Citation Nr: 22001009 Decision Date: 01/07/22 Archive Date: 01/07/22 DOCKET NO. 19-00 588A DATE: January 7, 2022 ORDER Entitlement to Veteran Readiness and Employment (VR&E) benefits, other than employment benefits, to include the pursuit of an educational goal to obtain a Doctor of Philosophy (Ph.D. or doctorate degree) at the Universidade de Santiago de Compostela in Santiago de Compostela, Spain, (Foreign University) pursuant to 38 U.S.C. Chapter 31 (Chapter 31) is denied. FINDINGS OF FACT 1. The Veteran was found entitled to VR&E services due to an employment handicap, a serious employment handicap, and being unemployed in the June 2017 vocational assessment but entitlement to further education to pursue a doctorate degree at the Foreign University was denied. 2. Although the Veteran was found to have an employment handicap and a serious employment handicap, his current education and skills are adequate to maintain employment in his vocational goal of being a professor and this occupation has not been found to be unsuitable due to the Veteran's abilities and employment handicap. 3. The Veteran has not established hardship sufficient to warrant VR&E services outside of the United States to attend the Ph.D. program at the Foreign University. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits, other than employment benefits, to include the pursuit of an educational goal to obtain Ph.D. degree at the Foreign University pursuant to Chapter 31 have not been met. 38 U.S.C. §§ 3100, 3101, 3102, 3104, 3107; 38 C.F.R. §§ 21.35, 21.40, 21.50, 21.51, 21.70, 21.72, 21.130. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from October 2002 to December 2004. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual Board hearing in August 2021. A transcript of the hearing is of record. This matter was certified to the Board as entitlement to Vocational Rehabilitation and Employment benefits. In June 2020, VA changed the name of the Vocational Rehabilitation and Employment program to the Veteran Readiness and Employment (VR&E) program. Thus, the Board has recharacterized the issue as it appears on the first page of this decision. The record shows that new, relevant evidence has been associated with the claims file since the issuance of the December 2018 Statement of the Case (SOC). Specifically, the Veteran submitted July 2021 and August 2021 private letters, as well as a September 2021 letter from a VA medical professional, that discuss the impact of certain service-connected disabilities on the Veteran's ability to participate in the Ph.D. program at the Foreign University. Generally, the Board may not consider additional evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from a claimant. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c). However, 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a claimant submits evidence to the AOJ or the Board with, or after submission of a Substantive Appeal to the Board (VA Form 9) that was filed on or after February 2, 2013. 38 U.S.C. § 7105(e). The record shows Veteran filed his VA Form 9 for this matter in January 2019; thus, waiver of initial AOJ review of this new evidence, which was submitted by the Veteran, is presumed. See 38 U.S.C. § 7105(e). The Veteran is seeking Chapter 31 benefits in order to obtain a doctorate degree from a university in Spain. Specifically, in numerous statements throughout the appeal, including in the August 2021 Board hearing testimony, he requested to use VR&E benefits to pursue a doctoral program in Equity and Innovation in Education at the Foreign University in order to become a professor that teaches masters or doctoral candidate students. He contends that even though he has already attained four master's degrees, he requires additional education, with the help of his VR&E benefits, to attend this university outside of the United States as he is unable to teach high school or undergraduate-aged students due to their immaturity, which aggravates his service-connected major depressive disorder with generalized anxiety disorder. The purpose of VA's rehabilitation program is to provide for services and assistance necessary to enable veterans with service-connected disabilities to achieve independence in daily living and, to the extent possible, become employable and obtain and maintain suitable employment. 38 U.S.C. § 3101; 38 C.F.R. § 21.70. Generally, a veteran seeking Chapter 31 vocational rehabilitation training will initially be assigned a specific case status of "applicant," and if he or she attends the appointment for an initial evaluation, progresses to "evaluation and planning" status. See 38 C.F.R. § 21.180. During evaluation and planning status, it is determined whether the veteran has an employment handicap and whether achievement of a vocational goal is feasible, and a plan is developed. See 38 C.F.R. § 21.184. When a decision concerning achievement of a vocational goal cannot be made during the initial evaluation, the veteran may be assigned to "extended evaluation" status, and extended evaluation status is continued whenever a veteran is receiving rehabilitation services prescribed in the Individualized Extended Evaluation Plan (IEEP). 