Veteranclaims’s Blog

May 22, 2015

Single Judge Application; Floore v. Shinseki, 26 Vet.App. 376, 381 (2013); Rating Officals Judgement Duty in Total Disability

Excerpt from decision below:

“In Floore the Court emphasized the distinct responsibility of rating officials when it stated that a total disability rating based on individual unemployability “is to be awarded based on the ‘judgment of the rating agency’ that the veteran is ‘unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.'” Id. (quoting 38 C.F.R. § 4.16(a)).

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2995
CECIL R. EUBANK, 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: Cecil A. Eubank appeals through counsel a September 16, 2013,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to a total
disability rating based on
individual unemployability. Mr. Eubank’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 September 2013 Board decision and remand the matter for further
development, if
necessary, and readjudication consistent with this decision.
I. FACTS
Mr. Eubank served on active duty in the U.S. Army from August 1969 to
February 1972.
In March 1971, Mr. Eubank was involved in a motor vehicle accident, after
which he was diagnosed
with “[a]cute leftlumbarmusclespasm,””[a]cutespasmleftthigh,””[a]
cutemyositis left quadriceps
femoris muscle,” and “[a]cute faciitis left side of back, left thigh, [and]
left sacro-iliac, traumatic.”

Record (R.) at 2747. In July 1971, Mr. Eubank was diagnosed with a “[c]
ompression [f]racture T-7
and T-8.” R. at 2835.
Shortly after his discharge from service, Mr. Eubank filed a claim for VA
disability benefits
for a back disability and left knee disability. In June 1972, a VA
regional office granted Mr.
Eubank’s claim and assigned a 10% disability rating for a compression
fracture and a
noncompensable disability rating for chondromalacia of the left knee.
In February 1975, Mr. Eubank filed a claim for benefits for a right knee
condition. R. at
2701. In August 1975, the regional office granted that claim and assigned
a noncompensable
disability rating.
In March 2006, Mr. Eubank applied for increased compensation based on
unemployability,
asserting that he was prevented from “securing or following any
substantially gainful occupation”
due to his bilateral knee and spine disabilities. R. at 1678-79.
In April 2006, Mr. Eubank underwent a VA joints examination. R. at 1132-46.
Mr. Eubank
was diagnosed with a “[c]ompression fracture [of the] T8 [vertebra].” R.
at 1145. The examiner
opined: “[Mr. Eubank] used to work in equipment repair. The T8 vertebral
fracture would likely
cause some pain but should not prevent him from working. He has been on
Social Security
Disabilitysince 1974[.]” R. at 1146. The examiner’s report included a
February2004 thoracic spine
imaging study that indicated “mild wedge compression of the thoracic
eighth vertebral body,
unchanged since the previous study. Other vertebral height and alignment
appears to be within
normal limits. Mild degenerative disk disease seen. No other abnormality
seen.” R. at 1660. The
report also included an October 2005 thoracic spine report that indicated
that “[d]egenerative
spurring is present in the lower thoracic spine. No compression fractures
or destructive lesions.”
R. at 1661. Mr. Eubank was also found to have “residuals of [a] left knee
injury and bursitis of [the]
right knee with chronic sprain of collateral ligament,” and was diagnosed
with “[m]ild osteoarthritis
[of the] bilateral knees.” R. at 1650. The examiner opined:
[Mr. Eubank] would not be able to do work that required squatting or
bending the
knees to any degree or that required a lot of walking. He is also limited
by weakness
and pain due to his disc disease in his entire spine. Related to his knee
condition
only, he would be able to do some more sedentary type of work.
R. at 1651.
2

In August 2006, the regional office denied Mr. Eubank entitlement to a
total disability rating
based on individual unemployabilityand continued the 10% disability
ratings assigned for residuals
of a left knee injury with osteoarthritis, cystic bursitis and
osteoarthritis secondary to chronic sprain
of collateral ligament of the right knee, and a compression fracture of
the T7-T8 vertebrae. Mr.
Eubank filed a Notice of Disagreement with that decision and ultimately
appealed to the Board.
In September 2009, Mr. Eubank underwent a VA joints and spine examination.
The VA
examiner found “[n]o significant change from previous x-rays of October 3,
2005, with mild
degenerative joint disease, most pronounced lower thoracic spine.” R. at
624. With regard to Mr.
Eubank’s ability to work, the examiner opined:
[Mr. Eubank] has multiple problems other than the right knee, left knee[,]
and
thoracic disabilities. However, he is having to wear a long-leg brace on
each leg and
has great difficultygetting around. He has back pains and would more
likelythan not
require a back brace to work in any type of job. His main problems would
be any
type of prolonged standing, walking, or anytype of job that requires him
to get in and
out of a chair. Thus, it is more likely than not [that Mr. Eubank] would
not be able
to secure or perform in any type of job, particularly a job that requires
prolonged
standing, walking, bending, stooping, or lifting.
R. at 625.
In December 2010, the Board found that the preponderance of the evidence
was against
finding that Mr. Eubank was “unable to obtain or maintain any form of
substantially gainful
employment due to service-connected disabilities alone.” R. at 484. Mr.
Eubank appealed that
decision to the Court.
In February2012, the Court granted the parties’ joint motion for remand.
The parties agreed,
among other things, that remand was warranted to obtain clarification of
the September 2009 VA
medical opinion because it was unclear whether the opinion was based on an
evaluation of Mr.
Eubank’s non-service-connected disabilities.
In July 2012, the Board remanded Mr. Eubank’s claim for further
development, to include
obtaininganaddendumtotheSeptember2009VAopinion to determinewhetherMr.
Eubank’s “right
knee,leftknee,
andthoracicdisabilitiesaloneprecludeallformsofsubstantiallygainfulemployme
that are consistent with his education and occupational experience.” R. at
416.
3

