Veterans Should Not Need To Fight Those who Are Supposed To Be Helping Them
Edward L. Allier, PMP, CSP, SMS
Director, Environmental Health and Safety at American Perseverance, Inc.
I retired in January of 2012, after serving as an Infantry Marine for over 21 years.? Just over 25% of my career was spent in areas of instability and unrest (i.e. Somalia, Afghanistan, and Iraq):?
I’m not complaining or bragging, I am providing context for the following talking points. ?I loved my time in the Marine Corps. ?I only had (3) “bad years” during my entire career, ironically, none of those years were during the deployments highlighted above.? My fleeting dissatisfaction was during times spent in commands wherein I was subject to “perception-based leadership”. ?It should be noted how, during times of conflict, when leadership decisions and performance matter most, the priorities consistently shift away from “perception-based leadership” and become focused on accountability, organizational discipline, mission accomplishment, and troop welfare.?
My medical records were lost in 2004, after (14) years of service, during the preparation for one of my deployments. As I was nearing the end of my career, Veterans and senior leaders repeatedly advised me on my need to “prepare to fight the VA” for the benefits and support I had earned, due to only (7) years of my entire (21) years being represented in my medical records.? I was still relatively young (42 years old), in excellent physical shape, and had no mental issues that I recognized other than an odd sleeping cycle (i.e. no more than 3 – 4 hours at a time).? I reflected on those who were not as lucky as I was (i.e. those who had debilitating PTSD, lost limbs, been burned or disfigured, or who had been killed in action), and somehow it felt disrespectful to those Marines to think I should press for a service-connected disability rating higher than the 60% I initially received.?
An interesting side note to mention here is, due to its importance, a servicemember's service record book (SRB) used to be maintained on a microfiche; there was no way an entire SRB would be lost, yet medical records, the critical source documents for evidence supporting future disability claims, was never backed up on microfiche.? I was on my 4th combat deployment and had experienced (3) IED "close calls" before TBI protocols were introduced, so by the time I experienced my 4th IED, my "baseline" was already a bit "off". Only skeletal medical records would be prepared for deployments.? To my knowledge, while SRBs are now saved digitally, medical records are still only maintained on paper.? It makes one wonder, why the system is designed that way.? Could it be the dysfunction and servicemember vulnerability are by design?? But, I digress.
In the 14 years since I retired, the impacts of my service-connected disabilities have begun to grow increasingly apparent.? There have been instances wherein in VA decision letters, for either subsequent service-connected disability claims, or requests to increase service-connected disability ratings, the VA would recommend I submit a claim for a separate disability.? I did as the VA recommended, submitted the claim for the disability the VA highlighted, only to have them deny the claim they told me to submit for. For example:
In this letter, the VA is literally recommending I submit a claim for disabilities I had-not-claimed!:
In this letter, the VA is demanding additional documentation for a claim they recommended I submit for:
In this letter, the VA advises me that the claim THEY RECOMMENDED I submit was not service-connected:
In this letter the VA denies the claim, THEY RECOMMENDED I submit, and then THEY RECOMMEND I submit for ANOTHER claim:
In my VA Blue Button File, there are narratives from evaluators who, concede reference to mid-thoracic and lumbar spine issues in-my-military-medical-record, but arbitrarily decide (as they did in the Lumbago claim the VA recommended I submit a claim for) there is no service-connection because the issue ”… was not incurred in or cause by the physical demands the veteran endured during active service…”. ?Instead, the evaluator stated, “…is most likely caused by or a result of the process of aging and the veteran’s 3year involvement in the occupational and recreational activities he was engaged in from the time he separated from the military…”?
More frustrating, the evaluator stated, “…HOWEVER, evidence of available Military medical record indicate radiographic imaging findings dated 16 Sept 2011 reporting degenerative changes noted of the mid-thoracic spine during Military service therefore the degenerative changes noted of the mid-thoracic spine by x-ray in 2011 at lease [sic] as likely as not (50 percent or greater probability) incurred in or were cause by the physical demands the veteran endured during active service and at least as likely as not had an initial onset during active service…”
I have service-connected disabilities due to degenerative changes of my cervical spine, there is medical evidence supporting degenerative changes to my mid-thoracic spine, but somehow, even though there is medical documentation of lumbar spine strain in my military medical record, my lumbago claim is denied.
Finally, and most disturbing, the evaluator conceded that, due to the volume of material they needed to review, it was possible that an important document may have missed their attention!? This placed the onus on the Veteran to sift through a bunch of MEDICAL DOCUMENTATION a MEDICAL EVALUATOR conceded was overwhelming, in order to determine what the MEDICAL EXAMINER may have missed, then RESUBMIT a claim in the HOPE that the medical examiner would “re-evaluate the Medical opinion” in the Veteran's favor:
That is a summation of all of my experiences having to fight with the VA over service-connected medical claims and receiving timely and effective medical support for post-service injuries.
What follows is the detailed account of my experiences having to fight with the VA over my entitlement for Veterans Readiness and Employment (VR&E) benefits and services. Bottom line up front, I am being denied for VR&E benefits and services, to which I absolutely am entitled, because the VR&E counselor I have been assigned is either too lazy to review the information provided in its entirety; failed to review the information provided completely and accurately; or is simply refusing to acknowledge the merit of the evidence provided.
As I've exhausted all options available to communicate with my VR&E counselor and the entire leadership team of the VA Regional Office in St. Petersburg, Florida, short of driving there in person, I had no other alternative but to reach out to my Congressman, Greg Steube, in order to compel the leadership team of the VA Regional Office to acknowledge my repeated attempts to communicate, and/or take action to address the clear and unmistakable error made by the VR&E counselor.
?In the release form for my Congressman's support request, it asked for supporting information and an answer to this question:
State the problem and the expected resolution/outcome.
This was my response
Problem:??My Veterans Readiness and Employment (VR&E) counselor’s denial of my entitlement for VR&E benefits and services is based on factual inaccuracies, failure to review relevant evidence, and procedural errors that violate VA regulations.
On 01 Nov 2024, my VR&E counselor denied my entitlement to VR&E benefits and services.??The considerations the VR&E counselor cited as the basis for his adverse decision included, "...You have ample training, education, certifications & experience to gain suitable employment in the field in which you have had demonstrated a pattern of interest over time. You have gained many transferrable [sic] skills that you can use to work in other or related field.".??The VR&E counselor went on to cite notes from a previous VR&E claim I submitted in September of 2023; included a misrepresentation of the circumstances leading to my unemployment; erroneously stated that I would not be willing to accept an entry-level salary of less than $100K; and my failure to provide historical employment search data for review as additional considerations in which he based the decision to find me not entitled for VR&E Benefits.
The VR&E counselor's cited basis for determining I do not meet the criteria for an Employment Handicap did not acknowledge that, as a matter of fact, my education and training are specifically focused in a vocation proven not to be suitable employment.??The VR&E Counselor's cited basis for determining I do not meet the criteria for an Employment Handicap also fail to address any of the information submitted in my detailed written statement on 12 August 2024.??My detailed written statement highlighted the following:
- The talking points and evidence submitted for review in my written statement were supported by the applicable regulatory and statutory framework governing VR&E (i.e. M28C, 38 CFR § 3101, 38 U.S.C. 3102, 38 CFR 21.51, CHAPTER 31—Training and Rehabilitation For Veterans With Service-Connected Disabilities, 38 CFR § 21.72 - Rehabilitation to the point of employability, etc. etc.)
- Evidence I meet the criteria for an Employment Handicap
- Evidence I meet the criteria for a Serious Employment Handicap
- Evidence why my previous employment did not meet the definition of suitable employment; and how employment in similar fields would also not meet the definition of suitable employment (i.e. Suitable Employment: Employment which is consistent with the claimant's expressed interests, aptitudes and abilities that can be measured and/or demonstrated. Does not aggravate the claimant’s disability(ies). Is stable and continuing. Requires reasonably developed skills.)
- Evidence why employment as a Master Dog Trainer* would meet the definition of suitable employment
* It should be noted, the entry-level salary of a Master Dog Trainer is well below $100K
- Repeated references to my historical employment search data (i.e. "...In the past 26 months, I have applied to over (260) jobs, (173) on LinkedIn, (64) on USAJOBS, (23) on INDEED, and additional opportunities directly on various company websites. The roles I have applied to were appropriate to my education, training and experience. However, I was not successful in obtaining and maintaining Suitable Employment, through no fault of my own, due to prejudicial bias towards my age, status as a whistle blower, and how the employment itself exasperated my service-connected disabilities...."
- Expressed intent to leverage VR&E benefits and services in order to receive all services and assistance necessary, to the maximum extent feasible, to improve my ability to undertake the training required for the level generally recognized as necessary for entry into a suitable vocational goal (i.e. Bachelor of Science Degree in Animal Health and Behavior and completion of a Master Dog Trainer certification course)
The information provided for review on 12 August 2024, clearly expressed my intent to utilize VR&E benefits and services to accomplish my vocational goal of obtaining and maintaining stable and continuous suitable employment as a Master Dog Trainer; specifically refuting the VR&E counselor's misrepresentation that I am not willing to accept entry-level suitable employment with a salary of $100K.??A summation of my historical employment search data was included in the information provided no less than three separate times.??The VR&E counselor's weak, inaccurate, and misrepresented justifications for deciding to find me not entitled are demonstrative of the fact that he either failed to review the information provided, or failed to accurately review the information provided.
Per M28C and 38 CFR 3.105(i)), the VR&E counselor's egregious judgement represents a clear and unmistakable error (i.e. Clear and Unmistakable Error: A very specific and rare kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.??If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.??Generally, either the correct facts, as they were known at the time, were not before the Department of Veterans Affairs, or the statutory and regulatory provisions extant at the time were incorrectly applied.)
Additionally, at no point during our brief conversation on 14 August 2024, or in the 2 1/2 months it took the VR&E counselor to render his decision, did he notify me of his expectation, his need, and/or the regulatory or the statutory requirement for me to submit historical employment search data for review.??Without this notice, I was unable to meet an expectation I was unaware of, which unfairly impacted the decision against my claim.??This lack of notification violates 38 CFR § 21.32 Notification by VA of necessary information or evidence when a claim is filed; time for claimant response and VA action.??This action also violates the VR&E counselor's Duty to Assist (i.e. The obligation to assist the claimant to obtain relevant records not currently in the custody of the Department of Veterans Affairs).??Such records may include private medical records and employment history.).??Moreover, during our brief conversation on 14 Augusts 2024, the VR&E counselor specifically expressed his bias for denial of my claim without due process.??Those statements were another violation of the M28C (i.e. Due Process - Advance notice of a proposed adverse action that could reduce, deny, or terminate benefits.).??
Resolution/Outcome Sought:??I am seeking a reversal of the VR&E counselor's clear and unmistakable error, and acknowledgment of my Employment Handicap and Serious Employment Handicap, thereby finding me entitled for the VR&E benefits; specifically, per CHAPTER 31—Training and Rehabilitation for Veterans with Service- Connected Disabilities, all necessary services and assistance will be provided to the maximum-extent feasible to enable veterans with service-connected disabilities to become employable and to obtain and maintain suitable employment.??In my case, I have established my vocational goal as utilizing VR&E long-term services track to obtain the education and training generally recognized as necessary to obtain and maintain suitable employment as a Master Dog Trainer.
