BVA9507724 DOCKET NO. 93-09 699 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to vocational rehabilitation training under the provisions of Chapter 31, Title 38, United States Code. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran served on active duty from September 1980 to March 1984. She has been represented since March 1992 by AMVETS. This matter came before the Board of Veterans' Affairs (hereinafter Board) on appeal from a determination of March 1991, by the Pittsburgh, Pennsylvania Regional Office (RO), which denied the veteran's claim for Chapter 31 benefits. By letter dated in March 1991, the veteran was informed that it was determined that the effects of her service-connected disorder did not materially hinder her ability to obtain or maintain suitable employment. The veteran appeared and offered testimony at a hearing before a hearing officer at the RO in September 1992. A transcript of the hearing is of record. A hearing officer's decision, confirming the denial of the veteran's claim for Chapter 31 benefits, was entered in October 1992. A supplemental statement of the case was issued in October 1992. The appeal was received at the Board in May 1993. The Board notes that the veteran's representative, in an attachment to VA Form 1-646, dated in February 1993, has made reference to several claimed disabilities which it is asserted are related to the veteran's service-connected knee disability. It appears that the representative may be claiming service connection for these disabilities. This matter is referred to the RO for clarification and appropriate action, as needed. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that she is entitled to vocational rehabilitation training under Chapter 31. The veteran asserts that she is unable to obtain a position in her chosen field as a result of her service-connected disorder. The veteran points out that while she has a Bachelor's degree in criminal justice, she has been unemployed in the law enforcement field because of her service-connected left knee disorder. The veteran indicates that since 1985, she has been forced to take jobs that are unrelated to her field in order to make ends meet. The service representative maintains that the veteran has been employed on a continuing basis only because she has accepted work which requires skills far below her abilities and aptitudes. It is argued that her employment is not suitable employment within the meaning of 38 C.F.R. § 21.51(c)(4)(i). It is requested that the veteran be accorded 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 vocational rehabilitation and claims folders. 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 does not establish that the veteran has an employment handicap, so as to establish eligibility for Chapter 31 vocational rehabilitation training. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. The veteran's only service-connected disability is chondromalacia, patella, left knee, rated 10 percent disabling, effective October 24, 1988. 3. The veteran has education and experience which qualifies her for suitable employment, and she has a history of continuing, stable employment. CONCLUSION OF LAW The veteran does not have an employment handicap and thus does not meet the eligibility criteria for benefits under Chapter 31, Title 38, United States Code. 38 U.S.C.A. §§ 3100, 3101, 3102, 5107 (West 1991); 38 C.F.R. §§ 21.1, 21.40, 21.51 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that we have found that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, we find that she has presented a claim which is plausible. Moreover, after careful review of the evidentiary record, we are also satisfied that all relevant facts have been properly developed. Therefore, no further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). At the outset, the Board notes that the representative has pointed to a November 1987 VA notice to the veteran to the effect that she was entitled to vocational rehabilitation services, and that this notice somehow has an effect upon her current entitlement to such services. We would point out that the preliminary determination as to entitlement had been made prior to the reduction, effective November 1, 1987, of her service- connected disability rating to a noncompensable rating. Thus, based upon the reduction, she was no longer eligible for Chapter 31 benefits. 38 U.S.C.A. § 3102 (West 1991); 38 C.F.R. § 21.40 (1987). Her entitlement to Chapter 31 benefits at the present time must thus be based upon her current claim. The pertinent facts in this case are not in dispute and may be briefly described. A rating action of December 1989 increased the evaluation for the veteran's service-connected left knee disorder from a noncompensable rating to a 10 percent rating, effective October 24, 1988. The evidence of record reflects that the veteran obtained a Bachelor's degree in criminal justice in 1979. The record also indicates that the veteran obtained a position with Mellon Bank as a processor of checks where she worked from February 1985 to November 1987. She subsequently obtained a job with the Internal Revenue Service (IRS) in November 1987 where she remained until July 1990, when she resigned and took a job with Kauffmann's department store as a collections agent. The records indicate that the veteran is still employed at Kauffmann's. Pursuant to the veteran's claim for Chapter 31 vocational rehabilitation training, the veteran met with a VA counseling psychologist in December 1990 for a counseling session. At that time, the veteran indicated that she was looking to return to school to complete a degree in accounting, with the goal of working in the future as an accountant. The counseling psychologist stated that the physical demands of her position with the IRS and her present position with Kauffmann's was compatible with her service-connected disorder. He observed that there had been no change in her condition throughout the four years with the IRS; there was never a need for surgery or any periods of hospitalization. The counseling psychologist determined that the service-connected disability was not an employment handicap with regard to her present situation; however, he indicated that final determination would be delayed pending an evaluation by the Occupational Therapist (OT). In a follow-up counseling session with the VA counseling psychologist in March 1991, it was reported that on the OT evaluation, there was a report suggesting that the veteran was unable to perform the activities of stooping, bending, lifting and climbing stairs. It was felt, however, that she had no pain in a sitting situation. As a result, the occupational therapist had noted that the veteran was quite capable of holding a desk type job that required mostly sitting. The counseling psychologist noted that the veteran's past employment at IRS and present employment in collection fell within that category and concluded that the veteran did not qualify for vocational rehabilitation. The counseling psychologist stated that there was no doubt that the service-connected disability produced some physical limitations; however, he noted that the veteran's Bachelor's degree and work experience had more than compensated for any of ill effects caused by her disability. He further observed that she had been suitably employed by the IRS from 1987 to 1990, and her present employment with Kauffmann's did not aggravate her disability. The veteran appeared at a hearing before a hearing officer at the RO in September 1992, at which time she offered