Citation Nr: 0005159 Decision Date: 07/21/00 Archive Date: 09/08/00 ELWOOD L. FOGLEMAN DOCKET NO. 93-09 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon ORDER The following corrections are made in a decision issued by the Board in this case on February 28, 2000: At the top of each page of the decision, the claims folder number noted as “C 25 404 044” should be “C 25 404 944.” John E. Ormond, Jr. Member, Board of Veterans' Appeals Citation Nr: 0005159 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 93-09 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to vocational rehabilitation services under Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from June 1967 to September 1987. FINDINGS OF FACT 1. Service connection is in effect for glaucoma, Raynaud's phenomenon, chip fracture of the right little finger, postoperative gastric resection with hiatal hernia and scar of the left knee and postoperative meniscectomy; his combined disability rating is 50 percent. 2. The veteran has a Bachelor's degree in liberal arts earned while serving on active duty, and has been employed since January 1991, first as a VA employee, then as an employee of the State of Oregon's Department of Corrections. 3. The veteran has overcome the effects of an impairment of employability through employment in an occupation consistent with his pattern of abilities, aptitudes and interests, is successfully maintaining such employment, and has a history of current, stable continuous employment. CONCLUSION OF LAW Entitlement to a program of vocational rehabilitation training under Chapter 31, Title 38, United States Code, is not warranted. 38 U.S.C.A. §§ 3100, 3101(1), 3102(1)(A); 38 C.F.R. §§ 21.40, 21.51(e)(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran served on active duty from 1967 to 1987. He currently seeks Chapter 31 vocational rehabilitation benefits for a program of education that would enable him to earn a Master's degree in criminal justice. The record reflects that in November 1987 service connection was granted for glaucoma, Raynaud's phenomenon, chip fracture of the right little finger, postoperative gastric resection with hiatal hernia and scar of the left knee and postoperative meniscectomy; his combined disability rating was 10 percent. The combined rating was eventually increased to 50 percent, effective October 1987. In May 1989 he filed a claim seeking to establish entitlement to vocational rehabilitation benefits, and in January 1990 a counseling psychologist concluded the veteran had a serious employment handicap and that it would require special efforts to make him employable; the counseling psychologist also noted that the veteran was unemployed. The psychologist concluded that the veteran was approved to begin a computer programming undergraduate course in January 1990 in Wyoming. The record reflects that the veteran continued in that program until July 1990, when he discontinued attendance and indicated he would be moving to Oregon, where he wanted to continue training at Southern State College. He indicated in his substantive appeal that in September 1990 he moved from Wyoming to Oregon, and was unable to enroll in Southern State College because of problems encountered in obtaining copies of his undergraduate transcripts, as his undergraduate coursework was done through many different educational institutions. In December 1991 the veteran met with a counseling psychologist at the RO. A VA Form 28-1902b, Counseling Record-Narrative Report, dated in December 1991 reflects that the veteran had moved to Oregon from Wyoming, and had obtained employment at a VA facility. He inquired of the counseling psychologist regarding completing a computer science program, and indicated that his service-connected disabilities prevent him from returning to work in criminal justice, which is the type of work he performed while on active duty. The counseling psychologist reported that the veteran declined to complete the evaluation since it appeared he was ineligible for vocational rehabilitation because he was employed in a position that was appropriate. Another VA Form 28-1902b dated in September 1992 reports the veteran's history, and concludes that, even though it was concluded by the counseling psychologist in Wyoming that the veteran had a serious employment handicap, the current evidence showed that the veteran had obtained and retained stable employment for two years. She added that the veteran had offset the impact of his disability by finding suitable employment and no longer had a handicap under 38 C.F.R. § 21.51(f)(2)(iii). In late September 1992 the RO advised the veteran that it had concluded he was ineligible for vocational rehabilitation benefits, as he had acquired gainful employment that did not aggravate his service-connected disability. The veteran expressed disagreement with that decision, and requested a hearing, as well as a copy of the regulation cited as the basis for the denial. He was provided a copy of the regulation as an attachment to a letter dated in December 1992. A Statement of the Case (SOC) dated in January 1993 was furnished in which the bases for the denial were explained. In March 1993 the veteran filed a VA Form 1-9, Appeal to Board of Veterans' Appeals, in which he asserted that he was told by VA personnel in 1989 that his Chapter 34 educational assistance benefits would be "transferred" to the vocational rehabilitation program, but that December 31, 1989, the Chapter 34 program was "dissolved" by Congress. In his substantive appeal he reported that in December 1991 he met with a counseling psychologist on two occasions and was told that he would not receive vocational rehabilitation because he was employed; he did not receive written confirmation of that decision until November 1992. He also asserted that, contrary to the information set out in the SOC, he did not decline to complete the evaluation in December 1991. The veteran added that he believed he was wronged by the VA when it removed 38 months of education benefits that he was entitled to under Chapter 34. He added that he was seeking additional training so that he could return to the field of criminal justice, and that his current VA employment was not consistent with his abilities, aptitudes and interests. He further argued that the law does not specifically prohibit a veteran who is employed from participating in vocational rehabilitation. Finally, he contended that his employability is impaired by his service- connected disabilities, which required hospitalization on three occasions since he began employment with VA. A hearing was held before a counseling psychologist in March 1993, at which the veteran asserted he believed he was entitled to 38 months of education under Chapter 34, but that VA wrongly took those away from him. He added that he believed he was currently underemployed, and that the intent of the vocational rehabilitation program was not met because he did not believe he was at that time in an occupation that was consistent with his abilities, aptitudes and interests. He pointed out that while living in Wyoming it was determined by VA that he was eligible for vocational rehabilitation, and that he should not be punished now because he was employed. He added that while he was working for VA he was hospitalized on three occasions for treatment of his gastrointestinal disorder, and argued that his service-connected disabilities and his level of education impaired his employability. Finally, the veteran argued that he thought it inappropriate for his case to be considered again by the same counseling psychologist who first denied the claim. The claims folder was forwarded to the Board for appellate consideration, but was returned to the RO for additional development in December 1994. The claims folder was again sent to the Board in August 1996, and was remanded in January 1997 to afford the veteran the opportunity for a hearing before a traveling Member of the Board. A hearing was held before the undersigned in August 1997. The veteran repeated his assertions that, although he was still working for the VA, when he applied for VA benefits he was working as a GS-7 as an incentive therapy coordinator at the White City VA Domiciliary and knew that he was underemployed, but as he had been unemployed for more than two years he took the job anyway. He was promoted to a GS-9, and then to a GS-10, when he was a vocational rehabilitation specialist. He left that position in October 1996. He indicated he was confused about why he was not permitted to use Chapter 34 benefits, and again expressed displeasure with the fact that the counseling psychologist who first denied his claim was permitted to continue to be involved in the decisionmaking process. He added that he thought the educational benefits he had in Wyoming should have transferred with him to Oregon. He testified that he was currently employed in the field in which he worked during service, and had been an investigator for the Oregon Department of Corrections for nine months. He added that he believed additional education consisting of a Master's degree in criminal justice would enhance his employment opportunities, and that his service-connected disabilities impair his employment options. His service- connected disabilities caused him to miss two to three months of work during the six-year period he worked for VA, but he had missed no work due to illness in his current position. He stated that he is 48 years of age, and that his service- connected disabilities will worsen and might cause him to lose his current employment, so he would like to obtain additional training to better his chances of obtaining a supervisory position that would entail working indoors. He explained that he found a Master's degree program that he could complete while taking a leave of absence from his current employment. Finally, he expressed frustration that VA personnel in Wyoming and Oregon handled his case so differently, when the only difference as far as he was concerned was the fact that in Oregon he "found a simple job " with VA. Additional evidence submitted at that hearing included a statement that added that he had co-workers at VA who were allowed to pursue educational benefits under Chapter 31 even while maintaining employment. The evidence included the assertion that his employability was impaired when evaluated by the Oregon VA personnel, as his service- connected disabilities required hospitalization "on numerous occasions." A July 1998 note to the file from a VA counseling psychologist reported the veteran was in the RO to discuss his case on that date. He indicated he was very pleased with his current job as an investigator with internal affairs for the state of Oregon's