Veteranclaims’s Blog

June 9, 2014

Single Judge Application; Floore v. Shinseki, 26 Vet.App. 376, 381 (2013); Beaty v. Brown, 6 Vet.App. 532, 537 (1994); TDIU; Cumulative Functional Impairment

Excerpt from decision below:

“Nevertheless, 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. See Floore, supra; see also Beaty v. Brown, 6 Vet.App. 532, 537 (1994) (“Where the veteran submits a . . . claim for a TDIU rating . . . the [Board] may not reject that claim without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”). Here, the Board did not address the aggregate effects of Mr. Colbaugh’s service-connected disabilities. Rather, it addressed each of Mr. Colbaugh’s disabilities individually and determined that, standing alone, each disability did not prevent substantially gainful employment.
The Board’s failure to explain what the cumulative functional impairment of all Mr. Colbaugh’s service-connected disabilities might be and why they do not prevent substantially gainful employment frustrates judicial review.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 13-1221
LEVERETTE K. COLBAUGH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Leverette K. Colbaugh appeals through counsel
a March 5,
2013, decision of the Board of Veterans’ Appeals (Board) that denied
entitlement to a total disability
rating based upon individual unemployability (TDIU). Mr. Colbaugh argues
that the Board failed
to (1) ensure compliance with the duty to assist and (2) provide an
adequate statement of reasons or
bases. The Secretary disputes these arguments. Single-judge disposition is
appropriate. Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below,
the Board decision on
appeal will be set aside and the matter remanded for further adjudication.
In support of his first argument, Mr. Colbaugh contends that the Board
erred bynot obtaining
a medical opinion addressing the combined effects of all his service-
connected disabilities – an
anxietydisorder, bilateral hearing loss, and tinnitus – on his
employability. However, there is no per
se requirement that the Board provide a combined-effects examination, and
Mr. Colbaugh fails to
present anyargument as to how the medical reports that addressed each
service-connected disability
individually were inadequate for Board decision, other than to baldly
assert that none of them
addressed the combined effects of his service-connected disabilities. In sum, he fails to demonstrate that the Board erred in not obtaining a combined-effects medical opinion,
or that such an opinion was otherwise necessary for Board decision. See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en

banc) (appellant bears burden of demonstrating error on appeal); see also Floore
v. Shinseki, 26 Vet.App. 376, 381 (2013) (holding that “the need for a combined-effects medical examination report or opinion . . . is to be determined on a case-by-case basis”).
Nevertheless, 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. See Floore, supra; see also Beaty v. Brown, 6 Vet.App. 532, 537 (1994) (“Where the veteran submits a . . . claim for a TDIU rating . . . the [Board] may not reject that claim without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”). Here, the Board did not address the aggregate effects of Mr. Colbaugh’s service-connected disabilities. Rather, it addressed each of Mr. Colbaugh’s disabilities individually and determined that, standing alone, each disability did not prevent substantially gainful employment.
The Board’s failure to explain what the cumulative functional impairment of all Mr. Colbaugh’s service-connected disabilities might be and why they do not prevent substantially gainful employment frustrates judicial review. See 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”). Remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board 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”).
The Board also found “it significant that [Mr. Colbaugh] stopped working in 1997, when the
manufacturing plant at which he was working closed” (Record at 12), and the Board appears to have been influenced in its decision by the fact that the Social Security Administration determined Mr. Colbaugh was unemployable based on a non-service-connected disability.
While both determinations are supported by the record, it is not clear to what extent
these findings are relevant to a determination that Mr. Colbaugh’s service-connected disabilities do not prevent him from obtaining substantially gainful employment. 38 C.F.R. § 4.16(a) (2013) (“It is provided further that the existence or degree of non[-]service-connected disabilities or previous unemployability status will be disregarded . . . .”); see Pratt v. Derwinski, 3 Vet.App. 269, 272 (1992) (“Even if, as it
2

appears, the B[oard] determined that appellant’s unemployability was a result of his age and non-service-connected [disability], its task was not finished. The B[oard] still was required to decide, without regard to the non-service-connected disabilities . . . , whether appellant’s service-connected disabilities are sufficiently incapacitating as to render him unemployable
.”). On remand, the Board should adequately explain its application of 38 C.F.R. § 4.16(a).
Mr. Colbaugh asserted additional reasons-or-bases inadequacies, but in light of the need to
remand this matter as noted above, his additional assertions are moot. See
Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of appellant’s claim under one theory
moots the remaining theories advanced on appeal). On remand, Mr. Colbaugh may present any additional evidence and argument in support of the matter remanded, and the Board must consider any evidence and argument so presented. 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.
Accordingly, the March 5, 2013, Board decision is SET ASIDE and the  matter REMANDED
for further proceedings consistent with this decision.
DATED:
Copies To:
May 28, 2014
Robert V. Chisholm, Esq.
VA General Counsel (027)
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