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
Thursday, March 3, 2011
Single Judge Application Shade v. Shinseki, 24 Vet.App
Excerpt from decision below:
"The Board apparently believed that because the record did not show
evidence of a nexus between service and present disability, there was no "
reasonable possibility" that the claim could ultimately be substantiated.
It is now clear that appellant's failure to submit sufficient evidence to
establish his underlying service connection claim is not necessarily fatal to his claim to reopen.
In Shade, the Court recognized that the phrase "must raise a reasonable possibility of substantiating the claim," as it is used in § 3.156(a), creates a standard that requires reopening "if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (emphasis added). This is "a low threshold." Id. The Court observes that the appellant has now submitted evidence showing both an in-service injury and a current disability, and it is possible that, if the claim is ultimately reopened, he could be entitled to a medical examination that will provide the missing nexus element.
4
See 38 U.S.C. § 5103A(d) (outlining the Secretary's duty to provide a VA
medical examination in compensation claims); see also Shade 24 Vet.App. at 120-21 (reversing a Board decision that had refused to reopen a service-connection claim where the claimant had submitted evidence that could satisfy two of the three elements of a service-connection claim, and recognizing that, if the claim were
reopened, the claimant might be entitled to a VA medical opinion that
could ultimately establish the missing element)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1461
NATHAN ALLEN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Nathan Allen, through counsel, appeals a
February 13,
2009, Board of Veterans' Appeals (Board) decision in which the Board
determined that he had not
submitted new and material evidence sufficient to reopen his claim for
entitlement to service
connection for bilateral optic atrophy. Record (R.) at 11. Additionally,
the Board denied a total
disability rating based on individual unemployability (TDIU). Id. This
appeal is timely, and the
Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990). For
the following reasons, the Court will vacate the Board's decision and
remand the matter for further
proceedings consistent with this decision.
I. BACKGROUND
The appellant had active duty in the U.S. Army from December 1971 to
December 1973.
R. at 404. The appellant's enlistment examination revealed 20/100 distance
vision in the right eye
and 20/70 distance vision in the left eye, and it showed that he failed a
color vision test. R. at 593.
A July 1972 service medical record (SMR) indicated that the appellant had
a history of vision
problems. R. at 592. A September 1972 SMR showed impressions of
questionable mild optic
atrophyand questionable earlyheredomacular dystrophy. R. at 619. A
September 1972 Department
of Defense record indicated that the appellant suffered from refraction
error and that he was not fit
for assignment requiring "good vision in each eye." R. at 616. An August
1973 SMR revealed an
impression of optic atrophy. R. at 607. His November 1973 separation
examination indicated that
he had "[p]oor vision (optic atrophy), etiology undetermined, E-3 profile."
R. at 588.
In December 1973, the appellant filed a claim for entitlement to service
connection for eye
problems. R. at 583. In a February 1974 decision, a rating board denied
his claim, finding that the
appellant's eye condition "clearly pre[]existed service and there [was] no
evidence of record to
warrant a finding of aggravation of this condition, by service." R. at 582.
This decision became
final.
InMarch1996,theappellantfiledaVAForm 21-536(
veteran'sapplicationforcompensation
or pension) stating that he was suffering from optic nerve atrophy. R. at
536. In July 2005, he wrote
to VA "in reference to a[n] application [he] submitted in 1995 for
disability." R. at 482. In this
letter, the appellant stated that, while in service, he had to be treated
for eye irritation after working
in a gas chamber. R. at 484. In an August 2005 statement, the appellant's
buddy recalled that the
appellant's eyes became infected while he was performing a gun range
exercise and powder got in
his eyes. R. at 239. In September 2005, the appellant filed a claim for
entitlement to TDIU. R. at
394-95. In a May2006 hearing, the appellant indicated that working with
gunpowder and chemicals
in service caused eye irritation for which he received treatment. R. at
250-51, 253.
In July 2008, the appellant testified before the Board. R. at 15-24. The
appellant stressed
that his eye problems began in service and that he was first diagnosed
with optic atrophy in service.
R. at 19-20. He indicated that his eyes became irritated in boot camp
while working in a gas
chamber. R. at 18. He further stated that he was unable to pass eye tests
after basic training. Id.
