Veteranclaims’s Blog

December 26, 2014

Single Judge Application; Floore, 26 Vet.App. at 381; Geib, 733 F.3d at 1354; VA Fast Letter 13–13 (June 17, 2013); Cumulative-Effect of Disabilities;

Excerpt from decision below:

“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” 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.”

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

“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 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”). 

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

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: On November 6, 2014, William Roque Castro filed through
counsel a motion for reconsideration of an October 28, 2014, single-judge memorandum decision that vacated and remanded a December 24, 2013, Board of Veterans’ Appeals (Board) decision. The Court will grant Mr. Castro’s motion for reconsideration, withdraw the October 28, 2014, memorandum decision, and issue this decision in its stead.
Mr. Castro appeals a December 24, 2013, Board decision denying entitlement
to a total disability rating based on individual unemployability. Mr. Castro’s Notice of Appeal 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 they believe require a precedential decision of the Court. Because the Board provided inadequate reasons or bases for its decision, the Court will vacate the December 2013 Board decision and remand the matter for further development, if necessary, and readjudication 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.
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 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.
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.
3

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”
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 disabilityrating 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,hecontendsthattheBoardfailedtoensuresubstantial
compliancewith
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
insufficientexplanation for its findings regarding
favorable lay and medical evidence. The Court agrees with Mr. Castro that
the Board failed to
4

provide adequate reasons or bases to support its denial of entitlement to
a total disabilityratingbased
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]
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 FlooreNext Hit 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,theBoardplacedgreat probativeweight onthefact that”theAugust
2013VAexaminer
found [Mr. Castro] to be capable of substantially gainful employment upon
consideration only of
[his] service-connecteddisabilities.”R. at12.Infact,
theBoardrepeatedlyreferredto “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
5

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” 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 lay testimony and private medical opinions submitted by Mr. 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.
6

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 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.
Finally, insofar as Mr. Castro argues that reversal of the Board decision
is the proper remedy,
the Court does not agree. “[W]here 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, a remand is the appropriate remedy.” Tucker v. West, 11 Vet.
App. 369, 374 (1998); see
Hicks v. Brown, 8 Vet.App. 417, 422 (1995). On the other hand, “reversal
is the appropriate remedy
when the only permissible view of the evidence is contrary to the Board’s
decision.” Gutierrez v.
Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7,
10 (1996)).
As the Court explained above, the Board provided inadequate reasons or
bases for its
determination that Mr. Castro’s service-connected disabilities do not
preclude him from obtaining
7

and maintaining gainful employment. Accordingly, the Court concludes that
the Board’s statement
is insufficient for judicial review. Therefore, remand not reversal is the
appropriate remedy. See
Tucker, 11 Vet.App. at 374.

III. CONCLUSION
Upon consideration of the foregoing, Mr. Castro’s motion for reconsideration is GRANTED.
The Court’s October 28, 2014, decision is WITHDRAWN and this opinion is
issued in its stead. The
Board’s December 24, 2013, decision is VACATED and the matter REMANDED for  further development, if necessary, and readjudication consistent with this decision.
DATED: December 2, 2014
Copies to:
Abigail J. Schopick, Esq.
VA General Counsel (027)
8

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: