Single Judeg Application TDIU, CFR 4.25(a), Disabilities of Both Lower Extremities be Considered One Disability for TDIU

Excerpt from decision below:
"The Board began its analysis of TDIU with the finding that the appellant's
30% disability rating and 40% disability rating meant that "[h]is combined service-
connected disability rating is 60 percent." R. at 11; see 38 C.F.R. § 4.25(a) (2010). It does not appear that the Board considered the portion of 38 C.F.R. § 4.16(a) that mandates disabilities of both lower extremities be considered one disability. See R. at 10-11. This error taints the Board's remaining analysis, because the Board determined that the appellant "does not satisfy the percentage rating standards for individual unemployability benefits," and was henceforth not guided by the correct provision of § 4.16."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3819
EDWARD B. LINDSEY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Edward B. Lindsey, appeals through counsel
an August
11, 2009, Board of Veterans' Appeals (Board) decision that denied
entitlement to total disability
based on individual unemployability (TDIU). Record (R.) at 3-12. Both
parties filed briefs, and the
appellant filed a reply brief. This appeal is timely, and the Court has
jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review
because the outcome
in this case is controlled by the Court's precedents and "is not
reasonably debatable." Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will vacate the
Board's August 2009 decision and remand the issue of entitlement to TDIU
for further proceedings
consistent with this decision.
I. FACTS
Mr. Lindsey served in the U.S. Army from March 1974 to February 1975. R.
at 603. In
February 1975, Mr. Lindsey filed a VA application for compensation or
pension because of "claw
toes with callouses over IP [(interphalangeal)] joint." R. at 597-600. In
April 1975, Mr. Lindsey
underwent bilateral hammer toe repairs under general anesthesia. R. at 529.
In October 1975, VA
issued a decision granting a 10% disability rating for acquired pes planus
with claw toes, effective


from February 4, 1975, with a 100% disability rating for post-operative
convalescence, effective
April 13, 1975, through May 1975. R. at 527-28. After further filings, in
June 1981 VA increased
Mr. Lindsey's disability rating to 30%, effective October 31, 1980. R. at
490. In September 1997,
after receiving additional evidence, VA increased Mr. Lindsey's disability
rating to 50%, effective
June 1, 1996; and to 100% disabling for the convalescent period of March
15, 1996, through May
1996. R. at 1035-37. In May 1998, Mr. Lindsey filed a statement in support
of claim asserting
entitlement to individual unemployability. See R. at 366.
In a June 1999 counseling narrative, a VA counseling psychologist noted
that Mr. Lindsey
had last worked 12 years previously. R. at 1018-21. The psychologist noted
that Mr. Lindsey drew
Social Security for a number of years, but opined that "he probably
received these benefits because
of his substance abuse problem." R. at 1020; see R. at 385 (1996 discharge
summary from private
hospital stating "[h]e has been off on medical leave ever since 1986 due
to drinking and seizures").
As to Mr. Lindsey's disability impairments, the psychologist stated: "[T]
he veteran has been
unemployed for many years and it is possible to say that at least part of
the reason is the result of his
foot condition." R. at 1020. The psychologist's reservations regarding the
feasibility of a vocational
services program and eventual unemployment were "based on the fact that
the veteran has been
unemployedformanyyearsandthathehaddevelopedarathersubstantialsubstanceabus."
R. at 1021. Mr. Lindsey's case manager was listed as being in agreement
with a plan for Mr. Lindsey
to attend a five-week work evaluation program in Detroit. Id. In October
1999, the psychologist
notedhis reservationsaboutMr.
Lindseyundertakingjanitorialworkduestohisorthopedicproblems
and recommended a two-week trial program to determine whether Mr. Lindsay
could handle that
type of work. R. at 1013. The November1999 employee training status
summarynoted Mr. Lindsay
had excellent attendance and acceptable productivity rates on all
janitorial tasks. R. at 845-47. In
December 1999, the VA regional office (RO) continued the rating of 50% for
a bilateral foot
condition and denied entitlement to individual unemployability after
finding that Mr. Lindsey "is
considered capable of gainful employment." R. at 348-49.
InJanuary2003,Mr.Lindsey's right bigtoewasamputatedafterit
becameinfectedfollowing
surgery to his right foot. R. at 290. During his hospitalization, Mr.
Lindsey filed for an increased
disability rating. R. at 344. On February 24, 2003, a physician from the
VA Department of Surgery
2