Department of Corrections, and that this was the work he wanted to do when he applied for vocational rehabilitation in 1992. His current annual salary was $50,000, and he agreed that he did not need vocational rehabilitation at that time. He indicated that instead of vocational rehabilitation, he wanted to restore the "GI Bill benefits" he had lost so he could pursue further education. A VA Form 119, Report of Contact, dated in October 1998, indicated the veteran stated he had appealed the denial of vocational rehabilitation benefits, had had a travel Board hearing in August 1997, had last spoken with VA personnel about his claim in July 1998, and wanted to know the status of his "hearing." In March 1999 a Supplemental Statement of the Case was prepared and furnished to the veteran in which it was explained that his claim remained denied because there was no unmistakable error in fact or law, nor had new and material evidence been submitted that justified a change in the prior determination. Correspondence reviewing the chronology of this claim and expressing dissatisfaction with the length of time it had taken to date to adjudicate this claim, dated in December 1998, addressed to VA's Secretary, was reviewed by a counseling psychologist and the Acting Director of the RO, who responded to the veteran in September 1999 by advising him that the claims folder was about to be sent to the Board for appellate consideration. The veteran was notified in October 1999 that his claims folder would be sent to the Board, and written argument was submitted on his behalf by his representative at the Board. In November 1999 the veteran was provided a copy of the transcript of the August 1997 hearing before the undersigned. Correspondence from the veteran, dated in January 2000, expressed the veteran's continuing dissatisfaction with the length of time that has passed since he first filed this claim. That correspondence was forwarded to the Board, and has been associated with the claims folder. Applicable Laws and Regulations The purpose of the vocational rehabilitation training program pursuant to Chapter 31, Title 38, United States Code, is to enable veterans with service-connected disabilities to become employable to the maximum extent feasible and to obtain and maintain suitable employment. 38 U.S.C.A. § 3100. A person is entitled to a rehabilitation program under Chapter 31 if he has a service-connected disability rated 20 percent or more disabling and is found by the Secretary to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102(1)(A); 38 C.F.R. § 21.40. A person may also be entitled to vocational rehabilitation if he has a service-connected disability rated 10 percent disabling and has been found to be in need of rehabilitation because of a serious employment handicap. 38 U.S.C.A. § 3102(2). The phrase "employment handicap" means an impairment of the veteran's ability to prepare for, obtain or retain employment consistent with such veteran's abilities, aptitudes and interests. 38 U.S.C.A. § 3101(1); 38 C.F.R. § 21.51(b). Impairment is defined as a restriction on employability caused by disabilities and negative attitudes toward them, deficiencies in education and training, and other pertinent factors. 38 C.F.R. § 21.51(c)(1). 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 service- connected disability does not materially contribute to the impairment of employability; or (iii) The veteran has overcome the effects of the impairment of employability through employment in an occupation consistent with his pattern of abilities, aptitudes and interests, and is successfully maintaining such employment. 38 C.F.R. § 21.51(f)(2). The veteran's abilities to obtain or retain employment are not impaired if he or she has a history of current, stable continuous employment. 38 C.F.R. § 21.51(e)(2), (3). Previously, and during the pendency of this claim, the U.S. Court of Appeals for Veterans Claims (Court) (prior to March 1, 1999, titled the U.S. Court of Veterans Appeals) had set aside as exceeding the statutory requirements the provisions of 38 C.F.R. § 21.51 that required a causal nexus between a service-connected disability and "an employment handicap." Davenport v. Brown, 7 Vet. App. 476 (1995). See also Wilson v. Brown, 7 Vet. App. 542 (1995). However, the statute was revised to add a requirement that a service-connected disability must contribute in substantial part to a veteran's employment handicap. 38 U.S.C.A. § 3101(1) (1999). In this case neither the RO's nor the Board's decision regarding entitlement to Chapter 31 benefits is premised on the assumption that the appellant's service-connected disability must materially contribute to the impairment of employability. In addition, the Court's decision in Davenport did not eliminate the requirement, derived from statute, that the appellant be impaired in his ability to prepare for, obtain, or retain employment consistent with his abilities, aptitudes and interests. Accordingly, the change in law need not be addressed specifically in this decision. Analysis The veteran asserts that he should have continued to receive vocational rehabilitation benefits under Chapter 31 after he moved from Wyoming to Oregon. The Board recognizes that in this case the veteran experiences impairment of earning ability, as illustrated in part by his 50 percent disability rating. Overall, however, the