Veteranclaims’s Blog

November 13, 2014

Single Judge Application; Consideration of Combined Disabilities; Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013);

Excerpt from decision below:

“In Geib v. Shinseki, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, when adjudicating a request for entitlement to a total disability rating based on individual unemployability, VA is “not required to obtain a single medical opinion that addresse[s]
4

the impact of all service-connected disabilities on [a veteran]’s ability to engage in substantially
gainful employment.” 733 F.3d 1350, 1354 (Fed. Cir. 2013).

However, the Federal Circuit emphasized, “To be clear, the VA is expected to give full consideration to
‘the effect of combinations of disability'” and that, “[w]here neither the regional office 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 a [total disability rating based on individual unemployability] claim and facilitate review.” Id.
Shortly thereafter, in Floore v. Shinseki, this Court addressed a similar issue and held that “the need for a combined-effects medical examination report or opinion with regard to” requests for entitlement to a total disability rating based on individual unemployability involving multiple disabilities “is to be determined on a case-by-case basis, and depends on the evidence of record at the time of the decision by the regional office [] or the Board.” 26 Vet. App. 376, 381 (2013). The Court further stated that, regardless of whether a combined-effects medical examination report or opinion is required, “the Board nevertheless must adequately explain how
the record evidence supports its determination that the combined effects of multiple disabilities do not prevent substantially gainful employment.” Id. at 382.
Here,the Board placed great probative weight on the fact that “the August  2013VAexaminer found [Mr. Castro] to be capable of substantially gainful employment upon consideration only of [his] service-connected disabilities.”R. at12. In fact, the Board repeatedly referred to “the”examiner as if there were only one August 2013 VA examination. However, there were three different August 2013 VA examinations–(1) “Hip and Thigh,” R. at 31; (2) “Back (Thoracolumbar Spine),” R. at 36; and (3) “Stomach and Duodenal,” R. at 41–conducted by two different examiners. In other words, there is no single August 2013 examination or examiner that made a finding based on all of Mr. Castro’s service-connected disabilities. As a result, the Board relied on multiple VA examinations that addressed Mr. Castro’s service-connected disabilities individually but did not address the combined effects of Mr. Castro’s service-connected disabilities on his employability.

As noted above, VA was not necessarily required to obtain a single medical opinion addressing the effect of all of Mr. Castro’s service-connected disabilities on his ability to engage in substantially gainful employment, as that is a determination to be made “on a case-by-case basis”
5

depending on the evidence at the time of the regional office or Board decision. Floore, 26 Vet.App. at 381; see also Geib, 733 F.3d at 1354. Therefore, the Court cannot conclude that the Board failed to ensure substantial compliance with the August 2013 remand order merely because a combined-effects medical examination was not obtained. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008)(noting that substantial compliance, not strict compliance, with remand orders is all that is required under Stegall). However, the Board was required to–and did not–discuss the cumulative effects of Mr.Castro’s service-connected disabilities on his employability or acknowledge that the effects must be considered in the aggregate. Therefore, the Court concludes that the Board erred in failing to give full consideration to the combined effects of Mr. Castro’s service-connected disabilities in considering his entitlement to a total disability rating based on individual unemployability.

======================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0072
WILLIAM ROQUE CASTRO, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL,Judge: William RoqueCastroappealsthroughcounselaDecember24,2013,
Board
of Veterans’ Appeals (Board) decision denying entitlement to a total
disability rating based on
individual unemployability.Mr.Castro’s NoticeofAppeal was timely, and the
Court has jurisdiction
to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties
neither requested oral
argument nor identified issues that theybelieve require a precedential
decision of the Court. Because
the Board provided inadequate reasons or bases for its decision, the Court
will vacate the December
2013Boarddecisionandremandthematterforfurtherdevelopment,ifnecessary,
andreadjudication
consistent with this decision.
I. FACTS
Mr. Castro served on active duty in the U.S. Army from January 1982 to
June 1982. He was
“relieved from assignment and duty because of physical disability incurred”
during service. Record
(R.) at 1144.
In October 1982, a VA regional office granted Mr. Castro a 100% “pre[-]
stabilization”
disability rating for bilateral femoral neck stress fractures, effective
June 1982. R. at 1095. In

