Veteranclaims’s Blog

October 1, 2014

Single Judge Application; Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.15 (2013)

Excerpt from decision below:

“Although the PTSD examiner found that the appellant was not unemployable, 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”). Moreover, the examiner explicitly noted she could not evaluate his physical disabilities. R. at 168. Rather, her rationale consists of “30 years of gainful employment reported by the veteran, which he then left reportedly due to physical health problems” and the fact that “[t]he [appellant] did not cite PTSD symptoms as a reason for termination of employment in this interview,” neither of which reasons addresses or provides support for the current functional impact of his PTSD or other service-connected disabilities. R. at 168. “VA is expected to give full consideration to ‘the effect of combinations of disability.'” Geib, 733 F.3d 1350 at 1354 (quoting 38 C.F.R. § 4.15 (2013)). Where, as in this case, “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
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. . . and facilitate review.” Id. (emphasis added).”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1397
JAMES FRANKLIN, JR., APPELLANT,
V.
SLOAN D. GIBSON,
ACTING 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, James Franklin, Jr., through counsel, appeals a March 19, 2013, Board of Veterans’Appeals (Board)decision that denied his request for a total disability rating based on individual unemployability (TDIU). Record (R.) at 2-18. The appellant does not present any argument concerning the denial of his claim for entitlement to service connection for hypertension. Accordingly, that claim is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). 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 vacate that part of the March 19, 2013, decision denying TDIU and remand the matter for further proceedings consistent with this decision. The remainder of the decision will be affirmed. The appellant is 68 years of age and served in the U.S. Army from January
1965 to November 1967. R. at 2277. His service-connected disabilities included
post-traumatic stress disorder (PTSD), rated at 50% disabling; peripheral neuropathy of the
right upper extremity, rated at 30% disabling; type II diabetes mellitus, rated 20% disabling;
peripheral neuropathy of the right lower extremity, rated 20% disabling; peripheral neuropathy of the left upper extremity, rated 20% disabling; peripheral neuropathy of the left lower extremity, rated 20% disabling; and erectile

dysfunction, rated noncompensable. R at 227-28. He is in receipt of a combined 90% disability rating, which has been in effect since June 2005. R at 228.
The appellant argues that, in denying TDIU, the Board (1) relied upon inadequate VA
medical examinations; (2) misinterpreted the requirements of 38 C.F.R. §  4.16; and (3) provided an inadequate statement of reasons or bases for its decision. Appellant’s
Brief (Br.) at 5-11; Reply Br. at 1-4. In response, the Secretary disputes these contentions. Secretary’s Br. at 5-15.
A veteran is eligible for TDIU if he is “unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities” and he has a single disability “ratable at 60 percent or more” or, if he has two or more disabilities,”at least one disability[is] ratable at 40 percent or more, and sufficient additional disabilit[ies] . . . bring the combined rating to 70 percent or more.” 38 C.F.R. § 4.16(a) (2013). The central inquiry is “whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”
Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). Unlike the regular disability rating schedule,
which is based on the average work-related impairment caused by a disability, “entitlement to
TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet.App. 447,
452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991) (level of education is afactorin decidingemployability);seeFriscia v.Brown,7Vet.App.  294,295-97(1994; Beaty v. Brown, 6 Vet.App. 532, 534 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet.App. 356, 357 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor).
There is no question here that the appellant meets the threshold schedular rating criteria for an award of TDIU. R. at 14; see 38 C.F.R. § 4.16(a). The sole question therefore is whether his service-connected disabilities render him unemployable.
The Court holds that the Board’s statement that the appellant’s “service-connected disabilities do not manifest to a level that precludes him from obtaining or sustaining substantially gainful employment” is conclusory and inadequate to enable the appellant to understand the precise basis for the decision or facilitate informed review in this Court. R. at 15-16; see 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); see also Gilbert v. Derwinski,
1 Vet.App. 49, 57
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(1991) (“A bare conclusory statement, without both supporting analysis
and explanation, is neither helpful to the veteran, nor ‘clear enough to permit effective judicial
review’, nor in compliance with statutory requirements.”).
In the decision on appeal, the Board noted that “the [appellant] worked for nearly three decades for a paper mill.” R. at 15. It also observed that the appellant “stopped working in 1987,”due to non-service-connected disabilities. Id. However, an October 2011 VA
examiner opined that while the appellant’s diabetes “does not prevent him from doing any type
of sedentary work or desk job,” it would prevent him from driving trucks or operating heavy
equipment. R. at 145. In addition, a VA PTSD examiner, who signed her report in October 2011, separately noted that the appellant had “clinically significant distress or impairment in social, occupational, or other important areas of functioning” due to such symptoms as: markedly diminished interest or participation in significant activities, difficulty falling or staying asleep, hypervigilance, exaggerated startle response,depressed mood, anxiety,chronic sleep impairment,minor memory loss, such as forgetting names, directions or recent events; flattened affect and disturbances of motivation and mood. R. at 165 (emphasis added); see R. at 165-67.
Although the PTSD examiner found that the appellant was not unemployable, 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”). Moreover, the examiner explicitly noted she could  not evaluate his physical disabilities. R. at 168. Rather, her rationale consists of “30 years of  gainful employment reported by the veteran, which he then left reportedlydue to physical health problems” and the fact that “[t]he [appellant] did not cite PTSD symptoms as a reason for termination of employment in this interview,” neither of which reasons addresses or provides support for the current functional impact of his PTSD or other service-connected disabilities. R. at 168. “VA is expected to give full consideration to ‘the effect of combinations of disability.'” Geib, 733 F.3d 1350 at 1354 (quoting 38 C.F.R. § 4.15 (2013)). Where, as in this case, “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
3
. . . and facilitate review.” Id. (emphasis added). Additionally, it is unclear to the Court how the Board reached its ultimate conclusion as to the appellant’s current  ability to secure or follow a substantially gainful occupation, to include sedentary employment, given the appellant’s education, the nature of his previous employment, and the impact of his service-connected medical conditions. See R. at 165 (October 2011 VA PTSD report noting that the appellant had completed 12th grade and worked as a machine operator at a paper mill).
As the Board failed to fully discuss the appellant’s education, training, and work history, as well as the aggregate effect of his service-connected disabilities, in its determination, the Court holds that remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “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”); see also Geib, 753 F.3d at 1354; Friscia, 7 Vet.App. at 295-97; Hatlestad, 1 Vet.App. at 168. On remand, the Board should ensure that it provides an adequate  analysis as to the appellant’s employability when his educational and occupational experience are considered in light of the medical and lay evidence of record. See Vettese v. Brown, 7 Vet.App.  31, 35 (1994) (TDIU focuses on “subjective” factors that the “objective” rating does not consider). As to the appellant’s remaining argument regarding the adequacy of the medical examinations, the possibility of further development and factual findings on remand renders judicial review on the current reco.See Quirin v. Shinseki, 22 Vet.App. 390, 395-396 (2009).
On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.369, 372-73 (1999) (per curiam order), and the Board must consider any
such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).
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III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, that part of the Board’s March 19, 2013, decision denying TDIU is VACATED and the matter is
REMANDED to the Board for further proceedings consistent with this
decision. The remainder of the decision is AFFIRMED.
DATED: July 1, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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