Per 38 CFR § 21.72 - Rehabilitation to the point of employability, I will require specific education and training support (i.e. Bachelor of Science Degree in Animal Health and Behavior, and completion of a Master Dog Trainer course) in order to learn new skills at a level generally necessary for entry into the occupational field of a Master Dog Trainer.
In order to address any concern as to if achievement of my Vocational Goal of becoming a Master Dog Trainer is reasonably feasible, per 38 CFR § 3101, “...achievement of a vocational goal is reasonably feasible if the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances does not prevent the veteran from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran's abilities, aptitudes, and interests.”.??Additionally, per 38 CFR 21.53, “...Any reasonable doubt shall be resolved in favor of a finding of feasibility.”
References
CHAPTER 31—TRAINING AND REHABILITATION FOR VETERANS WITH SERVICE-CONNECTED DISABILITIES - https://www.govinfo.gov/content/pkg/USCODE-2022-title38/pdf/USCODE-2022-title38-partIII-chap31-sec3100.pdf
38 CFR § 21.72 - Rehabilitation to the point of employability - https://www.law.cornell.edu/cfr/text/38/21.72
38 CFR § 3.105 Revision of decisions - https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFR63da83ba671b92b/section-3.105#p-3.105(i)
38 CFR § 3101 - https://www.ecfr.gov/current/title-38/chapter-I/part-21
38 U.S.C. 3102 - https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section3102&num=0&edition=prelim
38 CFR § 21.51 - https://www.ecfr.gov/current/title-38/chapter-I/part-21/subpart-A/subject-group-ECFR1baf1ab6655ba99/section-21.51
38 CFR § 21.32 Notification by VA of necessary information or evidence when a claim is filed; time for claimant response and VA action. - https://www.ecfr.gov/current/title-38/chapter-I/part-21
(Yes, I included links to the appropriate references in my support request.??I figured I might as well do as much as I can to help them help me.)
I also included the following chronological record of communication with my VR&E Counselor and the entire leadership team of the VA Regional Office in St. Petersburg, Florida, demonstrating my repeated attempts to communicate with them in good faith to address this issue:
From: Edward Allier <[email protected]>
Subject: VR&E Meeting 14 August 2024 (10:00 AM)
Date: August 12, 2024 at 9:05:38 PM EDT
To: "Toussaint, Willmary, Vbaspt" <[email protected]>?
Mr. Toussaint,?
I submitted my most recent application for Veteran Readiness and Employment (VR&E) benefits and services with the intent of it being considered as a new application.? However, if you are receptive, I am happy to explore the potential of revising the initial decision denying my entitlement to VR&E benefits and services.? After a thorough review of my service-connected disabilities (SCDs), my non-service-connected disabilities (NSCDs). and their impact on my employment capabilities, I believe there are substantial grounds to contest the decision based on the regulations and statutes governing VR&E benefits.? My position is grounded on the evidence provided in my VA Blue Button file, relevant medical documentation, and the statutory and regulatory framework.?
As a reminder of who I am, wavetops of my case include the following: I served in the United States Marine Corps as an Infantry Marine from 1990 to 2012, during which, I developed several service-connected disabilities (SCD), including: Degenerative changes of the cervical spine, Left/Right knee Patellofemoral pain syndrome, and PTSD; and developed non-service-connected disabilities (NSCD), including: acute lumbar strain, detailed in a 2011 medical examination while I was still on active duty.? My VA Blue Button File also notes a history of lower back pain, caused by force marches and exposure to IED explosions during my infantry career, compounded by multiple evaluations and diagnostic reports, such as a 2015 lumbar spine study indicating lumbar spine spondyloarthropathy with posterior disc space narrowing at L5-S1, which could be associated with disc derangement.? These conditions have significantly impacted my daily life and ability to work.?
Despite my extensive education and experience, including a Master of Science Degree in Occupational Safety and Health, my SCDs and NSCDs have hindered my ability to maintain stable and suitable employment.? For example, the degenerative changes of the cervical spine were exasperated by certain tasks such as having to wear a hardhat 12 - 13 hours per day, 7-days per week, for several months at a time; looking up for extended periods of time while observing personnel working in elevated positions, and/or ensuring the load path of a suspended load remained clear during crane operations; my left/right knee patellofemoral pain syndrome and lower back issues were exacerbated by extended periods of prolonged standing and having to walk between 6 – 10 miles per day while wearing heavy steel-toe safety boots in order to ensure safety compliance across multiple work areas; my PTSD symptoms were triggered by dealing with unethical leaders who, through willful ignorance and gross negligence, repeatedly demonstrated a complete disregard for the safety of their subordinates, directly resulting in recurrence of preventable injuries.? The interactions with these morally compromised leaders continued to escalate without substantive improvement.??
Ultimately, in May of 2022, I ended up submitting a 330-slide PowerPoint to OSHA, which included multiple incident investigatory findings of fact, internal communications, and email exchanges between myself and senior leadership, revealing the organization’s dysfunctional leadership, a toxic work climate, and a poor safety culture.? That action resulted in my being branded as a “whistleblower” and a negative stigma being associated with my professional character and reputation.?? As a result, I have been unable to obtain and maintain suitable employment, due to reasons beyond my control, for over two years.
In order to be respectful of the time of all parties involved, and facilitate a productive conversation between us, I have attached a document (“VR&E Talking Points”) highlighting the reason for my re-application, clearly communicating the totality of my circumstances; How they support finding me entitled for Chapter 31 benefits and services; Identifying statistically common reasons for denying eligible veterans’ entitlement to VR&E benefits and services, and emphasizing how the totality of my circumstances support finding me entitled for those benefits and services; Highlighting how, per the applicable and relevant references, I meet the criterium for Vocational Impairment, Employment Handicap, and Serious Employment Handicap; and Highlighting how my previous or continued employment in the Occupational Health and Safety Industry was not and is not Suitable Employment?
The attached documents clearly show how my disabilities impair my ability to prepare for, obtain, and maintain suitable employment, consistent with 38 U.S.C. §3102 and 38 CFR §21.51.
I apologize in advance for the repetitive nature of the talking points in the document, however, each talking point should be taken as an independent argument addressing the subtopic’s title in bold print.
Thank you for setting aside the time to reconsider my case.
I look forward to our conversation and welcome the opportunity to address any questions you may have in reference to the talking points highlighted in “VR&E Talking Points”.?
Respectfully,
?
Edward Allier?
VR&E Talking Points (Written Statement):?
Reason for re-application for VR&E benefits - In my previous application, I was found not entitled to VR&E benefits because, in the VR&E Counselor’s judgment, I had overcome my Vocational Impairment and therefore did not have an Employment Handicap. The VR&E Counselor inadvertently made an Administrative Error concerning my benefit entitlement (i.e. an erroneous decision concerning benefit eligibility and entitlement.). Based upon this administrative error I acted to my detriment by continuing to seek employment in a vocation, which, per the definitions within the applicable statutory and regulatory provisions, is not Suitable Employment. During the time in which I was acting to my detriment, I was unaware the VR&E Counselor’s determination was in error.?
The VR&E Counselor based the erroneous decision to find me not entitled to Chapter 31 benefits and services on their assessment that I had “…overcome the impairment to employment caused in substantial part by my service connected disabilities through having the necessary education and experience to qualify for and obtain suitable, stable, and gainful employment as defined in reference: (M28R, Part IV, Section B, Chapter 2, 2.11 Employment Handicap (EH)).”?
In fairness to the VR&E Counselor, at the time of my meeting on 09/14/2023, I did not truly understand the VR&E program, and therefore failed to effectively communicate the totality of my circumstances to my VR&E Counselor, which directly led them to draw an erroneous conclusion with regard to my entitlement for VR&E benefits and services. As a remedy to this Clear and Unmistakable Error, I am requesting a revision of the decision finding me not entitled Chapter 31 benefits and services. The following talking points will:?
- Demonstrate my understanding of the VR&E program, and how it applies to my Vocational Objective, by including hyperlinks to the relevant and applicable statutory and regulatory provisions (i.e. M28C, 38 CFR § 3101, 38 U.S.C. 3102, 38 CFR 21.51, CHAPTER 31—Training and Rehabilitation For Veterans With Service-Connected Disabilities, 38 CFR § 21.72 - Rehabilitation to the point of employability, etc. etc.)
- Clearly communicate the totality of my circumstances, and how they support finding me entitled for Chapter 31 benefits and services
- Identify statistically common reasons for denying eligible veterans’ entitlement to VR&E benefits and services, and highlight how the totality of my circumstances support finding me entitled for those benefits and services
- Highlight how, per the regulations and statutes governing VR&E benefits, I meet the criteria for Vocational Impairment, Employment Handicap, and Serious Employment Handicap
- Highlight how my previous employment was not Suitable Employment?
How can VR&E help me? - I have been unemployed since May of 2022. In the past 26 months, I have applied to over (260) jobs, (173) on LinkedIn, (64) on USAJOBS, (23) on INDEED, and additional opportunities directly on various company websites. The roles I have applied to were appropriate to my education, training and experience. However, I was not successful in obtaining and maintaining Suitable Employment, through no fault of my own, due to prejudicial bias towards my age, status as a whistle blower, and how the employment itself exasperated my service-connected disabilities.?
One could assume I would overcome my Vocational Impairment by leveraging my current education and training, however, based on the definition of “overcome” found within 38 U.S.C. 3102 and 38 CFR 21.51 I have not overcome my Vocational Impairment if I cannot obtain and maintain Suitable Employment for reasons beyond my control.?
The following information supports the assertion I have not overcome my Vocational Impairment:?
- I was not successful in obtaining and maintaining Suitable Employment as a safety professional in the nuclear, space exploration, oil and gas, and construction industries for reasons beyond my control; specifically, from the hiring authority’s perspective, despite my education, training, certifications and universally applicable occupational health and safety experience (i.e. Compliance Audits, Hazardous Energy Control (LOTO), Fall arrest system utilization, Confined Space Entry protocols, Crane Operations, Critical lift Planning, Powered Industrial Trucks Operations, Hot Work Protocols (i.e. welding, heating, cutting, and grinding), Scaffolding Utilization, Respiratory Protection, Machine Guarding, Power & Hand-held Tool usage, Electrical safety (GFCI), Emergency Shower and Eyewash Station emplacement and utilization, Hazardous Material Storage, Safety Data Sheet access, Hazard Communication, and Hazardous Waste Operations and Emergency Response), I was found not-qualified because I did not have their “industry-specific” experience.?
- I was not successful in obtaining and maintaining Suitable Employment as a safety professional in the power generation industry for reasons beyond my control, despite my education, training, certifications and occupational health and safety experience as previously outlined, because of prejudicial bias as it pertains to my age, status as a whistle blower, and how the employment itself exasperated my service-connected disabilities.?
- Due to how my service-connected disabilities are exasperated, compounded by my inability to obtain and maintain Suitable Employment for reasons beyond my control, it is reasonable to conclude that continued employment as a safety professional is unsustainable. Due to my inability to overcome my Vocational Impairment and Serious Employment Handicap by failing to obtain and maintain Suitable Employment, for reasons beyond my control, despite my current level of education, certifications and experience, I have lost interest in continued employment in the safety industry.?