38 C.F.R. § 21.188. Under the applicable law and regulations, the term "vocational goal" means a gainful employment status consistent with the Veteran's abilities, aptitudes, and interests. A VA counseling psychologist (CP) or a Vocational Rehabilitation Counselor (VRC) determines whether achievement of a vocational goal is reasonably feasible. 38 C.F.R. § 21.53(g). Any reasonable doubt as to feasibility will be resolved in the veteran's favor. 38 C.F.R. § 21.57(c)(1). A vocational goal is "reasonably feasible" when the following criteria are met: (1) a vocational goal must be identified; (2) a veteran's physical and mental conditions must permit training to begin within a reasonable period; and (3) a veteran must possess the necessary educational skills and background to pursue the goal or will be provided services by VA to develop such necessary educational skills as part of the program. 38 C.F.R. § 21.53(d). The phrase "achievement of a vocational goal is reasonably feasible" means the effects of a veteran's disabilities (service and nonservice connected), when considered in relation to the circumstances, do not prevent him or her from successfully pursuing a vocational rehabilitation program and successfully becoming gainfully employed in an occupation consistent with a veteran's abilities, aptitudes, and interests. 38 C.F.R. § 21.35(h). In contrast, the phrase "achievement of a vocational goal is not currently reasonably feasible" means the effects of the veteran's disabilities (service and nonservice-connected), when considered in relation to the veteran's circumstances at the time of the determination: (i) prevent the veteran from successfully achieving a vocational goal at that time; or, (ii) are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible. Id. In making the determination as to the feasibility of a vocational goal, VA must offer the veteran an initial evaluation under the provisions of 38 C.F.R. § 21.50. A person is entitled to vocational rehabilitation under Chapter 31 if that person is a veteran with a service connected disability compensable at a rate of 20 percent or more, and that person is determined by the Secretary to be in need of rehabilitation because of an employment handicap. 38 U.S.C. § 3102; 38 C.F.R. § 21.40. An employment handicap is defined as an impairment of the Veteran's ability to prepare for, obtain, or retain employment consistent with her/his abilities, aptitudes, and interests. 38 U.S.C. § 3101; 38 C.F.R. § 21.51(b). The term 'rehabilitated to the point of employability' is defined as when a veteran is employable in an occupation for which a vocational rehabilitation program has been provided under Chapter 31. See 38 C.F.R. § 21.35. Rehabilitation to the point of employability may include the services needed to (1) evaluate and improve the Veteran's ability to undertake training; (2) train the Veteran to the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma, or certificate is generally necessary for entry into the occupation, e.g., a Master's Degree in Sociology for social work, the Veteran shall be trained to that level. 38 U.S.C. §§ 3101, 3104; 38 C.F.R. § 21.72. Following a thorough review of the evidence of record, the Board finds that entitlement to VR&E benefits, other than employment benefits, to include the pursuit of an educational goal to obtain a Ph.D. degree at the Foreign University pursuant is not warranted. The Veteran's basic eligibility for VR&E benefits is not at issue. It is uncontested that the Veteran has service-connected disabilities compensable at 20 percent or more and was in need of rehabilitation to overcome an employment handicap. See 38 U.S.C. §§ 3101, 3102; 38 C.F.R. §§ 21.40, 21.51(b). Notably, the record shows that the combined disability rating for the Veteran's service-connected disabilities has been 70 percent since the first date following service discharge and has been 100 percent since April 11, 2010. Moreover, a VRC determined that the Veteran was eligible for Chapter 31 benefits in a June 2017 Counseling Record-Narrative Report (Counseling Record) as he had an employment handicap and a serious employment handicap due to his service-connected disabilities and the fact that he was unemployed at the time. Following the initial vocational assessment, the VRC noted that the Veteran's disability ratings of 100 percent for Meniere's syndrome, 70 percent for major depressive disorder (MDD), 50 percent for sleep apnea, 50 percent for migraines, 40 percent lumbosacral or cervical strain, and 30 percent for paralysis of the radial nerve affected his employment abilities. Specifically, the VRC noted that MDD affected his attention, concentration, memory, and mood. His Meniere's syndrome affected movement and sound disturbances, and his sleep apnea affected his energy and attention. The Veteran's migraine disability impaired his sight, memory, and concentration. The