Veteranclaims’s Blog

December 22, 2014

Single Judge Application, TDIU; Effect Aggravate Disabilities; Todd v. McDonald, __ Vet.App. __, __, No. 13-0067, 2014 WL 4329647 at * 4-5 (Sept. 3, 2014); Geib, 733 F.3d at 1354; Floore, 26 Vet.App. at 382

Excerpt from decision below:

“Given this individualized assessment, the veteran’s assertion that Ms. Beauchaine did not adequately consider his specific symptoms when evaluating his employability cannot prevail. See Todd v. McDonald, __ Vet.App. __, __, No. 13-0067, 2014 WL 4329647 at * 4-5 (Sept. 3, 2014)(discussing the “personalized nature of TDIU”and sanctioning the Board’s reliance on a VA medical opinion that “discussed [the veteran’s] particular disability and complaints and assessed his ability to obtain gainful employment”).

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

“Specifically, the Board discussed Dr. Engler’s opinion, which addressed the combined effects of the veteran’s PTSD, bilateral hearing loss, and tinnitus on employability, and concluded that the other evidence of record supported Dr. Engler’s assessment that Mr. Marten’s service-connected disabilities did not collectively cause an inability to secure and follow a substantially gainful occupation. R. at 12-19. This is precisely the analysis contemplated by § 4.16(b). See Geib, 733 F.3d at 1354 (explaining that VA “is authorized to assess the aggregate effect of all disabilities” and finding no error in this Court’s affirmance of a Board decision that denied TDIU based on medical evidence that showed that the veteran was “employable in the type of sedentary position that he had previously held”); Floore, 26 Vet.App. at 382 (holding that, to comply with the statutory reasons-or-bases requirement in a TDIU case involving multiple service-connected disabilities, 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 therefore discerns no remandable error in the Board’s analysis of that issue.

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0240
MONTE F. MARTEN, 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: VeteranMonteF.MartenappealsthroughcounselaNovember18,2013,
Board of Veterans’ Appeals (Board) decision denying entitlement to a total
disability evaluation
based on individual unemployability (TDIU). Record (R.) at 3-22. 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 in this case. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26
(1990). For the reasons that follow, the Court will affirm the November
2013 Board decision.
I. FACTS
Mr. Marten served on active dutyin the U.S. Armyfrom November1967 to
November1969,
including service in Vietnam for which he earned, inter alia, a Vietnam
Service Medal with two
Bronze Stars, a Combat Infantryman Badge, a Vietnam Campaign Medal, and an
Air Medal. R. at
125. He is currently service connected for post-traumatic stress disorder (
PTSD) with a 50%
evaluation, tinnitus with a 10% evaluation, and bilateral hearing loss
with a noncompensable
evaluation, for a combined evaluation of 60%. R. at 4-5; see R. at 550.
In November 2008, Mr. Marten submitted an application for TDIU (R. at 432-
39), asserting
that PTSD “made it impossible for [him] to work” because he was “unable to
cope with the stress

and the changes at work.” R. at 435. A VA regional office (RO) denied
entitlement to TDIU in
January 2009 (R. at 406-11) and the veteran timely appealed that decision
to the Board (R. at 365,
391-402).
In November 2009, Mr. Marten submitted an October 2009 letter from private
psychologist
Dr. James K. Cole, who diagnosed PTSD and dysthymic disorder. R. at 361.
Dr. Cole stated that
the predominant symptoms of the veteran’s PTSD were irritability and anger
arousal, which caused
relationship disturbances and alienation from family. R. at 363. He noted
that Mr. Marten suffered
from sleep problems and occasional severe nightmares related to traumatic
experiences in Vietnam,
but attributed depression to loss of employment. Id. Dr. Cole opined:
[I]t appears likely that his PTSD, his age, and his susceptibility to
anger and
irritability would interfere with Mr. Marten’s current ability to maintain
a productive
relationship with an employer. Mr. Marten has a recurrent emotional
disorder that
is related to his current unemploy[ment] and his unemployable status is in
part
service[-]connected (i.e. PTSD symptoms).
Id.
The next month, Mr. Marten underwent a VA PTSD examination with
psychologist Dr.
James H. Mathisen. R. at 337-45. The veteran reported that he had been
unemployed since 2007
because of PTSD and “service-related medicalissues,”but indicated that he ”
wouldn’t mind working
but . . . probably won’t.” R. at 344. After reviewing the claims file,
eliciting a medical history, and
performing a mental status examination and various diagnostic tests, Dr.
Mathisen diagnosed PTSD
and major depressive disorder. Id. He then acknowledged Dr. Cole’s opinion
and stated:
I agree with Dr. Cole in the part that the PTSD does play a part or is a
contributing
factor in his ability to secure gainful employment. However, the veteran’s
level of
intervention[] and PTSD symptom reporting on the [PTSD military checklist]
and
[Clinical-Administered PTSD Scale] is not of sufficient magnitude to make
him
totally unemployable solely due to PTSD. His level of PTSD is moderate as
compared to the overall claim of impairment due to those mental disorders.
Id.
In May 2011, the Board denied entitlement to TDIU. R. at 264-75. Mr.
Marten appealed to
the Court and subsequentlyentered into a joint motion for remand (JMR),
which specified, inter alia,
that VA had not yet afforded him an adequate medical examination as to
unemployability. R. at 244-
2