- Employment in the safety industry has consistently exasperated my service-connected disabilities, and my demonstrated failure to obtain or maintain Suitable Employment for reasons beyond my control (i.e. prejudicial bias as it pertains to my age, status as a whistle blower), and how the employment itself exasperated my service-connected disabilities (i.e. the Identifiable and Observable Effects of which include: medical records showing consistent reports of pain and structural issues in my spine (Please refer to VA Blue Button File), and the Measurable Impact on my ability to perform physical tasks and maintain certain types of employment is measurably reduced by my documented pain and mobility issues (Please refer to Neck and Knee DBQs)), meets the required criteria to determine I have not overcome my Vocational Impairment, and therefore have an Employment Handicap.?
My claim of a Vocational Impairment, Employment Handicap, and a Serious Employment Handicap is further supported via a Schedule A letter, dated 15 Sept 2023 (Please refer to Allier Schedule A Letter), stipulating I have an intellectual disability, a severe physical disability, or a psychiatric disability. My service-connected disabilities have rendered my former employment as unsuitable because of how it regularly exacerbates them.?
Additionally, because of the type of degree and most recent experience I have, the only jobs I am currently qualified for are those that exacerbate my service-connected disabilities. I understand VR&E benefits are designed to prepare veterans for “entry-level employment” in a Vocational Goal. As “Entry-Level employment” is not defined in the glossary of terms, or listed as an entitlement approval criterion within the M28C, the definition seems subjective.
Therefore, in order to avoid conflicting subjective interpretations of what is considered entry-level employment, I submit, per CHAPTER 31—Training and Rehabilitation for Veterans with Service- Connected Disabilities, all necessary services and assistance will be provided to the maximum-extent feasible to enable veterans with service-connected disabilities to become employable and to obtain and maintain suitable employment.?
Moreover, per 38 CFR § 21.72 - Rehabilitation to the point of employability, provides for the training of the veteran to a level generally recognized as necessary for entry into employment in a suitable occupational objective. The reference itself goes on to present a Master Degree in Social Work as an example of the level to which a veteran shall-be-trained.?
The applicable and relevant statutory and regulatory provisions extant are clear; in order for a job to be considered Suitable Employment, it has to be consistent with my pattern of skills, aptitudes, abilities, interests, and be within my physical, cognitive and psychological capabilities, and I shall be trained to a level generally recognized as necessary for entry into employment in a suitable occupational objective (i.e. In my case, Bachelor degree in Animal Health and Behavior, and certified as a Master Dog Trainer).?
CHAPTER 31—Training and Rehabilitation for Veterans with Service-Connected Disabilities?
§ 3100. Purposes?
The purposes of this chapter are to provide for all services and assistance necessary to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment 38 CFR § 21.72 - Rehabilitation to the point of employability?
(a) General. 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., an MSW for social work, the veteran shall be trained to that level.?
Therefore, the intent behind the re-submission of my VR&E application is to be found entitled for vocational rehabilitation services, allowing me to leverage the employment through long-term services track in order to be retrained and accomplish my Vocational Objective (i.e. obtaining a Bachelor of Science degree in Animal Health and Behavior from Unity Environmental University and becoming certified as a Master Dog Trainer via Highland Canine Training, LLC).
You can find work with your degree - “Employment alone is not evidence of stable and continuous employment.”?
I would like to highlight that a degree itself is not a “magic ticket” to employment. For example, a VR&E counselor may have a Master’s degree in Rehabilitation Counseling and be Certified as a Rehabilitation Counselor; however, it should be noted, unless their degree and certification are in an occupational health and safety discipline, the VR&E Counselor’s degree and certification would be irrelevant to the hiring authorities within the occupational health and safety industry. The VR&E counselor would be considered unqualified and not competitive for employment as an entry-level safety professional.
Per the Board of Certified Safety Professionals (BCSP), the VR&E Counselor's degree would not be considered relevant to even sit for the Certified Safety Professional certification exam. What I am attempting to convey is my degree and experience is in a very specific industry, which, in my case, has been proven not to be Stable and Continuing Suitable Employment. I’ve submitted applications for over (260) jobs, (173) on LinkedIn, (64) on USAJOBS, (23) on INDEED, and additional opportunities directly on various company websites resulting in zero Stable and Continuous Employment offers.?
Per M28C.IV.B.1, e “A claimant may overcome the effects of the impairment of employability through obtaining, maintaining, or qualifying for employment in an occupation consistent with his or her abilities, aptitudes, and interests and compatible with his or her SCD conditions. In accordance with 38 U.S.C. 3102 and 38 CFR 21.51, this includes a claimant who qualifies for a suitable employment, but who does not obtain or maintain the job for reasons within his or her control. If the claimant is prepared and/or qualified for employment in a suitable occupation but has failed to obtain or maintain employment for reasons within his or her control, he or she has overcome the effects of the impairment.?
If the claimant is employed, the VRC should address employment stability, compatibility with claimant's disability conditions, and consistency with claimant's pattern of interests, aptitudes, and abilities.
If the claimant is unemployed, the VRC must address qualifications for suitable employment, efforts to seek employment, and whether the unemployment is outside the claimant's control. The VRC must provide significant justification if the claimant is not employed yet found to have overcome the vocational impairment(s).
If the claimant is not prepared and/or qualified for employment in a suitable occupation, or the claimant is prepared and/or qualified for employment in a suitable occupation but has failed to obtain or retain employment for reasons beyond his or her control, the claimant has not overcome the effects of the impairment.”?
It should be noted, I am not prepared for and/or qualified for employment (i.e. I lack a Bachelor Degree in Animal Health and Behavior and a certification as a Master Dog Trainer), in a suitable occupation. I have failed to obtain or maintain employment for reasons outside of my control, and therefore I have not overcome the effects of my Vocational Impairment.?
I would also like to stress that my employment in the Safety Industry does not meet the definitions for Stable and Continuous Employment and Suitable Employment due to the inconsistent, contracted, and seasonal nature of the work, the aforementioned exasperation of my service-connected disabilities, and my resulting lack-of-interest in continuing working within the safety industry.
This is a job program, not an education program - I am not seeking education for education’s sake. I have been unable to obtain or maintain Suitable Employment for over 2 years; being educated via a Bachelor Degree in Animal Health and Behavior and trained to become Certified as a Master Dog Trainer would enable me to overcome the barriers caused by my significant Vocational Impairment and Serious Employment Handicap by providing me with the degree and certificate generally accepted as necessary to qualify for and obtain, stable, and Suitable Employment; I am entitled for support through the long-term employment through education track when considering my age, service-connected disabilities, and the stigmas associated with being a whistleblower, compounded by my long period of unemployment and pattern of reliance on government support programs such as my service-connected disability compensation.?
Your current or previous jobs were suitable - To ensure I am communicating clearly, I will utilize the definition of Suitable Employment as outlined in M28C Glossary of Terms. As is repeatedly highlighted throughout this document, in order for employment to be considered suitable, it must;?
1. Be consistent with claimants expressed interests, aptitudes and abilities that can be measured and/or demonstrated. - (It is not); I am not-interested in the safety industry as it had a serious negative impact on my service-connected disabilities (i.e. mental and physical health). My expressed interest is in transitioning into the dog training industry as a certified Master Dog Trainer.?
2. Not aggravate the claimant’s disability(ies). - (It does) As a safety professional, my service-connected disabilities of Degenerative changes of the cervical spine, Left/Right knee Patellofemoral pain syndrome, and PTSD were exasperated by having to wear a hardhat 12- 13 hours per day, 7-days per week, for several months at a time; looking up for extended periods of time while observing personnel working in elevated positions, and ensuring the path of suspended loads remained clear during crane operations; extended periods of prolonged standing and having to walk between 6 – 10 miles per day while wearing heavy steel-toe safety boots in order to ensure safety compliance across multiple work areas; and dealing with unethical leaders who, through willful ignorance and gross negligence demonstrated a complete disregard for the safety of their subordinates, directly resulting in recurrence of preventable injuries.
Additionally, I have non-service connected disability(ies) (i.e. disabilities incurred during my military service but not rated by the VA) documented in my VA Blue Button File which were exacerbated during my employment as a safety professional, including a diagnosis of acute lumbar strain, detailed in a 2011 medical examination while I was still on active duty. My VA Blue Button File also notes a history of lower back pain, caused by force marches and exposure to IED explosions during my infantry career, compounded by multiple evaluations and diagnostic reports, such as a 2015 lumbar spine study indicating lumbar spine spondyloarthropathy with posterior disc space narrowing at L5-S1, which could be associated with disc derangement.
However, becoming a Master Dog Trainer would not aggravate my service-connected disabilities.?
3. Be stable and continuing. - (It is not) – I have not been able to obtain and maintain stable and continuing employment as a safety professional since May of 2022. However, my employment as a Master Dog Trainer would meet the definition of stable and continuing as I would become a sought-after expert in the field. This can open doors to working with law enforcement agencies, private security firms, and service dog organizations just to name a few employment options.?
4. Require reasonable developed skills - (It did); via education, training and certifications. As does becoming a Master Dog Trainer (i.e. a Bachelor Degree in Animal Health and Behavior, Canine Training and Behavior Modification Professional, Police K9 Instructor, Search and Rescue Dog Trainer, and Service Dog Trainer).?
You’ve overcome your vocational impairment with education and training - Per the definition outlined in the M28C Glossary of Terms, a Vocational Impairment (VI) refers to restrictions on employability caused by one or more of the following factors:?
? The effects of the Veteran or Servicemember’s SCD(s) or NSCD(s).
? Deficiencies in education and training.
? The potential impact of employers’ negative perceptions about the Veteran or Servicemember’s disability(ies).
? Other pertinent factors that result in restrictions on employability such as a lack of stable, continuing, and suitable employment.
Considering how the employment was not stable, continuous, or suitable; how it affected and exacerbated my service-connected disabilities (i.e. my physical capabilities are measurably reduced, limiting my ability to perform tasks requiring prolonged standing, walking, or heavy lifting.); the impact of my former/potential employers’ negative perceptions about my service-connected disabilities and status as a whistleblower; and that I have not been able to obtain and maintain Suitable Employment, due to no fault of my own, for over 2 years, I have not overcome my Vocational Impairment despite my education and training.?
You don’t have an employment handicap - I reviewed what an Employment Handicap is per M28C.IV.B1.104F and found I do meet the criteria for an Employment Handicap, moreover, I meet each of the criteria for an Serious Employment Handicap (SEH). I have not overcome the Vocational Impairment, Employment Handicap, and/or Serious Employment Handicap, even with my current level of education and training, because I have been unable to a obtain and maintain Suitable Employment, even though I’ve been aggressively trying for over 2 years.
My 70% PTSD alone has certainly caused hinderances to my ability to obtain or maintain Suitable Employment for reasons beyond my control, and this service-connected disability has been exasperated during my employment as an occupational health and safety professional. This service-connected disability has caused problems for me at work, at home, and has caused problems for me since losing my last job (i.e. anxiety and depression due to my failure to provide for myself and my wife without a pattern of dependence on my service-connected disability compensation, and dealing with a “breach of contract” litigation due to being a whistleblower).?
Initially, I believed my degree would enable me to overcome my Vocational Impairment and Serious Employment Handicap, however, due to not being able to obtain and maintain employment for over two years, for reasons beyond my control, I have been under great financial stress (i.e. I am in a fiscal position wherein one significant home or vehicle repair expense would be catastrophic and unrecoverable). I have experienced anxiety, depression, and at times have been withdrawn (i.e. self-isolated) due to feelings of embarrassment and failure.?