In the decision on appeal, the Board determined that the appellanthad not
submitted new and
material evidence sufficient to reopen his previously denied claim for
entitlement to service
connection for bilateral optic atrophy. R. at 7-10. The Board recognized
that the appellant had
submitted additional evidence since his claim was denied in February1974,
but it declined to reopen
this claim because the evidence did not "raise[] a reasonable possibility
of substantiating the
appellant's claim." R. at 9. The Board explained that the appellant had
failed to submit "any
2
competent evidence showing that the current eye disorder is etiologically
related to his active duty
or that the pre[]existing eye disorder was aggravated by service." Id. The
Board also denied the
appellant's claim for entitlement to TDIU because he did not have a
service-connected disability.
R. at 10.
II. ANALYSIS
On appeal, the appellant argues that the Board, in determining that he had
failed to submit
new and material evidence, did not account for lay evidence indicating
that his eye condition was
aggravated in service. Appellant's Brief (Br.) at 9-15. The
Secretaryargues that the newlysubmitted
evidence does not "relate to an unestablished fact necessary to
substantiate [the appellant's] claim."
Secretary's Br. at 11.
Pursuant to 38 U.S.C. § 5108, "if new and material evidence is presented
or secured with
respect to a claim which has been disallowed, the Secretary shall reopen
the claim and review the
former disposition of the claim." "New and material evidence" is defined
as follows:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself
or when
consideredwithpreviousevidenceofrecord,relatesto anunestablishedfact
necessary
to substantiate the claim. New and material evidence can be neither
cumulative nor
redundant of the evidence of record at the time of the last prior final
denial of the
claim sought to be reopened, and must raise a reasonable possibility of
substantiating
the claim.
38 C.F.R. § 3.156(a) (2010).
At the outset, it should be highlighted that the February 1974 rating
board denied the
appellant's service connection claim because it determined that his optic
atrophy condition "clearly
pre[]existed service" and that there was "no evidence of record to warrant
a finding of aggravation
of this condition by service." R. at 582. The language used is consistent
with a finding by the rating
board that the Government had rebutted the presumption of soundness,
although this is not an issue
that the Board addressed in its decision below. See Wagner v. Principi,
370 F.3d 1089, 1096 (Fed.
Cir. 2004) ("When no preexisting condition is noted upon entry into
service, the veteran is presumed
to have been sound upon entry. The burden then falls on the government to
rebut the presumption
ofsoundnessbyclearandunmistakableevidencethattheveteran's
disabilitywasbothpreexistingand
3
not aggravated by service."). The appellant has now submitted evidence
that calls into doubt the
February 1974 rating board's findings that his optic atrophy "clearly pre[]
existed service" and that
there was "no evidence of record to warrant a finding of aggravation of
this condition by service."
As described, this evidence includes hearing testimony from the appellant
indicating that his eye
problems began in service (R. at 19-20) and that his eyes became irritated
while working in a gas
chamber in basic training (R. at 18, 250-51, 253), as well as a buddy
statement that seems to
corroborate this testimony (R. at 239). Although the Board briefly
indicated that the evidence
submitted since 1995 was cumulative of evidence already in the record, it
is not at all apparent that
evidence showing either that the appellant's eye condition began in
service or that he irritated his eyes
in basic training was before the rating board in February 1974. To the
extent that the Board denied
the appellant's attempt to reopen because the evidence he submitted was
cumulative of evidence
already of record, its finding is not supported by an adequate statement
of reasons or bases. See
38 U.S.C. § 7104(d)(1) (requiring the Board to provide not only a
statement of its findings and
conclusions but also of "the reasons and bases for those findings and
conclusions" on material issues
of fact and law).
However, the Board's refusal to reopen this claim appears primarily based
on a finding that
the evidence that the appellant submitted did not raise "a reasonable
possibility of substantiating the
appellant's claim." R. at 9. The Board apparently believed that because
the record did not show
evidence of a nexus between service and present disability, there was no "
reasonable possibility" that
the claim could ultimately be substantiated.
It is now clear that appellant's failure to submit sufficient evidence to
establish his underlying
service connection claim is not necessarily fatal to his claim to reopen.