49. In April 2012, the Court granted the JMR (R. at 243), and in
September 2012, the Board
remanded the case for the agreed upon development (R. at 156-59).
In November 2012, Mr. Marten underwent VA audiology and mental health
examinations.
R. at 62-83. A VA audiologist, Daniel L. Chadwell, diagnosed bilateral
sensorineural hearing loss
and recurrent tinnitus and indicated that those conditions did not impact
the ordinary conditions of
daily life, including the ability to work. R. at 66-67, 69, 71.
A VA psychologist, Dr. John P. Engler, diagnosed PTSD with depressive
symptoms and
opined that the condition caused occupational and social impairment with
occasional decreases in
work efficiency and intermittent inability to perform occupational tasks.
R. at 73-75. In the section
of his report entitled “Evidence Review,” Dr. Engler quoted Dr. Mathisen’s
entire opinion, including
his statement that the veteran’s PTSD was “not of sufficient magnitude to
make him totally
unemployable solely due to PTSD.” R. at 77-78. Dr. Engler then obtained a
medical history from
the veteran covering the time since Dr. Mathisen’s examination and
performed a mental status
examination and diagnostic tests. R. at 78-83. Based on the foregoing, he
concluded that it was less
likely than not that Mr. Marten’s PTSD rendered him unable to find and
maintain substantially
gainful employment. R. at 83.
The RO subsequently reviewed the November 2012 VA examination reports and
returned
them for clarification. R. at 60-61. In December 2012, another VA
audiologist, Kathryn L.
Beauchaine, provided the following opinion:
High frequency hearing loss such as the veteran has does affect hearing in
noisy
backgrounds. Thus, he might confuse some consonant sounds and need
repetition
in what is said to him. In his work in pest control, the anticipated
effects would be
minimal. The tinnitus can cause distress, and he had stated that it is
extremely
bothersome. . . . In his work, the tinnitus could create some distraction.
While the
veteran is service connected for hearing loss at 0% and tinnitus at 10%,
and he has
reported “difficulties understanding speech in background noise and
constant
bilateral tinnitus that is extremelybothersome,” [t]hese symptoms alone do
not result
in a significant[ e]ffect on his vocational potential or limit
participation in most work
activities or render the veteran unable to find or maintain substantially
gainful
employment. . . . He has normal hearing in the low frequencies, and he has
very
good word recognition (without visual or contextual cues) per prior tests
[,] which
suggests that he could hear well enough to perform most work duties in a
wide range
of environments.
3

