Veteranclaims’s Blog

July 30, 2017

Single Judge Application; TDIU; Examination Provides No Rationale for Limitation on Employment; McKinney v. McDonald, 28 Vet.App. 15, 31 (2016); Tinnitus; Obtain and Maintain Substantially Gainful Employment;

Excerpt from decision below:

“Mr. Johnson argues that the Board clearly erred in finding “no evidence of record to indicate that his service-connected disabilities preclude him from sitting for extended periods.” Record (R.) at 7. The record includes two examinations that note interference with employment. Because these examinations did not sufficiently describe Mr. Johnson’s disability with respect to limitations on sitting, however, or provide a clear rationale for the conclusion that his tinnitus was not sufficiently severe to prevent employment, the Court holds that the Board erred in relying on those opinions to conclude that Mr. Johnson could obtain and maintain substantially gainful employment. See McKinney v. McDonald, 28 Vet.App. 15, 31 (2016).

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

 

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1697
KENNETH J. JOHNSON, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Marine Corps veteran Kenneth J. Johnson appeals through counsel a March 18, 2016, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to total disability on the basis of individual unemployability (TDIU). For the following reasons the Court will set aside the Board’s March 2016 decision and remand the matter for further
proceedings.
I. ANALYSIS
Mr. Johnson argues that the Board clearly erred in finding “no evidence of record to indicate that his service-connected disabilities preclude him from sitting for extended periods.” Record (R.) at 7. The record includes two examinations that note interference with employment.
Because these examinations did not sufficiently describe Mr. Johnson’s disability with respect to limitations on sitting, however, or provide a clear rationale for the conclusion that his tinnitus was not sufficiently severe to prevent employment, the Court holds that the Board erred in relying on
those opinions to conclude that Mr. Johnson could obtain and maintain substantially gainful employment. See McKinney v. McDonald, 28 Vet.App. 15, 31 (2016).
2
The Secretary’s duty to assist includes “providing a medical examination or obtaining a
medical opinion when such an examination or opinion is necessary to make a decision on the
claim.” 38 U.S.C. § 5103A(d). A medical examination is adequate “where it is based upon
consideration of the veteran’s prior medical history and examinations and also describes the
disability, if any, in sufficient detail so that the Board’s “‘evaluation of the claimed disability will
be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 123, 123 (2007) (quoting Ardison v.
Brown, 6 Vet.App. 405, 407 (1994)) (internal quotation marks omitted). The report must contain
clear conclusions and supporting data, as well as “a reasoned medical explanation” connecting the
data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
Whether a medical opinion is adequate is a finding of fact that the Court reviews under the
“clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97, 103
(2008). A finding is clearly erroneous when, “although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Court is not prepared, at this point, to say that the Board clearly erred in finding no
evidence of difficulty with prolonged sitting. As Mr. Johnson notes, the record includes a March
2012 VA examination report in which the examiner, with respect to the left knee, checked a box
indicating “[i]nterference with sitting, standing[,] and weight bearing.” R. at 143. This
examination report, however, does not describe the extent of the interference and therefore does
not adequately describe the disability to facilitate a fully informed decision of the Board. If there
is interference with sitting, the examiner must describe the extent of such interference, because it
bears directly on the Board’s conclusion that Mr. Johnson is capable of sedentary employment.
Because the March 2012 VA examination report requires clarification with respect to interference
with sitting, remand is warranted. See 38 C.F.R. § 4.2 (2017).
Remand also is warranted because the Board relied on an inadequate 2012 VA audiology
examination. The audiologist noted that Mr. Johnson reported that his tinnitus interfered with his
concentration in a quiet environment. She then stated that “[t]innitus may cause an individual
difficulty with concentration and may seem to interfere with an individual’s ability to hear well.
However, generally, tinnitus does not preclude an individual from obtaining or maintaining
employment.” R. at 121 (emphasis added). The statement that tinnitus does not generally prevent
3
gainful employment implies that there are exceptional cases where it could. The VA examiner did
not explain what factors may have led to an implied conclusion that Mr. Johnson’s case was not
among the exceptions. Thus, the opinion lacks a sufficient rationale. See Nieves-Rodriguez, supra.
The examiner’s generalization is no more than a speculative opinion that furnishes no basis for the
Board’s conclusion. Cf. Bloom v. West, 12 Vet.App. 185, 187 (1999) (noting that a medical
report’s use of the term “could,” without other rationale or supporting data, is speculative); Tirpak
v. Derwinski, 2 Vet.App. 609, 611 (1992) (holding that medical opinions are speculative and of
little or no probative value when a physician makes equivocal findings such as “the veteran’s death
may or may not have been averted”).
The Board’s erroneous reliance on the VA examination reports warrants remand. Tucker
v. West, 11 Vet.App. 369, 374 (1998). Because the claim is being remanded, the Court need not
address Mr. Johnson’s additional arguments as to other inadequacies in the Board’s statement of
reasons or bases. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the
proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that
would result in a remedy no broader than a remand.”). In pursuing his claim on remand, Mr.
Johnson will be free to submit additional argument and evidence as to the remanded matter, and
the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16
Vet.App. 529, 534 (2002).
II. CONCLUSION
On consideration of the foregoing, the Board’s March 18, 2016, decision is SET ASIDE
and the TDIU claim is REMANDED for further adjudication consistent with this opinion.
DATED: July 28, 2017
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)

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

Create a free website or blog at WordPress.com.

%d bloggers like this: