Veteranclaims’s Blog

May 27, 2014

Single Judge Application; 38 C.F.R. § 4.16; Roberson v. Shinseki, 251 F.3d 1378, 1385 (Fed. Cir. 2001); Gainful Employment versus All Employment

Excerpt from decision below:

“First, the Court finds support for Mr. Griffin’s arguments that the Board misinterpreted § 4.16. Appellant’s Br. at 9-10. The Board found that “[t]he examiner did not find that the varicose veins precluded all employment.” R. at 13. As noted by Mr. Griffin, § 4.16 does not require that he establish that he is totally precluded from “all employment.” Appellant’s Br. at 9. Rather, the regulation requires only a showing that he is “unable to secure and follow a substantially gainful occupation” because of his service-connected disabilities. 38 C.F.R. § 4.16; see Roberson v. Shinseki, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (Court erred in interpreting “unable to secure and follow a substantially gainful occupation” to mean “100% unemployable”). The Board erred by requiring Mr. Griffin to establish that his condition “precluded all employment,” a higher threshold for entitlement to TDIU than the standard required in the regulation.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0153
JOHN M. GRIFFIN, 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 John M. Griffin appeals through counsel a December 14, 2012,
Board of Veterans’ Appeals (Board) decision denying entitlement to a total disability evaluation
based upon individual unemployability (TDIU). Record (R.) at 3-13.1 Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). 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).
For the reasons that follow, the Court will set aside the December 14, 2012, Board decision to the
extent it denied TDIU under 38 C.F.R. § 4.16(b) and remand the matter for further development, if
necessary, and readjudication consistent with this decision.
1 The Board determined that Mr. Griffin was not entitled to an increased disability evaluation in excess of 40%
for varicose veins of the left leg and in excess of 10% for varicose veins of the right leg. R. at 13. Because he makes
no argument with respect to the assignment of the foregoing schedular evaluations, the Court will not address these
issues. See DeLisio v. Shinseki, 25 Vet.App. 45, 47 (2011) (the Court’s disposition of the case addressed only those
portions of the Board decision argued on appeal).
I. FACTS
Mr. Griffin served on active duty in the U.S. Army from January 1944 to December 1945.
R. at 670. In August 1947, VA awarded service connection for bilateral varicose veins and assigned
a single 10% disability evaluation. R. at 649-52.
In August 1997, Mr. Griffin filed a claim for an increased evaluation. R. at 528. During a
September 1997 VA examination, he described having pain and fatigue upon walking one to oneand-
a-half blocks. R. at 515. The VA examiner noted that Mr. Griffin underwent venous ligation
for varicose veins on his left leg in 1955 and on the right leg in 1956. R. at 514. In 1960, he started
wearing support hose for peripheral edema of the lower extremities, which was worse on the left than
the right. Id. The examiner found mild varicose veins behind both knees, and diagnosed mild
varicose veins bilaterally. R. at 515. In a July 1997 VA decision, the regional office (RO) awarded
separate 10% disability evaluations for left leg and right leg varicose veins. R. at 431.
Mr. Griffin requested an increased evaluation in February 2001, noting increased “pain and
aching” in his legs that increased dramatically when he walked. R. at 422. In a March 2001 VA
examination, Mr. Griffin complained of suffering pain in his lower extremities after walking one-half
block. R. at 417. The VA examiner found mild posterior varicose veins in the left calf area, and a
very small amount of varicose veins in the right anterior tibial area. Id. The VA examiner diagnosed
minimal bilateral varicose veins, slightly more prominent on the right. Id. A May 2001 RO decision
continued the 10% disability evaluation for each leg. R. at 379-80.
In September 2010, Mr. Griffin filed a claim for an increased evaluation, stating that he could
only walk a block or less without stopping, could not climb stairs, and was using an “elastic
stocking.” R. at 349. In February 2011, the RO denied an increased evaluation. R. at 96-102. Mr.
Griffin filed a Notice of Disagreement (NOD) as to this decision in March 2011, and indicated he
had obtained a power chair that had enhanced his mobility. R. at 92. In May 2011, he requested
compression stockings for both legs due to his varicose veins. R. at 65.
During a September 2011 VA examination, it was reported that Mr. Griffin occasionally used
a cane and a walker, regularly used a scooter in lieu of prolonged walking, and last worked in 1971
as a logistics officer/specialist. Id. The VA examiner noted aching and fatigue bilaterally after
prolonged standing or walking and that these symptoms were relieved by elevation of the extremities
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and compression hosiery (R. at 72), but that Mr. Griffin “would not be able to work in any
occupation requiring prolonged standing and/or walking due to his bilateral varicose veins” (R. at
77). The VA examiner also indicated that the left leg was affected by persistent edema that was
incompletely relieved by elevation, while the right leg was affected by intermittent edema. Id. He
did not indicate whether Mr. Griffin could perform sedentary work.
In November 2011, the RO awarded an increased 40% evaluation for varicose veins of the
left leg and denied an evaluation in excess of 10% for the right leg. R. at 39-48. In his Substantive
Appeal and his representative’s argument to the Board, Mr. Griffin asserted that an increased rating
was warranted due to his need for pain medication; compression hosiery; assistive devices such as
a cane, walker, and motorized scooter; and the assistance of a family member. R. at 3, 37-38.
In December 2012, the Board found, among other things, that Mr. Griffin’s “varicose veins
of the left leg cause persistent edema that is completely relieved by elevation of the affected
extremity, incipient stasis pigmentation, aching, and fatigue in the affected extremity.” R. at 4, see
also R. at 9. The Board found that his “varicose veins of the right leg cause intermittent edema,
incipient stasis pigmentation, aching, and fatigue in the affected extremity.” R. at 4. The Board
found that the evidence did not show that the right leg edema was not completely relieved by
elevating the affected limb. R. at 10. In addition, the Board concluded that the evidence did not
show that the varicose veins alone caused unemployability because the September 2011 VA
examiner
did not find that the varicose veins precluded all employment, such as sedentary
employment. Instead, he stated that the [v]eteran’s disability prevented employment
involving physical activities. Because there is no evidence of unemployability,
further consideration of entitlement to TDIU is not required.
R. at 12-13. This appeal followed.