VRC concluded that the Veteran has employment limitations due to the fact that he has impairments to employability, which result in substantial part from these service-connected disabilities. Therefore, these facts establish that the basic eligibility requirements for vocational rehabilitation benefits are met. Nonetheless, the VRC determined that the Veteran possessed training and/or education that qualified him for suitable employment as a professor and/or an adjunct professor. Specifically, the VRC noted that the Veteran's education level included holding four master's degrees. The Board notes that the record shows that the Veteran earned a Master of Education degree in December 2004, a Master of Business Administration (MBA) in Public Administration in August 2006, an MBA in International Business in September 2010, and a Master of Laws degree in January 2011. Thus, the VRC determined that the Veteran did not lack job-seeking skills as he was qualified to seek employment as he was a great researcher and understood laws and rules. The VRC determined that the Veteran had overcome the impairments of employability as he held four master's degrees and could seek employment of his stated goal of being a professor. The Veteran told the VRC that he felt that he was not best suited to teach traditionally-aged undergraduates, i.e., those students ranging from 18 to 22 years old, and was requesting to pursue the Ph.D. program in Spain so that he may be able to teach students at the master's and doctorate level courses. The Board notes that the Veteran has made similar assertions throughout the appeal, i.e., that working with younger, immature people such as high school students or undergraduate college students triggers his emotional handicaps, including in the June 2017 Disabled Veterans Application for Vocational Rehabilitation (VA Form 28-1900), September 2018 Notice of Disagreement (NOD), and the August 2021 Board hearing testimony. Furthermore, the Veteran submitted a July 2017 letter from a private doctor, "Dr. J.R.," in which the medical professional noted that in his professional opinion, and within a grade of reasonable medical certainty, that the Veteran will be successful in achieving a doctoral degree and becoming a university professor, especially for graduate and doctoral students given the level of maturity and adulthood of such students. The doctor noted that he did not think that to work at the undergraduate level as a professor was the appropriate setting for the Veteran given his emotional conditions. The doctor observed that usually, undergraduate students are very young and they still have many high school behavior patterns which would be highly challenging for the Veteran to manage by reason of his psych-somatic conditions. Ultimately, the VRC determined in the June 2017 Counseling Record that the achievement of the vocational goal was not currently feasible due to the fact that the medical evidence of record showed that the Veteran could not return to substantial work activities. Moreover, the VRC did not authorize additional VR&E benefits to pursue the doctoral program at the university in Spain but noted that the Veteran can be provided with VR&E Independent Living services. The record shows that based on the Veteran's subsequent request, his claim with this local VR&E office was closed and transferred to another jurisdiction. The record further shows that the Veteran attempted to apply for VR&E benefits to pursue this doctoral program in Spain through another VR&E office, which was again denied in a July 2017 decision as the Veteran did not meet the hardship criteria for pursuit of vocational and educational courses outside the United States. See 38 C.F.R. § 21.130. This Regional Office (RO) determined that the Veteran's claim for entitlement to VR&E benefits should be disallowed. This determination, as well as the determination that VR&E benefits could not be used to pursue the course of education in Spain, was confirmed by a VR&E Officer (VREO) in an October 2017 administrative review decision. The record shows that the Veteran's claim was again reviewed by VR&E in June 2018, which issued a special administrative review decision by the Acting Director of VR&E Service, and determined that although the two ROs incorrectly closed out and then subsequently disallowed the Veteran's claim for VR&E benefits, the ROs were correct in advising the Veteran that education and VR&E services abroad were not appropriate for him as he did not meet the requirements for educational and vocational courses outside the United States. The Acting Director noted that the VRC determined that the achievement of Veteran's vocational goal was found to be not reasonably feasible, which meant that he may receive an Independent Living assessment to further evaluate his potential needs, but that such a plan for Independent Living services or an extended evaluation may not be provided abroad. See 38 C.F.R. § 21.188. The record does not show that the Veteran has attempted to be scheduled for or to participate in an Independent Living assessment. Generally, VA may provide educational and vocational courses outside a State if the case manager determines that such training is in the best interest of the veteran and the Federal Government. 