testimony concerning her need for training under the Chapter 31 program. The veteran's testimony is essentially reflected in the contentions section above. In addition, the veteran indicated that she had been unable to meet the requirements for the entry level positions in her field. The veteran maintained that while she has been told that she could perform administrative management work, she argued that it was unrealistic to expect her to find a managerial position in her field without entry level experience. The veteran testified that she was currently working; she stated, however, her current job as a collector does not even require a college degree. The veteran reported that she had had strictly sitting jobs, because her left knee disability is aggravated by standing or walking. The veteran indicated that she was not physically fit to perform the duties of a corrections officer; and, she stated that she had not seen any listing for administrative positions with either the Federal, State, City or County Government offices. She stated her belief that when she was employed by IRS, she was hired at a grade level which was higher than her qualifications, but reported that she ultimately resigned because she didn't feel that there was any opportunity for further advancement. She also testified that she had not sought any further State civil service positions in the corrections field since 1985, when she was advised she did not qualify because of physical disability. Submitted at the hearing was a letter from a Divisional Manager of Collections for Kauffmann's department store, dated in June 1992. The manager indicated that during the nine months that the veteran had worked in his department as a telephone collector, she has impressed him with her positive attitude. The manager reported that the position of telephone collector did not require any particular educational qualifications. He stated that the veteran's degree in criminal justice did not render her any more qualified to perform her job than a high school graduate. The manager further stated that he believed that the position of telephone collector was far below the veteran's work potential. At the hearing, the veteran also submitted a letter from the State Civil Service Commission, dated in September 1985, wherein she was informed that her name was being deactivated from all Corrections Officer Trainee eligible lists because of her inability to pass the required physical fitness test. Also submitted was a list of the veteran's employment from February 1985 to September 1992. In this regard, we note that the controlling law provides that a person shall be entitled to a rehabilitation program under the terms and conditions of Chapter 31, if such person is determined by the Secretary of Veterans Affairs to be in need of rehabilitation because of an employment handicap. 38 U.S.C.A. § 3102. An employment handicap is defined as an impairment of the veteran's ability to prepare for, obtain, or retain employment consistent with his/her abilities, aptitudes, and interests. 38 C.F.R. § 21.51(b), (e) (1994). Impairment is defined as 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). However, the regulations also state that the veteran's abilities to obtain or retain employment are not impaired if he/she has a history of current, stable, continuous employment. 38 C.F.R. § 21.51 (e)(2)(3) (1994). The Board finds that the evidence of record fully supports the determination made at the RO that the veteran does not have an "employment handicap." We note that while the veteran has not been employed in the field of criminal justice, she has a history of stable and continuous employment. After her discharge from service in 1984, the veteran obtained a position with Mellon Bank working as a check processor for approximately two years. Thereafter, in November 1987, the veteran obtain employment with the IRS where she worked until July 1990; thereafter, she found a job with Kauffmann's department store where she apparently is still working. Both of the above positions were suitable and compatible with the veteran's service-connected disorder insofar as they did not require standing for any extended period of time. The veteran herself testified at the hearing in September 1992 that sitting has never been a problem, as long as she extends her legs. The records further show that the veteran's left knee disorder has not been aggravated by this employment. The Board acknowledges the veteran's argument that she has been employed in jobs which are beneath her qualifications. A finding that a veteran is employed in an occupation which is consistent with his or her abilities, aptitudes and interests may not be made if the occupation does not require reasonably developed skills. 38 C.F.R. § 21.51(c)(4)(i). However, this provision is expressly subject to 38 C.F.R. § 21.51(e)(2)(3), which provides that the lack of reasonably developed skills will not be taken into consideration in assessing impairment of employability where the veteran has a history of continuing, stable employment. Clearly, the record reflects that the veteran has had continuing, stable employment. Thus, regardless of her belief that such employment is beneath her qualifications, her pattern of stable, continuing employment shows that she has overcome the impairment of employability. We also note her testimony to the effect that she was actually employed by the IRS at a level higher than that for which she was qualified, although she chose to resign from that position, and that she had not sought State civil service positions within the corrections field since 1985. This testimony, coupled with the veteran's history of stable employment in the positions she has held, further suggests that such employment is consistent with her abilities, aptitudes, and interests, as defined by law and regulation. In light of the foregoing, the Board must conclude that the veteran has overcome the effects of the impairment of her employability through stable and continuous employment. 38 C.F.R. § 21.51 (f)(2)(iii). Consequently, it cannot be said that the veteran has an employment handicap within the meaning of the law and regulations governing entitlement to rehabilitation services. 38 U.S.C.A. §§ 3101, 3102 (West 1991); 38 C.F.R. §§ 21.40, 21.51 (1994). Because we find that the record does not show that the veteran has an employment handicap by virtue of her employment, it is unnecessary to address her representative's argument that she has additional disabilities which have not been considered. At this juncture, the Board also takes note that the U.S. Court of Veterans Appeals has set aside as unlawful provisions of 38 C.F.R. § 21.51 which provided that to be an "employment handicap," the impairment of employability had to have been materially contributed to by service-connected disability. See Davenport v. Brown, No. 91-1665 (U.S. Vet. App. Mar. 30, 1995). However, our decision in this case is based on a finding that the veteran has overcome the impairment of employability and thus does not now have an employment handicap. In reaching this decision, the Board has considered the doctrine of granting the benefit of the doubt to the veteran but does not find the evidence is approximately balanced such as to warrant its application. 38 U.S.C.A. § 5107(b). The preponderance of the evidence is against the claim. ORDER Vocational rehabilitation training under the provisions of Chapter 31, Title 38 United States Code, is denied. D. C. SPICKLER 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.