Veteranclaims’s Blog

May 26, 2011

Single Judge Application, Davidison v. Shinseki, 581 F.3d, Harmless Error

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 3:30 pm

Excerpt from decision below:
“The Board rejected this lay evidence because “[a]lthough lay persons are
competent to provide evidence regarding injury and symptomatology, they are not competent to provide evidence regarding diagnosis or etiology.” R. at 12 (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992)). As Mr. Yuhasz notes, this is an incorrect application of the law. In Davidson v. Shinseki, the U.S. Court of Appeals for the Federal Circuit rejected the view that “‘competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'” 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)). Thus, instead of dismissing Mr. Yuhasz’s statements and the statement from Budget as incompetent because they constituted lay evidence, the Board should have first determined whether unemployability is an issue for which lay evidence is competent and, if so, weighed the lay evidence against the other evidence of record. Jandreau, 492 F.3d at 1377; see also Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (noting that a veteran is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience).
Consequently, the Board’s categorical dismissal of the lay evidence was erroneous.
However, the Board’s failure to discuss this lay evidence is harmless error given that Mr. Yuhasz’s statements have no bearing on his ability to perform sedentary work and the statement from his employer at Budget merely reflects Mr. Yuhasz’s inability to work for Budget or to perform a particular type of work (driving, entering and exiting vehicles frequently)—not his overall capacity to obtain and maintain substantially gainful employment in another setting.
See Sanders, supra.
Again, the Board denied Mr. Yuhasz’s claim for TDIU because it found that
he was capable of substantially gainful employment through sedentary work.
Mr. Yuhasz points to no evidence in the record, including the lay evidence
at issue here, that would demonstrate that his service-connected disabilities preclude him from sustaining gainful employment in a sedentary setting, and neither of the medical opinions indicate that his service-connected disabilities would prevent him from doing so. Nor does Mr. Yuhasz explain how the Board’s error prejudiced him.
======================================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-4500
ANDREW S. YUHASZ, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN, Judge: The appellant, Andrew S. Yuhasz, appeals through counsel
an
October 1, 2009, Board of Veterans’ Appeals (Board) decision that denied
entitlement to a total
disabilityrating based on individual unemployability(TDIU). Both parties
have filed briefs, and the
appellant has filed a reply brief. The Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and
7266(a) to review the Board’s decision. Asinglejudgemayconductthis review
because the outcome
in this case is controlled by the Court’s precedents and “is not
reasonably debatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will affirm the Board’s
October 2009 decision.
I. BACKGROUND
Mr. Yuhasz served in the U.S. Army from November 1951 to October 1953.
Record (R.) at
1065. Duringservicehe suffered from flat feet and sustained a left knee
injurythat required surgery.
R. at 703, 1026. After service, Mr. Yuhasz worked for a company called J &
L Steel. R. at 706.
He reported that, due to his inability to do much walking or prolonged
standing, he was offered a job
in the accounting office, which he accepted; he worked as a clerk in the
accounting office until

approximately 1984. R. at 706, 60. After that, Mr. Yuhasz worked part
time for Budget Rent-A-Car
(Budget) as a driver from 1985 to 2001. R. at 574.
Since separation from service, Mr. Yuhasz has been granted service
connection for bilateral
pes planus (flat feet) (currently rated at 30% disabling), left knee total
replacement (currently rated
at 30% disabling), a right knee condition associated with the left knee
disability (currently rated at
10% disabling), and right knee limitation of extension (currentlyrated as
10% disabling). R. at 129-
35, 644-48, 687-88, 730-31, 762-63, 1026.
Mr. Yuhasz filed a claim for TDIU in November 2001. R. at 626-29. He had
previously
submitted a letter to VA in 1997 regarding the effect of his disabilities
on his daily activities in
connection with an earlier claim. R. at 703-706. In the 1997 letter, he
stated:
I am in a position now where I just can’t function or perform activities
or work as I
used to. . . . I can’t go shopping with my wife. Too much walking. I
bought a
rideing [sic] lawn mower, since I can’t walk. I must ride a cart to golf
which I did for
therapy. My bowling is limited now which I always loved. I have a painfull [
sic]
time standing in church services. I don’t attend funerals anymore . . . .
I don’t march
in veterans parades anymore.
Id. As part of his claim, Mr. Yuhasz submitted a statement in support of
claim and a VA form
completed by his former employer, Budget. R. at 626, 574. Mr. Yuhasz’s
statement noted he was
seeking a 100% disability rating for his service-connected conditions “due
to unemployability.”
R. at 626. The form from Budget noted that Mr. Yuhasz stopped working
because he was “unable
to return to work due to disability.” R. at 574.
The RO denied Mr. Yuhasz’s claim for TDIU in June 2002. R. at 516-27. He
then perfected
an appeal to the Board. R. at 514, 499-511, 495. In June 2004, the Board
deferred adjudication of
his claim because the Board found that it was intertwined with a separate
claim that was being
remanded. R. at 413-14, 417. When Mr. Yuhasz’s claim returned to the Board
in August 2007, the
Board once again remanded it to the RO for adjudication in light of a
newly service-connected
disability. R. at 149-50. The RO failed to adjudicatethe TDIU claim, and
the Board again remanded
the claim in September 2008. R. at 74-79.
In the meantime, Mr. Yuhasz submitted a letter dated December 2007 from
his private
physician, which stated:
2

