Veteranclaims’s Blog

October 13, 2014

Single Judge Application; Floore, 26 Vet.App. 376, 382 (2013); Adequate Consideration of Combined Effect of Multiple Disabilities;

Excerpt from decision below:

“When adjudicating entitlement to TDIU, “VA is expected to give full consideration to ‘the
effect of combinations of disability.'” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)
(quoting 38 C.F.R. § 4.15 (2013)). “Where 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 . . . and facilitate review.” Id.; see Floore v. Shinseki, 26 Vet.App. 376, 382 (2013) (explaining that, to comply with the reasons-or-bases requirement where the veteran has multiple service-connected disabilities and is seeking TDIU, 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”).”

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

“The Secretary asserts that “there is no legal requirement that the Board explain why a veteran’s education and background and work history do[ ] not limit his or her ability to perform an occupation” in situations where “the record contains medical opinion evidence that the veteran[ ] is not unemployable by reason of . . . service-connected disabilities.” Secretary’s Br. at 13. This argument is not persuasive. The Secretary’s argument conflates examiner responsibilities with those of the Board; as noted above, the Board is tasked with determining whether the veteran is capable of substantially gainful employment. See Geib, 733 F.3d at 1354. Because the question of “employability” is not purely a medical one, the Board could not determine entitlement to TDIU based solely on a medical opinion as to employability but was obligated to address, inter alia, the veteran’s education and work history. See Hatlestad, 1 Vet.App. at 168.
Third, and related to the second, it is not clear that the Board adequately considered the effect of the veteran’s multiple service-connected disabilities. See Floore, 26 Vet.App. at 382. The Board tersely summarized the cumulative effect of Mr. Colorado’s multiple service-connected conditions by stating: “[T]he [v]eteran’s [CAD] and hypertension were stable, and his hearing loss was adequately compensated by hearing aids.” R. at 13. As noted earlier, the Board completely ignored the veteran’s service-connected tinnitus in this discussion. In addition to that error, the Board did not explain why the fact that his CAD and hypertension are stable, rather than the level of severity of those conditions and their effect on work, would be a deciding factor as to their impact on employability. See Gilbert, 1 Vet.App. at 57. As to hearing loss, the Board read the January 2013 examiners as stating that hearing loss does not cause a problem provided the veteran uses a hearing aid. R. at 13. But the 2013 audiologist opined that a hearing aid would allow Mr. Colorado to function well in work environments “where background noise was not an overriding issue.” R. at 122. The 2013 medical examiner opined that difficulty hearing would impede employment where regular telephone communication is required. R. at 165.
7

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2363
MIGUEL COLORADO, JR., APPELLANT,
V.
ROBERT A. MCDONALD,
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 Miguel Colorado, Jr., appeals through counsel a July 2, 2013, Board of Veterans’ Appeals (Board) decision denying entitlement to total disability benefits based on individual unemployability (TDIU) prior to April 5, 2013.1 Record (R.) at 3-18. 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). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will set aside the July 2013 Board decision and remand the matter for additional development, if necessary, and readjudication consistent with this decision.
1
The Board referred to the VA regional office (RO) the question whether,
based on an April 5, 2013, filing,
new and material evidence had been submitted to reopen a claim for service
connection for diabetes. Record at 5. The
Court has jurisdiction to review referred matters only to the extent that
the appellant argues that remand, rather than
referral, was appropriate. Young v. Shinseki, 25 Vet.App. 201, 202-03 (
2012) (en banc order); Link v. West, 12 Vet.App.
39, 47 (1998) (“Claims that have been referred by the Board to the RO are
not ripe for review by the Court.”). Because
Mr. Colorado has not challenged the propriety of the Board’s referral, the
Court will not further address the referred
matter. The Board remanded the issue of entitlement to TDIU from April 5,
2013, for RO adjudication, finding it
inextricably intertwined with the merits of the diabetes claim. Record at
14-15. Because a remand is not a final decision
of the Board, the Court does not have jurisdiction to consider the
remanded matter. See Howard v. Gober, 220 F.3d
1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (
2004) (per curiam order); 38 C.F.R.
§ 20.1100(b) (2014).

