Veteranclaims’s Blog

May 15, 2014

Single Judge Application; Geib, 733 F.3d at 1354; Floore, 26 Vet.App. at 382; TDIU; Combined Effects of Disabilities

Excerpt from decision below:

“The Board failure to address that issue, which is central to his eligibility for referral for consideration of extraschedular TDIU, constitutes error. See Hatlestad, 5 Vet.App. at 529; Pratt, 3 Vet.App. at 272; see also Floore v. Shinseki, 26 Vet.App. 376, 383 (2013) (finding the Board’s reasons or bases inadequate where, inter  alia, it was unclear to what extent the Board’s finding that the veteran terminated his employment as a result of non-service-connected disabilities factored into its TDIU analysis).
Second, the Board did not adequately address the combined effects of Mr. Madkins’s service-connected disabilities on his employability. When adjudicating entitlement
to TDIU, “VA is expected to give full consideration to ‘the effect of combinations of
disability.'” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (quoting 38 C.F.R. § 4.15 (2013)). “
Where neither the [RO] nor the Board addresses the aggregate effect of multiple service-connected disabilities, the record is not adequate to enable the veteran to understand the precise basis for the decision on . . . TDIU . . . and facilitate review.” Id.; see Floore 26 Vet.App. at 382 (explaining that, to comply with the reasons-or-bases requirement where the veteran has multiple service-connected disabilities and is seeking TDIU, the Board “must adequately explain how the record evidence supports its determination that the combined effects of multiple disabilities do not prevent substantially gainful employment”).

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“The Board acknowledged that each of the veteran’s service-connected disabilities may affect his employability and summarized the symptoms of those disabilities for the purposes of determining entitlement to TDIU. R. at 19 (noting that the veteran’s hearing loss caused communication difficulties, his tinnitus caused stress and kept him up at night, his urethral stricture caused recurrent infections requiring hospitalization and frequent voiding, and his bunionectomycaused intermittent foot pain). However, the Board did not discuss the cumulative effects of those service-connected disabilities on the veteran’s employability or acknowledge that their effects must be considered in the aggregate. Thus, the Court concludes that the Board erred in failing to give full consideration to the combined effect of Mr. Madkins’s service-connected disabilities when considering his entitlement to TDIU. See Geib, 733 F.3d at 1354; Floore, 26 Vet.App. at 382.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0163
JUNIOR R. MADKINS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran Junior R. Madkins appeals through counsel a
December 12,
2012, Board of Veterans’ Appeals (Board) decision denying entitlement to a
total disability
evaluation based on individual unemployability(TDIU). Record (R.) at 3-20.
1
This appeal is timely
and the Court has jurisdiction to review the Board’s decision pursuant to
38 U.S.C. §§ 7252(a) and
7266(a). Single-judge disposition is appropriate in this case. See Frankel
v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the reasons that follow, the Court will set aside
the appealed portion of the
December 2012 Board decision and remand that matter for further
development, if necessary, and
readjudication consistent with this decision.
I. FACTS
Mr. Madkins served on active duty in the U.S. Navy from August 1967 to May
1969 and
from August 1971 to August 1974. R. at 327, 329. He currently has a 40%
evaluation for urethral
The Board also granted an increased 40% evaluation for service-connected
urethral stricture and denied a
compensable evaluation for service-connected bilateral hearing loss R. at
9-16. Because Mr. Madkins makes no
argument with respect to those issues, the Court will not address them
further. See DeLisio v. Shinseki, 25 Vet.App. 45,
47 (2011) (Court’s disposition of case addressed only those portions of
the Board decision argued on appeal).
1

stricture, a 20% evaluation for a bunionectomy of the left foot, a 10%
evaluation for tinnitus, and
a noncompensableevaluation for bilateral hearing loss. R. at 18. His
combined disabilityevaluation
is 60%. Id.
InJanuary2007,Mr.MadkinsappliedforTDIU,assertingthathis service-
connectedtinnitus
prevented him from securing or following a substantially gainful
occupation. R. at 1501-02. He
indicated that he had completed four years of high school and that he last
worked full-time in April
2005 as a groundskeeper for the Beardsley School District in Bakersfield,
California. Id. In
February 2007, VA requested employment information from the Beardsley
School District, which
replied that Mr. Madkins had injured his knee at work and was offered but
declined a sedentary job.
R. at 994. He filed a workers’compensation claim, received a settlement,
and ended his employment
there. Id.
In April 2007, a VA regional office (RO) denied the veteran entitlement to
TDIU. R. at 979-
89. He filed a timely Notice of Disagreement as to that decision (R. at
956-58; see R. at 964-66) and
subsequently perfected his appeal to the Board (R. at 934-35). At a March
2010 Board hearing, Mr.
Madkins testified that he stopped working in 2005 because of ringing in
his ears that prevented him
from getting enough sleep. R. at 492. In June 2010, the Board remanded the
issue of entitlement
to TDIU after finding that it was inextricably intertwined with the
veteran’s claims for increased
evaluations for his service-connected urethral stricture and bilateral
hearing loss. R. at 430-46.
In June 2010, Mr. Madkins underwent a VA audiologyexamination and was
diagnosed with
mild to severe sensorineural hearing loss in both ears at frequencies
above 2000 Hertz. R. at 133-
34. The audiologist reviewed Mr. Madkins’s work historyas a manual laborer (
R. at 132) and opined
that, although the veteran “reports difficulty understanding speech in the
presence of background
noise[ and] on the telephone,” his “current hearing loss should not
preclude him [from] obtaining or
maintaining gainful employment in his chosen occupation” (R. at 135-36).
In December 2012, the Board issued the decision currentlyon appeal. R. at
3-20. The Board
acknowledged that VA had not obtained a medical examination or opinion
addressing the veteran’s
employability, but found that one was not necessary because Mr. Madkins “
does not meet the
schedularrequirements foraTDIU[evaluation],””
therearenoexceptionalorunusualcircumstances
to warrant referral for extra-schedular evaluation,” and “the evidence
shows that [he] stopped
2

working due to his non[-]service-connected knee disability.” R. at 8.
After noting Mr. Madkins’s
complaints relatedto hisservice-connectedurethral stricture,
leftfootdisability,tinnitus,andhearing
loss, the Board stated:
The [v]eteran testified that his urethral stricture or voiding was not a
problem at his
last job but that he was not getting enough sleep due to tinnitus. However,
the
medical evidence demonstrates that the [v]eteran stopped working due to a
non[-]
service-connected knee injury that allegedly occurred while he was on the
job. In
fact, the evidence from BeardsleySchool District made no mention
oftinnitus. Thus,
the Board finds that the preponderance of the evidence weighs against
referral for
extra-schedular [TDIU] consideration.
R. at 19-20. The Board continued:
While the [v]eteran is competent to report his functional limitations due
to his
service-connected disabilities, the Board finds that whether his service-
connected
disabilities alone are sufficiently incapacitating as to prevent him from
obtaining or
maintaining substantially gainful employment is a determination that is
too complex
to be made based on layobservation alone. Thus, the Board gives more
weight to the
medical evidence of record. Although the [v]eteran stated that he stopped
working
due to his tinnitus, the Board finds that the evidence of record indicates
that he
stopped working due to his knee and not his tinnitus. Thus, the Board
finds that the
[v]eteran is not credible with respect to why he discontinued working.
R. at 20 (internal citations omitted). The Board denied entitlement to
TDIU, and this appeal
followed.

II. ANALYSIS
It is VA’s established policy that “all veterans who are unable to secure
and follow a substantially gainful occupation by reason of service-connected
disabilities”–even those veterans who do not meet the specific percentage requirements set forth in 38 C.F.R. § 4.16(a)2
–”shall be rated totally disabled.” 38 C.F.R. § 4.16(b) (2013). Accordingly, § 4.16(b) instructs VA rating activities to “submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of [§ 4.16].” Id.
As with any finding on a The Board found (R. at 18), and Mr. Madkins does not dispute (Appellant’s Brief at 5-6), that he does not meet those requirements.
2
3

material issue of fact and law presented on the record, the Board must
support its determination that
referral for consideration of extraschedular TDIU is not warranted with an
adequate statement of
reasons or bases that enables the claimant to understand the precise basis
for that finding and
facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v.
Derwinski, 1 Vet.App. 49, 52
(1990). To complywith this requirement, the Board must analyze the
credibilityand probative value
of the evidence, account fortheevidence it finds persuasive or
unpersuasive, and providethe 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).
The Board’s statement of reasons or bases for denying entitlement to TDIU
is inadequate in
at least two respects. First, the Board improperly focused on the reason
Mr. Madkins left his job
with theBeardsleySchool District–i.e.,his non-service-
connectedkneeinjury–ratherthananalyzing
whether his service-connected disabilities prevent him from securing and
following a substantially
gainful occupation. R. at 19-20. In Pratt v. Derwinski, the Court made
clear that “a determination
concerning unemployability . . . must be made on the basis of service-
connected disabilities alone.”
3 Vet.App. 269, 272 (1992); see Hatlestad v. Brown, 5 Vet.App. 524, 529 (
1993) (“[T]he central
inquiry in determining whether a veteran is entitled to TDIU is whether
that veteran’s
service-connected disabilities alone are of sufficient severity to produce
unemployability.”). The
Court explained that, even when the Board determines that a veteran’s
unemployability is the result
of age or a non-service-connected disability, the Board’s “task [is] not
finished” because it is “still
. . . required to decide, without regard to the non-service-connected
disabilit[y] . . . , whether [the
veteran’s] service-connected disabilities are sufficiently incapacitating
to render [the veteran]
unemployable.” Pratt, 3 Vet.App. at 272; see Van Hoose v. Brown, 4 Vet.App.
361, 363 (1993)
(clarifying that it is the Board’s task “to determine whether there are
circumstances . . . apart from
[a veteran’s] non-service-connected conditions and advancing age [that]
would justify [TDIU]”
(emphasis omitted)).
In this case, the Board did not engage in the analysis required by Pratt.
Instead, the Board
concluded its TDIU inquiryas soon as it determined that Mr. Madkins’s non-
service-connected knee
injury was the reason that he stopped working at the Beardsley School
District; it did not discuss
whether the veteran’s service-connected disabilities prevented him from
securing or following a
4