In ShadeNext Hit, the Court
recognized that the phrase "must raise a reasonable possibility of
substantiating the claim," as it is
used in § 3.156(a), creates a standard that requires reopening "if
newlysubmitted evidence, combined
with VA assistance and considering the other evidence of record, raises a
reasonable possibility of
substantiating the claim." Previous HitShadeNext Hit v. Shinseki, 24 Vet.App. 110, 117 (2010) (
emphasis added). This
is "a low threshold." Id. The Court observes that the appellant has now
submitted evidence showing
both an in-service injury and a current disability, and it is possible
that, if the claim is ultimately
reopened, he could be entitled to a medical examination that will provide
the missing nexus element.
4
See 38 U.S.C. § 5103A(d) (outlining the Secretary's duty to provide a VA
medical examination in
compensation claims); see also Previous HitShadeNext Document, 24 Vet.App. at 120-21 (reversing a
Board decision that had
refused to reopen a service-connection claim where the claimant had
submitted evidence that could
satisfytwo of the three elements of a service-connection claim, and
recognizingthat, if the claim were
reopened, the claimant might be entitled to a VA medical opinion that
could ultimately establish the
missing element).
In finding that the evidence that the appellant has submitted did not
raise "a reasonable
possibilityofsubstantiatingtheappellant'sclaim,"theBoard,whichdid not
havethebenefit ofShade,
incorrectly required the appellant to submit evidence substantiating his
service-connection claim
before that claim was even reopened. The Court will therefore vacate this
portion of the Board's
decision and remand this matter, leaving the Board to reconsider whether
the appellant has submitted
evidence sufficient to reopen his optical atrophy claim under § 3.156(a).
See Elkins v. West,
12 Vet.App. 209, 218 (1999) (remanding matter to allow the Board to
properly apply § 3.156(a) in
the first instance where it had previously adjudicated the veteran's claim
to reopen under a higher
standard than was appropriate).
In light of the decision to vacate the portion of the Board's decision
related to the appellant's
claim to reopen, the Court will also vacate the portion of the Board's
decision pertaining to a denial
of TDIU. See Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where
facts underlying separate
claimsare"intimatelyconnected,"
interestsofjudicialeconomyandavoidanceofpiecemeallitigation
require that claims be adjudicated together); see also Begin v. Derwinski,
3 Vet.App. 257, 258 (1992)
("[T]he appellant's claim for [TDIU] is inextricably intertwined with the
degree of impairment that
is ultimately adjudicated."). The Board should reevaluate this matter on
remand.
III. CONCLUSION
Afterconsideration oftheappellant's andtheSecretary's pleadings, and a
review of the record,
the Board's February 13, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: February 28, 2011
5
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
6
"The Board apparently believed that because the record did not show
evidence of a nexus between service and present disability, there was no "
reasonable possibility" that the claim could ultimately be substantiated.
It is now clear that appellant's failure to submit sufficient evidence to
establish his underlying service connection claim is not necessarily fatal to his claim to reopen.
In Shade, the Court recognized that the phrase "must raise a reasonable possibility of substantiating the claim," as it is used in § 3.156(a), creates a standard that requires reopening "if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (emphasis added). This is "a low threshold." Id. The Court observes that the appellant has now submitted evidence showing both an in-service injury and a current disability, and it is possible that, if the claim is ultimately reopened, he could be entitled to a medical examination that will provide the missing nexus element.
4
See 38 U.S.C. § 5103A(d) (outlining the Secretary's duty to provide a VA
medical examination in compensation claims); see also Shade 24 Vet.App. at 120-21 (reversing a Board decision that had refused to reopen a service-connection claim where the claimant had submitted evidence that could satisfy two of the three elements of a service-connection claim, and recognizing that, if the claim were
reopened, the claimant might be entitled to a VA medical opinion that
could ultimately establish the missing element)."
=====================================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1461
NATHAN ALLEN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Nathan Allen, through counsel, appeals a
February 13,
2009, Board of Veterans' Appeals (Board) decision in which the Board
determined that he had not
submitted new and material evidence sufficient to reopen his claim for
entitlement to service
connection for bilateral optic atrophy. Record (R.) at 11. Additionally,
the Board denied a total
disability rating based on individual unemployability (TDIU). Id. This
appeal is timely, and the
Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990). For
the following reasons, the Court will vacate the Board's decision and
remand the matter for further
proceedings consistent with this decision.
I. BACKGROUND
The appellant had active duty in the U.S. Army from December 1971 to
December 1973.
R. at 404. The appellant's enlistment examination revealed 20/100 distance
vision in the right eye
and 20/70 distance vision in the left eye, and it showed that he failed a
color vision test. R. at 593.
A July 1972 service medical record (SMR) indicated that the appellant had
a history of vision
problems. R. at 592. A September 1972 SMR showed impressions of
questionable mild optic
atrophyand questionable earlyheredomacular dystrophy. R. at 619. A
September 1972 Department
of Defense record indicated that the appellant suffered from refraction
error and that he was not fit
for assignment requiring "good vision in each eye." R. at 616. An August
1973 SMR revealed an
impression of optic atrophy. R. at 607. His November 1973 separation
examination indicated that
he had "[p]oor vision (optic atrophy), etiology undetermined, E-3 profile."
R. at 588.
In December 1973, the appellant filed a claim for entitlement to service
connection for eye
problems. R. at 583. In a February 1974 decision, a rating board denied
his claim, finding that the
appellant's eye condition "clearly pre[]existed service and there [was] no
evidence of record to
warrant a finding of aggravation of this condition, by service." R. at 582.
This decision became
final.
InMarch1996,theappellantfiledaVAForm 21-536(
veteran'sapplicationforcompensation
or pension) stating that he was suffering from optic nerve atrophy. R. at
536. In July 2005, he wrote
to VA "in reference to a[n] application [he] submitted in 1995 for
disability." R. at 482. In this
letter, the appellant stated that, while in service, he had to be treated
for eye irritation after working
in a gas chamber. R. at 484. In an August 2005 statement, the appellant's
buddy recalled that the
appellant's eyes became infected while he was performing a gun range
exercise and powder got in
his eyes. R. at 239. In September 2005, the appellant filed a claim for
entitlement to TDIU. R. at
394-95. In a May2006 hearing, the appellant indicated that working with
gunpowder and chemicals
in service caused eye irritation for which he received treatment. R. at
250-51, 253.
In July 2008, the appellant testified before the Board. R. at 15-24. The
appellant stressed
that his eye problems began in service and that he was first diagnosed
with optic atrophy in service.
R. at 19-20. He indicated that his eyes became irritated in boot camp
while working in a gas
chamber. R. at 18. He further stated that he was unable to pass eye tests
after basic training. Id.
In the decision on appeal, the Board determined that the appellanthad not
submitted new and
material evidence sufficient to reopen his previously denied claim for
entitlement to service
connection for bilateral optic atrophy. R. at 7-10. The Board recognized
that the appellant had
submitted additional evidence since his claim was denied in February1974,
but it declined to reopen
this claim because the evidence did not "raise[] a reasonable possibility
of substantiating the
appellant's claim." R. at 9. The Board explained that the appellant had
failed to submit "any
2
competent evidence showing that the current eye disorder is etiologically
related to his active duty
or that the pre[]existing eye disorder was aggravated by service." Id. The
Board also denied the
appellant's claim for entitlement to TDIU because he did not have a
service-connected disability.
R. at 10.
II. ANALYSIS
On appeal, the appellant argues that the Board, in determining that he had
failed to submit
new and material evidence, did not account for lay evidence indicating
that his eye condition was
aggravated in service. Appellant's Brief (Br.) at 9-15. The
Secretaryargues that the newlysubmitted
evidence does not "relate to an unestablished fact necessary to
substantiate [the appellant's] claim."
Secretary's Br. at 11.
Pursuant to 38 U.S.C. § 5108, "if new and material evidence is presented
or secured with
respect to a claim which has been disallowed, the Secretary shall reopen
the claim and review the
former disposition of the claim." "New and material evidence" is defined
as follows:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself
or when
consideredwithpreviousevidenceofrecord,relatesto anunestablishedfact
necessary
to substantiate the claim. New and material evidence can be neither
cumulative nor
redundant of the evidence of record at the time of the last prior final
denial of the
claim sought to be reopened, and must raise a reasonable possibility of
substantiating
the claim.