Mr. Andrew Yuhasz is a patient of mine who is being treated for chronic
pain due to
intractable arthritis. He’s had numerous surgeries without much relief in
pain and
medication therapy is about all that is offered at the present time.
Given his intractable pain he will not be a candidate for job placement
now or in the
foreseeable future.
R. at 47.
In July 2009, the RO provided Mr. Yuhasz with a VA medical examination. R.
at 34-36.
The examiner stated:
As I said, he no doubt has lower extremity pain and limitations, and
certainly this
would preclude him from a lot of jobs, such as driving, which was his last
job, or
labor-intensive jobs. However, it is my opinion that he would be able to
perform
some types of work, such as standard office type work or any computer work
where
he is sitting and performing most of the tasks with his upper body.
R. at 36. The examiner concluded that Mr. Yuhasz’s service-connected
disabilities did not preclude
him from gainful employment. The RO apparently denied the claim and Mr.
Yuhasz appealed that
denial, although these documents are not in the record.
In the October 2009 decision here on appeal, the Board found that Mr.
Yuhasz’s service-
connecteddisabilitiesalonedidnotprecludehimfromengaginginsubstantiallygain.
In doing so, the Board analyzed Mr. Yuhasz’s claim under 38 C.F.R.§§4.16(
a),(b),and 3.321(b)(1).
Under its § 4.16(a) analysis, the Board found that Mr. Yuhasz had four
disabilities with a combined
disability rating of 70%, but since none of his disabilities was rated at
least 40% disabling, § 4.16(a)
did not apply. The Board proceeded to analyze his claim under §§ 4.16(b)
and 3.321(b)(1), but
concluded that he was capable of gainful employment and that his
disabilities were not so unusual
or exceptional as to warrant referral to the director of the Compensation
and Pension Service for
extra-schedular evaluation.
On appeal, Mr. Yuhasz presents three arguments. First, he argues that the
Board failed to
properly apply 38 C.F.R. § 4.16(a). Second, he argues that the Board
failed to provide an adequate
statement of reasons or bases because it “improperly weighed the medical
evidence of record.”
Appellant’s Brief (Br.) at 4. And third, the Board failed “to give any
weight to [Mr. Yuhasz’s]
competent lay testimony concerning his unemployability.” Id.
3

II. ANALYSIS
A. TDIU
Before deciding a claim, the Board is required to consider all relevant
evidence of record and
to consider and discuss in its decision all “potentially applicable”
provisions of law and regulation.
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(
a); Weaver v. Principi,
14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board is
required to provide a
written statement of the reasons or bases for its findings and conclusions,
adequate to enable an
appellant to understand the precise basis for the Board’s decision as well
as to facilitate review in this
Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (
1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.
Mr. Yuhasz argues that the Board failed to properly apply 38 C.F.R. § 4.
16(a) because it did
not treat his four service-connected disabilities as one disability as the
regulation provides. Under
§ 4.16(a), TDIU may be assigned when the veteran, in the judgment of the
rating agency, is unable
to secure or follow a substantially gainful occupation as a result of
service-connected disabilities.
To meet the requirements for a schedular TDIU rating, individual
disabilities must equal a combined
rating of 70% or more (with at least one such disability rated at 40% or
more), or, if there is only one
single disability, it must be rated at 60% or more. Id. However, under §
4.16(a), for the purposes
of one 60% disability,disabilities “ofone or both lower extremities”or
those “affectinga single body
system, e.g. orthopedic” are considered a single disability. Id.
In this case, as noted above, Mr. Yuhasz is service connected for
bilateral pes planus, left
knee replacement, and two right knee conditions, with a combined rating of
70%. R. at 134, 10-11.
The Board found that, although Mr. Yuhasz’s combined disability rating was
70%, the schedular
rating criteria for TDIU consideration under § 4.16(a)had not been met
since no individual disability
was rated at 40%. However, it appears that the Board did not consider that
portion of § 4.16(a) that
mandates that multiple disabilities of one or both lower extremities or
multiple disabilities affecting
4