You still don’t have an Employment Handicap - I do have an Employment Handicap (EH). Per M28C.IV.B1.104F, in order to be found to have an Employment Handicap, the following three criteria must exist;?
1. The claimant must have a Vocational Impairment - (I do); I am rated for degenerative changes of the cervical spine (which is exasperated by having to wear a hardhat 12- 13 hours per day, 7-days per week, for several months at a time, looking up for extended periods of time to observe workers in elevated positions and ensure the path of suspended loads remained clear during crane operations), left/right knee patellofemoral pain syndrome (which is exasperated by extended periods of prolonged standing and having to walk between 6 – 10 miles per day in order to ensure safety compliance across multiple work areas), and PTSD (which is exasperated by dealing with unethical leaders who, through willful ignorance and gross negligence demonstrated a complete disregard for the safety of their subordinates, directly resulting in recurrence of preventable injuries). These service-connected disabilities certainly reflect a Vocational Impairment; significantly and directly having a negative effect on my ability to continue to function in my current field.?
I am also prepared to provide a Schedule A letter, dated 15 Sept 2023, stipulating my vocational impairment.?
2. The claimant’s Service-Connected Disability(ies) contribute in substantial part to the impairment - (They do); As previously described, my Service-Connected Disability(ies) were exasperated and negatively impacted my performance at work and became increasingly difficult to manage.?
Additionally, because I found working in the safety industry completely unfulfilling and harmful to my overall mental and physical health, it was not Stable and Continuing Suitable Employment, and therefore renders remaining within this career path unsustainable.?
3. The claimant must not have overcome the effects of his or her impairment via employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests. - (I have not); In the interests of clarity of communication, per the M28C Glossary of Terms, “Suitable Employment” is defined as:?
? Employment which is consistent with the claimants expressed interests, aptitudes and abilities that can be measured and/or demonstrated.
? Does not aggravate the claimant’s disability(ies).
? Is Stable and Continuing*.
? Requires reasonably developed skills.
* It should be noted, Stable and Continuing Employment is defined as employment in one position, or a series of similar positions, for periods of three to five years with no or few breaks; it is further defined as current work, other than temporary employment (unless the work characteristically involves temporary but continuous assignments). Employment alone is not evidence of stable and continuous employment. The work I was involved in was not stable and continuing as it was contracted and seasonal staff augmentation dependent upon nepotism and fraternization in order to get assigned to support projects; I have not been employed in over 2 years; and am currently unemployed.
As I have been unable to obtain Stable and Continuing Suitable Employment in over 2 years consistent with my expressed interests, aptitudes and abilities, and the employment I was most recently doing severely exacerbated my service-connected disabilities, I have not overcome my Vocational Impairment, and therefore satisfy the criteria for an Employment Handicap.?
To secure and retain Stable and Continuing Suitable Employment, I require VR&E services to provide necessary accommodations, retraining, and adaptive technologies in order to obtain a Bachelor of Science degree in Animal Health and Behavior and a certification as a Master Dog Trainer.
You have an Employment Handicap, but not a Serious Employment Handicap, and you need a Serious Employment Handicap because you are out of time - While I understand, if the VR&E Counselor makes a revision of the decision which found me not eligible for VR&E benefits and Chapter 31 services, my assessment will be based upon the initial application date, I still want to take this opportunity to highlight that I do meet the criteria for having a Serious Employment Handicap as outlined in M28C.IV.B1.105a.
The following is how I meet each of the assessment criteria:
1. Number of disabling conditions – Five.
? Degenerative changes of the cervical spine
? Left/Right knee Patellofemoral pain syndrome
? PTSD
? Lumbar spine spondyloarthropathy with posterior disc space narrowing at L5-S1
? Degenerative changes to the mid-thoracic spine
2. Severity of disabling condition(s) – 90%
3. Existence of a neuropsychiatric condition – PTSD, depression, anxiety
4. Deficiencies in education and training for Suitable Employment - I have a degree but it doesn’t appear to be of much value in the industry for which I am interested (i.e. Dog Training, Master Dog Trainer). The required education and training to become a Master Dog Trainer includes: a Bachelor of Science degree in Animal Health and Behavior, Canine Training and Behavior Modification, Police K9 Instructor, Search and Rescue Dog Trainer, and Service Dog Trainer.?
5. Negative attitudes toward the disabled – I have experienced this many times, during the application process for over (260) jobs, I was required to identify whether or not I have, or had, a history of disabilities. As none of my applications, for roles in which I was highly qualified, gained any traction, any reasonable person would infer there were negative attitudes towards the anticipated needs for accommodation due to my age, disabilities, as well as negative stigmas associated with my status as a whistleblower.
6. Long or substantial period of unemployment or unstable work history – I have been unemployed for over 2 years
7. A pattern of reliance on government support programs, such as welfare, SCD compensation, SCD pension, Workers’ Compensation, Social Security, Disability Insurance, etc. - For the last 2 years I would have become homeless and could not have survived without SCD income and have lived SOLELY on my military pension and SCD compensation. I have been in this loop for the last 2 years. The anxiety of being one significant fiscal event away from losing my home is ever present.
8. Withdrawal from society – I have become withdrawn and depressed over this entire process. I am embarrassed and feel like a failure. Obtaining my degrees and certifications seems to have been a waste of time, and several years of my life, as I haven’t been able to gain employment despite completing over (260) applications for jobs, (173) on LinkedIn, (64) on USAJOBS, (23) on INDEED, and additional opportunities directly on various company websites.
9. Criminal History - (N/A)
10. Extent and complexity of needed rehabilitation services and other evidence of significant restrictions on employability, e.g., high unemployment, age, race, sexual orientation and gender discrimination issues etc. – I am almost 54 years old, Latino, with a degree who is unable to find stable and continuous suitable employment. I am convinced my age, race, stigmas associated with my PTSD disability, compounded by my long history of unemployment, and my status as a whistleblower, are significant restrictions on my employability.
I have done all I know to do and have remained unemployed, dependent upon my service-connected disability income to survive and make ends meet. I want to change my situation, obtain a Bachelor of Science degree in Animal Health, and become a Master Dog Trainer, not only because it is suitable employment, but also because it would assist me in managing my PTSD.
This is not a random choice for me, I have been researching dog training online for some time and am genuinely interested in that profession. Below are a few links to videos demonstrating how becoming a Master Dog Trainer “is consistent with my expressed interests, aptitudes and abilities that can be measured and/or demonstrated”:
As illustrated in the videos, I can develop my fundamental aptitudes and abilities to the level generally recognized as necessary through education and training. Moreover, there is an ample industry employment need (i.e. Canine Training and Behavior Modification, Police K9 Instructor, Search and Rescue Dog Trainer, and Service Dog Trainer) for me to be successful.?
I have had limited access to traditional employment due to my SCD’s and non-SCD’s; I have aggressively been seeking stable and continuous employment for over 2 years, with zero success; I am convinced obtaining a Bachelor of Science degree in Animal Health and Behavior from Unity Environmental University and becoming certified as a Master Dog Trainer via Highland Canine Training, LLC , represents a reasonably feasible vocational objective.
In order to address any concern as to if achievement of my Vocational Goal is reasonably feasible, per 38 CFR § 3101, “achievement of a vocational goal is reasonably feasible if the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances does not prevent the veteran from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran's abilities, aptitudes, and interests.”. Moreover, per 38 CFR 21.53, “...Any reasonable doubt shall be resolved in favor of a finding of feasibility.” .?
--- End of Written Statement---
?
My written statement included hyperlinks to the applicable statutory and regulatory provisions (i.e. M28C, 38 CFR § 3101, 38 U.S.C. 3102, 38 CFR 21.51, CHAPTER 31—Training and Rehabilitation For Veterans With Service-Connected Disabilities, 38 CFR § 21.72 - Rehabilitation to the point of employability), highlighting how, per the regulations and statutes governing VR&E, I satisfy the assessment criteria for Vocational Impairment, Employment Handicap, and Serious Employment Handicap, and clearly communicated why my previous employment was not Suitable Employment.??
In my written statement, I articulated my intent to leverage the VR&E's "employment through long-term services track" in order to be retrained and accomplish my Vocational Objective (i.e. obtaining a Bachelor of Science degree in Animal Health and Behavior from Unity Environmental University and becoming certified as a Master Dog Trainer via Highland Canine Training, LLC ).? I addressed any potential concern as to if achievement of my Vocational Goal is reasonably feasible by sharing, per 38 CFR § 3101, “achievement of a vocational goal is reasonably feasible if the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances does not prevent the veteran from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran's abilities, aptitudes, and interests.”.? Additionally, per 38 CFR 21.53, “...Any reasonable doubt shall be resolved in favor of a finding of feasibility.”
When I met with my VR&E counselor on 14 August 2024, he specifically articulated this lack of interest in discussing the information provided, claiming it was “too much information to review prior to the meeting” and expressed a bias to deny my claim without due process if I persisted with it as a new or initial claim; instead he encouraged me to withdraw my new and initial claim and submit a Supplemental Claim for Higher Level Review.
On 31 August 2024, I reached out to my VR&E counselor in order to share that I had been accepted into an education program and a Master Dog Trainer Certification program.? As the Master Dog Trainer Certification program was beginning in January, but required a fiscal commitment to reserve my seat for the course, I asked my VR&E counselor to provide a reasonable window wherein he thought my claim should be adjudicated.? This was that email:
?
From: Edward Allier <[email protected]>
Subject: Fwd: Highland Canine Training LLC-Decision Letter
Date: August 31, 2024 at 7:15:04 PM EDT
To: VBASPT Toussaint Willmary <[email protected]>
Mr. Toussaint,?
I wanted to share the email below with you in order to determine what I should expect as a reasonable timeframe for a response to my Supplemental Claim submission.?
The purpose behind sharing the information below is to highlight the “first come first served basis” of the Master Dog Trainer registration process.? If I fail to secure a seat in the upcoming January course, I will be forced to wait until July to attend their summer course; putting me over three years of unemployment.? As I’m certain you can appreciate, that is a highly stressful possibility for me.
As outlined in our conversation on 14 August, and in my Supplemental Claim submission, I clearly meet the VR&E entitlement criteria as defined in the regulatory and statutory framework (i.e. I meet each of the elements for a Vocational Impairment, an Employment Handicap, and a Serious Employment Handicap).?
I am doing everything within my sphere of influence to improve my situation; I have registered for, and have been accepted to, the Bachelor of Science degree program for Animal Health and Behavior from Unity Environmental University and the Master Dog Trainer program at Highland Canine Training, LLC.? Unfortunately, I lack the fiscal resources to complete the enrollment process in either program, hence the reason I am requesting your support in expediting the review and approval of my Supplemental Claim submission.
Please advise as to the status of my Supplemental Claim submission and when I should expect a final disposition.?
Your time and continued support are sincerely appreciated.
Respectfully,
?
Edward Alier
??
From: School for Dog Trainers - Highland Canine Training, LLC <[email protected]>
Sent: Friday, August 30, 2024 11:45 AM
To: Edward Allier <[email protected]>
Subject: Highland Canine Training LLC-Decision Letter
Congratulations!
Please see the attached Letter of Acceptance.
Your next step is to pay the registration fee and send us your official school transcripts for all educational institutes attended beginning with High School.
