Veteranclaims’s Blog

October 27, 2014

Single Judge Application, Lay Evidence Competent on Mental and Physical Employability; Falzone v. Brown, 8 Vet.App. 398, 403(1995); Geib, 733 F.3d at 1354; Combine Effect of Disabilities a VA Decision Not Medical Decision

Excerpt from decision below:

“Additionally, in finding that the evidence did not establish entitlement to an earlier effective date for a rating of TDIU, the Board did not discuss any of the lay evidence of record, including statements from Mr. Estades-Estrada and his family. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. See Falzone v. Brown, 8 Vet.App. 398, 403(1995) (veteran is competent to testify as to observable medical conditions); see also Geib 733 F.3d at 1354 (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The Court finds that the Board by ignoring the lay evidence of record, failed to
1 The Board did note the professor’s statement in its extensive summary of
the evidence.
7

provide a sufficient statement of reasons or bases for its denial of an earlier effective date. See Gilbert, 1 Vet.App. at 56-57. Accordingly, based on these errors, the Court finds that remand is required.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0227
HECTOR ESTADES-ESTRADA, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Hector Estades-Estrada appeals through counsel a November
2, 2012,
Board of Veterans’ Appeals (Board) decision that denied entitlement to an
earlier effective date for
a rating of total disability based on individual unemployability (TDIU).
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 as the issue is of ”
relative simplicity” and “the
outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23,
25-26 (1990). For the
reasons that follow, the Court will vacate the Board’s November 2, 2012,
decision and remand the
matter for readjudication consistent with this decision.
I. FACTS
Mr. Estades-Estrada served on active duty in the U.S. Army during February
1955. Record
(R.) at 3711-14. No psychiatric conditions were noted upon entry into
service. R. at 3158.
However, 11 days after entering service, Mr. Estades-Estrada was
hospitalized after exhibiting
psychiatricsymptoms. R. at3773-84.Hewasdiagnosedwith”dissociativereaction,
acute,moderate,
manifested byideas of reference, delusions of grandeur, and flattened
affect.” R. at 3779. Although
he was subsequentlylisted to be in remission, the hospital report
indicates that he was recommended

for discharge from service because “further attempts to rehabilitate him
for military duty would be
futile.” R. at 3777. A March 1955 Medical Review Board decision
recommended he be separated
from service, and he was discharged later that month. R. at 3763-64, 3711-
14.
In April 1955, Mr. Estades-Estrada’s private physician diagnosed him with
schizophrenic
reaction, reporting that he was disoriented, had incoherent speech, and
exhibited rage. R. at 3685.
In June 1955, Mr. Estades-Estrada sought VA benefits for a nervous
condition. R. at 3753-56. A
VA regional office (RO) denied his claim in July 1955. R. at 3792-94.
After he appealed, the Board
continued to deny his claim in a December 1955 decision. R. at 3725-26.
In January 1982, Mr. Estades-Estrada again sought VA benefits for a
nervous condition. R.
at 3698-3701. However, the RO found that he had not submitted sufficient
evidence to reopen his
claim. R. at 3673. In March 1982, Mr. Estades-Estrada was awarded Social
Security benefits upon
a finding that he was unable to work as a result of his nervous condition.
R. at 2911. At an April
1984 hearing, Mr. Estades-Estrada reported that he was currently not
working and had trouble
working since leaving service. R. at 3633. At that hearing, his mother
also testified that, prior to
service, Mr. Estades-Estrada worked in a grocery store, but that upon
leaving service he could not
work. R. at 3634, 3637.
From August 1985 through May1991, the Board issued four decisions finding
that there was
not sufficient evidence to reopen the claim. R. at 3644-48. In April 1993,
the Court vacated and
remanded the Board’s May 1991 decision. R. at 3114-17. In March 1994, the
Board granted Mr.
Estades-Estrada entitlement to VA benefits for schizophrenia. R. at 3102-
08. The RO subsequently
assigned a 10% disability rating for that condition, effective May9, 1989,
the date VA received new
and material evidenceto reopenhis claim. R. at 3035-37. Mr. Estades-
Estrada submitted a statement
disagreeing with the disability rating and effective date assigned. R. at
3019-24. In May 1994, Mr.
Estades-Estrada’s private physician stated that he was unable to establish
normal interpersonal
relationships and that he was totally and permanently disabled for gainful
employment. Id.
InMarch1998andDecember1999,Mr.Estades-Estradasought
VAvocationalrehabilitation
benefits. R. at 2500-01, 2497-98. Although he completed the initial one-
year training program in
2000-2001, he did not pursue additional VA services to assist him in
obtaining a job. R. at 595-98,
2516-26. In September 2002, the Board issued a decision denying
entitlement to an effective date
2