38 C.F.R. § 21.130(a). The training must be necessary to enable the veteran to qualify for, obtain, and retain suitable employment in the occupational objective; and either (1) the training is not available in the United States; or (2) the training is available in the United States, but personal hardship would result from requiring that the veteran pursue training in this country; and (3) all necessary supportive and follow-up services, including medical care and treatment and employment services, reasonably can be provided by or through VA, considering such factors as the availability, accessibility, and cost of such services. 38 C.F.R. § 20.130(b). VA regulations and procedures further stated that a veteran may be authorized to pursue training abroad even if the training is available in the United States if requiring a veteran to pursue training in the United states will result in a hardship to the veteran. However, a veteran must have a legal basis for residence in the foreign country prior to developing of his/her rehabilitation plan. While not an exhaustive list, examples of hardship conditions include a veteran who is married to a foreign national and his or her family resides in a foreign country; a veteran's spouse is transferred to a military or civilian job in a foreign country and the veteran accompanies his/her spouse to that foreign country; and, a veteran is employed in a foreign country. It is important to note that a veteran's desire to study abroad for personal reasons is not considered a hardship condition. The evidence associated with the claims file since the issuance of the June 2018 decision shows that the Veteran has participated in the doctoral program at the Foreign University since 2017, and that he has been utilizing VA education benefits under 38 U.S.C. Chapter 33 (Chapter 33 or the Post-9/11 GI Bill) to pursue such a doctorate degree. For example, September 2018 and January 2019 records show that he was using his Chapter 33 benefits for certain educational expenses for the Ph.D. program in Spain. Furthermore, the July 2021 letter from the Director and Coordinator of the Doctoral Program in Equity and Innovation in Education at the Foreign University noted that the Veteran was academically approved to participate in the program during the 2017 through 2019 academic years, but was temporarily retired from the program for medical reasons for the 2019 to 2020 academic year. This letter further shows that the Veteran was again participating in the program during the 2020 to 2021 academic year. The evidence further shows that during the appeal, the Veteran has supplied VA with at least three foreign addresses located in Germany, Spain, and the Dominican Republic. In fact, his current address of record is located in the Dominican Republic. In a September 2021 statement, he asserted that he currently resides part-time in the United States and part-time in the Dominican Republic due to the impact of the winter season on his service-connected disabilities. The claims file also contains August 2021 and September 2021 letters from medical providers regarding his participation in the Ph.D. program in Spain. For example, in the August 2021 letter from the Veteran's private therapist from the Dominican Republic, she indicated that the Veteran's psychotherapy process has been focused on improving his daily functioning and looking for activities that can reinforce his meaning of life. She noted that the Veteran has found meaning in teaching adult students in a master's program. In order to achieve this, the Veteran needs to complete his PhD. program. Furthermore, she noted that due to the Veteran's health, she recommended that the Veteran teach in masters or doctoral programs, since these programs promote student self-management and the teacher is less exposed to stress as compared to bachelors programs. Furthermore, the September 2021 letter from the Veteran's VA psychiatrist notes that the Veteran's service connected conditions are severe and have affected his ability to participate adequately in his doctoral program. The doctor stated that given his inability to participate in his own doctorate program, the Veteran and his program believe that he would benefit from participation in a VR&E so that he can accomplish other meaningful goals namely, teaching masters and doctorate students. The doctor noted that he was advocating for the Veteran and that given his active and consistent participation in VA healthcare treatment, the doctor felt that he would make a good candidate for vocational rehabilitation. Upon review of all of the evidence of record, including the statements from the Veteran and his representative, his work and education history, stated vocational and educational goal, clinical evaluations of his service-connected