substantially gainful occupation. R. at 19-20. The Board failure to address that issue, which is central to his eligibility for referral for consideration of extraschedular TDIU, constitutes error. See Hatlestad, 5 Vet.App. at 529; Pratt, 3 Vet.App. at 272; see also Floore v.
Shinseki, 26 Vet.App. 376, 383 (2013) (finding the Board’s reasons or bases inadequate where, inter  alia, it was unclear to what extent the Board’s finding that the veteran terminated his employment as a result of non-service-connected disabilities factored into its TDIU analysis).
Second, the Board did not adequately address the combined effects of Mr. Madkins’s service-connected disabilities on his employability. When adjudicating entitlement
to TDIU, “VA is expected to give full consideration to ‘the effect of combinations of
disability.'” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (quoting 38 C.F.R. § 4.15 (2013)). “
Where neither the [RO] nor the Board addresses the aggregate effect of multiple service-connected disabilities, the record is not adequate to enable the veteran to understand the precise basis for the decision on . . . TDIU . . . and facilitate review.” Id.; see Floore 26 Vet.App. at 382 (explaining that, to comply with the reasons-or-bases requirement where the veteran has multiple service-connected disabilities and is seeking TDIU, the Board “must adequately explain how the record evidence supports its determination that the combined effects of multiple disabilities do not prevent substantially gainful employment”).
The Board acknowledged that each of the veteran’s service-connected
disabilities may affect his employability and summarized the symptoms of those disabilities for the purposes of determining entitlement to TDIU. R. at 19 (noting that the veteran’s hearing loss caused communication difficulties, his tinnitus caused stress and kept him up at night, his urethral stricture caused recurrent infections requiring hospitalization and frequent voiding, and his
bunionectomycaused intermittent foot pain). However, the Board did not discuss the cumulative effects of those service-connected disabilities on the veteran’s employability or acknowledge that their effects must be considered in the aggregate. Thus, the Court concludes that the Board erred in failing to give full consideration to the combined effect of Mr. Madkins’s service-connected disabilities when considering his entitlement to TDIU. See Geib, 733 F.3d at 1354; Floore, 26 Vet.App. at 382.
The foregoing errors render inadequate the Board’s statement of reasons or
bases for denying TDIU, necessitating remand. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board
5

has incorrectly applied the law, failed to provide an adequate statement
of reasons or bases for its
determinations, or where the record is otherwise inadequate, a remand is
the appropriate remedy.”).
On remand, the Board must consider whether a medical examination or
opinion addressing the
combined effects of Mr. Madkins’s service-connected disabilities is
necessaryin this case. See Geib,
733 F.3d at 1354 (“VA is required to obtain a medical examination or
opinion only when ‘necessary
to make a decision on the claim.'” (quoting 38 U.S.C. § 5103A(d)(1))), Floore, 26 Vet.App. at 381(“[T]he need for a combined-effects medical examination report or opinion
with regard to multiple-disability TDIU entitlement decisions is to be determined on a
case-by-case basis, and depends on the evidence of record at the time of decision bythe [RO] or the Board.”); VA Fast Letter 13-13 (June 17, 2013) (instructing the rating activity to obtain a medical examination when it “determines that [one] is needed to fairly and fully adjudicate . . . TDIU,” such as when the issue “involv[es] the impact of multiple service-connected and/or non[-]service-connected disabilities upon employability”); see also R. at 20 (finding that the effect of the veteran’s service-connected disabilities on his employability is an issue “too complex to be made based on lay observation alone”). Mr. Madkins is free to present any additional arguments and evidence to the Board on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App.394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the December
12, 2012, Board
is SET ASIDE and that matter is REMANDED for further development, if
necessary, and readjudication consistent with this decision.
DATED: May 6, 2014
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Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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