BVA9500552 DOCKET NO. 93-03 448 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the veteran is eligible for vocational rehabilitation training under Chapter 31, Title 38, United States Code. (The issues of entitlement to service connection for post- traumatic stress disorder and tinnitus, whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a chronic acquired disorder manifested by dizziness, entitlement to an increased (compensable) evaluation for bilateral hearing loss, and entitlement to a total evaluation for compensation on the basis of individual unemployability are the subjects of a separate decision under the same docket number.) REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from March 1960 to August 1964. This appeal arises from a November 1991 decision by the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO). That decision found that the appellant was not entitled to vocational rehabilitation training under Chapter 31, as he did not have the requisite compensable service-connected disability. CONTENTIONS OF APPELLANT ON APPEAL The appellant essentially contends that he has an employment handicap and is in need of a program of vocational rehabilitation training. In this regard, the appellant has expressed his belief that the noncompensable disability evaluation assigned to his sole service-connected disability is inadequate for the degree of impairment manifested. 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 appellant's claim lacks legal merit and must be denied. FINDINGS OF FACT 1. The appellant has established entitlement to service connection for bilateral hearing loss, rated noncompensably disabling since July 1987. He has no other service-connected disabilities. 2. The appellant's application for Chapter 31 educational benefits was received in January 1990. CONCLUSION OF LAW The basic legal criteria for entitlement to a program of vocational rehabilitation training pursuant to Chapter 31, Title 38, United States Code are not met. 38 U.S.C.A. §§ 3100, 3102 (West 1991); 38 C.F.R. § 21.40 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Chapter 31 vocational rehabilitation benefits are intended to enable veterans with service-connected disabilities to become employable and to obtain and maintain suitable employment to the maximum extent possible. 38 U.S.C.A. § 3100. A person shall be entitled to a program of rehabilitation services under the terms and conditions of Chapter 31, Title 38, United States Code, if that person is a veteran who has a service-connected disability which is compensable (for initial claims received on or after November 1, 1990, the service-connected disability must generally be compensable at a rate of 20 percent or more), and which was incurred or aggravated in service on or after September 16, 1940; and who is also determined to be in need of rehabilitation in order to overcome an employment handicap. 38 U.S.C.A. § 3102; 38 C.F.R. § 21.40. The term "employment handicap" means an impairment of veteran's ability to prepare for, obtain or retain employment consistent with such veteran's abilities, aptitudes and interest. 38 C.F.R. § 21.51 (1993). The provisions of 38 U.S.C.A. § 3102 (West 1991) set forth the eligibility criteria to be met by a veteran in order to qualify for vocational rehabilitation training under Chapter 31. The law provides that an individual is not eligible for vocational rehabilitation training under Chapter 31, Title 38, United States Code, if he does not have a service-connected disability evaluated as 20 percent disabling, or unless such individual has a disability rated as 10 percent disabling and has a serious employment handicap. Prior to November 1, 1990, however, the provisions of 38 U.S.C.A. § 3102 required only a service- connected disability evaluated at 10 percent for purposes of Chapter 31 benefits. The pertinent VA regulation, 38 C.F.R. § 21.40(a)(3) provides that if a veteran submitted an original claim for Chapter 31 benefits before November 1, 1990, then he/she must have a service-connected disability which is compensable or is likely to be compensable at less than 20 percent, in addition to an employment handicap, in order to be eligible for Chapter 31 benefits. In this case, the Board notes that the veteran's original claim (VA Form 28-1900) for vocational rehabilitation training under Chapter 31 was, in fact, received by the RO in January 1990. He is thus eligible for Chapter 31 benefits if he has a compensable service-connected disability and is determined to be in need of rehabilitation in order to overcome an employment handicap as defined by 38 C.F.R. § 21.51(b). In July 1987, the veteran filed an application for service connection. In a rating decision dated in October 1987, service connection was granted for bilateral defective hearing. This disorder was rated as noncompensably disabling and has continued to be rated as noncompensably disabling subsequent thereto. We observe that the veteran's defective hearing is his sole service- connected disability. In a separate decision in November 1994, the Board denied the veteran's appeal for assignment of a compensable evaluation for his service connected disability and likewise denied his claims for service connection for various other disabilities. As a result, the veteran does not, at this time, have a service-connected disability evaluated as compensably disabling. The governing legal criteria are that a veteran must, at a minimum, have a compensable service-connected disability in order to obtain Chapter 31 benefits. The veteran in this case clearly does not meet the threshold eligibility criteria. His claim therefore lacks legal merit and must be denied. See Sabonis v. Brown, 6 Vet.App. 426 (1994). In this case, the law is dispositive. ORDER The benefit sought on appeal 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.