October 1984, the regional office reduced Mr. Castro’s disability rating
from 100% to 10% for
residuals of the bilateral femoral neck stress fractures, effective March
1984. Mr. Castro did not
appeal that decision, and it became final.
In December 2005, Mr. Castro requested a reevaluation of his condition. In
August 2006, he
underwent a VA examination. The examiner diagnosed Mr. Castro with ”
sacroiliitis bilaterally.”1
R.
at 697. In September 2006, the regional office granted an increased
disability rating to 20% for right
and left residuals of femoral neck stress fractures, but denied benefits
for arthritis and a nervous
condition, both on a secondary basis.
VAtreatmentnotesfromDecember2006indicatethatMr.Castrowas”unable[to] sit[]
down
or stand[] for prolonged periods. It is affecting his job as a teacher. He
is only to work half a day.”
R. at 583.
In July 2007, Mr. Castro sought entitlement to a total disability rating
based on individual
unemployability. Along with his application, Mr. Castro submitted lay
statements and private
medical opinions regarding the cause of his unemployability.
In September 2007, the regional office granted Mr. Castro a 10%
disabilityrating for chronic
gastritis, secondary to his service-connected residuals of femoral neck
stress fracture, but denied
entitlementto atotal disabilityratingbasedonindividual unemployability.
Theregionalofficefound
that Mr. Castro was “able to work despite [his] service-connected
condition for over 20 years,” and
that “[w]hen we consider your service-connected disabilities apart from
the non-service connected
conditions, your service[-]connected disabilities are not the cause of
your unemployability.” R. at
1797. Mr. Castro submitted a Notice of Disagreement with that decision.
In October 2009, Mr. Castro underwent two VA examinations. One examiner
found that Mr.
Castro was “retired . . . due to hip pain,” R. at 272; however, the second
examiner stated that Mr.
Castro retired in 2006 due to a “psychiatric problem,” noting “depression
and [an] anxiety disorder,”
R. at 285.
Sacroiliitisis”inflammation (arthritis) inthe sacroiliac joint.”
DORLAND’SILLUSTRATEDMEDICALDICTIONARY
1662 (32d ed. 2012). The sacrum is “the triangular bone just below the
lumbar vertebrae.” Id.
1
2

In a December 2009 Supplemental Statement of the Case, the regional
office continued to
deny Mr. Castro entitlement to a total disability rating based on
individual unemployability. Mr.
Castro perfected his appeal to the Board.
In September 2010, the Board remanded the matter for further development.
In April 2011,
Mr. Castro underwent a VA examination. The examiner found that Mr.
Castro’s hip condition is at
least as likely as not connected to service and that it affects his
employment by causing “increased
absenteeism” as a result of “[d]ecreased mobility; [p]ain.” R. at 186.
In April 2012, the regional office granted Mr. Castro a 20% disability
rating for a
lumbosacral spine disability, bringing his combined disability rating to
60%.
In April 2013 and again in August 2013, the Board remanded the matter of
entitlement to a
total disability rating based on individual unemployability. In its August
2013 remand, the Board
noted that Mr. Castro had a combined disability rating of 60% for various
disabilities that all “stem
directly from the same etiology.” R. at 65. The Board further found that
the record evidence did not
specifically address whether Mr. Castro’s service-connected disabilities
rendered him incapable of
gainful employment. Therefore, the Board directed “that [Mr. Castro]
should be provided with an
appropriate examination to determine whether his service-connected
disorders of right and left
femoral neck stress fractures, lumbosacral disability, and/or chronic
gastritis render [him] incapable
of maintaining and securing gainful employment.” R. at 66.
That same month, Mr. Castro underwent three VA examinations: (1) “Hip and
Thigh,” R. at
31; (2) “Back (Thoracolumbar Spine),” R. at 36; and (3) “Stomach and
Duodenal,” R. at 41.
The hip and thigh examiner found that, although Mr. Castro had bilateral
hip stress fracture
residuals, “he is at least as likely as not employable. He can work at
sedentary jobs such as his
previous job as a teacher . . . [, but] [h]e should not lift and carry
more than 15[-]pound objects and
should be allowed to sit or stand on his job as needed.” R. at 36.
The same examiner also performed the back examination. He noted that Mr.
Castro stated
that “he spends most of his time lying down due to his lower back pain”
and found that, although Mr.
Castro has sacroiliitis, “he is at least as likely as not employable.” R.
at 36-37. Once again, the
examiner noted that Mr. Castro “can work at sedentary jobs such as his
previous job as a teacher”
3

but that “[h]e should not lift and carry more than 15[-]pound objects and
should not work at
strenuous physically demanding jobs. He should be allowed to sit or stand
on his job as needed.” Id.
A different examiner performed the stomach and duodenal examination and
found that Mr.
Castro had chronic gastritis that impacts his ability to work. However,
the examiner concluded that
the condition “does not preclude [Mr. Castro] from obtaining or
maintaining a regular gainful
employment,” but that he should “always have medication nearby to avoid
exacerbation of
symptoms.” R. at 43.
In September 2013, the Appeals Management Center denied Mr. Castro
entitlement to a total
disability rating based on individual unemployability. He appealed that
decision to the Board.
In December 2013, the Board issued the decision currently on appeal,
denying Mr. Castro
entitlement to a total disability rating based on individual
unemployability, finding that his “service-
connected disabilities do not preclude him from securing and following a
substantially gainful
occupation consistent with his education and work experience.” R. at 4.
This appeal followed.
II. ANALYSIS
On appeal, Mr. Castro makes three arguments. First, he argues that the
Board clearly erred
in findingthathis service-connecteddisabilitiesdonot precludehim
fromobtainingandmaintaining
gainfulemployment.Second,hecontendsthattheBoardfailedto
ensuresubstantialcompliancewith
its August 2013 remand, pursuant to Stegall v. West, 11 Vet.App. 268 (1998
). Specifically, VA did
not obtain an examination that determined the combined effects of his
disabilities on his
employabilityandthereforetheBoardreliedonaninadequateexamination. Third,Mr.
Castroasserts
that the Board provided inadequate reasons or bases for its decision
because it did not address the
combined effect of his disabilities and provided an insufficient
explanation for its findings regarding
favorable lay and medical evidence. The Court agrees with Mr. Castro that
the Board failed to
provide adequate reasons or bases to support its denial of entitlement to
a total disabilityrating based
on individual unemployability.
In Geib v. Shinseki, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, when adjudicating a request for entitlement to a total disability rating based on individual unemployability, VA is “not required to obtain a single medical opinion that addresse[s]
4

the impact of all service-connected disabilities on [a veteran]’s ability to engage in substantially
gainful employment.” 733 F.3d 1350, 1354 (Fed. Cir. 2013).

However, the Federal Circuit emphasized, “To be clear, the VA is expected to give full consideration to
‘the effect of combinations of disability'” and that, “[w]here neither the regional office 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 a [total disability rating based on individual unemployability] claim and facilitate review.” Id.
Shortly thereafter, in Floore v. Shinseki, this Court addressed a similar issue and held that “the need for a combined-effects medical examination report or opinion with regard to” requests for entitlement to a total disability rating based on individual unemployability involving multiple disabilities “is to be determined on a case-by-case basis, and depends on the evidence of record at the time of the decision by the regional office [] or the Board.” 26 Vet. App. 376, 381 (2013). The Court further stated that, regardless of whether a combined-effects medical examination report or opinion is required, “the Board nevertheless must adequately explain how
the record evidence supports its determination that the combined effects of multiple disabilities do not prevent substantially gainful employment.” Id. at 382.
Here,the Board placed great probative weight on the fact that “the August  2013VAexaminer found [Mr. Castro] to be capable of substantially gainful employment upon consideration only of [his] service-connected disabilities.”R. at12. In fact, the Board repeatedly referred to “the”examiner as if there were only one August 2013 VA examination. However, there were three different August 2013 VA examinations–(1) “Hip and Thigh,” R. at 31; (2) “Back (Thoracolumbar Spine),” R. at 36; and (3) “Stomach and Duodenal,” R. at 41–conducted by two different examiners. In other words, there is no single August 2013 examination or examiner that made a finding based on all of Mr. Castro’s service-connected disabilities. As a result, the Board relied on multiple VA examinations that addressed Mr. Castro’s service-connected disabilities individually but did not address the combined effects of Mr. Castro’s service-connected disabilities on his employability.
As noted above, VA was not necessarily required to obtain a single medical opinion addressing the effect of all of Mr. Castro’s service-connected disabilities on his ability to engage in substantially gainful employment, as that is a determination to be made “on a case-by-case basis”
5