38 C.F.R. § 3.156(a) (2010).
At the outset, it should be highlighted that the February 1974 rating
board denied the
appellant's service connection claim because it determined that his optic
atrophy condition "clearly
pre[]existed service" and that there was "no evidence of record to warrant
a finding of aggravation
of this condition by service." R. at 582. The language used is consistent
with a finding by the rating
board that the Government had rebutted the presumption of soundness,
although this is not an issue
that the Board addressed in its decision below. See Wagner v. Principi,
370 F.3d 1089, 1096 (Fed.
Cir. 2004) ("When no preexisting condition is noted upon entry into
service, the veteran is presumed
to have been sound upon entry. The burden then falls on the government to
rebut the presumption
ofsoundnessbyclearandunmistakableevidencethattheveteran's
disabilitywasbothpreexistingand
3
not aggravated by service."). The appellant has now submitted evidence
that calls into doubt the
February 1974 rating board's findings that his optic atrophy "clearly pre[]
existed service" and that
there was "no evidence of record to warrant a finding of aggravation of
this condition by service."
As described, this evidence includes hearing testimony from the appellant
indicating that his eye
problems began in service (R. at 19-20) and that his eyes became irritated
while working in a gas
chamber in basic training (R. at 18, 250-51, 253), as well as a buddy
statement that seems to
corroborate this testimony (R. at 239). Although the Board briefly
indicated that the evidence
submitted since 1995 was cumulative of evidence already in the record, it
is not at all apparent that
evidence showing either that the appellant's eye condition began in
service or that he irritated his eyes
in basic training was before the rating board in February 1974. To the
extent that the Board denied
the appellant's attempt to reopen because the evidence he submitted was
cumulative of evidence
already of record, its finding is not supported by an adequate statement
of reasons or bases. See
38 U.S.C. § 7104(d)(1) (requiring the Board to provide not only a
statement of its findings and
conclusions but also of "the reasons and bases for those findings and
conclusions" on material issues
of fact and law).
However, the Board's refusal to reopen this claim appears primarily based
on a finding that
the evidence that the appellant submitted did not raise "a reasonable
possibility of substantiating the
appellant's claim." R. at 9. The Board apparently believed that because
the record did not show
evidence of a nexus between service and present disability, there was no "
reasonable possibility" that
the claim could ultimately be substantiated.
It is now clear that appellant's failure to submit sufficient evidence to
establish his underlying
service connection claim is not necessarily fatal to his claim to reopen.
In ShadeNext Hit, the Court
recognized that the phrase "must raise a reasonable possibility of
substantiating the claim," as it is
used in § 3.156(a), creates a standard that requires reopening "if
newlysubmitted evidence, combined
with VA assistance and considering the other evidence of record, raises a
reasonable possibility of
substantiating the claim." Previous HitShadeNext Hit v. Shinseki, 24 Vet.App. 110, 117 (2010) (
emphasis added). This
is "a low threshold." Id. The Court observes that the appellant has now
submitted evidence showing
both an in-service injury and a current disability, and it is possible
that, if the claim is ultimately
reopened, he could be entitled to a medical examination that will provide
the missing nexus element.
4
See 38 U.S.C. § 5103A(d) (outlining the Secretary's duty to provide a VA
medical examination in
compensation claims); see also Previous HitShadeNext Document, 24 Vet.App. at 120-21 (reversing a
Board decision that had
refused to reopen a service-connection claim where the claimant had
submitted evidence that could
satisfytwo of the three elements of a service-connection claim, and
recognizingthat, if the claim were
reopened, the claimant might be entitled to a VA medical opinion that
could ultimately establish the
missing element).
In finding that the evidence that the appellant has submitted did not
raise "a reasonable
possibilityofsubstantiatingtheappellant'sclaim,"theBoard,whichdid not
havethebenefit ofShade,
incorrectly required the appellant to submit evidence substantiating his
service-connection claim
before that claim was even reopened. The Court will therefore vacate this
portion of the Board's
decision and remand this matter, leaving the Board to reconsider whether
the appellant has submitted
evidence sufficient to reopen his optical atrophy claim under § 3.156(a).
See Elkins v. West,
12 Vet.App. 209, 218 (1999) (remanding matter to allow the Board to
properly apply § 3.156(a) in
the first instance where it had previously adjudicated the veteran's claim
to reopen under a higher
standard than was appropriate).
In light of the decision to vacate the portion of the Board's decision
related to the appellant's
claim to reopen, the Court will also vacate the portion of the Board's
decision pertaining to a denial
of TDIU. See Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where
facts underlying separate
claimsare"intimatelyconnected,"
interestsofjudicialeconomyandavoidanceofpiecemeallitigation
require that claims be adjudicated together); see also Begin v. Derwinski,
3 Vet.App. 257, 258 (1992)
("[T]he appellant's claim for [TDIU] is inextricably intertwined with the
degree of impairment that
is ultimately adjudicated."). The Board should reevaluate this matter on
remand.
