Veteranclaims’s Blog

May 20, 2014

Single Judge Application, Floore v. Shinseki, 26 Vet.App. 376 (2013); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Substantially Gainful Occupation

Excerpt from decision below:

“On remand, the Board should discuss whether the appellant’s various symptoms from service-connected conditions, when considered in combination, and in light of his education and occupational history, affect his ability to secure or follow a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet.App. 376 (2013). In this regard, the Court notes that the appellant asserts that the RO has not yet issued a decision on remand concerning entitlement to service connection for frostbite residual injury of the upper extremities despite the completion of a January 2011 VA examination concerning the condition. “

=====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1163
FLETCHER M. PORTER, 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: Veteran Fletcher Porter appeals, through counsel, a
January 27, 2013,
Board of Veterans’ Appeals (Board) decision that increased his disability
rating to 30% for each of
his lower extremity frostbite injury residuals, effective April 2003, but
denied a rating in excess of
30%. Record (R.) at 3-14. The Board also determined that the issue of
entitlement to a rating of
total disabilitybasedonindividualunemployabilityduetoservice-
connecteddisabilities(TDIU)had
not been raised. Mr. Porter argues that the Board erred in finding that
the issue of TDIU was not
raised by the record.1
This appeal is timely, and the Court has jurisdiction to review the Board
decision pursuant to 38 U.S.C. § 7252(a). A single judge may conduct this
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 reasons that
follow, the Court will
vacate the Board’s January 2013 decision to the extent it determined that
TDIU had not been raised
The appellant has not challenged the Board’s denial of a schedular rating
in excess of 30% for his bilateral
lower extremity frostbite injury residuals. Accordingly, the appellant has
abandoned any appeal as to that matter, and
the Court will not address it. See Bowers v. Shinseki, 26 Vet.App. 201,
210 n.12 (2013); see also Carbino v. West,
168 F.3d 32, 34-35 (Fed. Cir. 1999); Ford v. Gober, 10 Vet.App. 531, 535 (
1997).
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and will remand for adjudication of that matter on the merits, including
consideration as to whether
a medical opinion is required.
I. RELEVANT FACTS
Mr. Porter servedonactivedutyin theU.S. Armyfrom January1949 to
November1951 with
service in Korea. R. at 458. An April 2008 VA regional office (RO) granted
service connection for
residuals of bilateral lower extremity frostbite injuries and assigned a
10% disability rating. R. at
385-95. Shortly thereafter, Mr. Porter filed a claim for entitlement to
service connection for upper
extremity frostbite injury residuals. R. at 377-79. A VA cold injury
examination report dated in
June 2009 noted that Mr. Porter, then 77 years old, retired from being a
self-employed remodeling
contractor in 2004 and reported that he had “stated that he can no longer
complete anysort of routine
vehicle, yard, household maintenance, or repair tasks due to the chronic
pain in his hands and feet.”
R. at 207.
In August 2009, the RO denied an increased rating for the service-
connected frostbite injury
residuals of the bilateral lower extremities and denied service connection
for frostbite injury
residuals of his upper extremities. R. at 194-202. Mr. Porter filed a
timely Notice of Disagreement
and appealed to the Board. R. at 188-911, 155-56. A November 2010 Board
decision increased the
rating to 20% for each of the lower extremity frostbite injuries and
remanded the matter of service
connection for bilateral upper extremity frostbite injury residuals to
obtain a medical nexus opinion.
R. at 116-31. Following an appeal to this Court, the Board remanded the
claim for an increased
rating to obtain a new examination. R. at 68-73, 87-92.
While both matters were on remand, a January 2011VA examination report
concluded that
Mr.Porter’s bilateral upperextremityfrostbiteinjuryresidualsarerelatedto
his in-servicecoldinjury
in Korea (R. at 95), and a February 2012 VA examination report noted
symptoms pertaining to the
service-connected bilateral lower extremity frostbite injury residuals (R.
at 56-57). The 2012
examiner checked a box indicating “no”to a preprinted question regarding
whether the cold injury
residuals impact his ability to work. R. at 60.
Following readjudication by the RO, the Board, in the February 2013
decision on appeal,
granted an increased ratingto 30% for each of Mr. Porter’s lower
extremityfrostbite injuryresiduals,
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effective from April 2003, and denied a rating in excess of 30%, as well
as determined that the issue
of TDIU had not been raised. R. at 13.
II. ANALYSIS
On appeal, Mr. Porter argues that the Board committed prejudicial error
when it erroneously
determined that the issue of entitlement to TDIU had not been reasonably
raised by the record based
on the June 2009 medical examination report. The Secretary counters that
the evidence that the
appellant retired as a result of chronic pain caused by his frostbite
injuries “at most tends to prove
that he is unable to work as a remodeling contractor, it is not evidence
that he is unable to secure or
follow a substantially gainful occupation and thus is not ‘cogent
evidence’ of unemployability.”
Secretary’s Brief at 5-6 (citing Cromer Peake, 553 F.3d 1362, 1367 (Fed.
Cir. 2009)). The Secretary
further posits that the notation by the February 2012 examiner “was merely
a piece of evidence that
tended to confirm the absence of any cogent evidence of unemployability.”
Id. at 7.
The Board has a duty to address all issues reasonably raised either by the
appellant or by the
contents of the record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (
2008), aff’d sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.2009). The Court has held
that “a request for TDIU,
whether expressly raised by a veteran or reasonably raised by the record,
is not a separate claim for
benefits, but rather involves an attempt to obtain an appropriate rating
for a disabilityor disabilities.”
Rice v. Shinseki, 22 Vet.App. 447, 453 (2009). In Comer, the U.S. Court of
Appeals for the Federal
Circuit held that VA must consider TDIU as part of the issue of a proper
disability rating whenever
there is “cogent evidence of unemployability, regardless of whether [the
claimant] states specifically
that he is seeking TDIU benefits.” 552 F.3d at 1366. Accordingly, VA is
required to consider
entitlement to a rating of TDIU as part of an initial claim for benefits
when either the claimant
specifically requests a TDIU rating or when the record contains evidence
of unemployability.
In its decision, the Board stated:
The evidence of record indicates that the Veteran stopped working in
approximately
1993 dueto multiple medicalproblems in addition to his service-connected
feet. The
February2012VAexaminerdeterminedthattheVeteran’s service-connectedleftand
right foot residuals of frostbite did not impact his ability to work. He
has not
indicated, and the record does not show, that his service-connected
residuals of left
and right frostbite injuries exclusively preclude him from obtaining
substantial
3

