Veteranclaims’s Blog

January 23, 2015

Single Judge Application; Floore, 26 Vet.App. at 382; Cumulative Functional Impairment;

Excerpt from decision below:

“B. Consideration of Aggregate Effects
Mr. Johnson next contends that the Board erred because it failed to consider the aggregate
effects of his service-connected disabilities on his employability. He argues that “the Board ‘never
6

explained what the cumulative functional impairment of all [the Veteran’s]
service-connected disabilities might be and why they do not prevent substantially gainful employment.'” Appellant’s Brief at 15 (quoting Floore, 26 Vet.App. at 382) (brackets in original).
The Court agrees.

After a lengthy recitation of the medical opinions regarding employability,
the Board stated: In this case, the evidence of record is against a finding that [Mr.
Johnson’s] service [-]connected disabilities either individually or collectively render him
unable to secure and follow a substantially gainful occupation. In this regard, in
the multiple VA examinations documented, the examiners consistently conclude that[,]
based on [Mr. Johnson’s] education, prior work history and experience, he could engage in sedentary or semi-sedentary employment. These conclusions were based on interview[s] of [Mr. Johnson], review of the claims file[,] and examination of [Mr. Johnson]. [Mr. Johnson] has not presented any evidence that contradicts the opinions of the VA examiners and has not suggested that the examinations were inadequate in any way.R. at 15-16.
It is well settled that the Board is not permitted to merely list the relevant evidence and then state a conclusion. See Abernathy v. Principi, 3 Vet.App 461, 465 (1992) (holding that merely listing the relevant evidence is not adequate to fulfill the Board’s obligation to provide a statement of reasons or bases for its decision). That is, however, essentially what the Board did in this case.
The Board’s analysis, quoted in its entirety above, contains no discussion of the varying findings of the medical examiners with respect to Mr. Johnson’s ability to work and in what kind of setting. In particular, the Board did not acknowledge the multiple psychiatric assessments that indicated that Mr. Johnson would have a difficult time in any work setting in which he was required to have regular contact with others. The Board also did not reconcile those findings with later psychological findings that Mr. Johnson’s work limitations were primarily physical.
Notably, the Board did not assign relative probative weight to the varying psychological assessments; the Court therefore presumes that the Board accepted each as equally probative, a curious outcome, given their varying conclusions as to the effect of Mr. Johnson’s post-traumatic stress disorder on his ability to work. In sum, it is not enough, given the evidence in this case, to conclude that Mr. Johnson could work in a sedentary or semi-sedentary job, which only accounts for his physical limitations and ignores the evidence of his psychological limitations.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0404
MICHAEL R. JOHNSON, 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: Michael R. Johnson appeals through counsel a January 17,
2014, Board of
Veterans’ Appeals (Board) decision that denied entitlement to a total
disability rating based on
individual unemployability.1
Mr. Johnson’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 failed to provide adequate reasons or bases for
its decision, the Court will
vacatetheJanuary2014Boarddecisionandremandthematterforreadjudicationconsis
this
decision.
The Board also denied entitlement to a disability rating in excess of 40%
for residuals of a compression
fracture at the L-1 vertebra with mechanical low back pain, degenerative
spurring of the lumbar vertebral bodies, and
chronic pain syndrome, on an extraschedular basis. In his briefs, Mr.
Johnson raises no arguments with the Board’s
decision on that issue, and the Court therefore considers that issued
abandoned. See Cacciola v. Gibson, 27 Vet.App.
45, 57 (2014) (holding that, when an appellant expressly abandons an
appealed issue or declines to present arguments
as to that issue, the appellant relinquishes the right to judicial review
of that issue, and the Court will not decide it);
Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or
claims not argued on appeal are considered
abandoned).
1