Registration is on a first come, first served basis. YOU ARE NOT REGISTERED for this class until you secure your position with a non-refundable $500 registration fee and Highschool Transcripts are sent. Deposits and payments can be made online at this link: DEPOSITS or by mail via check. Transcripts can be mailed or emailed.? Please contact us for specific instructions regarding your preferred payment method.
Here is the link to secure our student housing through Farmhouse Property Management. Housing is limited and is on a first come, first served basis! The total cost of housing is $3,000.00, this is non-refundable. Housing is shared and assigned. Using our housing is not required. Please let me know if you have questions.?
If you are using GI Bill to pay for your tuition you are still required to make the $500.00 registration fee to reserve a seat in class. This will be refunded to you after the start of the program you are attending and upon full payment from the VA. To secure our housing you will still need to pay the non-refundable payment as soon as possible. The VA will pay you directly once you start the program if you are eligible for the housing allowance. If you have not done so we request a copy of your CoE as well.
?If you are paying out of pocket, the $500 is due to hold your spot then, $8,387.50 is due by the first day of class.?
?If you are financing with us, the $500 is due to hold your spot. The down payment for your program chosen is $8,387.50, this is due the first day of class. You will need a cosigner. Please have you and your cosigner fill out these forms: The Consent for Finance Info and Cosigner Information. Below I have attached the Rules for Financing to view.
Please let me know if you have any questions. We look forward to having you here at Highland Canine Training, LLC School for Dog Trainers!?
Regards,
Jessica
School for Dog Trainers
Highland Canine Training, LLC
Catalog- Main Campus
Catalog- Southeast Campus
Catalog- Hill Country Campus
Application (fillable)
800.726.7412
?
The communication attempt and request for information from my VR&E counselor went without acknowledgement or response.?
On 18 September 2024, I became concerned at the lack of acknowledgment or response and repeated my attempt to gain some insight as to the status of my claim.? This time, not only did I reach out to my VR&E counselor, I included members of the leadership team of the VA Regional Office in St. Petersburg to determine the status of my claim:
?
From: Edward Allier <[email protected]>
Subject: Fwd: Highland Canine Training LLC-Decision Letter
Date: September 18, 2024 at 5:10:10 PM EDT
Cc: "Toussaint, Willmary, Vbaspt" <[email protected]>, [email protected], [email protected], [email protected], [email protected], [email protected]
Team,?
I am reaching out to determine the status of my supplemental claim.? Per the recommendation of my VR&E counselor on 14 August 2024, I submitted a supplemental claim and supporting information to him, with the expectation they would forwarded up the chain for a “higher level review”.? I have attached all the documentation submitted on 14 August 2024 to this email in case there are any questions as to the documentation submitted.??
As you will note in the email below, I reached out to my VR&E counselor on 31 August 2024 in order to determine a reasonable window for a decision on my supplemental claim, explaining how an excessive delay would negatively impact my ability to enroll in the next dog training certification course, which begins in January 2025.? Failure to begin this course will push my inability to gain or maintain suitable employment, due to no fault of my own, as the next course is not until July 2025.?
As you will note in the attached documentation, specifically, the document titled “ A Form 20-0995 Talking Points, I absolutely meet the assessment criteria for a Vocational Impairment, Employment Handicap and a Seriously Employment Handicap.? My circumstances clearly meet the requirements to find me entitled for VR&E benefits and services.? I’d rather not have to wait until July of 2025 to begin the process of improving my life’s circumstances due to bureaucratic dysfunction.?
I would be grateful if someone could, at a minimum, acknowledge my attempt at communicating with the VA as the attempt below went without acknowledgement or response.? As I am so clearly eligible for VR&E benefits and services, I would prefer my application be approved immediately so I may begin taking the necessary actions to improve my life’s circumstances.?
Your time and support are appreciated.
Respectfully,
?
Edward Allier
?
That attempt at communication and request for information also went unacknowledged by all recipients, and no response was received.
?
On 23 October 2024, I received a voicemail and a text message from representatives of the Master Dog Trainer school, pressing me for a fiscal commitment to reserve my seat in the upcoming January certification course.? I shared a screenshot of the text message and attached the voicemail to another email, again including the leadership team of the VA Regional Office in St. Petersburg and my VR&E counselor:
?
From: Edward Allier <[email protected]>
Sent: Wednesday, October 23, 2024 5:53 PM
To: Toussaint, Willmary, VBASPT <[email protected]>; [email protected]; Ellis, Charles L. <[email protected]>; [email protected]; [email protected]
Subject: [EXTERNAL] VR&E Higher Level Review?
Team,?
It has been 2 1/2 months since the Higher Level Review was initiated.? The intent behind this message is to determine the status of my VR&E Higher Level Review, initiated on 14 Aug 2024.? As you’ll note in the message thread below, I have reached out multiple times in order to share the time sensitive nature of the VR&E approval.
The VA Form 20-0995 and the talking points specifying why I should be found entitled for VR&E benefits and services, which were included in my original Higher Level Review request, are attached to this message.? These documents have been included in each communication attempt.? Also attached to this message are the voicemail and text messages received from Highland Canine School for Dog Trainers today, clearly indicating I am in danger of losing my reserved seat for the course.?
I am in danger of losing my position in the Master Dog Trainer course due to my inability to provide the required deposit.? The next available course would not begin until July of 2025.
If I am forced to wait until July 2025, that would push my period of unemployment to over 3 years.? As I am certain you can appreciate, having to endure another 8 months of my current situation is something I’d prefer to avoid.?
Please provide a decision in reference to my VR&E claim so I can know which direction my life is headed.
Respectfully,
??
Edward Allier
On 01 November 2024, I received this email from my VR&E Counselor.
?
From: "Toussaint, Willmary, VBASPT" <[email protected]>
Subject: VR&E Higher Level Review
Date: November 1, 2024 at 5:29:07 PM EDT
To: "[email protected]" <[email protected]>?
Hello Edward,?
I hope you’re doing well. You completed a Supplemental Claim instead of the Higher Review, therefore I had to respond and have completed it. Attached is an email copy of my report, others will arrive by USPS mail and eVA email.
Sincerely,
?
WillmaryToussaint
?
Will Toussaint, MS
Vocational Rehabilitation Counselor
11934 Fairway Lakes Drive Suite # 3
Fort Myers, FL. 33913
During Covid 19: 727-319-7607
Email: [email protected]?
Dear Mr. Allier:
I am writing to inform you of a decision that affects your Department of Veterans Affairs (VA) Veteran Readiness and Employment (VR&E) benefits. This decision does not impact other VA benefits that you may be receiving and/or be eligible to receive.?
What decision did I make and what authority did I use??
When making a decision on your VR&E benefits, I must base my decision on specific laws and regulations. These laws are found in title 38 of the United States Code (U.S.C.); and the regulations are found in title 38 of the Code of Federal Regulations (CFR). Based on a review of these laws and regulations, I thoroughly review the Decision made and the supportive documents you provided; however, I have decided that you are not entitled to VR&E benefits and services because you do not meet the criteria for an employment handicap. I based this decision on 38 U.S.C. § 3102; and 38 CFR §§ 21.40 and 21.51.?
Why did I make this decision??
I made this decision based on the following reason(s):
You have ample training, education, certifications & experience to gain suitable employment in the field in which you have had demonstrated a pattern of interest over time. You have gained many transferrable [sic] skills that you can use to work in other or related fields.
EDUCATION
The Veteran has a Master in Occupational Safety & Health with a concentration in Environmental Management.
The Veteran has Bachelor of Science Degree in Occupational Safety and Health.
Veteran is an Associate Safety Professional & Board Certified as a Safety Professionals, ASP.
PROFESSIONAL CERTIFICATIONS
??????????? Lean Six Sigma Green Belt (Purdue University)
??????????? Construction Project Management (Columbia University)
??????????? Project Management Professional (Project Management Institute, PMP)
??????????? OSHA 501 Trainer (OSHA Training Institute Education Center )
??????????? Safety Management Specialist (Board of Certified Safety Professionals, SMS)
??????????? Certified Safety Professional (Board of Certified Safety Professionals, CSP)
??????????? Occupational Hygiene and Safety Technician (Board of Certified Safety Professionals, OHST)
??????????? Construction Health and Safety Technician (Board of Certified Safety Professionals, CHST)
??????????? Certified Instructional Trainer (Board of Certified Safety Professionals, CIT)
??????????? Worldwide Protective Service Personal Security Specialist (Department of State, WPS PSS)
??????????? High Risk Personnel (United States Marine Corps, HRP)
??????????? Personal Security Detachment (United States Marine Corps, PSD)
??????????? Small Arms Weapons Instructor (United States Marine Corps, SAWIC)
??????????? Safety Trained Supervisor in Construction & a Board of Certified Safety Professionals, STS-C.
??????????? Safety Trained Supervisor in Board of Certified Safety Professionals, STS.
??????????? National Registry Emergency Medical Technician – Basic (NREMT).
??????????? Certified a Rescue Diver (PADI).
?
OSHA CERTIFICATIONS
??????????? OSHA 40-Hour Hazardous Waste Operations and Emergency Response (HAZWOPER)
??????????? OSHA 30-Hour Outreach Training Program (Construction)
??????????? OSHA 30-Hour Outreach Training Program (General Industry)
??????????? OSHA Global Harmonized System and Hazardous Material Communication
??????????? OSHA 501 Trainer (OSHA Training Institute Education Center )
?
??????????? On 09/14/2023, you stated that you were a Safety Consultant for Salvation Safety, LLC and Director at Environmental Health and Safety for American Perseverance, Inc. in Fort Myers, Fl from 03/01/2014 to 05/2022, working Part Time 3 Days a week and earning $16,000 a month or $192,000.00 a year. Furthermore, you stated that you quit your position because of a disagreement with one of your supervisors. You also stated that you can find work but weren’t willing to accept an entry- level salary below $100K.?
??????????? You did not provide any historical employment search data for review?
What findings were favorable to you, if any??
This proposed action only refers to the Chapter 31 Veteran Readiness and Employment Services and does not affect any other VA benefits that which you may be entitled to receiving. In addition, you have reapplied for VR&E services and will have a chance to present your case to another counselor.?
What evidence did I use to make this decision?
All information provided on VA Form 28-1902w (Rehabilitation Needs Inventory [RNI]) was used along with: medical records, current disability ratings & narratives, all academic records and transcripts you provided, any prior VR&E counseling documentation as appropriate, History of Suitable Employment and Earnings you provided, including Resume, Self-Performance Appraisal, Position Descriptions, Attendance Records, your own Self-Report during the entitlement process, your Education and Experience as the Director of Environmental Health and Safety for American Perseverance, Inc.?
If you would like copies of this information, please contact me to arrange the most efficient way to get this information to you.
What if you disagree with my decision?
If you disagree with my decision, either you or your accredited representative, such as a Veterans Service Organization representative, independent claims agent, or private attorney, can request a review of the decision at the regional office level or file a request for a formal appeal at the Board of Veterans Appeals (Board). You have one year from the date of this letter to select and file a review option in order to protect your initial filing date for effective date purposes.
??????????? Request a Higher-Level Review (HLR) at the Regional Office Level?