R. at 57-58.
In February 2013, Dr. Engler provided an addendum to his earlier mental
health opinion. R.
at 50-54. Dr. Engler stated that Mr. Marten’s PTSD with depression made
him uncomfortable in
social situations–especially around large groups–and caused
difficulties interacting with
others–including co-workers, supervisors, and the general public–due
to a short temper and a
tendencyto be explosive. R. at 51. He explained that those symptoms would ”
occasionallydecrease
[the veteran’s] efficiency in work situations” and that he would “have [an]
intermittent inability to
perform occupational tasks, but only under periods of significant stress.”
R. at 51-52. He otherwise
stated that Mr. Marten was “generally functioning satisfactorily, with
normal routine behavior,
self-care[,] and conversation.” R. at 52. Ultimately, Dr. Engler opined
that it was less likely than
not that the veteran’s PTSD–”when considered with his hearing loss and
tinnitus,” which he
characterized as “mild”–would render him unable to find and maintain
substantially gainful
employment. R. at 53.
The case was returned to the Board and, in November 2013, it issued the
decision currently
on appeal, which denied entitlement to TDIU. R. at 3-22. The Board
discounted Dr. Cole’s opinion
because it was based in part on Mr. Marten’s age, showed that PTSD
interfered with but did not
preclude employment, and was internallyinconsistent as to the severityof
his condition. R. at 14-15.
The Board stated that, “even if one were to conclude that this opinion,
read alone in isolation, could
support a grant of benefits in this case, the fact remains that all of the
additional medical
evidence”–including the November 2012 VA opinions, subsequent addenda,
and VA treatment
records–”weighs against such a conclusion.” R. at 15. This appeal
followed.
II. ANALYSIS
TDIU will be awarded when a veteran is unable to secure or follow a
substantially gainful
occupation as a result of a service-connected disability or disabilities.
38 C.F.R. § 4.16(a) (2014).
“[T]he central inquiry in determining whether a veteran is entitled to
TDIU is whether the veteran’s
service-connecteddisabilitiesaloneareofsufficientseverityto
produceunemployability.” Hatlestad
v. Brown, 5 Vet.App. 524, 529 (1993). Where, as here, the veteran’s
service-connected disabilities
do not meet the numeric evaluation requirements for TDIU set forth in § 4.
16(a), the veteran may
4

be granted TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b).
Although entitlement to
extraschedular TDIU is determined in the first instance by the Director of
VA’s Compensation
Service (Director), the RO and the Board are tasked with making the
threshold determination that
referral to the Director for extraschedular consideration is appropriate.
Id.; see Bowling v. Principi,
15 Vet.App. 1, 10 (2001). That threshold determination must be supported
with “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).
A. Adequacy of the November 2012 VA Medical Opinions and Addenda
Mr. Marten argues that the Board clearlyerred in relying on the November
2012 VA medical
opinions and addendabecause theywere inadequate for evaluation purposes.
Appellant’s Brief (Br.)
at 5-10. The Court disagrees.
A VA medical examination or opinion is adequate “where it is based upon
consideration of
the veteran’s prior medical history and examinations,” Stefl v. Nicholson,
21 Vet.App. 120, 123
(2007), “describes the disability . . . in sufficient detail so that the
Board’s ‘evaluation of the claimed
disabilitywill be a fullyinformed one,'” id. (quoting Ardison v. Brown, 6
Vet.App. 405, 407 (1994)),
and “sufficiently inform[s] the Board of a medical expert’s judgment on a
medical question and the
essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App.
97, 105 (2012). See Green
v. Derwinski, 1 Vet.App. 121, 124 (1991). “If a diagnosis is not supported
by the findings on the
examination report or if the report does not contain sufficient detail, it
is incumbent upon the rating
board to return the report as inadequate for evaluation purposes.” 38 C.F.
R. § 4.2 (2014); see
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical
examination report must
contain not only clear conclusions with supporting data, but also a
reasoned medical explanation
connecting the two.”). The Court reviews the Board’s determination that a
medical examination or
opinion was adequate under the “clearly erroneous” standard of review set
forth in 38 U.S.C.
§ 7261(a)(4). D’Aries v. Peake, 22 Vet.App. 97, 104 (2008).
1. VA Mental Health Opinion and Addendum
Mr.Marten first argues that Dr. Engler’s November2012mentalhealthopinion
andFebruary
2013 addendum were inadequate because Dr. Engler “misunderstood the basic
core of TDIU and
employed an inappropriately, more burdensome analysis” by requiring that
the veteran be “totally
5

unemployable” to establish TDIU. Appellant’s Br. at 7. This argument is
unpersuasive for two
reasons.
First, although Dr. Engler quoted Dr. Mathisen’s opinion that the
veteran’s PTSD was “‘not
of sufficient magnitude to make him totally unemployable'” (R. at 52, 77-
78 (both quoting R. at
344))andexpressedagreementwith thatassessment (R.at52),Dr.Englerdid not
erroneouslyequate
total unemployability with an inability to secure or follow a
substantially gainful occupation. See
Roberson v. Shinseki, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (holding that
an award of TDIU does
not require that the veteran be “100% unemployable”). Rather, he
identified those PTSD symptoms
that would affect Mr. Marten’s employability–a short temper and a
tendency to be explosive;
explained how those symptoms would manifest in the workplace–by causing
discomfort in social
situations and difficulties interacting with co-workers, supervisors, and
the general public; and
quantifiedthelevelofoccupational
impairmentthosesymptomswouldcause–anoccasionaldecrease
in work efficiency and an intermittent inability to perform occupational
tasks when under periods
of significant stress. R. at 51-52; see also R. at 75 (indicating that Mr.
Marten’s PTSD caused
“[o]ccupational and social impairment with occasional decreases in work
efficiencyandintermittent
inability to perform occupational tasks, although generally functioning
satisfactorily, with normal
routine behavior, self-care[,] and conversation,” not “[t]otal
occupational and social impairment”).
Dr.Engleragreedwith Dr.Mathisenthattheveteran’sPTSD symptoms were ”
moderate” and
caused employment difficulties but did not preclude substantially gainful
employment. R. at 52-53,
77-78. Indeed, Dr. Engler explicitly found that Mr. Marten’s PTSD both
alone (R. at 83) and in
conjunction with his other service-connected disabilities (R. at 53) did
not render him unable to find
and maintain substantially gainful employment. Thus, when Dr. Engler’s
November 2012 opinion
and February 2013 addendum are read as a whole, it is clear that he did
not employ the incorrect
unemployability standard that the veteran alleges. See Monzingo, 26 Vet.
App. at 106 (explaining
that the Court must review a medical examination report or opinion “as a
whole” to determine
whether the Board clearly erred in assessing its adequacy).
Second, it is the Board, not the examiner, that is tasked with determining
whether the veteran
is unable to secure or follow a substantially gainful occupation by reason
of service-connected
disabilities. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (
explaining that “applicable
6

regulations place responsibility for the ultimate TDIU determination on
the VA, not a medical
examiner”); see Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (“The
medical examiner provides
a disabilityevaluation and the rating specialist interprets medical
reports in order to match the rating
with the disability.”), rev’d on other grounds sub nom. Moore v. Shinseki,
555 F.3d 1369 (Fed. Cir.
2009); 38 C.F.R. § 4.2 (2014) (“It is the responsibility of the rating
specialist to interpret reports of
examination . . . so that the current rating mayaccurately reflect the
elements of disability present.”).
Even assuming that Dr. Engler erred in endorsing Dr. Mathisen’s comments
regarding total
unemployability, the remainder of his findings provided a sufficient
evidentiary basis from which
the Board could make the ultimate employability determination required by §
4.16(b). As outlined
above, Dr. Engler adequately described the veteran’s PTSD symptoms and
their effects on his
employability (R. at 51-52) and provided the detail necessary for the
Board to make an informed
decision as to referral for consideration of extraschedular TDIU. See
Stefl, 21 Vet.App. at 123;
Ardison, 6 Vet.App. at 407. Thus, his assessment of the veteran’s
employability was not inadequate
in that regard. See Geib, 733 F.3d at 1354 (finding no error where the
medical evidence of record
“provided a sufficient description of the respective injuries to support
the Board’s ultimate
conclusion regarding employability”).
Mr. Marten’s second challenge to the adequacy of Dr. Engler’s November
2012 opinion and
February2013 fares no better. Specifically, Mr. Marten asserts that the
Board clearlyerred in relying
on those documents because Dr. Engler “failed to explain how often [the
veteran] suffered from
‘significantstress,’whetherthe’significantstress’wasmeasurable,
andwhetherthe’significantstress’
was predictable.” Appellant’s Br. at 8. Contrary to the veteran’s
contention, Dr. Engler was not
under any obligation to answer those highly specific questions because ”
there is no reasons or bases
requirement imposed onexaminers,”Acevedov.Shinseki,25Vet.App.286,293(2012),
and because
his opinion was otherwise sufficientlydetailed to enablethe Board to make
a fullyinformed decision
as to TDIU, see Stefl, 21 Vet.App. at 123; Ardison, 6 Vet.App. at 407.
Although Mr. Marten characterizes Dr. Engler’s adverse employability
opinion as
“conclusory” and alleges that it “lacks supporting analysis” (Appellant’s
Br. at 8), Dr. Engler
chronicled the veteran’s symptoms and explained how and to what extent
those symptoms affected
occupational functioning, thereby connecting his ultimate conclusion that
the veteran’s service-
7