In September 2012, VA obtained an addendum to the September 2009 VA
medical opinion.1
After reviewing Mr. Eubank’s claims file, the examiner opined:
There are no functional impairments of either knee or the thoracic spine
documented
. . . that prevent[] all forms of employment. [Mr. Eubank] could sustain
sedentary
employment when focusing strictly on his service[-]connected disabilities[.]
[H]owever, he does have other significant non-service[-]connected
disabilities
limiting or most likely preventing employment. [Mr. Eubank]’s non-service[-]
connected psychiatric and medical comorbidities would negatively compound
functional performance in the work place. Additionally, [Mr. Eubank]’s non-
service[-]connected obesity, reported seizure activity, and [chronic
obstructive
pulmonarydisease] likelywould limit and interfere with mobile and lifting
requiring
occupations.
R. at 399.
In April 2013, the Board again remanded Mr. Eubank’s claim to obtain a VA
examination.
The Board stated that the examiner should determine “whether it was at
least as likely as not that
[Mr. Eubank]’s service[-]connected right knee, left knee, and thoracic
disabilities alone preclude all
forms of substantially gainful employment that are consistent with his
education and occupational
experience.” R. at 390.
In May 2013, Mr. Eubank underwent the requested VA examination. The
examiner noted
that Mr. Eubank had been employed as an electrician from 1972 to1982. The
examiner performed
x-rays of Mr. Eubank’s thoracic spine, which revealed arthritis but no
vertebral fracture. The
examiner also noted that Mr. Eubank had “weakened movement” and “pain on
movement” in his
thoracic spine. R. at 33. After review of the claims file, the examiner
opined:
[Mr. Eubank] has multiple medical issues which [a]ffect his employability.
However, [his medical] exam fails to reveal significant functional
abnormalities of
either knee[;] his left knee is normal by imaging. [Mr. Eubank] is service
[-]
connected for a thoracic spine vertebral fracture[,] which has been dem[]
onstratedon
repeated imaging to be fully healed. [Mr. Eubank] may have other spinal
issues[,]
but these are unrelated to his service[-]connected issue. Ther[e]fore,
based solely on
his service[-]connected issues[, Mr. Eubank] retains the capabilityto be
retrained for
empl[o]ym[e]n[]t not requiring heavylifting, prolonged standing[,] or
heavymanual
labor. [Mr. Eubank], based solely on his service[-]connected conditions,
and taking
into consideration his level of educ[a]tion (high school graduation and 2
years of
The evidence of record indicates that, because the September 2009 VA
examiner had retired, a different VA
examiner provided the September 2012 addendum.
1
4

college[-]level business school), [he] would be a good candid[a]te for
vocational
retraining.
R. at 37.
In September 2013, the Board issued the decision on appeal, denying a
total disability rating
based on individual unemployability. This appeal followed.
II. ANALYSIS
This appeal arises out of 38 C.F.R. § 4.16(b), which states that, in the
event that a veteran
fails to meet the percentage requirements setforthin §4.16(a),a permanent
and total disabilityrating
is authorized on an extraschedular basis if the veteran is “unable to
secure and follow a substantially
gainful occupation by reason of service-connected disabilities.” 38 C.F.R.
§ 4.16(b) (2014). Mr.
Eubank’s combined disabilityrating is 30%, which is below the percentage
requirement of § 4.16(a).
On appeal, Mr. Eubank argues that the Board’s determination that the
May2013 VA medical
examination was adequate is clearly erroneous. The May 2013 VA medical
examiner, however,
provided the opinion requested by the Board. See R. at 390 (examination
request); R. at 32 (note
regarding Mr. Eubank’s employment history); R. at 37 (VA examiner’s
medical opinion). It is the
Board that impermissibly delegated its duty to the VA medical examiner to
find facts, particularly
whether, in light of Mr. Eubank’s education experience, he could obtain
substantially gainful
employment. This was error.
Here, the Board recounted the findings of the April 2006, September 2009,
September 2012,
and May 2013 VA examinations with regard to Mr. Eubank’s spine and his
employability. The
Board then found that Mr. Eubank was “not unable to secure and follow a
substantially gainful
occupation by reason of his service-connected disabilities alone.” R. at
12. The Board assigned the
most probative weight to the May2013 VA medical opinion. The Board
reasoned that the May2013
VA examiner was
the only examiner of record who considered [Mr. Eubank]’s educational and
occupational history, to include his high school degree and his two years
of college
level business school. The examiner explained how he solely considered the
impact
of the service-connected disabilities, and addressed the evidence of
record that the
thoracic spine disability had fully healed, and that the knee disabilities
did not result
in significant functional abnormalities. The examiner also addressed
whether all of
5

