 31, Title 38, United States Code, on November 13, 1990. 3. The veteran does not suffer a serious employment handicap due to his service-connected disability. CONCLUSION OF LAW The veteran is not entitled to vocational rehabilitation subsistence allowance under Chapter 31, Title 38, United States Code. 38 U.S.C.A. §§ 3101, 3102 (West 1991 and West Supp. 1994); 38 C.F.R. §§ 21.40, 21.52 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran served on active duty from April 1985 to July 1990. In a rating decision dated October 11, 1990, service connection was granted for one disability, fracture, right fifth metatarsal, post operative. That disability was assigned a 10 percent rating under VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994); in particular, 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1994). The rating was effective from the day after the veteran's release from active duty, and is still in effect. The veteran filed a VA Form 28-1900, Disabled Veterans Application for Vocational Rehabilitation, with the RO on November 13, 1990. A veteran who filed his application for a program of rehabilitation services under 38 U.S.C.A. Chapter 31 on or after November 1, 1990, has basic eligibility for such services if: 1) he has a service-connected disability rated 20 percent disabling or more due to disability incurred after September 1940 or is hospitalized or receiving medical care for a service-connected disability pending discharge from active duty and the disability is likely to be rated 20 percent disabling or more under VA's Schedule for Rating Disabilities; and VA determines he has an employment handicap; or 2) he has a service-connected disability rated 10 percent disabling and has a serious employment handicap. 38 U.S.C.A. § 3102 (West 1991 and West Supp. 1994)). As noted above, the veteran has a service-connected disability that is rated only 10 percent disabling. Therefore, he does not establish basic eligibility for vocational rehabilitation subsistence allowance under 38 U.S.C.A. § 3102(1) (West 1991 and West Supp. 1994)). However, he does have a service-connected disability rated 10 percent disabling and if he establishes that he also has a serious employment handicap, he will have basic eligibility for vocational rehabilitation subsistence allowance under 38 U.S.C.A. § 3102(2) (West 1991 and West Supp. 1994)); 38 C.F.R. § 21.40 (1994). A serious employment handicap means a significant 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(7) (West 1991); 38 C.F.R. § 21.52(b) (1994). While a serious employment handicap is not usually found when a veteran's service-connected disability is rated less than 30 percent disabling, nevertheless an employment handicap may be found if the veteran's service- connected disability causes substantial period of unemployment, an unstable work history or a pattern of maladaptive behavior. 38 C.F.R. § 21.52(e) (1994). A veteran who files a claim for vocational rehabilitation subsistence allowance is entitled to an initial Chapter 31 evaluation if he meets the criteria set out in 38 C.F.R. § 21.40(a) (1994). 38 C.F.R. § 21.50 (1994). In this case, when the veteran filed his application for Chapter 31 benefits on November 13, 1990, he did not meet the criteria in 38 C.F.R. § 21.40(a) (1994): his disability was rated less than 20 percent disabling, he was no longer on active duty, and he had not filed his original application for Chapter 31 benefits before November 1, 1990. Therefore, he was not entitled an initial evaluation under 38 C.F.R. § 21.50 (1994). The medical evidence of record consists of the veteran's service medical records, as well as records from the Minot, North Dakota, Air Force Base Hospital (Minot) and the Fargo, North Dakota, VA medical facility, and includes reports of two VA medical examinations performed for compensation purposes. The veteran injured his right foot while playing softball in March 1989. X- rays revealed a proximal fracture of the fifth metatarsal, and the diagnosis was a Jones fracture. In May 1989 he had surgery for an open reduction internal fixation, during which a permanent screw was placed in his foot. A document dated June 28, 1989, from the Department of the Air Force Headquarters Joint Military Medical Command, Wilford Hall USAF Medical Center at Lackland Air Force Base reported that the condition should not hinder any duties to include flying duties, as it was not easily subject to trauma. In July and August 1989 the veteran complained of continued soreness of the right foot. However, in October 1989 he had no complaints of pain with weight-bearing, and his scar at the surgery site was nontender. In April 1990 his history of right foot fracture was noted, and it was reported he had no problems associated with that injury. During his June 1990 separation physical examination tenderness was noted over the proximal fifth metatarsal. A VA examination was performed in September 1990, and it was noted that range of motion of the foot was normal, as were deep tendon reflexes. Strength of the foot was 4 out 5 due to pain, and the veteran reported he is no longer able to run, stand or play basketball for a prolonged period of time due to pain. He reported more pain in cooler weather. In July and August 1991 the veteran was treated at Wilford Hall for complaints of foot pain. It was noted that removal of the screw should be considered, and that it would be three months before the veteran could return to normal activity if that course of action was taken. A private podiatrist who treated the veteran for his complaints of foot