I. FACTS
Mr. Johnson served on active duty in the U.S. Army from May 1977 to May
1981 and from
July 1986 to April 1988.
In November 1998, a VA regional office granted Mr. Johnson entitlement to
VA disability
benefits for low back, left tibia, bilateral foot, sinus, and jaw
disabilities, with a combined disability
rating of 10%. As of January 2005, Mr. Johnson’s combined disability
rating was 50%, including
a 40% disability rating for his low back disability.
InJune2007,Mr.Johnson submitted a request for a total
disabilityratingbasedonindividual
unemployability,assertingthathis service-connecteddisabilities,
particularlyhis lowbackdisability,
prevented him from working full-time. He stated that he had not worked
full-time since October
1997. On his application for a total disability rating based on individual
unemployability, Mr.
Johnson indicated that, in various part-time jobs between October 2003 and
April 2007, his highest
gross earnings per month were $82.04, $280, $800, $450, and $130.
In October 2008, the regional office denied entitlement to a total
disability rating based on
individual unemployability, finding that the evidence did not show that Mr.
Johnson’s service-
connecteddisabilitiesprecludedhim”
fromobtainingandmaintaininggainfulemployment.” Record
(R.) at 1014. In particular, the regional office stated that “[e]mployment
information obtained . . .
fails to show that prior employment required special concessions or that
it was ended/terminated due
to” his service-connected disabilities. Id. Mr. Johnson filed a Notice of
Disagreement with that
decision and ultimately appealed to the Board.
A December 2010 VA examiner opined:
[T]he “average worker[,]” without regard to age[, and] given the same
disability/severity of these conditions[,] would less likely than not have
difficulty
with prolonged weight bearing activities including standing, walking,
bending. The
worker would less likely than not have difficulty with pushing, pulling,
lifting,
carryingandworkingoverhead. Thereisnoobjectiveevidence to suggestanyimpact
on ability to sit, drive, communicate, follow instructions, remember,
concentrate,
interact with coworkers and clients and/or other sedentary
social/occupational
activities. The veteran should be considered for participation in work
activities that
uplift humanity, encourage dignity and importance, and be undertaken with
painstaking excellence.
R. at 520.
2

In the meantime, Mr. Johnson sought benefits for post-traumatic stress
disorder. In the
course of that claim, medical examiners opined that Mr. Johnson “would
have difficulty working in
settings where he had to have more than very brief and superficial contact
with others,” R. at 1050
(September 2008 VA post-traumatic stress disorder examination), that his
post-traumatic stress
disorder symptoms “would significantly impact his ability to perform work
duties,” id., and that he
could perform sedentary work if he continued psychiatric treatment and if
he was not too closely
involved with other people,R. at495(January2011VApost-
traumaticstressdisorderexamination).
InMarch2011,theregionalofficegrantedMr.Johnson’sclaimforbenefits forpost-
traumatic
stress disorder, assigning a 10% disability rating. Subsequently, VA
increased this disability rating
to 30%, bringing his combined disability rating to 70%.
In July 2011, Mr. Johnson testified before a Board member that he had not
worked full-time
since 1997 because of back pain, that he currentlyworked part-time as a
receptionist, and that he was
unable to sit for more than 30 minutes without getting up to stretch his
back.
In January2012, the Board remanded Mr. Johnson’s request for a total
disabilityrating based
on individual unemployability to obtain his vocational rehabilitation file
as well as for an
examination to determine whether it is at least as likely as not that Mr.
Johnson’s service-connected
disabilities prevent him from securing or maintaining substantially
gainful employment.
In February 2012, a lengthy VA general medical examination was conducted
by a nurse
practitioner in accordance with the Board’s remand. The examination report
stated that “[m]ental
disorder evaluations must be conducted by a specialist.” R. at 157. The
examiner recorded Mr.
Johnson’s work history, including that he stopped working in 1997 because
he was sent to prison for
six years, that he worked part-time between 2003 and 2006, and that he had
not worked at all since
2006. The examiner stated:
While [on active duty] and post[-]discharge[,] the veteran was granted
several years
of financial support for education through VA Voc[ational] Rehab[ilitation
and] he
subsequently received 2 degrees, one in accounting and the other in
business
management. Later in his post[-]discharge years[,] he returned to college
once again
via voc[ational] rehab[ilitation] and attempted a [third] degree but quit
the program
and chose not to finish. Considering these extensive educational
opportunities,
interview, exam[,] and evaluation of [service-connection] medical cond[
itions], this
veteran is clearly capable of sedentary or partial sedentary work if he
wished to do
so. He states he is a master mechanic and does all his own mechanic work. [
H]e
3