prior to May 9, 1989, for the grant of VA benefits for schizophrenia. R.
at 2200-09. In June 2004,
the RO increased Mr. Estades-Estrada’s disability rating for schizophrenia
to 50% effective June 3,
2004. R. at 2100.
In August 2004, Mr. Estades-Estrada filed a claim for increased
compensation based on
unemployability,reportingthathis psychiatricdisabilitypreventedhim
fromworkingandthathehad
not been employed since 1981. R. at 1396. In September 2004, the RO
granted entitlement to a
rating of TDIU, effective August 23, 2004, the date of his application. R.
at 1379-88. In April 2007,
theBoardincreasedMr.Estades-Estrada’s disabilityratingforschizophreniato
30%fromSeptember
7, 2001, to June 3, 2004. R. at 1332-58. After Mr. Estades-Estrada
appealed that decision to the
Court, the parties entered into a joint motion to remand (JMR) the case in
January 2009. R. at 1231-
45. In July 2010, Mr. Estades-Estrada submitted a translation of a Spanish
language statement from
one of his vocational professors, in which the professor stated that Mr.
Estades-Estrada’s “work and
test were deficient even granting him special accommodations due to his
condition.” R. at 1084, see
R. 1071-75.
On January 12, 2011, the Board issued two decisions. In one decision, the
Board found no
clear and unmistakable error (CUE) in December 1955, August 1985, August
1986, July 1989, and
March 1994 Board decisions denying entitlement to VA benefits for
schizophrenia. R. at 216. Mr.
Estades-Estrada appealed these matters to the Court, and the parties
entered into a JMR, which is
currently pending before VA. R. at 356. In the other January 12, 2011,
decision, the Board
remanded for further development the issue of entitlement to a rating of
TDIU from May 9, 1989,
when Mr. Estades-Estrada was initially awarded VA benefits for
schizophrenia. R. at 264-66. In
that decision, the Board also denied entitlement an initial disability
rating in excess of 10% prior to
September 7, 2001, a disability rating in excess of 30% from September 7,
2001, to June 3, 2004,
and a disability rating in excess of 50% from August 3, 2004. R. at 263.
In May 2012, Mr. Estades-Estrada underwent psychiatric and general medical
examinations
to assess the functional impact of his service-connected disabilities on
his ability to work. R. at
72-91,92-175.TheVApsychiatricexaminerdiagnosedMr.Estades-Estradawith
schizophreniaand
opined that, based on medical records and Mr. Estades-Estrada’s ability to
complete the VA
vocational course in September 2001, Mr. Estades-Estrada was not
unemployable prior to 2001. R.
3

at 87. The examiner opined that Mr. Estades-Estrada became unemployable
when his symptoms
worsened in 2003. R. at 88-89. The examiner also opined that Mr. Estades-
Estrada’s other service-
connected conditions did not render him unemployable prior to August 2004.
R. at 174.
In June 2012, the RO increased Mr. Estades-Estrada’s disability rating for
schizophrenia to
100%, effective May 29, 2012, and increased the disability rating of some
of his other service-
connected conditions as of that date. R. at 49-50. The RO also granted Mr.
Estades-Estrada
entitlement to a rating of TDIU pursuant to 38 C.F.R. § 4.16(a) from May
29, 2012, and awarded
special monthly compensation from that time. R. at 49-50, 53.
On November 2, 2012, the Board issued the decision on appeal. R. at 3-21.
In that decision,
the Board found that Mr. Estades-Estrada did not meet the schedular
criteria for a rating of TDIU
prior to April 8, 2003, and that the evidence did not show that he was
unable to secure and follow
substantially gainful employment prior to that date. The Board
acknowledged that he had been
unemployed since 1981. However, the Board stated that the question was
whether he was capable
of performing the physical and mental tasks required byemployment, not
whether he had a job. The
Board then discussed medical evidence showing that Mr. Estades-Estrada was
on medication and
that his symptoms were transient. The Board also placed “great probative
weight” on the fact that
Mr. Estades-Estrada completed a vocation course from August 2000 to
September 2001 in finding
that he was employable prior to April 2003.
Onappeal,Mr.Estades-
Estradaarguesthattheissueofentitlementtoanearliereffectivedate
for a rating of TDIU should be remanded as inextricably intertwined with
his motion for revision of
the December 1955 Board decision on the basis of CUE. He also argues that
the Board provided
inadequate reasons or bases for its conclusion that he was not entitled to
an earlier effective date for
a rating of TDIU because the Board ignored evidence favorable to his claim
in reaching its
determination.
In response, the Secretary contends that the Board properly found that Mr.
Estades-Estrada
is not entitled to an earlier effective date for a rating of TDIU. The
Secretary argues that Mr.
Estades-Estrada’s pending motion for revision of the December 1955 Board
decision is separate and
distinct from the issue on appeal and that the pending matter would not
have a significant impact on
4

the issue on appeal. The Secretary also contends that the Board
thoroughly considered all of the
evidence of record and provided sufficient reasons or basis for its
conclusion.
II. ANALYSIS
Initially, Mr. Estades-Estrada argues that his appeal of the Board’s
denial of an effective date
prior to April 8, 2003, for a ratingof TDIU should be remanded because it
is inextricablyintertwined
with his motion for revision of the December 1955 denial of his original
claim based on CUE, which
is currently pending before VA. This Court has jurisdiction to determine
whether a claim denied by
the Board is inextricablyintertwined with matters still pending at VA,
even though those matters are
not directly before the Court as part of the Board decision on appeal. See
Tyrues v. Shinseki,
23 Vet.App. 166, 178-79 (2009) (en banc) (“[i]f we find that the matter on
appeal is inextricably
intertwined with an issue or claim still pending before VA, the Court
generally will decline, for
reasons of judicial economy or on prudential grounds, to review the merits
of the claim or issue
adjudicated in the Board decision”), aff’d, 631 F.3d 1380, 1383 (Fed. Cir.
2011), vacated and
remanded for reconsideration, 132 S. Ct. 75 (2011), reinstated as modified,
26 Vet.App. 31 (2012)
(per curiam order), aff’d, 732 F.3d 1351 (Fed. Cir. 2013).
Where a decision on one issue would have a significant impact upon another
and that impact
could render judicial review of that issue “meaningless and a waste of
judicial resources,” the two
claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet.App.
180, 183 (1991) overruled
on other grounds by Tyrues, 23 Vet.App. at 178; see also Smith v. Gober,
236 F.3d 1370, 1372 (Fed.
Cir. 2001) (where underlying claims are “intimately connected,” the
interests of judicial economy
and avoidance of piecemeal litigation require that the claims be appealed
together); Henderson v.
West, 12 Vet.App. 11, 20 (1998).
In this case, the Court does not find that the claim on appeal is
inextricably intertwined with
the pending motion for revision of the December 1955 Board decision on the
basis of CUE. Simply
because a favorable decision on Mr. Estades-Estrada’s CUE motion would
require that VA assign
a disability rating from 1955 does not render that issue inextricably
intertwined with entitlement to
a rating of TDIU. The Court notes that the record indicates that there
have been multiple separate
adjudications regarding the appropriate disability rating and effective
dates for benefits for his
5

service-connected conditions. However, Mr. Estades-Estrada has failed to
demonstrate that a
decision on his CUE motion would have a “significant impact” on
entitlement to an earlier effective
date for a rating of TDIU so that it would render judicial review of that
issue “meaningless and a
waste of judicial resources.” Harris, 1 Vet.App. at 183; see Hilkert v.
West, 12 Vet.App. 145, 151
(1999) (en banc) (holding that the appellant bears the burden of
demonstrating error on appeal), aff’d
per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Accordingly, the Court
need not delay its review
of the matter on appeal.
A rating of TDIU may be assigned to a veteran who meets certain disability
percentage
thresholds and is “unable to secure or follow a substantially gainful
occupation as a result of
service-connected disabilities.” 38 C.F.R. § 4.16(a) (2014). The relevant
regulation requires
percentage standards of (1) a single service-connected disability
evaluated at 60% or more, or (2)
two or more service-connected disabilities with one evaluated at 40% or
more, and sufficient
additional disability to bring the combined evaluation to 70% or more. Id.
If a veteran does not
meet the percentage standards for unemployability provided in § 4.16(a),
he or she may be granted
TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b).
The Board’s determination of the proper effective date for an award of VA
benefits is a
finding of fact that the Court reviews under the “clearly erroneous”
standard of review set forth in
38 U.S.C. § 7261(a)(4). See Evans v. West, 12 Vet.App. 396, 401 (1999);
Hanson v. Brown, 9
Vet.App. 29, 32 (1996). A finding is clearlyerroneous 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.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (
1990), quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
The Board must provide a statement of the reasons or bases for its
determination, adequate
to enable an appellant to understand the precise basis for its decision,
as well as to facilitate review
in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517,
527 (1995); Gilbert,
1 Vet.App. at 56-57. 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 the 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).
6

Mr. Estades-Estrada argues that the Board failed to provide adequate
reasons or bases for
denying entitlement to an earlier effective date for a rating of TDIU.
When discussing entitlement
to a rating of TDIU, the Board must provide “a full statement as to the
veteran’s service-connected
disabilities, employment history, educational and vocational attainment
and all other factors having
a bearing on the issue.” 38 C.F.R. § 4.16(b). The ultimate question of
whether a veteran is capable
of substantially gainful employment is an adjudicatory determination, not
a medical one. Previous DocumentGeibNext Hit v.
Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“applicable regulations
place responsibility for the
ultimate TDIU determination on the VA, not a medical examiner”).
In its decision, the Board thoroughly documented the evidence of record.
However, in its
analysis, the Board relied mainly on Mr. Estades-Estrada’s participation
in a VA vocational course
from August 2000 to September 2001 to find that he was not unemployable
prior to 2003. However,
in discussing that course, the Board did not discuss the February 2003
statement submitted by Mr.
Estades-Estrada’s professor that, “even granting [Mr. Estades-Estrada]
special accommodations due
to his condition,” his work and test results were still “deficient.”1
R. at 1084. This statement seems
to contradict the Board’s finding regarding Mr. Estades-Estrada’s
employability based on his
completion of a vocational course, and the Board should have addressed it.
The Board’s failure to
discuss this statement in its analysis renders its reasons or bases
inadequate to explain its reliance
on Mr. Estades-Estrada’s participation in a vocation course as evidence of
his employability. See
Gilbert, 1 Vet.App. at 56-57.
Additionally, in finding that the evidence did not establish entitlement to an earlier effective date for a rating of TDIU, the Board did not discuss any of the lay evidence of record, including statements from Mr. Estades-Estrada and his family. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. See Falzone v. Brown, 8 Vet.App. 398, 403 (1995) (veteran is competent to testify as to observable medical conditions); see also Geib 733 F.3d at 1354 (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The Court finds that the Board by ignoring the lay evidence of record, failed to
1
The Board did note the professor’s statement in its extensive summary of
the evidence.
7

provide a sufficient statement of reasons or bases for its denial of an earlier effective date. See
Gilbert, 1 Vet.App. at 56-57. Accordingly, based on these errors, the Court finds that remand is
required. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (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”).
Although Mr. Estades-Estrada also makes some general allegations of error
with respect to
the translations of the Spanish language documents of record, the Court
will not at this time address
those arguments. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per
curiam order) (holding that
“[a] narrow decision preserves for the appellant an opportunity to argue
those claimed errors before
the Board at the readjudication, and, of course, before this Court in an
appeal, should the Board rule
against him”). On remand, Mr. Estades-Estrada is free to submit additional
evidence and argument
on the remanded matters, and the Board is required to consider any such
relevant evidence and
argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky
v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order). The Court has held that “[a] remand
is meant to entail a
critical examination ofthejustification forthedecision.” Fletcher v.
Derwinski,1Vet.App.394,397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.
§ 7112 (requiring the
Secretary to provide for “expeditious treatment” of claims remanded by the
Court).

III. CONCLUSION
Upon consideration of theforegoinganalysis, therecordofproceedings before theCourt, and the parties’ pleadings, the November 2, 2012, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision.
DATED: October 17, 2014
Copies to:
Adam R. Hess, Esq.
VA General Counsel (027)
8

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