depending on the evidence at the time of the regional office or Board decision. Floore, 26 Vet.App. at 381; see also Geib, 733 F.3d at 1354. Therefore, the Court cannot conclude that the Board failed to ensure substantial compliance with the August 2013 remand order merely because a combined-effects medical examination was not obtained. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008)(noting that substantial compliance, not strict compliance, with remand orders is all that is required under Stegall). However, the Board was required to–and did not–discuss the cumulative effects of Mr.Castro’s service-connected disabilities on his employability or acknowledge that the effects must be considered in the aggregate. Therefore, the Court concludes that the
Board erred in failing to give full consideration to the combined effects of Mr. Castro’s service-
connected disabilities in considering his entitlement to a total disability rating based on
individual unemployability.
Additionally, the Court notes that the Board made a conclusory finding
regarding the
favorable laytestimonyand private medical opinions submitted byMr. Castro.
The Board found that
this evidence “generally cite[s] [Mr. Castro]’s non-service-connected
anxiety and depression as the
primary reason for [his] inability to work.” R. at 11. As a result, the
Board placed little probative
weight in this evidence. It is unclear to the Court how the Board reached
the conclusion that these
statements indicate that “the primary reason” for Mr. Castro’s inability
to work are his non-service-
connected disabilities–notably, anxiety and depression–as opposed to
his service-connected
disabilities–notably, leg pain from his service-connected hip
condition–and the Board provided no
further explanation for its finding. See R. at 372 (“He could not give the
class as he did before
because pain in his legs didn’t allow him to be on his feet or sitting; he
felt pain in both ways.”); R.
at 374 (“He works no more for us because he can’t move too much or be
standing too much time.”).
Thus, the Court concludes that the Board failed to properly analyze the
credibility and probative
value of the evidence, account for the evidence that it found to be
persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to Mr. Castro. See Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
Accordingly, vacatur and remand is warranted. See Gilbert v. Derwinski, 1
Vet.App. 49, 57 (1990).
On remand, the Board must consider and explain the combined impact of the
medical
opinions’ individual assessments of Mr. Castro’s service-connected
disabilities on the appropriate
rating, i.e., a total disability rating based on individual
unemployability. See Caluza, 7 Vet.App. at
6

506. In this regard, the Board may want to consider whether a medical examination or opinion addressing the combined effects of Mr. Castro’s service-connected disabilities is necessary in this determination. See Geib, 733 F.3d at 1354;Floore, 26 Vet.App. at 381; see also VA Fast Letter 13–13 (June 17, 2013) (instructing the rating activity to obtain a  medical examination when it “determines that [one] is needed to fairly and fully adjudicate” a claim for entitlement to a total disability rating based on individual unemployability, such as when the issue “involv[es] the impact of multiple service-connected and/or non[-]service-connected disabilities upon employability”). The
Board must also provide an adequate statement of reasons or bases for its
rejection of any material
evidence favorable to Mr. Castro.
Mr. Castro is free to submit additional evidence and argument 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). “A remand is meant to entail a critical
examination of the justification
for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (
1991). In addition, the
Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112.
With regard to Mr. Castro’s argument that the Board clearly erred in
finding that his service-
connected disabilities do not preclude him from obtaining and maintaining
gainful employment,
because the Court is remanding Mr. Castro’s appeal and the Board will
necessarily render a new
decision on remand, the Court need not address this argument at this time.
See Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order) (“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.”). Mr.
Castro is free to raise it to
the Board should he so desire.
7

III. CONCLUSION
Upon consideration of the foregoing, the December 24, 2013, Board decision
is VACATED
and the matter REMANDED for further development, if necessary, and
readjudication consistent
with this decision.
DATED: October 28, 2014
Copies to:
Abigail J. Schopick, Esq.
VA General Counsel (027)
8

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