If you disagree with my decision, you can request an HLR to be completed at the regional office where I work, or an alternate regional office (see note below) within one year of the date of this letter. An HLR is completed by an experienced VR&E employee. You may also request an informal conference during the HLR process. An informal conference provides you, and your representative if you have one, the opportunity to tell the reviewer why you disagree with my decision and to discuss the decision before the reviewer completes his/her review. To request an HLR, please complete VA Form 20-0996, Decision Review Request: Higher-Level Review, and return it to the VR&E Intake Center at the address below. If you have new evidence to provide, this option is not available to you. Please see below for your options if you have new evidence to provide. Also, you may not request an HLR of an HLR decision issued by VA.
Note: Due to the specialized processing needs of VR&E, by default your HLR will be completed at the regional office where I work, which contradicts the information listed in box 13 on VA Form 20-0996. If you want your HLR to be completed at an alternate regional office, please indicate that in writing in box 13.
??????????? File a Supplemental Claim (SC) at the Regional Office Level?
If you disagree with my decision and you have new evidence to provide, you can request a SC to be completed at the regional office where I work. A SC is completed by either myself or another Vocational Rehabilitation Counselor that works at the same regional office in which I work. To request a SC, please complete VA Form 20-0995, Decision Review Request: Supplemental Claim, and return it to the VR&E Intake Center at the address below. There is no time limit to request this review; however, if you submit a SC later than one year after the date of this letter, the effective date for any resulting award of benefits generally will be tied to the date VA receives the request for a SC.
??????????? File a Formal Appeal with the Board of Veterans Appeals
If you disagree with my decision, you may appeal the decision to the Board of Veterans Appeals. If you want to file a formal appeal, please complete VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and follow the instructions on the form regarding how to submit the appeal. You have one year from the date of this letter to file an appeal.
It is important to note that you may elect either an HLR or a SC at the regional office level or elect an appeal by the Board. You may not have the same issue under review at both the regional office and the Board at the same time. You must elect which option you wish to pursue.
The enclosed VA Form 20-0998, “Your Rights To Seek Further Review of Our Decision”, explains your options in greater detail and provides instructions on how to request further review. You may download a copy of any of the required application forms noted above by visiting www.va.gov/vaforms/ or you may contact us by telephone at 1-800-827-1000 and we will mail you any form you need.
You can visit www.va.gov/decision-reviews to learn more about how the disagreement process works.
If you would like to obtain or access evidence used in making this decision, please contact us by telephone, email, or letter letting us know what you would like to obtain. Some evidence may be obtained online by visiting VA.gov.
What if you have questions or concerns?
If you have any questions about this letter or need additional information on VA benefits, please contact me at 727.319.7607, via email at [email protected] or call 1-800-827-1000. If you use the Telecommunications Device for the Deaf (TDD), the federal number is 711.
You may also contact me by mail at:
Veteran Readiness and Employment (VR&E) Intake Center
Department of Veterans Affairs
P. O. Box 5210
Janesville, WI 53547-5210
Sincerely,
?
WillmaryToussaint
Will Toussaint
Rehabilitation Counselor
Enclosure: VA Form 20-0998, Your Rights to Seek Further Review of our Decision?
cc: DALE K. GRAHAM VETERANS’ FOUNDATION?
The VR&E counselor's adverse decision letter only reiterated his notes from our initial meeting in September of 2023, making no reference to my written statement, which presented a solid argument supporting a favorable decision to find me entitled for VR&E benefits and services. The VR&E counselor obviously did not take the time to fully review and assess the relevant records provided, which is a significant procedural error and violation of the VA regulation.
It should be noted, the VR&E counselor did not live up to his regulatory defined responsibility and obligation to identify "Potential Sources of Assistance Following Denial". Per the M28C, 1.08 Documenting Initial Evaluation Determination
d.? Potential Sources of Assistance Following Denial
(Change Date December 9, 2013)
When entitlement to VR&E services is denied, the VRC and claimant must explore alternative resources, such as job placement assistance through the Disabled Veteran’s Outreach Program (DVOP) or Local Veterans’ Employment Representative (LVER) staff, educational assistance through other VA programs, educational assistance through grant and scholarship programs, and rehabilitation or related assistance through State agencies. The results of the exploration and referral must be documented on the VAF 28-1902b.
The required post-denial notification action on behalf of the VR&E counselor to assist the Veteran in the exploration of alternative resources did-not-happen. This lack of adherence to required supportive actions is indicative of the VR&E counselor's dismissive attitude toward my claim, and his lack of commitment to provide the level of support we Veterans are entitled. The VR&E counselor again failed to follow clearly defined procedures, violating the VA regulation.
The VR&E counselor shared that I stated I could find work, of course I can FIND-WORK. I can FIND-WORK at McDonald's; I can FIND-WORK washing cars; I can FIND-WORK digging ditches, however that work would not meet the definition of suitable work as it would not be "consistent with the claimant's expressed interests, aptitudes and abilities", a qualification conveniently left out of the VR&E counselor's statement.
“...Employment alone is not evidence of stable and continuous employment.” this quote is from the definition of Stable and Continuous Employment contained within the M28R, which was the previous regulation governing the VR&E program. Inexplicably, when the M28C was adopted, replacing the M28R, there were references to Stable and Continuous but the definition of what was considered Stable and Continuous or Stable and Continuous Employment were removed from the regulation.
It's interesting how a distinction as significant as "...Employment alone is not evidence of stable and continuous employment." would be for Veterans seeking to advocate for their entitlement was removed from the regulation governing VR&E. The removal of the definition of Stable and Continuous Employment, and most importantly, the declarative statement stipulating that employment alone is not evidence of stable and continuous employment made it more difficult for Veterans to prove their entitlement, while making it easier for VR&E counselors to deny Veterans' VR&E claims. This obviously was an intended outcome of the exclusion of that definition from the M28C.
As I reviewed the VR&E counselor's justifications for denying my claim, the more glaring it became that he did not take the time to review and assess the merits of my claim, supported by my written statement and specific references to the regulatory and statutory framework governing the VR&E program.? Instead, he simply generated a denial template using weak justifications that had been effectively and repeatedly addressed or refuted in my written statement, supported by the aforementioned statutory and regulatory framework governing VR&E.? This was my response:
?
From: Edward Allier <[email protected]>
Subject: Re: VR&E Higher Level Review
Date: November 1, 2024 at 9:52:09 PM EDT
To: "Toussaint, Willmary, VBASPT" <[email protected]>
Mr. Toussaint,?
Thank you for finally acknowledging my multiple attempts over the past 2 1/2 months to communicate with you.? I apologize for filling out a Supplemental Claim instead of the Higher Review document.? However, that was the document you forwarded for me to complete after I clearly indicated I wanted a Higher Level Review in response to your refusal to assess the information shared prior to our meeting on 14 August 2024.?
During our meeting, not only did you express an understanding of my intent to request a Higher Level review, you contacted your supervisor to confirm their receptiveness to having you forward the request to them via email versus having me mail it to the regional office.? While I understand my Higher Level Review request may have become a Supplement Claim because of the additional information provided, there should have been zero confusion as to my intent due to the language of my email prior to our meeting, dated 12 August 2024 (see e-mail below), and the talking points provided (see attachment below titled “ R&E Talking Points (08/12/24)).? It certainly should not have taken you 2 1/2 months to provide feedback for a decision which you articulated you had already made; during our meeting on 14 August 2024 you stated that you had not reviewed the information provided, that you would not come to a different decision, and that you recommended I submit my claim for your supervisor for review.?
Prior to our conversation on 14 August 2024, during our conversation on 14 August 2024, and in the attached talking points included with my VA Form 20-0995, I addressed each of your erroneous justifications for denying my entitlement for VR&E Benefits and Services.? I intentionally incorporated the specific applicable references from the relevant guidelines, statutes and regulations to support my claim (i.e. M28C, 38 CFR § 3101, 38 U.S.C. 3102, 38 CFR 21.51, CHAPTER 31—Training and Rehabilitation For Veterans With Service-Connected Disabilities, 38 CFR § 21.72 - Rehabilitation to the point of employability, and 38 CFR 21.53).???
In your attached decision letter, you referenced justifications for denial of my entitlement for VR&E benefits based off of talking points from 09/14/2023, ignoring the information I provided on 12 August 2024, and attempted to discuss, on 14 August 2024.??
In your decision letter, you based your decision on my "ample training, education, certifications & experience to gain suitable employment in the field in which you have had demonstrated a pattern of interest over time."? You failed to recognize, per the M28C's definition of suitable employment, and my repeated expressed lack of interest in continued employment in the Occupational Health and Safety Industry (for which all of my education, training and certifications is focused), as well as my descriptions of how continued employment in the Occupational Health and Safety industry exacerbates my SCD and non-SCDs, that the Occupational Health and Safety Industry does not represent “suitable employment”.
In your decision letter, you stated you had based your decision on the fact I had not provided any historical employment search data for review, which is also erroneous and inaccurate.? In my attached talking points I repeatedly provide the results of my historical employment search data for your review; for example, “ ...I’ve submitted applications for over (260) jobs, (173) on LinkedIn, (64) on USAJOBS, (23) on INDEED, and additional opportunities directly on various company websites resulting in zero Stable and Continuous Employment offers…"? If you required additional information in reference to my historical employment search data, you-did-not-request that information.? I am not clairvoyant, I cannot provide information you do not request.?
Moreover, in what code, statute, guideline, or regulation is a historical employment search record defined as an assessment criterion to determine whether or not I am entitled for VR&E Benefits and Services?? This is not a rhetorical question, I want you to provide where in the applicable codes, statutes, regulations and guidelines where it stipulates a historical employment search history is required to determine my entitlement.? By stating you based your decision to deny my entitlement to VR&E Benefits and Services because I did not provide any historical employment search data you demonstrate you either failed to review the information provided, or failed to accurately review the information provided; both of which are unacceptable.?
In your decision letter, you stated I can find work but am not willing to accept an entry-level salary below 100K, which is a misrepresentation of our conversation from 09/14/2023.? During our conversation on 09/14/2023, you repeatedly recommended I seek entry-level work, which I indicated would not be suitable due to my experience, education, and certifications.? Per the M28C, "A claimant may overcome the effects of the impairment of employability through obtaining, maintaining, or qualifying for employment in an occupation consistent with his or her abilities, aptitudes, and interests and compatible with his or her SCD conditions."? Obviously, the “entry-level" work you are referencing would not satisfy the stipulated requirements to overcome a vocational impairment, which in-turn meets the defined assessment criteria for an employment handicap.??
In your decision letter, you referenced inaccurate paraphrased talking points from 09/14/2023.? I never stated I quit after a disagreement with ONE of my “supervisors” or that I worked “part-time, 3 days a week”.? My actual schedule was 13-hours per day, 7 days per week for 9 - 10 months per year.? The "disagreement” was with the senior leadership (i.e. two Vice Presidents and two Directors) of the organization, which I reminded you about in the email dated 12 August 2024.? If you require more clarity with regard to the specifics of the “disagreement”, here is a link to the PowerPoint referenced in the email submitted on 14 August 2024: PGS Safety Climate and Safety Culture (Spring 2022).pptx? There are comments in the “Notes” section of each slide providing amplifying remarks to the information presented on the slides.? You will note, this was not a “disagreement”, but rather the culmination of a breakdown of organizational leadership due to unethical, incompetent, willfully ignorant and grossly negligent persons being in positions of influence for over 8 1/2 years.?