medically cleared Mr. Lindsey to return to work without any restrictions.
R. at 964. On May 9,
2003, Mr. Lindsey's employer, Amurcon Corporation, sent a letter to Mr.
Lindsey stating that his
family and medical leave had expired in April and a replacement had been
hired for his position.1
R. at 969. On May 23, 2003, the RO granted a temporary evaluation of 100%
for the convalescent
period of January 10, 2003, through February 2003. R. At 966-68. Mr.
Lindsey was also granted
entitlement to service connection for amputation of the head of the first
metatarsal right great toe at
10% disabling effective January29, 2003, and for osteomyelitis of the
right great toe at 0% disabling
effective January 24, 2003. R. at 966. The RO denied entitlement to
individual unemployability,
stating that while the VA physician had indicated Mr. Lindseywould not be
able to work for a period
after the surgery, "[t]here is no objective medical evidence that you are
permanentlyunable to obtain
nor maintain gainful employment of a more sedentary nature." R. at 968.
In June 2003, Mr. Lindsey filed a Notice of Disagreement (NOD), stating
his belief that he
was due a 100% rating based on his existing disabilities and special
monthly compensation as a
result of individual unemployability. R. at 965. A counseling narrative
beginning July 29, 2003,
states that Mr. Lindsey "completed his medical follow-ups and feels he can
work, that his I.U.
[(individual unemployability)] claim was onlyfor a temporaryperiod." R. at
960-61. The counselor
noted Mr. Lindsey had physical limitations, but opined that "[a]chievement
of a vocational goal is
currently feasible." R. at 961. An August 4, 2003, VA rehabilitation plan
noted that Mr. Lindsey
would complete a janitorial supervisors training program taking place from
August to October of
2003. R. at 133-34. On August 28, 2003, Mr. Lindsey filed a VA application
for increased
compensation based on unemployability and provided testimony before an VA
decision review
officer. R. at 152-57.
An October 2003 janitorial skills training program final evaluation
recommended, based on
Mr. Lindsey's behavior, that further support be provided to assist him
with maintaining competitive
employment. R. at 776-78. The evaluation stated "[t]he ability to be
trusted to carry out all
assignments properly without supervision along with the ability to display
professional and
1
The Family and Medical Leave Act "entitled employees of covered employers
to take unpaid, job-protected
leave for specified . . . medical reasons." United States Department of
Labor website: http://www.dol.gov/whd/fmla/
health condition that makes the employee
unable to perform the essential functions of his or her job."
3


appropriate role modeling has been very questionable and challenging for
Mr. Lindsey." R. at 777.
In September 2003, the RO issued a Statement of the Case (SOC), explaining
a de novo
review had been conducted by the decision review officer. R. at 111-32. In
essence, the decision
review officer split the bilateral foot condition into two ratings: 30%
for left foot pes planus with
claw toes and 40% for right foot pes planus with claw toes, both effective
March 1, 2003. R. at 129-
130. The RO decision denied entitlement to individual unemployability,
explaining: "enrollment in
the field of supervisory position at Jewish Vocational Services [(JWS)]
shows potential of being
gainfully employed. Also, the problems that you have been having with
keeping a job also involve
drug and alcohol problems. These cannot be used in a decision of
Individual Unemployability . . .
.". R. at 130. In October 2003, Mr. Lindsey perfected his Substantive
Appeal to the Board. R. at
102-03.
A November 2003 VA special report of training noted that the appellant had
not been
participating in a job skills program. R. at 769-70. The counselor stated
that the job program
manager "doesn't think he's serious about finding a job right now." Id. On
January 7, 2004, the
appellant began working as a mail handler. See R. at 745-46. He was
provided job coaching. Id.;
see R. at 738. The appellant's counselor noted on March 26, 2004, that "
things continue to go well
for him there [at work] — no physical problems either!" R. at 735. On
March 31, 2004, the
appellant was declared rehabilitated after completing the VA Vocational
Rehabilitation and
Employment program. R. at 731-33.
In April 2006, the Board remanded the appellant's claims because it only
had VA vocational
rehabilitation treatment records up until September 2003 and determined
that a VA orthopedic
examination would be helpful. R. at 92-96. In August 2006, the appellant
underwent a VA feet
examination. R. at 74-75. The 2006 VA examiner noted no pain on
manipulation of either foot, and
opined that "the veteran's moderate pes planus is not of such severity as
to preclude him from
obtaining gainful employment." R. at 75.
In April 2008, the Board denied entitlement to increased ratings for the
appellant's pes planus
of both feet and remanded the issue of TDIU so that additional vocational
rehabilitation records
could be associated with his file and he could receive notice of the
evidence he could submit to
substantiate his claim for TDIU. R. at 20-37. On August 11, 2009, the
Board issued the decision
4


here on appeal. R. at 3-12.
II. ANALYSIS
The appellant argues that the Board failed to provide an adequate
statement of reasons or
bases for its decision to denyentitlement to TDIU, in that it
incorrectlyapplied 38 C.F.R. § 4.16, and
provided an inadequate statement of reasons or bases by failing to explain
why his work was not
marginal. Appellant's (App.) Brief (Br.) at 9-14.2
The Board is required to provide a written statement of the reasons or
bases for its findings
and conclusions on all material issues of fact and law presented on the
record; the statement must
be adequate to enable a claimant to understand the precise basis for the
Board's decision, as well as
to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527
(1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v.
Derwinski, 1 Vet.App. 49, 57
(1990). To complywith this requirement, the Board must analyze the
credibilityand probative value
of the evidence, account for the evidence that it finds to be persuasive
or unpersuasive, and provide
the reasons for its rejection of anymaterial evidence favorable to the
claimant. See Caluza v. Brown,
7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table); Gabrielson v.
Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. If the reasons or
bases are inadequate, the
Court must take due account of the rule of prejudicial error. See 38 U.S.C.
§ 7261(b)(2); Shinseki
v. Sanders, 129 S. Ct. 1696, 1708 (2009) (quoting 38 U.S.C. § 7261(b)(2)).
Under 38 C.F.R. § 4.16(a), TDIU may be assigned when the veteran, in the
judgment of the
rating agency, is unable to secure or follow a substantially gainful
occupation as a result of service-
connected disabilities. To meet the requirements for a schedular TDIU
rating, individual disabilities
must equal a combined rating of 70% or more (with at least one such
disability rated at 40% or
more), or, if there is only one single disability, it must be ratable at
60% or more. Id. However,
under § 4.16(a), for the purposes of one 60% disability, disabilities of
one or both lower extremities
are considered a single disability. See 38 C.F.R. § 4.16(a) (2010); see
also Gary v. Brown, 7
The Court notes that, despite the appellant's contention to the contrary,
the issue at hand does not concern an
extra-schedular service connection rating as discussed under 38 C.F.R. §
3.321(b), but rather an extra-schedular
entitlement to TDIU under § 4.16. See 38 C.F.R. § 4.16 (2010); App. Br.
at 11.
2
5


Vet.App. 229, 231 (1994) (explaining how multiple disabilities resulting
from a common etiology
are also considered one disability and applying 38 C.F.R. § 4.25). In
addition, under 38 C.F.R. §
4.16(b): "rating boards should submit to the Director, Compensation and
Pension Service, for extra-
schedular consideration all cases of veterans who are unemployable by
reason of service-connected
disabilities, but who fail to meet the percentage standards set forth in
paragraph (a) of this section."
The Board began its analysis of TDIU with the finding that the appellant's
30% disability
rating and 40% disability rating meant that "[h]is combined service-
connected disability rating is 60
percent." R. at 11; see 38 C.F.R. § 4.25(a) (2010). It does not appear
that the Board considered the
portion of 38 C.F.R. § 4.16(a) that mandates disabilities of both lower
extremities be considered one
disability. See R. at 10-11. This error taints the Board's remaining
analysis, because the Board
determined that the appellant "does not satisfy the percentage rating
standards for individual
unemployability benefits," and was henceforth not guided by the correct
provision of § 4.16.
In particular, the Board failed to provide any specific analysis as to
whether the appellant's
previous employment was marginal. See R. at 3-12. The Board only cursorily
discussed Mr.
Lindsey's previous work experience, before concluding: "there is no
evidence that he has been
rendered unable to obtain or maintain substantially gainful employment,
consistent with his
education and occupational experience, due to his service-connected
disorders." R. at 12
It must be noted that the evidence of record regarding the specifics of
the appellant's
employment is rather sparse. Mr. Lindsey previously earned $11.11 per hour
as a mail clerk in a
federal building and worked full-time. See R. at 735. However, the date
this employment was
terminated is unclear. Further, there is only a cursory mention in a 2006
VA medical examination
that: "Currently [the appellant] is doing a part-time job as a parking lot
attendant at the VA hospital
for the last two months." R. at 74; see R. at 12. Nor does the appellant
suggest how his previous
employment had been marginal, only asserting that: (1) "it is obvious that
both the three week job
as a mail clerk and the part time job as a parking lot attendant were not
for any significant period of
time"; and (2) "[i]t is also likely that the earnings from either job did
not put Mr. Lindsey over the
povertylevel." App. Br. at 13-14. The appellant misstates that he was only
employed as a mail clerk
for three weeks. Compare App. Br. at 13 ("employment as a mail clerk
lasted less than one month"
and "three week job as a mail clerk"), with R. at 731 (March 31, 2004,
declaration that the appellant
6


was rehabilitated after successfully maintaining his mail clerk position
for at least 60 days), 745-46
(notation that the appellant began working as a mail handler on January 7,
2004). Additionally,
making the assertion that his jobs were obviously "not for any significant
period of time" and his
wages "likely" did not put him over the poverty level is not particularly
persuasive when such
evidence is within the appellant's control, he has had ample opportunity
to present it to VA, and yet
he refuses to assert the facts.3
See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ("An
appellant bears the burden of persuasion on appeals to this Court."),
aff'd, 232 F.3d 908 (Fed. Cir.
2000); Berger v. Brown, 10 Vet.App. 166, 169 (1997) ("[T]he appellant . . .
always bears the burden
of persuasion on appeals to this Court."); Wood v. Derwinski, 1 Vet.App.
190, 193 (1991) ("The duty
to assist is not always a one-way street. If a veteran wishes help, he
cannot passively wait for it in
those circumstances where he may or should have information that is
essential in obtaining the
putative evidence."). Also, the appellant's assertion that "working as a
mail clerk for three weeks
or as a parking lot attendant for the VA would arguably be considered a
sheltered workshop or a
protected environment," does not provide this Court with anything more
than a vague assertion. R.
at 14; see Locklear v. Nicholson, 20 Vet.App. 410, 416-17 (2006)(
explaining that the appellant must
provide reasons for his argument); Evans v. West, 12 Vet.App. 22, 31 (1998
) (stating the Court will
give no consideration to a "vague assertion" or "unsupported contention").
However, the combination of the Board's failure to analyze the evidence
under § 4.16(a) and
its cursory statement of reasons or bases for determining that there was
no evidence the appellant
was unable to obtain or maintain substantially gainful employment, is
problematic. Although the
Court is required to take due account of the rule of prejudicial error
under 38 U.S.C. § 7261(b)(2),
"[w]here the effect of an error on the outcome of a proceeding is
unquantifiable," the Court "will not
speculate as to what the outcome might have been had the error not
occurred." Wagner v. U.S., 365
F.3d 1358, 1365 (Fed. Cir. 2004); BryantNext Document v. Shinseki, 23 Vet.App. 488, 499 (
2010) (citing Wagner,
supra). To avoid such speculation, the Court will remand this claim with
the requirement that the
Board specifically address § 4.16(a) and discuss the evidence of record
regarding the appellant's
The appellant does not contest the Board's determination that he received
VA notice letters in May 2006 and
May 2008 that informed him of "what evidence was required to substantiate
his claim of entitlement to TDIU. These
letters also informed him of his and VA's respective duties for obtaining
evidence." R. at 6.
3
7


employment history. Given the extremely limited employment evidence
provided in the record
before the Court, the appellant's particular interest in receiving a Board
determination regarding
whether his employment was marginal, and the suggested means of
determining whether
employment is marginal under § 4.16(a), the Court requires the appellant
to provide any relevant
employment records in his possession, including evidence of anyemployment
income since January
7, 2004, and documentation of any job termination, to the Board for review
on remand. See Wood,
supra; 38 C.F.R. § 4.16(a); R. at 745-46 (January 7, 2004, is when the
appellant began working as
a mail handler). The appellant is free to submit additional evidence and
raise his arguments to the
Board on remand; and the Board is required to consider them as it provides
expeditious treatment
of this matter. See 38 U.S.C. § 7112; see also Kay v. Principi, 16 Vet.
App. 529, 534 (2002);
Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's August 11, 2009, decision is VACATED and REMANDED for further
proceedings
consistent with this decision.
DATED: February 28, 2011
Copies to:
Robert V. Chisholm, Esq.
General Counsel (027)
8