employment. As such, the issue of entitlement to a total disability
rating based on
TDIU has not been raised.
R. at 13.
As the appellant notes, the record includes an indication that his service-
connected foot
condition, as well as his hand condition, has affected his employability.
As found by the Board, the
evidence indicates that he stopped working “due to multiple medical
problems in addition to his
service-connected feet.” R. at 13 (emphasis added). The 2009 report noted
it was the chronic pain
from his hands and feet that made him unable to complete “any sort of
routine vehicle, yard, or
household maintenance of repair tasks.” R. at 207. At the time of the
Board’s decision, the evidence
of record also included the January 2011 VA examination report that his
bilateral upper extremity
frostbite injury residuals are also related to his in-service cold injury.
R. at 95. In February 2012,
the examiner specifically determined that the daily, chronic pain in the
appellant’s feet was more
likely than not related to his cold injury, and this was the basis for the
Board’s award of the higher
30% rating for the lower extremities.
Notably, the question on appeal is whether the evidence was sufficient to
reasonably raise
the issue of entitlement to TDIU, not whether it was sufficient to
establish entitlement to TDIU.
Evidence that arguably demonstrates that a service-connected condition
causes unemployability
meets the low threshold of “cogent evidence of unemployability”necessary
to reasonably raise this
issue. See Comer, supra. The Board is reminded that the record need not
conclusivelyestablish that
a claimant is entitled to an award of TDIU, when it assesses whether the
record reasonably raises the
issue of entitlement to TDIU as part of a claim for increased compensation.
The Board may
ultimately determine that the appellant is unemployable by virtue of non-
service-connected
conditions and deny entitlement to TDIU on that basis; however, that
determination is for the Board
to make on the merits of the TDIU matter, not for the Board to decide as
part of the question as to
whether the issue of TDIU was reasonably raised by the record.
Basedonthis evidence,theCourt concludes
thattheappellanthassubmittedevidencerelated
to the issue of unemployability. See 38 C.F.R. § 4.16(a) (2013) (stating
that TDIU rating may be
assigned where veteran is “unable to secure or follow a substantially
gainful occupation as a result
of service-connected disabilities” (emphasis added)); 38 C.F.R. § 4.18 (
2013) (“A veteran may be
considered as unemployable upon termination of employment which was
provided on account of
4

disability.”); Comer, supra. The matter of TDIU was therefore reasonably
raised by the record, and
the Board should have considered it. See Robinson and Roberson, both supra.
Therefore, the Court
will remand the reasonably raised issue of entitlement to TDIU so the
Board may consider it on the
merits.
Onremand,beforeadjudicatingentitlementto TDIUonthemerits,theBoardmust
determine
whether it has sufficient evidence on the question of the appellant’s
employability as it is affected by his service-connected disabilities. See 38 U.S.C. § 5103A(d)(1) (the assistance provided by the Secretary under subsection (a )shall include “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim”); Friscia v. Brown, 7 Vet.App. 294, 297 (1994) (holding that the Board “may not reject that claim without producing evidence, as distinguished from mere conjecture, that the [appellant] can perform work that would produce sufficient income to be other than marginal.”); see also Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (concluding that “the Board had a duty, where the critical issue was [TDIU], to request a medical opinion to discuss what effect the [appellant’s] service-connected disability had on his ability to work”). On remand, the Board should discuss whether the appellant’s various symptoms from service-connected conditions, when considered in combination, and in light of his education and occupational history, affect his abilityto secure or follow a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet.App. 376 (2013). In this regard, the Court notes that the appellant asserts that the RO has not yet issued a decision on remand concerning entitlement to service connection for
frostbite residual injury of the upper extremities despite the completion of a January 2011 VA examination concerning the condition. Such a decision would be relevant to the TDIU inquiry in this case.
The appellant is free to submit additional evidence and argument on the remanded matter, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must
consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court has held that “[a] remand is
meant to entail a critical
examination of the justification for the decision.” Fletcher v. Derwinski,
1 Vet.App. 394, 397
5

(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.
§ 7112 (requiring
Secretary to provide for “expeditious treatment” of claims remanded by the
Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings,
and the parties’ pleadings, the January 27, 2013, Board decision is VACATED as to the
determination that TDIU was not raised by the evidence and the matter of entitlement to TDIU is
REMANDED to the Board for adjudication, consistent with this decision.
DATED: May 15, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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