You highlight my education and certifications as a justification to determine I do not have an employment handicap, when I clearly, and in granular detail, outline how continued employment in the occupational health and safety industry is NOT suitable employment.? For example, I submit these two excerpts from the attached VR&E Talking Points:
“...Employment alone is not evidence of stable and continuous employment.”
I would like to highlight that a degree itself is not a “magic ticket” to employment. For example, a VR&E counselor may have a Master’s degree in Rehabilitation Counseling and be Certified as a Rehabilitation Counselor; however, it should be noted, unless their degree and certification are in an occupational health and safety discipline, the VR&E Counselor’s degree and certification would be irrelevant to the hiring authorities within the occupational health and safety industry. The VR&E counselor would be considered unqualified and not competitive for employment as an entry-level safety professional.
Per the Board of Certified Safety Professionals (BCSP), the VR&E counselor's degree would not qualified them to even sit for the Certified Safety Professional certification exam. What I am attempting to convey is my degree and experience is in a very specific industry, which, in my case, has been proven not to be Stable and Continuing Suitable Employment..."?
?“...To ensure I am communicating clearly, I will utilize the definition of Suitable Employment as outlined in the M28C Glossary of Terms.? As is repeatedly highlighted throughout this document, in order for employment to be considered suitable, it must;?
1. Be consistent with claimants expressed interests, aptitudes and abilities that can be measured and/or demonstrated. - (It is not); I am not-interested in the safety industry as it had a serious negative impact on my service-connected disabilities (i.e. mental and physical health). My expressed interest is in transitioning into the dog training industry as a certified Master Dog Trainer.?
2. Not aggravate the claimant’s disability(ies). - (It does) As a safety professional, my service-connected disabilities of Degenerative changes of the cervical spine, Left/Right knee Patellofemoral pain syndrome, and PTSD were exasperated by having to wear a hardhat 12- 13 hours per day, 7-days per week, for several months at a time; looking up for extended periods of time while observing personnel working in elevated positions, and ensuring the path of suspended loads remained clear during crane operations; extended periods of prolonged standing and having to walk between 6 – 10 miles per day while wearing heavy steel-toe safety boots in order to ensure safety compliance across multiple work areas; and dealing with unethical leaders who, through willful ignorance and gross negligence demonstrated a complete disregard for the safety of their subordinates, directly resulting in recurrence of preventable injuries.?
I also have non-service connected disability(ies) (i.e. disabilities incurred during my military service but not rated by the VA) documented in my VA Blue Button File which were exacerbated during my employment as a safety professional, including a diagnosis of acute lumbar strain, detailed in a 2011 medical examination while I was still on active duty. My VA Blue Button File also notes a history of lower back pain, caused by force marches and exposure to IED explosions during my infantry career, compounded by multiple evaluations and diagnostic reports, such as a 2015 lumbar spine study indicating lumbar spine spondyloarthropathy with posterior disc space narrowing at L5-S1, which could be associated with disc derangement. However, becoming a Master Dog Trainer would not aggravate my service-connected disabilities.
3. Be stable and continuing. - (It is not) – I have not been able to obtain and maintain stable and continuing employment as a safety professional since May of 2022…".
The justifications in your decision letter have me questioning whether you took the time to actually review the information provided.?
We had 2-hours scheduled for the conversation, more than enough time to go over the information provided.? Instead, you indicated you had not reviewed the information provided, encouraged me to withdraw my claim and instead submit VA form 20-0995.? During what was supposed to be a 2-hour conversation discussing my entitlement, time was taken discussing your frustration with the VA’s micromanaging bureaucracy and your intent to quit!? While I can relate, I take this opportunity to challenge why we didn’t take the 2-hours to go over the attached talking points, which clearly and effectively counter your erroneous perceptions with respect to your current decision to deny my entitlement to VR&E benefits and services.?
The information provided for your review strongly support my entitlement for VR&E Benefits and Services.? As none of the talking points in your decision letter address the information provided on 14 Aug 2024, not only do I challenge the decision, I am demanding a meeting with your supervisor to address what is a clear and unmistakable error on your part, as well as what appears to be a lack of effort to review the information provided.? If you recorded our meeting on 14 August 2024, I am requesting a copy be made available for the meeting.?
To be informed, after 2 1/2 months, that your decision is what you said it would be, without any reference to the additional information provided, does-not-make-sense.? You specifically stated the talking points provided the day before our scheduled meeting "weren’t provided in enough time" for you to review them, so you would just deny my claim if I wanted to proceed as if it were an initial claim.? This is why I want a copy of the recorded session, to highlight your expressed bias to deny my claim without due process.?
Please provide me with either a date and time for a meeting with your supervisor, or your supervisor’s contact information so that I may schedule the meeting myself.
Respectfully,
?
Edward L. Allier
As I continued to review and reflect upon the VR&E's decision letter, the more frustrated I became.? On 03 November 2024, in the hopes of compelling an actual assessment of the merits of my case, as well as encourage some level of accountability, I submitted this email to the entire leadership team of the VA Regional Office in St. Petersburg:
?
From: Edward Allier <[email protected]>
Subject: Clear and Unmistakable Error
Date: November 3, 2024 at 2:41:58 PM EST
To: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]
Cc: "Toussaint, Willmary, VBASPT" <[email protected]>
Team,?
I am reaching out directly to the leadership team of the St. Petersburg Regional VA Office, prior to escalating this issue, in order to highlight, and seek your support in resolving, a clear and unmistakable error.
To ensure clarity in this communication, I have included links to the relevant references discussed in the following talking points.? I am well aware each of you are intimately familiar with the references and terminology; I am including them to demonstrate my understanding of the regulatory and statutory framework governing VR&E, as well as indicate what my source was for a particular point.?
I understand the following to be the expressed Mission and Purpose of VR&E:
Veteran Readiness and Employment (VR&E)?
You may receive Veteran Readiness and Employment (VR&E) (Formerly known as Vocational Rehabilitation and Employment) service to help with job training, education, employment accommodations, resume development, and job seeking skills coaching. Other services may be provided to assist Veterans and Service members in starting their own businesses or independent living services for those who are severely disabled and unable to work in traditional employment.?
VR&E Tracks for Servicemembers and Veterans
Explore VR&E support-and-services tracks for help learning new skills, finding a new job, starting a business, getting educational counseling, or returning to your former job.
CHAPTER 31—Training and Rehabilitation for Veterans with Service-Connected Disabilities
§ 3100. Purposes?
The purposes of this chapter are to provide for all services and assistance necessary to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment
38 CFR § 21.72 - Rehabilitation to the point of employability
?(a) General. 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., an MSW for social work, the veteran shall be trained to that level.???
On 12 August 2024, I prepared and submitted a detailed written statement to Mr. Toussaint, which included hyperlinks to the applicable statutory and regulatory provisions (i.e. M28C, 38 CFR § 3101, 38 U.S.C. 3102, 38 CFR 21.51, CHAPTER 31—Training and Rehabilitation For Veterans With Service-Connected Disabilities, 38 CFR § 21.72 - Rehabilitation to the point of employability), highlighting how, per the regulations and statutes governing VR&E, I meet the criteria for Vocational Impairment, Employment Handicap, and Serious Employment Handicap, and clearly communicated why my previous employment was not Suitable Employment.?
When I learned that Mr. Toussaint was assigned as my VR&E counselor for my second claim submission, I was thankful as we had worked together on my previous VR&E claim and felt our rapport would facilitate a productive conversation.? I submitted my written statement to Mr. Toussaint via email on 08/12/2024, giving him the option of either reviewing my request for VR&E benefits and services as a new and initial claim, or as an opportunity to revisit his previous denial decision if he felt I had provided enough information for him to do so.
To be clear, I had no objection to Mr. Toussaint’s initial denial decision based upon the information provided to him in September of 2023, and I shared this position during our conversation on 14 August 2024.? My initial request for VR&E services (September 2023) was to afford me education support to expand my technical proficiency into the Construction Industry as I was being rejected for those employment opportunities.?
During the interview in September of 2023, I shared how I felt the Occupational Health and Safety Industry was not suitable employment because of its impact on my mental health.? However, I do not believe I provided enough detail for Mr. Toussaint to appreciate the significantly negative impact employment within the safety industry was having on my mental and physical health. ?I accepted the denial at face value and continued to seek employment in the safety industry, despite the negative effects on my mental and physical health, because it literally is the only vocation for which I am qualified and had recent experience.
I grew increasingly withdrawn, depressed, and anxious, as I continued to be unsuccessful in obtaining or maintaining stable and continuous employment, for reasons outside of my control (i.e. my age, race, stigmas associated with my PTSD disability, compounded by my status as a “whistleblower” and long history of unemployment).? My wife purchased a puppy to help me cope with the depression and anxiety.? It was during the training process of that puppy wherein I realized I had expressed interests, aptitudes and abilities in becoming a Master Dog Trainer that could be measured and demonstrated.
In my written statement on 12 August 2024, I expressed my intent to utilize VR&E support-and-services tracks to undertake education and training to help learn new skills, improve my fundamental aptitudes and abilities to the level generally recognized as necessary for suitable employment.? I also highlighted the ample industry employment need (i.e. Canine Training and Behavior Modification, Police K9 Instructor, Search and Rescue Dog Trainer, and Service Dog Trainer) for me to be successful.? I have had limited access to traditional employment due to my SCD’s and non SCD’s, and have aggressively been seeking stable and continuous employment for over 2 years, with zero success.? Obtaining a Bachelor of Science degree in Animal Health and Behavior from Unity Environmental University and achieving my vocational goal of becoming certified as a Master Dog Trainer via Highland Canine Training, LLC , represents a reasonably feasible vocational objective.?
In order to address any concern as to if achievement of my Vocational Goal is reasonably feasible, per 38 CFR § 3101, “achievement of a vocational goal is reasonably feasible if the effects of the veteran's disability (service and nonservice-connected), when considered in relation to the veteran's circumstances does not prevent the veteran from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran's abilities, aptitudes, and interests.”.? Additionally, per 38 CFR 21.53, “...Any reasonable doubt shall be resolved in favor of a finding of feasibility.”
In Mr. Toussaint’s decision letter, dated 01 November 2024, he shares that he based his decision to deny my entitlement on his opinion that, per 38 U.S.C. § 3102; and 38 CFR §§ 21.40 and 21.51, I do not meet the criteria for an employment handicap, and have "…ample training, education, certifications & experience to gain suitable employment in the field in which you have had demonstrated a pattern of interest over time. You have gained many transferrable [sic] skills that you can use to work in other or related fields.”? Mr. Toussaint goes on to highlight my education and certifications in order to support his assertion that I can use them to work in other or related fields.? Mr. Toussaint’s opinion is not taking into consideration, my expressed lack of interest in continued employment in the safety industry, and that any other "transferable skills" I may have lack the recent experience to be relevant in “other or related fields”.?
My position, supported by CHAPTER 31 - Training and Rehabilitation for Veterans with Service-Connected Disabilities; M28C.IV.B1.104F; 38 U.S.C. § 3102; 38 CFR §§ 21.40 and 21.51 is:
- Not only do I meet the criteria for an Employment Handicap, I meet each of the criteria for a Serious Employment Handicap.
- I have not overcome the Vocational Impairment, Employment Handicap, and/or Serious Employment Handicap, even with my current level of education and training, because I have been unable to a obtain and maintain Suitable Employment, despite my aggressive efforts to do so for over 2 years.