connected disabilities did not preclude substantially gainful employment
to the specific findings in
his reports. He thus provided an adequate rationale for his opinion, and
the veteran’s argument to
the contrary must fail. See Monzingo, 26 Vet.App. at 105; Nieves-Rodriguez,
22 Vet.App. at 301.
Accordingly, the Court concludes that the Board did not clearly err in
finding Dr. Engler’s
November 2012 opinion and February 2013 addendum adequate for evaluation
purposes, and the
Board therefore did not err in relying on them. See D’Aries, 22 Vet.App.
at 104.
2. VA Audiology Opinion and Addendum
Mr. Marten next argues that the November 2012 audiology opinion and
December 2012
addendum were inadequate because Ms. Beauchaine, the audiologist who
authored the addendum,
“failed to employ an analysis based on [the veteran’s] specific facts” and ”
instead used a generic
focus which found [his] symptoms did not affect ‘most’ work activities,
without any consideration
or discussion of what those activities were, and whether theyare relevant
to [his] specific situation.”
Appellant’s Br. at 9-10. This argument is flawed in two respects.
First, Mr. Marten’s assertions that Ms. Beauchaine ignored the “specific
facts” of this case
and employed an erroneously “generic”analysis
arecontradictedbyaplainreadingofher addendum
opinion. Regarding hearing loss, Ms. Beauchaine noted the veteran’s
complaint of difficulty
understanding speech through background noise, acknowledged that the
veteran’s degree of high
frequencyhearinglosswasconsistent with suchacomplaint,andexplained
thattheveteran’s specific
hearing loss condition would likely cause him to confuse some consonant
sounds and require
repetition from others. R. at 57. Likewise, as to tinnitus, Ms. Beauchaine
recorded the veteran’s
complaints of constant ringing in both ears and stated that such ringing
could cause some distraction
in his chosen line of work. Id.
However, Ms. Beauchaine opined that Mr. Marten’s bilateral hearing loss
and tinnitus would
have only a “minimal” effect on his work in pest control because he had ”
normal hearing in the low
frequencies” and “very good word recognition (without visual or contextual
cues) . . .[,] which
suggests that he could hear well enough to perform most work duties in a
wide range of
environments.” R. at 57-58. She therefore concluded that Mr. Marten’s
service-connected ear
disabilities did “not result in a significant[ e]ffect on his vocational
potential or limit participation
in most work activities or render the veteran unable to find or maintain
substantially gainful
8