II. ANALYSIS
Mr. Griffin argues that the Board erred by failing to recognize that a claim for TDIU was
raised by the record when it found that “TDIU need not be adjudicated,” and to the extent the issue was properly raised and before the Board, he argues that the Board failed to adequately discuss the record and that a medical opinion was needed to clarify the issue. Appellant’s Brief (Br.) at 4-8. He
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further argues that the Board misinterpreted the relevant provisions of 38 C.F.R. § 4.16. Id. at 9-10.
The Secretary argues that there was a plausible basis for the Board’s findings because there was no evidence of unemployability and that the Board properly relied upon the 2011 VA examiner’s opinion that demonstrated Mr. Griffin’s varicose veins precluded employment involving physical activities but not sedentary employment. Secretary’s Br. at 10-11.
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,” but who fail to meet the percentage standard 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 boards 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 material issue of fact and law presented on the record, the Board must support its determination 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 comply
with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide 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 decision is not a model of clarity on the TDIU issue. Nonetheless, contrary to the
veteran’s assertion, the Board indeed addressed and denied TDIU. Although the Board stated that “[b]ecause there is no evidence of unemployability, further consideration of entitlement to TDIU is not required” (R. at 13), the Board discussed the 2011 VA examiner’s conclusion and found that “the evidence does not show that the Veteran’s varicose veins alone have caused unemployability” (R. at 12). Thus, the Board denied entitlement to TDIU. The Board’s denial, however, does not mean that its decision was without error as to the issue of TDIU entitlement, as further discussed below.
2 The parties do not dispute that Mr. Griffin does not meet those requirements.
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First, the Court finds support for Mr. Griffin’s arguments that the Board misinterpreted
§ 4.16. Appellant’s Br. at 9-10. The Board found that “[t]he examiner did not find that the varicose veins precluded all employment.” R. at 13. As noted by Mr. Griffin, § 4.16 does not require that he establish that he is totally precluded from “all employment.” Appellant’s Br. at 9. Rather, the regulation requires only a showing that he is “unable to secure and follow a substantially gainful occupation” because of his service-connected disabilities. 38 C.F.R. § 4.16; see Roberson v. Shinseki, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (Court erred in interpreting “unable to secure and follow a substantially gainful occupation” to mean “100% unemployable”). The Board erred by requiring Mr. Griffin to establish that his condition “precluded all employment,” a higher threshold for entitlement to TDIU than the standard required in the regulation. In addition, Mr. Griffin correctly points out that the Board erred in failing to consider and discuss his educational and occupational history and explicitly relate these factors to his disabilities. Appellant’s Br. at 9-10 (citing Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991)); see also Cathell v. Brown, 8 Vet.App. 539, 544 (1996).
Next, the Court agrees with Mr. Griffin that the Board failed to adequately discuss the record
evidence with respect to entitlement to TDIU. Appellant’s Br. at 4-8. The Board concluded that
because the 2011 VA examiner did not opine that sedentary employment was precluded, there was no evidence of unemployability. R. at 13. Relying on the VA examiner’s report, the Board found that Mr. Griffin’s edema in his legs was relieved by elevation. R. at 9, 10; see also R. at 72. In fact, the Board mischaracterized the veteran’s edema in the left leg as being completely relieved by elevation (R. at 9) when the VA examiner indicated that the left leg was incompletely relieved by
elevation (R. at 72). However, in any case, the Board failed to discuss the impact that Mr. Griffin’s
need to elevate his legs to relieve edema and other symptoms, such as pain and fatigue, would have
on employability. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App at 52. This is particularly relevant
given that the Board’s denial is based to a large extent upon the examiner’s failure to state that the
varicose veins precluded sedentary employment. R. at 13. In short, the Board provided inadequate
reasons or bases in concluding that Mr. Griffin was employable for sedentary work in light of the
examiner’s findings that Mr. Griffin’s symptoms, to include edema, aching, and fatigue, require that
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his legs be elevated. The Board did not discuss what effect the required elevation of his legs,
especially his left leg, would have on employment, including sedentary employment.
Because the Board provided inadequate reasons or bases in denying a claim for TDIU and
misapplied § 4.16, the matter is remanded for readjudication consistent with the foregoing. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where
the Board had incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”).
On remand, Mr. Griffin is free to present additional arguments and evidence to the Board 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.
I

II. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the December 14, 2012, Board
decision is SET ASIDE, and that matter is REMANDED for further development, if necessary, and readjudication consistent with this decision.
DATED: May 23, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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