reports comprehensive computer skills which he continues to develop in
his home
office. He sat comfortable during the exam, he is able to communicate
successfully.
[Physical examination] was essentially normal for a 62[-]year[-]old man.
There is
no reason why this veteran cannot work.
R. at 160.
Also in February 2012, Mr. Johnson underwent a VA post-traumatic stress
disorder
examination. The examining clinical psychologist found that Mr. Johnson
had “[o]ccupational and
social impairment due to mild or transient symptoms [that] decrease work
efficiency and ability to
perform occupational tasks only during periods of significant stress, or[]
symptoms controlled by
medication.” R. at 148. The examiner then stated that Mr. Johnson would ”
do best in jobs that do
not require a great deal of interpersonal contact, and this would be due
to [post-traumatic stress
disorder].” The examiner recorded that Mr. Johnson was
well educated, with college degrees in business, accounting, [and]
computer
technology. Since the last exam[, Mr. Johnson] has been a client of Voc[
ational]
Rehab[ilitation], but has been unable to find work. He said he liked the
voc[cational]
rehab[ilitation] program, but he was constantly experiencing back and leg
pain,
which made it difficult for him to be a successful employee. Asked if the [
post-
traumatic stress disorder] interfered with work, he replied that it makes
it hard for
[him] to get along with people. However, he also noted that the pain made [
him]
irritable, which also made it hard for him to get along. All in all, defin[
i]tely left me
with the impression that pain is the primary limiting factor in this
domain.
R. at 150. The examiner concluded that “[m]ost work limitations appear to
be due to pain and
physical problems.” R. at 154.
In a March 2012 addendum, the February 2012 VA psychologist stated: ”
Psychological
symptoms appear to be mild, and the main obstacles to work are related to
his physical problems.
[Mr. Johnson] is well educated and should be able to do a variety of
sedentary jobs.” R. at 119.
Following a February 2013 remand from this Court on the currently
unappealed issue of
entitlement to referral for consideration of an extraschedular disability
rating, VA obtained an April
2013 addendum to the February 2012 VA general medical examination,
completed by a physician’s
assistant. The examiner noted that Mr. Johnson had previously worked in
sales, as a telemarketer,
as an accountant, and as a business administrative aide, and that he had
degrees in at least two of
those fields. The examiner concluded that “neither lumbar spondylosis nor
a prior compression
4

[fracture] are inherently disabling conditions, and [Mr. Johnson’s]
ability to perform multiple tests
of back, spine, trunk, and extremities shows that he is functionally able
to perform tasks required in
sedentary and semi-sedentary employment.” R. at 92.
In January 2014, the Board issued the decision on appeal, denying
entitlement to a total
disabilityratingbasedonindividual unemployability,findingnoevidencethatMr.
Johnsonis unable
to secure or maintain substantially gainful employment. This appeal
followed.
II. ANALYSIS
A. Compliance with Prior Remand
On appeal, Mr. Johnson first argues that the Board failed to ensure
compliance with its
January 2012 remand order because he was not given a single examination
that considered all of his
service-connected disabilities collectively. This argument is unpersuasive.
Substantial compliance,not strictcompliance,with remandorders is allthatis
requiredunder
Stegall v. West, 11 Vet.App. 268, 271 (1998). See D’Aries v. Peake, 22 Vet.
App. 97, 105 (2008)
(holding that there was no error in deviating from terms of remand order ”
because the Board
recognized the deviation from its request, thoroughly analyzed the medical
opinion provided, and
provided sufficient reasons for its reliance thereon”); Dyment v. West, 13
Vet.App. 141, 146–47
(1999) (holding that there was no Stegall violation when the examiner made
the ultimate
determination required bythe Board’s remand, because such determination ”
more than substantially
complied with the Board’s remand order”).
There is, in fact, no requirement that a single examination be conducted
to assess the
aggregate effect of service-connected disabilities on employability. Geibv.
Shinseki,733 F.3d1350,
1354 (Fed. Cir. 2013) (“VA was not required to obtain a single medical
opinion that addressed the
impact of all service-connected disabilities on [the appellant’s] ability
to engage in substantially
gainful employment.”).
“Where, as here, separate medical opinions address the impact on
employability resulting from independent disabilities, the VA is
authorized to assess the aggregate
effect of all disabilities.” Id.
Mr. Johnson attempts to make hay out of the Board’s use of the singular
word “examination”
in its January 2012 remand order, but this alone does not persuade the
Court that the Board, in fact,
5

determined that a single examination was necessary in this case, as is
within its discretion. See
FlooreNext Hit v. Shinseki, 26 Vet.App. 376, 381 n.1 (2013). Further, Mr. Johnson
does not allege that either
examination is inadequate (aside from his argument that neither
examination considered all of his
service-connected disabilities), nor does he explain how the rendering of
two examinations–one that
considered all of his physical disabilities and one that considered his
post-traumatic stress disorder,
both of which are thorough and contain adequate rationale for their
conclusions–has harmed him.
See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38
U.S.C. § 7261(b)(2)
(requiring the Court to “take due account of the rule of prejudicial error
“).
Moreover, it is clear that VA prohibits a general medical examiner from
conducting a post-
traumatic stress disorder examination. The February 2012 VA post-traumatic
stress disorder
examination plainly states:
The following health care providers can perform REVIEW examinations for
[post-traumatic stress disorder]: a board-certified or board-eligible
psychiatrist; a
licensed doctorate-level psychologist; adoctorate-
levelmentalhealthprovider under
the close supervision of a board-certified or board-eligible psychiatrist
or licensed
doctorate-level psychologist; a psychiatry resident under close
supervision of a
board-certifiedorboard-eligiblepsychiatristorlicenseddoctorate-level
psychologist;
a clinical or counseling psychologist completing a one-year internship or
residency
(forpurposesofadoctorate-level degree)underclosesupervisionofaboard-
certified
or board-eligible psychiatrist or licensed doctorate-level psychologist;
or a licensed
clinical social worker (LCSW), a nurse practitioner, a clinical nurse
specialist, or a
physician assistant, under close supervision of a board-certified or board-
eligible
psychiatrist or licensed doctorate-level psychologist.
R. at 146. Had the nurse practitioner who conducted the February 2012 VA
general medical
examination or the physician’s assistant who prepared the April 2013
addendum to that examination
report conducted the post-traumatic stress disorder review, the Board
would have been required to
reject the resulting examination report because the examiner lacked the
proper credentials.
In light of this discussion, the Court concludes that the Board did not
err in finding that VA
substantially complied with the January 2012 Board remand.
B. Consideration of Aggregate Effects
Mr. Johnson next contends that the Board erred because it failed to
consider the aggregate
effects of his service-connected disabilities on his employability. He
argues that “the Board ‘never
6

explained what the cumulative functional impairment of all [the Veteran’s]
service-connected
disabilities might be and why they do not prevent substantially gainful
employment.'” Appellant’s
Brief at 15 (quoting Previous HitFlooreNext Document, 26 Vet.App. at 382) (brackets in original).
The Court agrees.
After a lengthy recitation of the medical opinions regarding employability,
the Board stated:
In this case, the evidence of record is against a finding that [Mr.
Johnson’s] service
[-]connected disabilities either individually or collectively render him
unable to
secure and follow a substantially gainful occupation. In this regard, in
the multiple
VA examinations documented, the examiners consistently conclude that[,]
based on
[Mr. Johnson’s] education, prior work history and experience, he could
engage in
sedentary or semi-sedentary employment. These conclusions were based on
interview[s] of [Mr. Johnson], review of the claims file[,] and
examination of [Mr.
Johnson]. [Mr. Johnson] has not presented anyevidence that contradicts the
opinions
of the VA examiners and has not suggested that the examinations were
inadequate
in any way.
R. at 15-16.
It is well settled that the Board is not permitted to merely list the
relevant evidence and then
state a conclusion. See Abernathy v. Principi, 3 Vet.App 461, 465 (1992) (
holding that merely
listing the relevant evidence is not adequate to fulfill the Board’s
obligation to provide a statement
of reasons or bases for its decision). That is, however, essentially what
the Board did in this case.
The Board’s analysis, quoted in its entirety above, contains no discussion
of the varying findings of
the medical examiners with respect to Mr. Johnson’s ability to work and in
what kind of setting. In
particular, the Board did not acknowledge the multiple psychiatric
assessments that indicated that
Mr. Johnson would have a difficult time in anywork setting in which he was
required to have regular
contact with others. The Board also did not reconcile those findings with
later psychological
findings that Mr. Johnson’s work limitations were primarily physical.
Notably, the Board did not
assign relative probative weight to the varying psychological assessments;
the Court therefore
presumes that the Board accepted each as equally probative, a curious
outcome, given their varying
conclusions as to the effect of Mr. Johnson’s post-traumatic stress
disorder on his ability to work.
In sum, it is not enough, given the evidence in this case, to conclude
that Mr. Johnson could
work in a sedentary or semi-sedentary job, which only accounts for his
physical limitations and
ignores the evidence of his psychological limitations. The Court concludes
that the Board’s reasons
7

