Veteranclaims’s Blog

July 11, 2018

Single Judge Application; TDIU; Board failed to define the term “substantially gainful employment”; improperly relied on evidence describing his ability to perform non-workrelated activities;

Excerpt from decision below:

“As he should be well aware, the Secretary cannot through argument at this Court obviate the need for the Board to do its duty under the law.
Given this disposition, the Court need not address appellant’s additional reasons or bases
arguments, including his assertions that the Board failed to define the term “substantially gainful employment” and improperly relied on evidence describing his ability to perform non-workrelated activities. Regardless of how that term is defined or why the Board relied on alleged irrelevant evidence, remand would still be warranted because, as explained above, the Board failed to consider potentially favorable evidence.14
The Court notes, however, that the failure of the veterans law judge to define terms that are not defined in regulations but nevertheless play an important role in an administrative adjudication is profoundly disturbing. An adjudicatory system cannot long be sustained when the adjudicator says a person loses for failing to show X but refuses to say what X is. On remand, the veterans law judge considering this matter is specifically directed to state what he or she understands the terms “substantially gainful occupation” and “sedentary employment” to mean.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1535
FRANCO S. JORDAN, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
ALLEN, Judge: U.S. Navy veteran Franco S. Jordan served his county for over 17 years.
He is service connected for several disabilities and, relevant to this appeal, he has had a combined
disability rating of at least 70% since November 2003. He has twice requested a total disability
rating based on individual unemployability (TDIU), consistently stating that he is unable to work
due to his service-connected disabilities. On April 20, 2017, the Board of Veterans’ Appeals
(Board) denied entitlement to TDIU1 and this appeal followed. The appeal was timely filed and
the Court has jurisdiction to review the Board decision.2 Because the Board failed to consider
evidence relevant to the issue of entitlement to TDIU, the Court will set aside the April 2017 Board
decision and remand the matter for readjudication consistent with this decision.
TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities and when the veteran meets certain
1 The Board also denied entitlement to an initial disability rating higher than 20% for service-connected
gouty-arthritis prior to April 22, 2013, and granted entitlement to a disability rating no higher than 40% for the period
thereafter. Appellant has not challenged these portions of the Board decision and the appeal as to those issues will be
dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc). Inasmuch as these findings are
favorable to the veteran, the Court will not disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
2 38 U.S.C. §§ 7252(a) and 7266(a).
2
percentage requirements.3 In determining whether a veteran is unable to secure or follow a
substantially gainful occupation, the central inquiry is “whether that veteran’s service-connected
disabilities alone are of sufficient severity to produce unemployability.” 4 “When the Board
conducts a TDIU analysis, it must take into account the individual veteran’s education, training,
and work history.”5
Here, after considering appellant’s lay statements and the medical evidence in the record
pertaining to service-connected gouty arthritis from August 2003 to December 2012, the Board
concluded that appellant was “able to maintain a physically demanding job throughout much of
the claims period.”6 Regarding appellant’s service-connected back condition and sleep apnea, the
Board referenced a September 2016 physical therapy note in which appellant reported that he
returned from a trip where he hiked daily and drove a recreational vehicle and the May 2015 VA
examiner’s opinion that appellant’s service-connected back condition and sleep apnea did not
impact his ability to work. The Board also generally discussed appellant’s statements but concluded
they had reduced credibility because he made inconsistent reports about the reasons why he
resigned from his job, and had “traveled extensively, maintained an active lifestyle, and reported
to his mental care provider that he chose to resign to spend more time with his family.”7
Considering these reasons, the Board denied entitlement to TDIU.
Appellant argues that the Board failed to consider evidence relevant to his request for
TDIU. Specifically, appellant asserts that the Board overlooked a May 2015 VA arthritis
examination showing that his service-connected gouty arthritis “impacted [his] ability to perform
any type of occupational task,” and the severity of his condition would have required him to miss
6-7 days over the past year and to work 20 days despite the pain.8 And he asserts that the Board
failed to address his January 2017 statement that his low back condition has been so severe that he
3 The parties do not dispute the Board’s finding that appellant meets the percentage requirements of 38 C.F.R.
§ 4.16(a) for schedular TDIU throughout the period on appeal. Record (R.) at 16; see 38 C.F.R. § 4.16(a) (2018).
4 Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993); see Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993)
(explaining that, for TDIU, “[t]he question is whether the veteran is capable of performing the physical and mental