employment.” Id. Given this individualized assessment, the veteran’s assertion that Ms. Beauchaine did not adequately considerhis specificsymptoms when evaluating his employability cannot prevail. See Todd v. McDonald, __ Vet.App. __, __, No. 13-0067, 2014 WL 4329647 at * 4-5 (Sept. 3, 2014)(discussing the “personalized nature of TDIU”and sanctioningthe Board’s reliance on a VA medical opinion that “discussed [the veteran’s] particular disability and complaints and assessed his ability to obtain gainful employment”).
Second, Ms. Beauchaine was not required to provide the level of detail
alleged by Mr.
Marten. The purpose of her addendum opinion was to provide an assessment
of the veteran’s
employability that would enable the Board to make an informed decision as
to his ability to secure
and follow a substantially gainful occupation (see R. at 60-61), and her
discussion of the functional
impairment caused by the veteran’s bilateral hearing loss and tinnitus
satisfied that purpose. See
Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that a VA medical
opinion was not
inadequate even though it lacked certain details requested by the Board
because the examiner
provided the information necessary to decide the claim). It was simply not
required, as the veteran
contends, that Ms. Beauchaine identify specific work activities he could
perform or otherwise
suggest a feasible occupation for him. See Smith v. Shinseki, 647 F.3d
1380, 1384 (Fed. Cir. 2011)
(holding that § 4.16 does not require that VA conduct an industrial
survey or identify specific jobs
that the veteran could perform in the national or local economy); Acevedo,
25 Vet.App. at 293.
Mr. Marten’s other attack on the adequacy of the November 2012 audiology
opinion and
December 2012 addendum is equally unavailing. He argues that those
documents are inadequate
for evaluation purposes because neither Mr. Chadwell nor Ms. Beauchaine
addressed the “combined
effects” of his service-connected disabilities. Appellant’s Br. at 10.
However, they were not
obligated to do so because the record contains other evidence as to the
combined effects of his
service-connecteddisabilities–i.e.,Dr.Engler’s
February2013addendumopinion(R.at53)–thatwas
sufficient to enable the Board to make the employability determination for
TDIU purposes. See
Geib, 733 F.3d at 1354; see also Floore v. Shinseki, 26 Vet.App. 376, 381 (
2013) (holding that a VA
medical opinion was not inadequate solelybecause it did not contain an
assessment of the combined
effects of the veteran’s multiple service-connected disabilities on
employability). Thus, to the extent
that Mr. Marten is challengingthe adequacyof the VA audiologyopinion and
addendum on the basis
9

that neither audiologist addressed the occupational impairment caused
byservice-connected mental
disorders, his argument must fail.
In light of the foregoing, the Court concludes that the Board did not
clearly err in finding the
November2012audiologyopinion
andDecember2012addendumadequateforevaluationpurposes,
and the Board therefore did not err in relying on them. See D’Aries, 22
Vet.App. at 104.
B. Reasons or Bases
Mr. Marten also argues that the Board provided inadequate reasons or bases
for denying
entitlement to TDIU because the Board (1) did not account for the ”
unspecified times of ‘significant
stress'” identified by Dr. Engler or the adversely affected work
activities referenced by Ms.
Beauchaine; (2)erroneously discounted Dr.Cole’s favorable opinion; (3)did not
adequately consider
the combined effects of the veteran’s multiple service-connected
disabilities; and (4) failed to
produce affirmative evidence of unemployability. Appellant’s Br. at 11-13;
Reply Br. at 6-7. None
of these arguments is persuasive.
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 the evidence, account for evidence it finds
persuasive or unpersuasive, and
provide reasons for rejecting 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).
Mr. Marten’s first reasons-or-bases argument lacks merit because it is
merely a repackaging
of his challenge to the adequacy of the VA medical opinions, which the
Court has already rejected.
To the extent that he is contending that the Board failed to adequately
discuss specific favorable
findings within those medical opinions, he is also mistaken. The Board
noted Dr. Engler’s statement
about the veteran’s occupational impairment during periods of significant
stress (R. at 12-13) and
found that his elevated impairment during those intermittent periods, when
considered in the context
of his otherwise moderate PTSD symptoms, was not sufficient to preclude
substantially gainful
employment (R. at 15-17). Likewise, the Board noted Ms. Beauchaine’s
statement that the veteran’s
10