or bases are deficient in this regard. See 38 U.S.C. § 7104(d)(1);
Caluza v. Brown, 7 Vet.App. 498,
506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
C. Substantially Gainful Employment
Finally, Mr. Johnson argues that the Board failed to consider whether the
sedentary or semi-
sedentary work it concluded he was capable of would be “substantially
gainful.” In support of this
argument, he cites the informationhesubmittedwith his applicationfora
total disabilityratingbased
on individual unemployability showing that, in various part-time jobs
between October 2003 and
April 2007, his highest gross earnings per month were $82.04, $280, $800, $
450, and $130. R. at
1283. He contends that this evidence demonstrates that he is not capable
of more than marginal
employment.
The Board did not expressly consider whether any employment Mr. Johnson
could secure
would be “substantially gainful” as that term has been defined–that is,
whether Mr. Johnson could
earn an income “that exceeds the povertythreshold for one person.” Faust v.
West, 13 Vet.App. 342,
356 (2000); see also 38 C.F.R. § 4.16(a) (2014).
As an initial matter, the Court rejects the Secretary’s assertion that the
issue of whether Mr.
Johnson’s employment would be more than marginal was not reasonably raised
by the record or
expresslyraised byMr. Johnson. That the potential employment thatwould
preclude the assignment
of a total disabilityrating based on individual unemployabilitywould be ”
substantiallygainful”–that
is, more than marginal–is contained in the very definition of a total
disability rating based on
individual unemployability. See 38 C.F.R. § 4.16(a). As such, the issue
is necessarily raised by
virtue of the benefit at issue.
Moreover, to the extent that the Secretary would argue that the Board’s
finding that the
evidence does not show that Mr. Johnson’s “service-connected disabilities
[,] either individually or
collectively[,] render him unable to secure and follow a substantially
gainful occupation,” R. at 15,
implicitly contains a finding that the sedentary or semi-sedentary work in
which Mr. Johnson could
engage is necessarilymore than marginal, this does not meet the
requirements of section 7104(d)(1),
which requires the Board to state its reasons or bases for its findings on
all material issues.
Additionally, it does not take into account that the most recent income
information that Mr. Johnson
provided to VA–in his June 2007 application for a total disability
rating based on individual
8

unemployability–reveals that, at best (and extrapolated over a full
year, even though it is not shown
that Mr. Johnson maintained employment for a full year between 2003 and
2007, the years for which
he provided income information), Mr. Johnson earned $9,600 ($800/month x
12 months in 2006),
below the poverty threshold for one person in 2006 of $9,800. R. at 1283;
The 2006 HHS Poverty
Guidelines, available at http://aspe.hhs.gov/ poverty/06poverty.shtml (
last visited Dec. 30, 2014).
The Board was required to address this evidence before reaching its
conclusion that Mr. Johnson is
not entitled to a total disability rating based on individual
unemployability. See Beaty v. Brown,
6 Vet.App. 532, 537 (1994) (stating that the Board may not reject a
request for a total disability
ratingbasedonindividual unemployability”without producingevidence,
asdistinguishedfrommere
conjecture, that the veteran can perform work that would produce
sufficient income to be other than
marginal”). The Board failed to do here, and vacatur and remand are
therefore warranted.
On remand, Mr. Johnson 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 (expedited
treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the January 17, 2014, Board decision
is VACATED
and the matter is REMANDED for readjudication consistent with this
decision.
DATED: January 13, 2015
Copies to:
Michael S. Just, Esq.
VA General Counsel (027)
9

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