and nonservice-connected disabilities, and the barriers identified in the June 2017 evaluation report, as well as the July 2021, August 2021, and September 2021 letters, the Board concurs with the determinations of the VR&E VRC, VREO, and the Acting Director of the VR&E Service and finds that the weight of the evidence is against a finding that the Veteran's vocational goal of being a professor warrants using VR&E benefits to pursue a Ph.D. program in Spain. In making this determination, the Board has carefully and sympathetically considered the evidence of record, but finds that the evidence weighs against the benefit sought. The evidence demonstrates that the Veteran is a highly-educated individual, with four master's degrees in legal, education, international business, and public administration fields. The Board concurs with the VRC's determination that this level of education and skill is sufficient to allow him to find employment in his chosen field of being a professor, to include being an adjunct professor. The Board further notes that VA regulations state that where a particular degree, diploma, or certificate is generally necessary for entry into the occupation, the Veteran shall be trained to that level. 38 U.S.C. §§ 3101, 3104; 38 C.F.R. § 21.72. As the Veteran already has the requisite educational degrees or diplomas for his stated vocational goal, entitlement to additional VR&E benefits to pursue a Ph.D. program in Spain is not warranted. The Board has also considered the various statements made by the Veteran, as well as the statements made by the individuals in the July 2017, August 2021, and September 2021 letters, that he would best be suited as a professor to graduate or masters students as undergraduate and high schools students' maturity level impacted his service-connected psychiatric disability. However, the Board finds that these assertions made in support of the Veteran's claim are not entitled to more weight than the objective findings rendered by trained vocational counselors in evaluating the Veteran's claim. The VRC determined that the Veteran had the requisite education to be a professor or an adjunct professor, and that although additional Independent Living services could be offered, VR&E benefits to pursue the Ph.D. program at the Foreign University were not warranted. The Board finds that the conclusions of the Veteran's VR&E counselor are most probative in this case. In addition to evaluating the Veteran's interests, aptitudes, abilities, education level, and work history over an extended period of time, the VRC, as well as the VREO and the Acting Director of VR&E Service, have extensive specialized training in vocational rehabilitation. That adds to the probative weight of their assessments. See Black v. Brown, 10 Vet. App. 297 (1997) (an opinion rendered by one with specialized training may be considered more probative than a non-specialist's finding). These individuals all determined that the Veteran has not established hardship sufficient to warrant VR&E services outside of the United States to attend the Ph.D. program at the Foreign University, but rather that his participation in this program is for personal reasons. The Board concurs in this finding as the record does not show that the Veteran has met any of the enumerated hardships, and the VRC has determined that such training is not in the best interest of the Veteran and the Federal Government. 38 C.F.R. § 21.130(a). Furthermore, as specifically noted by the Acting Director, the Veteran's requirement for certain VR&E services, including the development of a plan for Independent Living services or an extended evaluation, may not be provided abroad as this would run counter to VA's regulations that all necessary supportive and follow-up services, including medical care and treatment and employment services, reasonably can be provided by or through VA, considering such factors as the availability, accessibility, and cost of such services. 38 C.F.R. § 20.130(b). The Board appreciates that the Veteran has significant service-connected and nonservice-connected impairments, for which he was found to have an employment handicap and a serious employment handicap, and for which he has been offered VR&E Independent Living services. Furthermore, while it would be speculative for the Board to determine the general maturity level of undergraduate students versus graduate students, the Board emphasizes that the purpose of VR&E services is not to provide the claimant with whatever level of education and career training he chooses. Rather, the purpose of such services is to provide a level of training that facilitates suitable employment, which the Veteran already possess. 38 C.F.R. § 21.70. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application, and the claim for entitlement to VR&E benefits, other than employment benefits, to include the pursuit of an educational goal to obtain a Ph.D. degree at the Foreign University pursuant to Chapter 31 is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.