Veteranclaims’s Blog

May 12, 2014

Single Judge Application; Floore v. Shinseki, 26 Vet.App. 376, 381 (2013); Failure to Explain Cumulative Functional Impairment

Excerpt from decision below:

“The Court held Floore v. Shinseki that “the need for a combined-effects medical examination report or opinion with regard to multiple-disabilityTDIU entitlement decisions is to be determined on a case-by-case basis.” 26 Vet.App. 376, 381 (2013). A combined-effects opinion is thus not required per se in each case, but the Board retains an obligation to provide an adequate written statement of the reasons or bases for its findings and conclusions–which includes determining whether the combined effects of multiple disabilities prevent a claimant from maintaining substantial employment, and explaining that finding with support. 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).
The Court agrees with the appellant’s contention that the Board erred by failing to provide an adequate statement of reasons or bases for its decision. Specifically, the Board failed to explain in its decision what the cumulative functional impairment of the appellant’s disabilities was and why that cumulative impairment did not prevent substantially gainful employment

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 12-3371
THOMAS E. BURNS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
GREENBERG,Judge: The appellant, Thomas E. Burns, appeals through counsel an October
10, 2012, Board of Veterans’ Appeals (Board) decision that denied entitlement to a total disability
rating based on individual unemployability (TDIU). Record (R.) at 3-13. The appellant argues that the Board failed to provide an adequate statement of reasons or bases for its decision with respect to the issue of the combined effects of the appellant’s service-connected disabilities. Appellant’s Brief (Br.) at 4-8. Review by a single judge is authorized by 38 U.S.C. § 7254(b), see Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990), and as noted by Justice Alito in Henderson v. Shinseki, the Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 131 S. Ct. 1197, 1201 n.2 (2011); see 38 U.S.C. § 7261. Because the Board provided an inadequate statement of reasons or bases, the Court will vacate the Board’s October 2012 decision and remand the matter for readjudication.
The appellant had active service in the U.S. Marine Corps from December 1958 to December 1962. R. at 618. In October 1963, VA granted service connection and a 20% disability rating for the appellant’s foot condition, calcaneal spurs of the heels. R. at 554.
In March 2006, VA granted service connection and separate 10% disability ratings for hearing loss
and tinnitus. R. at 273.

In March 2008, the Board denied the appellant entitlement to TDIU. R. at 235. That matter, however, was remanded by the Court in January 2009. R. at 206. In November 2011, VA increased the appellant’s rating for hearing loss to 20%, but denied entitlement to TDIU. R. at 92-101. The matter of TDIU was remanded for further development in December 2011. R. at 66-84.
In February2012, the appellant received a VA examination wherein the examiner concluded that the appellant’s service-connected foot condition “solely do[es] not preclude him [from] secur[ing] and maintain[ing] substa[]ntially gainful employment.” R. at 48 (emphasis added). In March 2012, the appellant received a separate VA examination concerning his hearing loss and tinnitus, wherein the examiner found that the “[v]eteran’s hearing loss alone does not render him unable to secure and maintain substantially gainful employment.” R. at 53 (emphasis added).
In October 2012, the Board issued the decision on appeal, in which it noted that “during the pendency of this appeal, the [v]eteran has experienced some occupational impairment,” but denied entitlement to TDIU on the grounds that “the record does not indicate that his occupational difficulties are solely the result of his service-connected disabilities.” R. at 12.
The Court held Floore v. Shinseki that “the need for a combined-effects medical examination report or opinion with regard to multiple-disabilityTDIU entitlement decisions is to be determined on a case-by-case basis.” 26 Vet.App. 376, 381 (2013). A combined-effects opinion is thus not required per se in each case, but the Board retains an obligation to provide an adequate written statement of the reasons or bases for its findings and conclusions–which includes determining whether the combined effects of multiple disabilities prevent a claimant from maintaining substantial employment, and explaining that finding with support. 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).
The Court agrees with the appellant’s contention that the Board erred by failing to provide an adequate statement of reasons or bases for its decision. Specifically, the Board failed to explain in its decision what the cumulative functional impairment of the appellant’s disabilities was and why that cumulative impairment did not prevent substantially gainful employment. Although the Board acknowledged that the appellant’s disabilities generate occupational impairment (R. at 9, 11, 12), its failure to discuss the combined effects of the appellant’s disabilities frustrates judicial review and
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requires remand. See id. at 383; Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).
On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.)409, 410 n., 1 L. Ed. 436 (1792) (“[M]any unfortunate and meritorious [veterans], whom [C]ongress have justly thought proper objects of immediate relief, may suffer great distress, even by a short
delay, and may be utterly ruined, by a long one . . . .” (internal quotation marks omitted)).
For the foregoing reasons, and on review of the record, the October 10, 2012, Board decision
is VACATED and the matter of TDIU is REMANDED for further development or
readjudication.
DATED: April 30, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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