record reveals that he has maintained employment since January 1991 in spite of the impairment due to his various disabilities. The veteran has a Bachelor's degree. When he first filed a claim for vocational rehabilitation benefits in 1989 he was unemployed and living in Wyoming, and had been unemployed for some time. It was determined at that time that he had an employment handicap, and that vocational rehabilitation was required to enable him to obtain and retain employment. A program of education in the field the veteran identified as one that interested him, computer science, was commenced, but just eight months later was discontinued by the veteran because in September 1990 he moved to Oregon, away from the learning institution at which he was attending classes. When he stopped attending school in Wyoming he stopped receiving Chapter 31 benefits, and he did not object to that discontinuance. He explained that he tried unsuccessfully to obtain transcripts of his undergraduate coursework so that he could complete an application for admission to another learning institution in Oregon, and to date has not indicated that he was ever able to obtain those transcripts. He testified that in January 1991 he started working for VA in Oregon. When he applied for vocational rehabilitation benefits in December 1991 he had been employed for almost one year, and the record reflects that he is still employed, although in a different position with the State of Oregon, and has apparently been continuously employed since January 1991. The Board has considered the veteran's assertion that he should not be denied vocational rehabilitation benefits because he was willing to take a position in January 1991 for which he was overqualified. The record reveals that he was able to meet the demands of that occupation, and in fact shows that he was promoted through the ranks, and only ceased that employment when he secured a position with the State of Oregon's Department of Corrections. Although the veteran has argued that his service-connected disabilities impaired his employability during the period he worked for VA, the evidence of record reflects that he was accomplishing the tasks required of him as a VA employee, as he was, by his own account, quickly promoted. Evidence is lacking that would tend to show that from January 1991 the veteran's overall disability resulted in an inability to prepare for, obtain or retain employment consistent with his abilities, aptitudes and interests. Rather, following the period in Wyoming during which he was unemployed and in receipt of vocational rehabilitation benefits, he demonstrated an ability to obtain and maintain employment in an occupation that was consistent with such factors. The veteran's references to disability and its impact on his ability to perform his duties are vague and are not supported by the record. With regard to the existence of a current employment handicap, the veteran asserted that his Bachelor's degree was in Liberal Arts, and was not a degree that rendered him employable in the field of criminal justice, where he believed a Master's degree was required for him to obtain a position comparable to the one he had in service. However, the record reflects that as of August 1997 he had been employed in a position for nine months with Oregon's Department of Corrections. In July 1998 he indicated he was happy with his current job, and that it was comparable to the position he held in service. He also reported that he believed he still required a Master's degree to remain competitive as he advanced in age. The Board emphasizes that the basic premise of vocational rehabilitation under Chapter 31 is to provide services to veterans in order that they may become employable and maintain suitable employment. 38 U.S.C.A. § 3100. Impairment in such ability is illustrated by a finding that the veteran has an employment handicap. Clearly, the veteran in this case was capable of obtaining and maintaining suitable employment, and was doing so at the time he met with a counseling psychologist in December 1991 and in July 1998. The veteran's choice to obtain employment in the field of criminal justice was a preference, and the limitation of his education in this regard does not amount to an employment handicap. In this case, although there was a time when the record did support a finding that an employment handicap existed, and that during that period the veteran received Chapter 31 benefits, the veteran terminated that training program of his own volition, then was unable to enroll in a different educational institution for reasons that did not involve VA. Shortly after terminating the training program the veteran obtained and maintained suitable, stable employment. When he reapplied for Chapter 31 benefits in Oregon, as evidenced by the veteran's personal testimony he was successfully accomplishing the tasks required of him as a VA employee, and later as an employee of Oregon's Department of Corrections. In light of the fact that the veteran has obtained and maintained suitable, stable employment, he is not entitled to Chapter 31 vocational rehabilitation benefits. 38 U.S.C.A. § 3100, 3101(1), 3102(1)(A); 38 C.F.R. § 21.51(e)(f). ORDER Entitlement to vocational rehabilitation services under Chapter 31, Title 38, United States Code is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals