BVA9501099 DOCKET NO. 93-02 587 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to vocational rehabilitation subsistence allowance under Chapter 31, Title 38, United States Code. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from September 1938 to October 1958. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision letter dated May 5, 1992, from the Phoenix, Arizona, Regional Office (RO). The notice of disagreement dated in June 1992 was received. The statement of the case was sent to the veteran in August 1992. The substantive appeal dated in November 1992 was received. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he suffers an employment handicap. The employment handicap that he claims prevents him from obtaining a job is not a service-connected disability, although he says potential employers are certain to count those disabilities against him when making a hiring decision, but rather the fact that he has no college degree. He believes he can overcome that handicap by using Chapter 31 vocational rehabilitation subsistence allowance benefits to obtain a college degree. 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 basic claims file and his Counseling/Education/Rehabilitation 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 Chapter 31 vocational rehabilitation subsistence allowance. FINDINGS OF FACT 1. The veteran was born in 1918. 2. The veteran has two disabilities afforded service connection since November 1958: osteitis deformans, service-connected, rated 40 percent disabling, and deafness, bilateral, rated 20 percent disabling. 3. The veteran served on active duty from September 1938 until October 1958, worked for the federal government as a civilian from 1958 to 1976, and worked for McDonnell Douglas from 1977 to 1990, when he was forced to retire. 4. The veteran suffered impairment of employability due to his service-connected disabilities, but overcame that impairment through a stable work history and education. CONCLUSION OF LAW The veteran is not eligible for Chapter 31 vocational rehabilitation subsistence allowance. 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 The veteran served on active duty for more than 20 years, from September 1938 to October 1958. In 1958 he went to work for the federal government as a civilian employee, and remained so employed until 1976. In 1977 he began work for McDonnell Douglas, and states he was forced to retire by that company in September 1990. He has two service-connected disabilities: osteitis deformans, rated 40 percent disabling, and deafness, bilateral, rated 20 percent disabling. The veteran testified that he has been unable to obtain employment since he left McDonnell Douglas because he lacks computer skills and because he has no college degree. His Chapter 34 educational assistance benefits expired when that program was discontinued in 1976, and he wants to use Chapter 31 benefits to obtain a college degree so he can re-enter the work force. A veteran is entitled to a program of rehabilitation under Chapter 31, Title 38, United States Code, if he is found to be in need of rehabilitation to overcome an employment handicap. 38 C.F.R. § 21.40 (1993). Vocational rehabilitation programs in many forms, including subsistence allowance and employment services, are available to veterans with service-connected disabilities who also suffer an employment handicap. 38 U.S.C.A. § 3102 (West 1991). The fact alone that the veteran has service- connected disabilities is not enough to establish entitlement to Chapter 31 vocational rehabilitation subsistence allowance; it must also be shown that he suffers an employment handicap as the result of those disabilities. The veteran argues that he has an employment handicap in the fact that he has no college degree, and on that basis seeks Chapter 31 subsistence allowance benefits. Although the Board recognizes that argument and the sincerity with which the veteran asserts it, there is no legal support for an award of the claim, and it must be denied. The claims folder contains several reports of VA examinations, as well as detailed information provided by the veteran regarding his employment history. The medical evidence reveals he suffers constant low back pain and has a hearing problem that would make it difficult to converse in a noisy environment. The employment information reflects he worked in a management position over his many years of service on active duty and civilian employment. In November 1990 the veteran met with a VA counseling psychologist who concluded that, despite his complaints that he was forced to retire because of automation, the psychologist believed that the 72 year-old veteran's age contributed to his employment problems more than any service-connected disability. The psychologist discussed the veteran's case with a medical consultant and they concluded that the veteran does have specific physical limitations such as lifting, pushing or pulling weight more than 30 pounds, standing on hard surfaces, and a hearing impairment. However, they concluded that none of those impairments would be obstacles in the sedentary-type of managerial positions the veteran has held throughout his career. The psychologist pointed out that he did not believe the veteran is handicapped educationally in any way, adding he has a certificate in computer science from UCLA and 115 credits of college-level courses. It was noted that the veteran has excellent habits, no involvement with drugs or alcohol, has not shown periods of unemployment, and has not been dependent on government programs for support. He was very busy and was regularly involved in civic and other activities. The psychologist concluded that the veteran's two service-connected disabilities did, indeed, cause an impairment of employability. However, the psychologist then concluded that he had overcome the effects of those disabilities by maintaining a stable work history and attending courses over the years, and he no longer suffered an employment handicap. It is clear that the veteran has physical limitations caused by his service-connected disabilities. Those limitations are discussed above. However, because he has enjoyed a stable work history, as reported in detail in the materials submitted in connection with his November 1990 counseling session, and because he has augmented his work experience with educational programs over the years, the veteran has been able to overcome the employment impairment caused by his physical limitations. Therefore, the veteran does not now have an impairment of employment due to service-connected disabilities. With regard to whether the veteran actually suffers an employment handicap due to his service-connected disabilities, the evidence clearly shows that although those disabilities may have caused an employment handicap at one time, he does not now have such handicap because he was able to overcome that impairment. With regard to whether the veteran now suffers an employment handicap due to some other factor, such as advanced age or the absence of a college degree or the lack of computer skills, the Board points out that although those factors can be considered in determining whether the veteran has an employment handicap, they are only relevant if his employability is materially impaired by his service-connected disabilities. As discussed above, the Board has concluded that the veteran's employability is not materially impaired by his service-connected osteitis deformans, rated 40 percent disabling, and deafness, bilateral, rated 20 percent disabling. The evidence does not support a finding that the veteran suffers an employment handicap as the result of his service-connected osteitis deformans, rated 40 percent disabling, and deafness, bilateral, rated 20 percent disabling. Even if the Board conceded that the lack of a college degree was an employment handicap as that phrase is used in the applicable laws and regulations, there is no evidence to link the absence of a college degree or his lack of computer skills to his service- connected disabilities. 38 U.S.C.A. §§ 3101, 3102 (West 1991); 38 C.F.R. §§ 21.40, 21.51 (1993). Based on the foregoing, the Board concludes that the veteran is not entitled to vocational rehabilitation subsistence allowance benefits under Chapter 31, Title 38, United States Code, and the appeal must be denied. ORDER The appeal is denied. G. H. SHUFELT 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. (CONTINUED ON NEXT PAGE) 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.