bilateral hearing loss and tinnitus did not affect most work duties (R.
at 11)–implicitly
acknowledging, as Mr. Marten contends (Appellant’s Br. at 11-12), that
those conditions did affect
some work duties–but found that the mild symptoms of those disabilities
did not result in an inability
to secure and follow a substantially gainful occupation (R. at 17-19). The
Board’s discussion of that
evidence was sufficient to satisfy the reasons-or-bases requirement.
The Court is similarly unconvinced by Mr. Marten’s argument that the Board
improperly
discounted Dr. Cole’s positive unemployability opinion based on the ”
evidentiary factor” of the
degree of interference with employment. Appellant’s Br. at 12-13. This
argument is nothing more
than a disagreement with the Board’s weighing of that evidence, which,
absent clear error, does not
compel remand. See Smith v. Shinseki, 24 Vet.App. 40, 48 (2010) (“The
Board, not the Court, is
responsible for assessing the credibility and weight to be given to
evidence, and the Court may
overturn the Board’s assessments only if they are clearly erroneous.” (
citing Owens v. Brown,
7 Vet.App. 429, 433 (1995))). Given Mr. Marten’s concession that the
degree of impairment caused
by his service-connected disabilities was a “factor” to be weighed by the
Board in determining the
probative value to be assigned to Dr. Cole’s opinion (Appellant’sBr. at 12-
13), his disagreement with
the Board’s discounting of that opinion on the basis of that factor is
insufficient to demonstrate clear
error. See Gilbert, 1 Vet.App. at 53 (explaining that the Court “is not
permitted to substitute its
judgment for that of the [Board] on issues of material fact” and may not
overturn a Board finding
of fact, such as the weight to be accorded evidence, “if there is a
‘plausible’ basis in the record for
[that determination]”).
Even if the Board had clearly erred in discounting Dr. Cole’s opinion on
that basis, the Board
provided two other reasons for reducing the probative value of that
opinion, neither of which the
veteran challenged and both of which are legally tenable. R. at 14 (
discounting Dr. Cole’s opinion
because it took the veteran’s age into account and was internally
inconsistent with the findings
recorded therein); see Nieves-Rodriguez, 22 Vet.App. at 301 (requiring an
examiner to support his
or her conclusions with data and a reasoned medical explanation); 38 C.F.R.
§ 4.2 (stating that an
examination is inadequate for evaluation purposes if the examiner’s
conclusion is “not supported by
the findings on the examination report”); 38 C.F.R. § 4.19 (2014) (“Age
may not be considered as
afactorin evaluatingservice-connecteddisability;andunemployability,in
service-connectedclaims,
11

associated with advancing age or intercurrent disability, may not be used
as a basis for a total
disability rating.”). Moreover, the Board explained that, even if it were
to fully credit Dr. Cole’s
opinion, that opinion would still be outweighed by the negative VA
opinions and the VA treatment
records showing that the veteran was not unemployable. R. at 15. Mr.
Marten has not identified a
reason why that weighing was clearly erroneous, nor has he demonstrated
any other inadequacy in
the Board’s explanation of that weighing. In short, he has failed to
carryhis burden of demonstrating
remandable error in that regard. See Hilkert v. West, 12 Vet.App. 145, 151 (
1999) (holding that the
appellant bears the burden of demonstrating error on appeal), aff’d per
curiam, 232 F.3d 908 (Fed.
Cir. 2000) (table).
Mr. Marten’s third challenge to the Board’s statement of reasons or bases
is similarly
unavailing because, contrary to his argument (Reply Br. at 6), the Board
adequately considered and
addressed whether his service-connected disabilities collectively
precluded substantially gainful
employment. Specifically, the Board discussed Dr. Engler’s opinion, which addressed the combined
effects of the veteran’s PTSD, bilateral hearing loss, and tinnitus on employability, and concluded
that the other evidence of record supported Dr. Engler’s assessment that Mr. Marten’s service-
connected disabilities did not collectively cause an inability to secure and follow a substantially
gainful occupation. R. at 12-19. This is precisely the analysis contemplated by § 4.16(b). See Geib, 733 F.3d at 1354 (explaining that VA “is authorized to assess the aggregate effect of all disabilities” and finding no error in this Court’s affirmance of a Board decision that denied TDIU based on medical evidence that showed that the veteran was “employable in the type of sedentary position that he had previously held”); Floore, 26 Vet.App. at 382 (holding that, to comply with the statutory reasons-or-bases requirement in a TDIU case involving multiple service-connected disabilities, 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 therefore discerns no remandable error in the Board’s analysis of that issue.
Finally, the record does not support Mr. Marten’s suggestion that the
Board erroneously
rejected entitlement to TDIU based on “mere conjecture” and without ”
producing evidence . . . that
[he] can perform work that would produce sufficient income to be other
than marginal.” Reply Br.
at 7 (citing Beaty v. Brown, 6 Vet.App. 532, 537 (1994)). As outlined
above, the Board based its
12

decision on affirmative evidence that showed that Mr. Marten was able to
secure and follow a substantially gainful occupation, including adequate VA opinions and
addenda, not mere conjecture as to his employability. Thus, the veteran’s final assertion of error is
unfounded.
III. CONCLUSION
Upon consideration of the foregoing, the November18,2013,Board decision is
AFFIRMED.
DATED: November 12, 2014
Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
13

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