[Mr. Eubank]’s spinal disorders were related to service. The examiner’s
opinion was
internally consistent, and the examiner fully explained the rationale
behind the
opinion.
R. at 15. The Board stated that Mr. Eubank had “the educational background
to pursue sedentary
work, especiallyif he sought, as indicated bytheMay2013[VA]examiner,
vocational training,” and
found that Mr. Eubank’s claim did not warrant referral for consideration
of entitlement to an
extraschedular total disability rating based on individual unemployability
under § 4.16(b). R. at 16.
The Board failed to provide its own analysis, and instead impermissibly
delegated to the VA
medical examiner the responsibility to determine, based upon Mr. Eubank’s
educational and
occupational history, whether he could be considered totally disabled. See
Previous DocumentFlooreNext Hit v. Shinseki,
26 Vet.App. 376, 381 (2013) (emphasizing that “medical examiners are
responsible for providing
a ‘full description of the effects of disability upon the person’s
ordinaryactivity,'” (quoting 38 C.F.R.
§ 4.10 (2013)) while the rating agency “is responsible for ‘interpret[ing]
reports of examination in
the light of the whole recorded history, reconciling the various reports
into a consistent picture so
that the current rating may accurately reflect the elements of the
disability present'” (quoting
38 C.F.R. § 4.2 (2013))) (modification in original). In Floore,  the Court emphasized the distinct responsibility of rating officials when it stated that a total disability rating based on individual unemployability “is to be awarded based on the ‘judgment of the rating agency’ that the veteran is ‘unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.'” Id. (quoting 38 C.F.R. § 4.16(a)).
Here, the Board failed to fulfill its distinct responsibility as the
rating official by simply
adopting the May 2013 VA medical opinion wholesale, and failed to
adequately explain how the
evidence of record supports its finding that in light of Mr. Eubank’s
education and experience, his
multiple service-connected disabilities do not prevent him from obtaining
or maintaining
substantially gainful employment. See Previous HitFlooreNext Document, 26 Vet.App. at 382. Although
a VA medical
examiner may provide an opinion regarding the effect of Mr. Eubank’s
disabilities on his ordinary
activities including employment, it was the responsibility of the Board,
not the VA medical
examiner, to determine whether the disabilities for which Mr. Eubank
receives benefits prevent him
from obtaining a “substantially gainful occupation.” See 38 C.F.R. §§ 4.
10, 4.16(b). The Board’s
6

adoption of the May 2013 VA examiner’s rationale without providing its
own analysis of the issue
violates the Board’s duty to provide its own reasons or bases for its
decision and frustrates judicial
review. See 38 U.S.C. § 7104(d)(1). Thus, the Court must vacate the
September 2013 Board
decision and remand the matter for readjudication.
On remand, the Board must reconsider the evidence of record and provide
its own analysis,
based on Mr. Eubank’s education and work experience, to determine whether
his claim warrants
referral for consideration of entitlement to an extraschedular total
disability rating based on
individual unemployability, independent of the May 2013 VA medical
opinion’s findings regarding
his employability. If, in the course of reconsidering Mr. Eubank’s claim,
the Board finds that
additional medical evidence or a medical opinion is required, it must
obtain that evidence. Mr.
Eubank is also 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).
The Court acknowledges that Mr. Eubank has raised other arguments relating
to the Board’s
decision. Because the Court is remanding Mr. Eubank’s claim and the Board
will necessarilyrender
a new decision on remand, the Court need not address those arguments 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. Eubank is free
to raise them to the Board if he so desires.
7

III. CONCLUSION
Upon consideration of the foregoing, the September 16, 2013, Board
decision is VACATED
and the matter is REMANDED for further development, if necessary, and
readjudication consistent
with this decision.
DATED: April 2, 2015
Copies to:
Allan T. Fenley, Esq.
VA General Counsel (027)
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