acts required by employment, not whether the veteran can find employment.”).
5 Pederson, 27 Vet.App. at 286.
6 R. at 18.
7 Id.
8 R. at 193.
3
is in constant pain that makes it difficult to sleep and stand. Finally, appellant asserts that the Board
ignored a September 2016 private sleep specialist’s diagnosis of daytime hypersomnolence, due in
part to sleep apnea, and opined that it makes it difficult for him to stay awake during sedentary
activities throughout the day. 9 Appellant argues that the Board should have considered this
evidence in its analysis of whether he is able to secure or follow a substantially gainful occupation
as a result of his service-connected disabilities. The Court agrees.
Although the Board addressed the May 2015 VA examiner’s opinions regarding sleep
apnea and the back condition, the Board failed to address the arthritis portion of the examination.
The examiner opined that appellant’s service-connected gouty arthritis impacted his “ability to
perform any type of occupational task.”10 The Board did not provide an explanation as to why it
neither considered the May 2015 VA arthritis examination nor assigned probative value to that
evidence. Similarly, the Board failed to address appellant’s January 2017 statement that appears to
indicate that his back condition worsened and affected his ability to sit for long periods of time.
Although the Board generally addressed appellant’s statements, the Board did not cite any evidence
of record after September 2016 and, thus, it is not clear whether the veterans law judge considered
the January 2017 statement. Finally, the Board did not discuss the September 2016 specialist’s
diagnosis of daytime somnolence or reconcile the specialist’s opinion that appellant has difficulty
staying awake during sedentary tasks against the May 2015 VA examiner’s opinion to the contrary.
Accordingly, the Board’s failure to discuss or provide adequate reasons or bases for rejecting this
potentially favorable evidence frustrates judicial review and necessitates remand.11
The Secretary asserts that the Board implicitly reviewed this evidence. In support of that
position, he offered explanations as to why that evidence was contradicted by other evidence of
record and stated that appellant’s failure to attend VA examinations “precluded the Board from
being able to fully consider the severity of his service-connected disabilities.” 12 Such explanations
are nothing more than post-hoc rationalizations, as the Secretary’s discussion was significantly
9 Appellant’s Brief (Br.) at 10-12.
10 R. at 193.
11 See Caluza v. Brown, 7 Vet.App. 498, 06 (1995) (holding that it is the Board’s duty to “analyze the
credibility and probative value of all material evidence . . . and provide the reasons for its rejection of any such
evidence”) aff’d per curiam 78 F.3d 604 (Fed. Cir. 1996) (table); see also Tucker v. West, 11 Vet.App. 369, 374 (1998)
(holding that remand is the appropriate remedy where the Board has incorrectly applied the law, or failed to provide
an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate).
12 Secretary’sBr. at 13.
4
more detailed than the Board’s analysis. 13 As he should be well aware, the Secretary cannot through argument at this Court obviate the need for the Board to do its duty under the law.
Given this disposition, the Court need not address appellant’s additional reasons or bases arguments, including his assertions that the Board failed to define the term “substantially gainful employment” and improperly relied on evidence describing his ability to perform non-workrelated activities. Regardless of how that term is defined or why the Board relied on alleged irrelevant evidence, remand would still be warranted because, as explained above, the Board failed to consider potentially favorable evidence.14
The Court notes, however, that the failure of the veterans law judge to define terms that are not defined in regulations but nevertheless play an important role in an administrative adjudication is profoundly disturbing. An adjudicatory system cannot long be sustained when the adjudicator says a person loses for failing to show X but refuses to say what X is. On remand, the veterans law judge considering this matter is specifically directed to state what he or she understands the terms “substantially gainful occupation” and “sedentary employment” to mean. And, of course, on
remand the Board will also necessarily render a new statement of reasons or bases to support its
decision in full. Also on remand, the veteran is free to submit additional evidence and argument.15
“A remand is meant to entail a critical examination of the justification for the decision” by the
Board.16 In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112
(expedited treatment of remanded claims).
III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the April 20, 2017,
Board decision is SET ASIDE and the matter is REMANDED for readjudication consistent with
this decision.
13 See Martin v. Occupational Safety Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating
positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency
action advanced for the first time in the reviewing court.”).
14 See Best v. Principi, 15 Vet.App. 18, 20 (2001).
15 See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Kay v. Principi,
16 Vet.App. 529, 534 (2002).
16 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
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DATED: July 10, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

 

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