I. FACTS
Mr. Colorado served on active duty in the U.S. Army from March 1968 to
March 1971. R.
at 1385. In April 2009, he sought entitlement to TDIU, stating that he had
been employed at
Goodfellow Air Force Base in Texas from 1979 to 2007 as a supply
technician or warehouse stock
controller and by the San Antonio school system part-time from February
2007 to March 2009 as
a crossing guard. R. at 547-56. He mentioned that he experienced shortness
of breath, headaches,
and dizziness. R. at 552. At the time he submitted his TDIU application,
he was service connected
for coronary artery disease (CAD) evaluated as 60% disabling; bilateral
hearing loss evaluated as
10% disabling (30% disabling as of July 2009); tinnitus evaluated as 10%
disabling; and
hypertension evaluated as 10% disabling. His combined evaluation was 70% (
80% as of July2009).
R. at 8.
In July 2009, the veteran underwent VA audiology and general medical
examinations. The
VA audiologist opined that service-connected hearing loss had “[s]
ignificant effects” on Mr.
Colorado’s occupation. R. at 499. The medical examiner noted that CAD
caused “slight limitations
of physical activity” and that moderate exertion caused symptoms such as
fatigue and dyspnea. R.
at 516. He remarkedthatCADandhypertension prevented exercise, sports, and
recreation; had mild
effects on chores, shopping, and driving; and did not affect feeding,
bathing, dressing, toileting, or
grooming. R. at 515. As for effects on “usual occupation,” the examiner
noted that the veteran was
“not employed” and had retired in 2007 because of low back and diabetes
problems. R. at 514-15
(capitalization altered).
In August 2009, the VA regional office (RO) denied entitlement to TDIU. R.
at 488-93. Mr.
Colorado filed a Notice of Disagreement (R. at 484) and appealed to the
Board (R. at 443-44).
Mr. Colorado testified at an October2009 Board hearing. He stated that on
exertion his heart
condition caused him to become sweaty, clammy, and disoriented. R. at 437.
He further stated that
he left his recent job as a school crossing guard because CAD and hearing
loss prevented him from
safely performing his duties. R. at 438. Finally, he remarked that a
private physician told him that
he was unemployable because of “all of the conditions that I have.”2
R. at 438-39.
Although Mr. Colorado stated that he submitted to VA materials connected
with this private examination (R.
at 438) and the Board referenced these materials (R. at 354-55), they are
not in the record before the Court.
2
2

The Board, in February 2011, found that, because neither of the July 2009
examiners opined
as to the overall effect of the veteran’s service-connected disabilities
on employability, additional
development was required and remanded the claim for VA to schedule another
examination. R. at
345-59. A March 2011 VA audiology examiner found left ear moderately
severe to severe
sensorineural hearing loss, but simply noted that the veteran was not
employed and did not opine as
to the cause. R. at 312-13. A March 2011 VA general medical examiner
opined that Mr. Colorado
did not have “clinically significant” CAD and, therefore, that CAD did not
cause his
unemployability.
R. at 308. He did not provide any opinion as to the service-connected
hypertension. Once the case returned to the Board, it again remanded the
matter, finding the March
2011 opinions incomplete. R. at 180-201.
VA provided the most recent audiology and general medical examinations in
January 2013.
The audiology examiner diagnosed right ear sensorineural hearing loss and
left ear mixed hearing
loss, and opined that hearing loss would not preclude the veteran from
securing and maintaining
gainful employment because, “with a hearing aid in his right ear . . . [,]
he would be expected to
function well in most work environments where background noise was not an
overriding issue.” R.
at 120, 122.
The medical examiner first stated that she could not opine on the effect
hearing loss had on
the veteran’s employability but remarked that difficulty hearing will
complicate finding and keeping
employment in anyposition in which regular telephone communication is
required. R. at 165. After
reviewingmedicalrecordsandtheclaimsfile,theexaminerperformedaninterview-
basedmetabolic
equivalent test (MET) and found that Mr. Colorado experienced dyspnea,
fatigue, and angina at a
MET level of 5 to 7, which encompasses activities such as walking up one
flight of stairs, golfing,
pushing a lawnmower, or digging. R. at 135. The examiner explained the
veteran’s MET score as
follows: 40% was due to service-connected CAD and hypertension, 40% was
due to non-service-
connectedlumbarspinedisability,and20%wasdueto non-service-
connectedperipheralneuropathy
due to diabetes.3
R. at 135-36. In conclusion, the examiner opined that service-connected
CAD and
3
As previously noted, the Board referred to the RO a request to reopen a
claim for service connection for
diabetes, as well as the issue of entitlement to TDIU from August 5, 2013,
the date VA received the request to reopen
the diabetes claim. See supra note 1. As of the date of the present Board
decision, however, diabetes is not a service-
connected condition.
3