a single body system be considered a single disability. Therefore, the
Board failed to consider and
discuss all potentiallyapplicableprovisions of law and regulation in
finding that the schedular rating
criteria for TDIU consideration under § 4.16(a) had not been met. See
Schafrath, supra. The Court
must now consider whether this error prejudiced Mr. Yuhasz. See Shinseki v.
Sanders, 129 S. Ct.
1696, 1704 (2009).
Regarding prejudicial error, Mr. Yuhasz argues that under § 4.16(a), a
claimant must only
show that he is “unable to secure or follow a substantially gainful
occupation,” but if a claimant is
forced to seek TDIU under § 4.16(b), he must show that he is “unable to
secure and follow a
substantially gainful occupation,” which thus places a higher burden on
the claimant. 38 C.F.R.
§§ 4.16(a), (b) (emphases added). However, in this case, it matters not
whether there is a distinction
between the disjunctive language of § 4.16(a) and the conjunctive
language of § 4.16(b) because the
Board found that Mr. Yuhasz was “capable of substantially gainful
employment through sedentary
work,” that is, Mr. Yuhasz could secure and follow substantially gainful
employment. R. at 11.
And, as discussed below, the Court concludes that this finding is not
clearly erroneous. Therefore,
even if the Board had analyzed Mr. Yuhasz’s claim for TDIU under § 4.16(a)
—as he argues it should
have—instead of § 4.16(b), the result would have been the same because
he did not demonstrate that
he was unable to secure or follow a substantially gainful occupation. See
Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears
the burden of demonstrating
error on appeal). The Court concludes that the Board’s misapplication of §
4.16 did not prejudice
Mr. Yuhasz.
B. The Medical Opinions
Mr. Yuhasz next argues that the Board failed to provide an adequate
statement of reasons or
bases for its treatment of the medical evidence. See Weaver, Allday,
Schafrath, and Gilbert, all
supra. Here, the Board gave more probative weight to the 2009 VA medical
opinion than it did to
the private physician’s report, in part, because the private physician ”
appeared to attribute [Mr.
Yuhasz’s] inability to work to both his service-connected [disabilities]
as well as his non-service
connected arthritic complaints.” R. at 11; see 38 C.F.R. § 4.16(a) (
stating that VA may not consider
non-service-connected disabilities in determining unemployability). Indeed,
the private physician’s
5

opinion stated that Mr. Yuhasz was being treated for “chronic pain due to
intractable arthritis,” a
condition for which he is not service connected. R. at 47. The physician
also stated that Mr. Yuhasz
hadundergone”numeroussurgeries,”thoughhedidnotidentifytheproceduresto
whichhereferred.1
Id. Finally, he stated: “Given his intractable pain he will not be a
candidate for job placement now
or in the foreseeable future.” Id. The reference to “intractable pain” in
the third sentence appears
similar to the “chronic pain” caused by “intractable arthritis” mentioned
in the first sentence.
Therefore, based on this record, the Court concludes that there is a
plausible basis for the Board’s
finding that the private physician attributed Mr. Yuhasz’s inability to
work based on both service-
connected and non-service-connected disabilities. Accordingly, the Board
did not err in finding the
2009 VA medical opinion more probative than that of the private physician.
C. Lay Evidence
Finally, Mr. Yuhasz argues that the Board improperly disregarded the lay
evidence
concerning his inability to work. Appellant’s Br. at 10-11 (citing R. at
626, 628). In support, Mr.
Yuhasz cites to his application for TDIU benefits and his statement in
support of claim and
references the statement from Budget. However, Mr. Yuhasz does not suggest
how further analysis
of the contents of these documents would support his claim. The only
potentially relevant evidence
is as follows. First, on the application, Mr. Yuhasz checked the “Yes” box
in response to the
question, “Did you leave your last job[] because of your disability?” R.
at 628. Second, in his
statement in support of claim, Mr. Yuhasz said, “I am respectfully
requesting an increase from 60%
to 100% for my service/connected for [sic] flat feet [and] left knee
conditions, due to
unemployability.” R. at 626. Third, the document from Budget stated he was ”
unable to return to
work due to disability.” R. at 574. Fourth, although Mr. Yuhasz did not
cite to his 1997 letter
documenting his lifestyle changes, it no doubt constitutes further lay
evidence.2
In its recitation of the facts, the Board noted that Mr. Yuhasz had
undergone surgeries for “an abdominal aortic
aneurysm and certain cardiac disorders” at the same health care facility
where the private physician practiced. R. at 9;
see R. at 103-11. Based on the private physician’s letter, it is
impossible to discern whether he was referring to all
surgeries performed on Mr. Yuhasz or only those related to his service-
connected disabilities.
The 1997 letter notes that Mr. Yuhasz cannot “work as [he] used to,” and
it was written approximately four
years before he actually stopped working at Budget. R. at 703; see R. at
574. Nonetheless, it is the most comprehensive
statement provided by Mr. Yuhasz in the record.
2
1
6

The Board rejected this lay evidence because “[a]lthough lay persons are
competent to
provide evidence regarding Previous DocumentinjuryNext Document and symptomatology, they are not
competent to provide evidence
regarding diagnosis or etiology.” R. at 12 (citing Espiritu v. Derwinski,
2 Vet.App. 492 (1992)). As
Mr. Yuhasz notes, this is an incorrect application of the law. In Davidson
v. Shinseki, the U.S. Court
of Appeals for the Federal Circuit rejected the view that “‘competent
medical evidence is required
. . . [when] the determinative issue involves either medical etiology or a
medical diagnosis.'”
581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.
3d 1372, 1376-77 (Fed.
Cir. 2007)). Thus, instead of dismissing Mr. Yuhasz’s statements and the
statement from Budget as
incompetent because they constituted lay evidence, the Board should have
first determined whether
unemployability is an issue for which lay evidence is competent and, if so,
weighed the lay evidence
against the other evidence of record. Jandreau, 492 F.3d at 1377; see also
Washington v. Nicholson,
19 Vet.App. 362, 368 (2005) (noting that a veteran is competent to provide
lay evidence regarding
those matters which are within his personal knowledge and experience).
Consequently, the Board’s
categorical dismissal of the lay evidence was erroneous.
However, the Board’s failure to discuss this lay evidence is harmless
error given that Mr.
Yuhasz’s statements have no bearing on his abilityto perform sedentarywork
and the statement from
his employer at Budget merely reflects Mr. Yuhasz’s inability to work for
Budget or to perform a
particular type of work (driving, entering and exiting vehicles frequently)
—not his overall capacity
to obtain and maintain substantially gainful employment in another setting.
See Sanders, supra.
Again, the Board denied Mr. Yuhasz’s claim for TDIU because it found that
he was capable of
substantially gainful employment through sedentary work.
Mr. Yuhasz points to no evidence in the record, including the lay evidence
at issue here, that
would demonstrate that his service-connected disabilities preclude him
from sustaining gainful
employment in a sedentary setting, and neither of the medical opinions
indicate that his service-
connected disabilities would prevent him from doing so. Nor does Mr.
Yuhasz explain how the
Board’s error prejudiced him. Thus, the Court concludes that the Board did
not commit prejudicial
error by disregarding this lay evidence.
The Board’s determination that Mr. Yuhasz was not entitled to TDIU is not
clearlyerroneous
and will therefore be affirmed. See Cathell v. Brown, 8 Vet. App. 539, 543 (
1996) (finding that the
7

determination as to whether an appellant is unemployable pursuant to 38 C.
F.R. § 4.16 is a question
of fact, subject to the “clearly erroneous” standard of review).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s October 2009 decision denying entitlement to TDIU is AFFIRMED.
DATED: May 24, 2011
Copies to:
Zachary M. Stolz, Esq.
General Counsel (027)
8

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