pain also provided him with orthotics. The podiatrist noted that full weight-bearing employment "will be a challenge" for the veteran. VA examinations for compensation purposes performed in March 1993 recorded the veteran's complaints of intermittent pain with grinding and popping sensations upon prolonged use; that he was able to walk two miles if he did so slowly and that sometimes the pain caused him to limp; that he could no longer participate in sports due to his disability; and that he was working as a truck driver, and climbing in and out of his truck was difficult and caused pain. Reports of an orthopedic examination and a foot examination, both performed on March 25, 1993, revealed tenderness over the base of the fifth metatarsal directly over the head of the bone screw used for fixation of the fracture. No swelling, deformity, angulation, false movement motion or shortening were detected. No interarticular involvement was detected, and range of motion seemed to the examiner to be entirely normal. X-rays showed that all fragments appeared to be in anatomic position, and the injury appeared to be well healed. The veteran's only medication was Tylenol, taken as needed. He reported that the shoe inserts he had been prescribed did not help. The diagnosis by the orthopedic examiner was old healed fracture of the base of the right fifth metatarsal, compression screw still in place, with tenderness over the head of the screw. The diagnosis by the foot examiner was status post open reduction and internal fixation of fracture of base of fifth metatarsal which is now healed, in excellent alignment and position with threaded screw in place. With regard to the degree of employment impairment the veteran suffers from his service-connected disability, the Board notes that the veteran reported during his 1990 VA examination that he was employed as a security manager, and during his 1993 VA examination he reported employment as a truck driver. The veteran's representative requested a social and industrial survey be performed to assess the degree of impairment that should be attributed to the veteran's disability, citing Tucker v. Derwinski, 2 Vet.App. 201, 203 (1992) in support of that request. However, in this case, the Board does not seek to draw its own conclusion on a medical matter. Furthermore, such a survey is not warranted in this case. At no point in the development of his claim has the veteran argued that he had difficulty obtaining or retaining employment due to his service-connected disability. The Board recalls the podiatrist's statement in September 1991 regarding the challenge of full weight-bearing. However, that statement alone without evidence of or even contentions of impairment of employability does not establish a basis for a finding that the veteran's ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes and interests has been significantly impaired. The Board notes the veteran's consistent reports of pain in his right foot upon use, including pain when he gets into his truck, but the evidence does not establish that the veteran's service- connected disability prevents or even significantly impairs his employability. 38 U.S.C.A. § 3101(7) (West 1991); 38 C.F.R. § 21.52(b) (1994). Furthermore, there is no evidence to support a finding that the veteran's service-connected disability has caused substantial periods of unemployment or an unstable work history, or that he has demonstrated a pattern of maladaptive behavior shown by a history of behavior, as required by the criteria set out in 38 C.F.R. § 21.52(e) (1994). When all the evidence is taken into account it does not support a finding that the veteran suffers a serious employment handicap. 38 U.S.C.A. § 3101(7) (West 1991); 38 C.F.R. § 21.52 (1994). Accordingly, there is no basis for a conclusion that the veteran is entitled to vocational rehabilitation subsistence allowance under Chapter 31, Title 38, United States Code. 38 U.S.C.A. §§ 3101, 3102 (West 1991 and West Supp. 1994); 38 C.F.R. §§ 21.40, 21.52 (1994). The veteran claims that he should be eligible for Chapter 31 benefits based on his 10 percent rating under 38 C.F.R. § 21.40(a)(3) (1994), and the Board notes his claim that he did not file his application for Chapter 31 benefits until after he received the RO's decision on his claims for service connection because he was advised by VA personnel to wait for the service connection decision. The veteran testified that he was told by two individuals he identified as VA employees, a counselor and someone at the RO, that he should wait to file his Chapter 31. The counselor, whose business card was added to the claims folder at the hearing, was clearly not a VA employee but was instead affiliated with a state veterans service organization. The other individual whose name the veteran did not know but who the veteran identified as an employee at the RO cannot be contacted to verify the veteran's version of the conversation, as the veteran could not identify the individual. In any case, the veteran did not testify that he attempted to file the application before November 1, 1990. Based on the foregoing, the Board finds the veteran is not eligible for Chapter 31 vocational rehabilitation subsistence allowance, and the appeal must be denied. 38 U.S.C.A. §§ 3101, 3102 (West 1991 and West Supp. 1994); 38 C.F.R. §§ 21.40, 21.52 (1994). The positive and negative evidence is not in equipoise. Therefore, the doctrine of the benefit of the doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. G. H. SHUFELT Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.