My 70% rating for PTSD alone has certainly caused hinderances to my ability to obtain or maintain suitable employment, for reasons beyond my control, and this service-connected disability has been exasperated during my employment as an occupational health and safety professionals well as during this spate of unemployment.? This service-connected disability has caused problems for me at work, at home, and has caused problems for me since losing my last job (i.e. anxiety and depression due to my failure to provide for myself and my wife without a pattern of dependence on my service-connected disability compensation, and dealing with a “breach of contract” litigation due to being a whistleblower).
Per M28C.IV.B1.104F, in order to be found to have an Employment Handicap, the following three criteria must exist;
1. The claimant must have a Vocational Impairment - (I do); I am rated for degenerative changes of the cervical spine (which is exasperated by having to wear a hardhat 12- 13 hours per day, 7-days per week, for several months at a time, looking up for extended periods of time to observe workers in elevated positions and ensure the path of suspended loads remained clear during crane operations), left/right knee patellofemoral pain syndrome (which is exasperated by extended periods of prolonged standing and having to walk between 6 – 10 miles per day in order to ensure safety compliance across multiple work areas), and PTSD (which is exasperated by dealing with unethical leaders who, through willful ignorance and gross negligence demonstrated a complete disregard for the safety of their subordinates, directly resulting in recurrence of preventable injuries).? These service-connected disabilities certainly reflect a Vocational Impairment; significantly and directly having a negative effect on my ability or desire to continue to function in the safety industry.
Subsequent to my initial VR&E claim in September of 2023, Mr. Toussaint stipulated my vocational impairment by providing me with a Schedule A letter, dated 15 Sept 2023.?
2. The claimant’s Service-Connected Disability(ies) contribute in substantial part to the impairment - (They do); As previously described, my Service-Connected Disability(ies) were exasperated and negatively impacted my performance at work and became increasingly difficult to manage.? Additionally, because I found working in the safety industry completely unfulfilling and harmful to my overall mental and physical health, it was not stable and continuing suitable employment, and therefore renders remaining within this career path unsustainable.?
3. The claimant must not have overcome the effects of his or her impairment via employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests - (I have not); In the interests of clarity of communication, per the M28C Glossary of Terms, “Suitable Employment” is defined as:
? Employment which is consistent with the claimants expressed interests, aptitudes and abilities that can be measured and/or demonstrated.
? Does not aggravate the claimant’s disability(ies).
? Is Stable and Continuing*.
? Requires reasonably developed skills.
* It should be noted, Stable and Continuing Employment is defined as employment in one position, or a series of similar positions, for periods of three to five years with no or few breaks; it is further defined as current work, other than temporary employment (unless the work characteristically involves temporary but continuous assignments). Employment alone is not evidence of stable and continuous employment. The work I was involved in was not stable and continuing as it was contracted and seasonal staff augmentation, dependent upon operational tempo, nepotism, and fraternization in order to get assigned to support projects; I have not been employed in over 2 years; and am currently unemployed.?
As I have been unable to obtain Stable and Continuing Suitable Employment in over 2 years consistent with my expressed interests, aptitudes and abilities, due to reasons beyond my control, and the employment I was most recently doing severely exacerbated my service-connected disabilities, I have not overcome my Vocational Impairment, and therefore satisfy the criteria for an Employment Handicap.
To obtain and maintain Stable and Continuing Suitable Employment in my vocational objective as a Master Dog Trainer, I require VR&E services to provide necessary accommodations, retraining, and adaptive technologies in order to complete a Bachelor of Science degree program in Animal Health and Behavior and the required generally recognized certification training course.
Mr. Toussaint went on to present erroneous and inaccurate summations of talking points from September of 2023, which misrepresent the totality of circumstances leading to my long period of unemployment, as well as implied I am unwilling to accept an entry-level salary below $100K.?
In my written statement, I highlighted how continued employment within the safety industry conflicted with the definition of suitable per the M28C Glossary of Terms;
1. Be consistent with claimants expressed interests, aptitudes and abilities that can be measured and/or demonstrated. - (It is not); I am not-interested in the safety industry as it had a serious negative impact on my service-connected disabilities (i.e. mental and physical health).? My expressed interest is in transitioning into the dog training industry as a certified Master Dog Trainer, which has an average entry-level salary well below $100K.
2. Not aggravate the claimant’s disability(ies). - (It does) As a safety professional, my service-connected disabilities of Degenerative changes of the cervical spine, Left/Right knee Patellofemoral pain syndrome, and PTSD were exasperated by having to wear a hardhat 12- 13 hours per day, 7-days per week, for several months at a time; looking up for extended periods of time while observing personnel working in elevated positions, and ensuring the path of suspended loads remained clear during crane operations; extended periods of prolonged standing and having to walk between 6 – 10 miles per day while wearing heavy steel-toe safety boots in order to ensure safety compliance across multiple work areas; and dealing with unethical leaders who, through willful ignorance and gross negligence demonstrated a complete disregard for the safety of their subordinates, directly resulting in recurrence of preventable injuries.
I also have non-service connected disability(ies) (i.e. disabilities incurred during my military service but not rated by the VA) documented in my VA Blue Button File (also submitted for Mr. Toussaint's review) which were exacerbated during my employment as a safety professional, including a diagnosis of acute lumbar strain, detailed in a 2011 medical examination while I was still on active duty. My VA Blue Button File also notes a history of lower back pain, caused by force marches and exposure to IED explosions during my infantry career, compounded by multiple evaluations and diagnostic reports, such as a 2015 lumbar spine study indicating lumbar spine spondyloarthropathy with posterior disc space narrowing at L5-S1, which could be associated with disc derangement.
However, becoming a Master Dog Trainer would not aggravate my service-connected and/or non-service connected disabilities.
3. Be stable and continuing. - (It is not) – For reason outside of my control, I have been unable to obtain and maintain stable and continuing employment as a safety professional since May of 2022.? However, my employment as a Master Dog Trainer would meet the definition of stable and continuing as I would become a sought-after resource in the field.? This can open doors to working with law enforcement agencies, private security firms, and service dog organizations just to name a few employment options.
It could be argued that Mr. Toussaint violated his Duty to Assist, (i.e. "The obligation to assist the claimant obtain relevant records not currently in the custody of the Department of Veterans Affairs.? Such records may include private medical records and employment history.").
In Mr. Toussaint’s decision letter, he cited my failure to “...provide any historical employment search data for review” as one of the considerations he based his decision to deny my entitlement to VR&E benefits and services.???
In fact, I provided a summation of my historical employment search data to him no less than three separate times within my written statement, submitted for his review on 12 August 2024, and attempted to discuss it with him on 14 August 2024 (i.e. “ ..I’ve submitted applications for over (260) jobs, (173) on LinkedIn, (64) on USAJOBS, (23) on INDEED, and additional opportunities directly on various company websites resulting in zero Stable and Continuous Employment offers….”).?
Mr. Toussaint specifically articulated his lack of interest in discussing the information provided, claiming it was “too much information to review prior to the meeting” and expressed a bias to deny my claim without due process if I persisted with it as a new or initial claim; instead he encouraged me to withdraw my new and initial claim and instead submit a Supplemental Claim for Higher Level Review.
Mr. Toussaint failed to acknowledge or respond to several attempts to communicate with him for 2 ? months in reference to my claim.
At no point during our conversation, or in the 2 ? months it took for him to notify me of his decision, did Mr. Toussaint express a need, or otherwise share it was a requirement, for me to provide any information regarding my historical employment search data.
As I have illustrated thus far, I did not submit my claim based upon an emotional hope I was entitled for VR&E benefits and services.? Based upon my clear understanding of the statutory and regulatory framework governing VR&E, I submitted my claim knowing I am entitled for VR&E benefits and services.
Per the M28C Mr. Toussaint’s erroneous decision represents a Clear and Unmistakable Error, one which I am seeking your assistance in addressing.? I welcome the opportunity to schedule a meeting with anyone who possesses the authority to address this issue.?
Respectfully,
Edward Allier
Ironically, Veteran's Day is almost upon us, yet my attempt at communication and requests for support from the leadership team of the VA Regional Office in St. Petersburg, FL went unacknowledged and without response.
As the leadership team of the VA Regional Office in St. Petersburg have proven themselves to be disengaged and non-responsive throughout this process, they have compromised my trust and confidence that they will acknowledge or take timely action to address what is a clear and unmistakable error.?
I am requesting you consider reaching out to the leadership team of the VA Regional Office in St. Petersburg in order to revisit the justifications for finding me not entitled for VR&E Benefits and services, contrasted against the written statement I provided with my claim.? If I am unable to get a favorable response, addressing this glaringly obvious clear and unmistakable error, I will miss the opportunity to improve the negative circumstances my life is currently in.
I literally am at my wits end, and I am personally and professionally embarrassed to have to reach out to a member of Congress to help me fight an organization that is supposed to help me.? I being made to feel as if I am a burden.? I have clearly proven I am entitled, yet I am forced to beg for support from a program, specifically designed to provide Veterans like me with the benefits and services required to get back on our feet.
Thank you for considering my request.? Your time and support are sincerely appreciated.?
Respectfully,
?
Edward Allier???
In the opening of this article I provided a summarized experience with the VA's processing of service-connected medical claims, within that summation you'll note how a VA medical examiner stipulated that my occupation was not suitable employment when they stated my lumbar issue “…is most likely caused by or a result of the process of aging and the veteran’s 3year involvement in the occupational and recreational activities he was engaged in from the time he separated from the military…”?yet, the VR&E counselor is somehow unable to draw the same conclusion with regard to how the employment exasperated my service-connected disabilities, thereby rendering it as not-suitable-employment.
That is, in a word, ridiculous.
This is the official motto of the VA: To Care For Him Who Shall Have Borne The Battle And For His Widow, And His Orphan
The lack of adequate support received from an organization whose specific mission it is to support Veterans is simply breathtaking.
REFERENCES
38 CFR §21.51 - https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title38-chapter31&edition=prelim
38 CFR §21.53 Reasonable Feasibility of achieving a Vocational Goal - https://www.ecfr.gov/cgi-bin/text-idx?SID=80044dfd9bf3d44cd826b7c01cc5a22e&mc=true&node=se38.2.21_153&rgn=div8
38 CFR §21.72 Rehabilitation to The Point of Employability - https://www.law.cornell.edu/cfr/text/38/21.72
38 CFR §3101 - https://www.ecfr.gov/current/title-38/chapter-I/part-21
38 U.S.C. §3102 - https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title38-section3102&num=0&edition=prelim
CHAPTER 31 - Training and Rehabilitation for Veterans with Service Connected Disabilities - https://www.govinfo.gov/content/pkg/USCODE-2022-title38/pdf/USCODE-2022-title38-partIII-chap31-sec3100.pdf
M28R, "...Employment alone is not evidence of stable and continuous employment." Page 13, Employment Handicap, Stable and Continuous Employment, Retrieved from: https://www.benefits.va.gov/WARMS/docs/admin28/M28R/Part_IV/M28R_IV_B_2.pdf
Veteran Readiness and Employment (VR&E) - https://www.benefits.va.gov/vocrehab/index.asp
VR&E Tracks for Servicemembers and Veterans - https://www.va.gov/careers-employment/vocational-rehabilitation/