Veteranclaims’s Blog

September 5, 2014

Single Judge Application; Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); TDIU Not Medical Determination

Excerpt from decision below:

“1. The Court emphasizes that the ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2660
THEODORE L. SCHLICK, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Theodore L. Schlick, served in the U.S. Army
from July 17,
1953, to June 1, 1955. Record (R.) at 1548. He appeals, through counsel, a
July 11, 2013, Board
of Veterans’ Appeals (Board) decision that denied him a total disability
rating based upon individual
unemployability (TDIU). Record (R.) at 2-13. 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 over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will affirm the July 11, 2013, decision.
Onappeal,
theappellantcontendsthattheBoardprovidedaninadequatestatementofreasons
or bases for its decision, as it relied on VA medical opinions dated
October 2011 and March 2012
to support its conclusion that he was not entitled to TDIU despite a
previous determination that those
examinations were inadequate. Appellant’s Brief (Br.) at 13-14. The
appellant also argues that the
Board clearly erred when it determined that he was not entitled to TDIU.
Id. at 14. The Secretary
responds that the Board did not, in fact, improperly consider evidence
from the October 2011 and
March 2012 opinions. Secretary’s Br. at 10-12. He also generally asserts
that the Board did not
clearly err when it determined that the appellant was not entitled to TDIU
and that the Board
provided an adequate statement of reasons or bases for its decision. Id.
at 7-9, 12-13.

Initially, the Court is compelled to comment on the appellant’s brief in
two respects. First,
the Court notes that, although the Court’s Rules of Practice and Procedure (
Rules) require citation
to “the specific page(s) being cited, followed in parenthesis by citation
to all pages of the document
from which the referenced page is cited,” U.S. VET. APP. R. 28(a)(4)(ii),
the appellant’s counsel
failed to do so, resulting in numerous incomplete and fragmented documents
in the record. See, e.g.,
R. at 1649, 1670, 1712, 1717, 2082, 2097, 2102. Second, despite the Rules’
requirements that the
brief contain “a statement of the case, showing briefly . . . the facts
relevant to the issues,”
U.S. VET. APP. 28(a)(4)(i), the majority of the relevant facts are,
instead, set forth without
accompanying argument in the first 10 pages of the brief’s “Arguments”
section, Appellant’s Br. at
2-11. The Court trusts that counsel for the appellant will, in the future,
more diligently ensure
compliance with the Court’s Rules. See Model Rules of Prof’l Conduct 1.1 (
Competence), 1.3
(Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules
of Professional
Conduct as the disciplinary standard of the Court).
Turning to the merits of the appellant’s arguments, the Court is not
persuaded that the Board
impermissibly relied on the October 2011 and March 2012 VA medical
opinions. See Hilkert v.
West, 12 Vet.App. 145, 151 (1999) (en banc) (“An appellant bears the
burden of persuasion on
appeals to this Court.”), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (
table). As the appellant
argues, Appellant’s Br. at 12-13, the Board found that an October2011 cold
injuriesexamination and
an October 2011 hearing loss examination were not supported by adequate
rationales, and so it
expressly determined that those opinions were not adequate for determining
entitlement to TDIU.
R. at 7-8. Similarly, the Board determined that a March 2012 hearing loss
examination was
inadequate for determining entitlement to TDIU, as the examiner did not
review the claims file and
did not offer an opinion on the issue of employability.1
R. at 8. Contrary to the appellant’s terse
arguments, however, the Board did not then rely on the examiners’
conclusions from those opinions
but instead merely discussed lay statements that the appellant himself
provided during those
The Court emphasizes that the ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”).
1
2

examinations.2
R. at 10 (“Lay evidence has been provided by the [appellant] in this case
during the
course of his VA examinations.”). As the Board did not improperly rely on
the inadequate VA
opinions, the Court discerns no error in this regard. But see Monzingo v.
Shinseki, 26 Vet.App. 97,
105 (2012) (“[E]ven if a medical opinion is inadequate to decide a claim,
it does not necessarily
follow that the opinion is entitled to absolutely no probative weight.”).
Similarly, the Court is not persuaded that the Board clearly erred when it
determined that the
appellant was not entitled to TDIU, nor that it failed to provide adequate
reasons or bases for its
decision. See Hilkert, 12 Vet.App. at 151. Although the appellant asserts
that, “[m]issing from the
Board’s analysis is a discussion [of] whether [his] various symptoms, when
considered in
combination, and in light of his education and occupational history,
affect his ability to work,”
Appellant’s Br. at 14, the Board did, in fact, discuss his relevant
symptomatology and educational
and occupational history, R. at 7-9. Moreover, although the appellant
tersely contends that he is
“prevented from being able to sustain gainful employment as a carpenter
due solely to his service-
connected medical conditions,” Appellant’s Br. at 14, his contention
essentially amounts to a mere
disagreement with how the Board weighed and evaluated the evidence of
record and does not
demonstrate clear error. See Madden v. Gober, 125 F.3d 1447, 1481 (Fed Cir.
1997) (it is the
Board’s duty “to analyze the credibility and probative value of the
evidence”); Owens v. Brown,
7 Vet.App. 429, 433 (1995) (it is the province of the Board to weigh and
assess the evidence of
record).
Accordingly, after consideration of the parties’ briefs and a review of
the record, the Board’s
July 11, 2013, decision is AFFIRMED.
DATED: July 31, 2014
Indeed, the Board relied on new VA examinations provided to the appellant
in December 2012. R. at 10. The
appellant does not challenge the Board’s findings that the December 2012
examination reports and opinions” are adequate
for rating purposes,” R. at 5, or the Board’s ultimate reliance on those
reports and opinions to deny his appeal, R. at 10.
See Cromer v. Nicholson, 19 Vet.App. 215, 217 (2005) (“[I]ssues not raised
on appeal are considered abandoned.”),
aff’d, 445 F.3d 1346 (Fed. Cir. 2006).
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Copies to:
Calvin Hansen, Esq.
VA General Counsel (027)
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