hypertension were “stable and would not preclude substantial gainful
employment.” R. at 165.
Rather, Mr. Colorado was “significantlyimpaired” regarding employability
because of non-service-
connected back and shoulder conditions—which prevent heavy lifting,
driving, and prolonged
standing and sitting—as well as non-service-connected diabetes—which
causes peripheral
neuropathy, vision problems, and issues with balance, concentration, and
temperature perception.
Id. The RO continued to deny entitlement to TDIU (R. at 111-16), and the
matter returned to the
Board.
In the July 2013 decision on appeal, the Board denied entitlement to TDIU
prior to April 5,
2013. See supra note 1. First, the Board found that VA examinations of
record were collectively
adequate to permit a proper evaluation of the claim. R. at 7. The Board
next found that “none of
these opinions affirmatively state[s] that the [v]eteran is unemployable
solely as a result of his
service-connected disabilities.” R. at 12. In particular, the Board relied
on the January 2013
examiners’ opinions that CAD, hypertension, hearing loss, and tinnitus did
not “significantly affect
occupational functioning” but that non-service-connected disabilities
caused “more significant
impairment.” R. at 13. Finally, the Board considered Mr. Colorado’s
statements but found that he
was not competent to offer an opinion on the question in this case, namely
, “the overall impact of
. . . service-connected conditions on his ability to find and maintain
gainful employment.” Id. This
appeal followed.
II. ANALYSIS
Mr. Colorado argues that the Board erred byrelying on inadequate VA
medical opinions and
that the Board’s reasons or bases were insufficient because the veteran’s
educational background and
work experience were not discussed. Appellant’s Brief (Br.) at 5-12. The
Secretary disputes these
contentions and urges the Court to affirm the Board’s decision.
Secretary’s Br. at 4-21.
TDIU is available to a disabled veteran whose schedular evaluation “is
less than total, when
the disabled person is, in the judgment of the ratingagency, unableto
secure or follow a substantially
gainful occupation as a result of service-connected disabilities.” 38 C.F.
R. § 4.16(a) (2014); see
Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993) (“[T]he central inquiry in
determining whether a
veteran is entitled to TDIU is whether the veteran’s service-connected
disabilities alone are of
4

sufficient severity to produce unemployability.”). “Substantially gainful”
employment does not
include “[m]arginal employment,” which exists where earned annual income
does not exceed the
federally established poverty threshold, or, on an individual basis, when
annual income exceeds the
poverty threshold but is earned in a protected environment, such as a
family business or sheltered
workshop. See 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet.App.
342, 355 (2000).
The assignment of a disability evaluation, including TDIU, is a factual
finding that the Court
reviews under the “clearly erroneous” standard set forth in 38 U.S.C. §
7261(a)(4). See Johnston v.
Brown, 10 Vet.App. 80, 84 (1997). “A factual finding ‘is “clearly
erroneous” when although there
is evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.
App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In
rendering its decision,
the Board is required to provide a written statement of reasons or bases
for its “findings and
conclusions[] on all material issues of fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1).
The statement must be adequate to enable a claimant to understand the
precise basis for the Board’s
decision and to facilitate review in this Court. Gilbert v. Derwinski, 1
Vet.App. 49, 57 (1990). To
comply with this requirement, the Board must analyze the credibility and
probative value of
evidence, account for evidence that it finds to be persuasive or
unpersuasive, and provide reasons
for its rejection of 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).
Unlike the rating schedule, which is based on the average work-related
impairment caused
by a disability, 38 C.F.R. § 4.1 (2014), “entitlement to TDIU is based on
an individual’s particular
circumstances.” Rice v. Shinseki, 22 Vet.App. 447, 452 (2009). When
determining whether a
veteran’s service-connected disabilities preclude him or her from securing
or following substantially
gainful employment, the Board is required to consider and discuss the
veteran’s educational and
occupational history and explicitly relate these factors to the
disabilities of the individual veteran.
Cathell v. Brown, 8 Vet.App. 539, 544 (1996). The Board maynot ”
merelyallude to educational and
occupational history, attempt in no way to relate these factors to the
disabilities of the appellant, and
conclude that some form of employment is available.” Id.; see Gleicher v.
Derwinski, 2 Vet.App. 26,
28 (1991).
5

When adjudicating entitlement to TDIU, “VA is expected to give full consideration to ‘the
effect of combinations of disability.'” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013)
(quoting 38 C.F.R. § 4.15 (2013)). “Where 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 . . . and facilitate review.” Id.; see Floore v. Shinseki, 26 Vet.App. 376, 382 (2013) (explaining that, to comply with the reasons-or-bases
requirement where the veteran has multiple service-connected disabilities and is seeking TDIU, 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”).
The Court agrees with Mr. Colorado that the Board failed to offer adequate reasons or bases to support its denial of entitlement to TDIU. First, the Board did not explain the basis for its finding that “tinnitus
did not significantly affect occupational functioning.” R. at 13. The 2013 medical examiner did
not address tinnitus at
all. The 2013 audiologist indicated that Mr. Colorado stated tinnitus
impactstheordinaryconditions
of daily life, including the ability to work (R. at 124), and yet did not
opine as to the effects of
tinnitus on the veteran’s abilityto secure and maintain
substantiallygainful employment. Thus, even
though the Board addressed hearing loss and tinnitus together, it did not
explain on what evidence
it relied to find tinnitus did not contribute to entitlement to TDIU. See
Previous HitFlooreNext Hit, 26 Vet.App. at 382.
Second, the Board’s reasons or bases are deficient because it did not
discuss or even allude
to Mr. Colorado’s education or work history. See Hatlestad, 1 Vet.App. at
168. The ultimate
question of whether a veteran is capable of substantial gainful employment
is an adjudicatory
determination, not a medical one, see Geib, 733 F.3d at 1354 (“[A]
pplicable regulations place
responsibility for the ultimate TDIU determination on the VA, not a
medical examiner.”), and the
Board may not simply repeat examiner findings as to employability; it must
make its own
administrativedetermination. Despitethedutyto considertheveteran’s overall
disabilitystatewithin
the context of his or her specific educational and occupational history,
the Board did not address the
specifics of Mr. Colorado’s case, which shows that he worked for decades
as a warehouse stock
controller and supply technician (R. at 197, 514, 547) and then as a
school crossing guard, a position
he left due to concerns about child safety (R. at 438, 547). The Board did
not discuss whether such
6

work involved manual labor or was sedentary nor whether MET test results showing dyspnea, fatigue, and angina upon exertion, and difficultyworking in positions that involve background noise or that require regular telephone conversations, as likely as not result in an inability to secure or follow a substantially gainful occupation, given the veteran’s educational and occupational history. See Gleicher, 2 Vet.App. at 28.
The Secretary asserts that “there is no legal requirement that the Board explain why a veteran’s education and background and work history do[ ] not limit his or her ability to perform an occupation” in situations where “the record contains medical opinion evidence that the veteran[ ] is not unemployable by reason of . . . service-connected disabilities.” Secretary’s Br. at 13. This argument is not persuasive. The Secretary’s argument conflates examiner responsibilities with those of the Board; as noted above, the Board is tasked with determining whether the veteran is capable of substantially gainful employment. See Geib, 733 F.3d at 1354. Because the question of “employability” is not purely a medical one, the Board could not determine entitlement to TDIU based solely on a medical opinion as to employability but was obligated to address, inter alia, the veteran’s education and work history. See Hatlestad, 1 Vet.App. at 168.
Third, and related to the second, it is not clear that the Board adequately considered the effect of the veteran’s multiple service-connected disabilities. See Floore, 26 Vet.App. at 382. The Board tersely summarized the cumulative effect of Mr. Colorado’s multiple service-connected conditions by stating: “[T]he [v]eteran’s [CAD] and hypertension were stable, and his hearing loss was adequately compensated by hearing aids.” R. at 13. As noted earlier, the Board completely ignored the veteran’s service-connected tinnitus in this discussion. In addition to that error, the Board did not explain why the fact that his CAD and hypertension are stable, rather than the level of severity of those conditions and their effect on work, would be a deciding factor as to their impact on employability. See Gilbert, 1 Vet.App. at 57. As to hearing loss, the Board read the January 2013 examiners as stating that hearing loss does not cause a problem provided the veteran uses a hearing aid. R. at 13. But the 2013 audiologist opined that a hearing aid would allow Mr. Colorado to function well in work environments “where background noise was not an overriding issue.” R. at 122. The 2013 medical examiner opined that difficulty hearing would impede employment where regular telephone communication is required. R. at 165.
7

Thus, the Board’s terse statement that Mr. Colorado would experience no
problems with
employability because he wore a hearing aid is inadequate and unsupported;
the impact of hearing
loss on employment appears more nuanced in this case. It is not clear that
the Board fullyconsidered
the extent of the veteran’s hearing problem and whether, given his
occupational and educational
history, his employability would be limited by background noise and
telephonic communication
restrictions.
In sum, in light of these inadequacies in the Board’s reasons or bases for
denying entitlement
to TDIU, the Court will set aside the Board’s decision and remand the
matter for readjudication
consistent with this decision. See Tucker v. West, 11 Vet.App. 369, 374 (
1998) (holding that remand
is the appropriate remedy “where the Board has . . . failed to provide an
adequate statement of
reasons or bases for its determinations”). The Court need not address at
this time Mr. Colorado’s
arguments regarding the adequacy of the VA 2013 examinations. The Board
must consider on
remand whether the examinations of record are sufficient to permit it to
conduct a proper TDIU
analysis; if not, the Board must seek an opinion or opinions adequate to
permit it to do so. See Stefl
v. Nicholson, 21 Vet.App. 120, 123 (2007) (holding that a VA examination
must describe the
disability or disabilities in “sufficient detail” so that the Board’s
evaluation of the matter on appeal
“will be a fully informed one”).
On remand, Mr. Colorado is also free to submit 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.

III. CONCLUSION
Upon consideration of the foregoing, the July 2, 2013, Board decision is
SET ASIDE, and
the matter is REMANDED for additional development, if necessary, and
readjudication consistent with this decision.
DATED: August 28, 2014
8

Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
9

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