III. CONCLUSION
Afterconsideration oftheappellant's andtheSecretary's pleadings, and a
review of the record,
the Board's February 13, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: February 28, 2011
5
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
6
Single Judge Application TDIU, CFR 4.16, Physician's Task to Provide Diagnosis and Medical Causation
Excerpt from decision below:
"Despite the position of the Board and the Secretary, however, there is no
requirement that a medical opinion use the precise language of a statute or regulation. Cf. Dyment v. West, 13 Vet.App. 141 (1999) (holding medical examiner's word choice is not error where opinion is unambiguous); Holland, 6 Vet.App. at 448 (listing no magic words for SSA decision to be considered evidence). Nor does the medical opinion need to be "an unequivocal professional opinion of record that the veteran was unemployable" for an award of TDIU. Beaty v. Brown, 6 Vet.App. 532, 539 (1994). The physician's task is to provide diagnoses and opine as to medical causation; VA is charged with finding facts and applying the appropriate legal standards, including using its judgment to determine whether the § 4.16 standard has been met.
Here, the Board was required to determine whether the evidence supported a finding that the appellant was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to February 2002, not whether a particular piece of evidence stated as
much."
====================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-2650
WILLIE J. COLE, 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,Willie J. Cole, appeals through counsel a
June 17, 2008,
Board of Veterans' Appeals (Board) decision that denied entitlement to an
effective date prior to
February 27, 2002, for the award of a total disability rating based on
individual unemployability
(TDIU). Both parties filed briefs and the appellant filed a reply brief.
The Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the June 2008
Board decision. A single
judge may conduct that review. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the
following reasons, the Court will vacate the Board's June 2008 decision
and remand for adjudication
consistent with this decision.
I. BACKGROUND
Mr. Cole served in the U.S. Navy from May 1978 to October 1982. Record (R.)
at 2415.
In 1982, Mr. Cole claimed service connection for a left knee disability (R.
at 2453-56), and a VA
regional office (RO) granted entitlement and assigned a 20% disability
rating, decreased to 10% in
1983 (R. at 2428). Mr. Cole underwent left knee ligament reconstruction in
April 1992. R. at 2125-
26. In June 1993, the RO granted Mr. Cole a 30% rating for his left knee.
R. at 2051-52. In July
1993, Mr. Cole filed a claim for TDIU. R. at 2039-40. In April 1995, the
RO received an August
1992 orthopedic disability examination report prepared by Dr. Karam. R. at
1948-50. After the RO
denied TDIU in May1995, Mr. Cole appealed to the Board, and the Board
remanded the TDIU claim
in June 1996 and January 1997 for further development. R. at 1737-43, 1600-
05. In November
1997, the RO granted Mr. Cole service connection for chronic low back pain
secondary to his left
knee disability, effective July 1997 and assigned a 10% rating (R. at 1444-
47), which was later
increased to 20% with the same effective date (R. at 848-53). The RO
received a May 1993 Social
Security Administration (SSA) decision awarding Mr. Cole disability
benefits (R. at 1701-05) and
private medicalrecordsfromDr.Pflum (R. at 1489, 840), and Mr. Cole
underwent VA examinations
for his conditions (see, e.g., R. at 901, 1694-98). Subsequently, the TDIU
claim wasagain remanded
in October 2000 by the Board, in October 2002 by this Court, and again by
the Board in February
2004. R. at 780-802, 557, 314-22. Additional medical records were added to
the claims file,
including records from Dr. Pflum (R. at 739, 620) and VA examination
reports (R. at 485-89, 304).
In December 2004, Mr. Cole was granted service connection for right knee
patello-femoral
syndrome and assigned a 10% rating, effective January23, 1998, and
entitlement to TDIU, effective
February 27, 2002, on the claim originally filed in July 1993. R. at 281-
88. Mr. Cole was granted
TDIU because, as a result of his service-connected disabilities to his
knees and back, his disabilities
"met the minimum for a single disability rated at 60 percent," the minimum
rating threshold for
TDIU under 38 C.F.R. § 4.16(a). R. at 10, 288. Although Mr. Cole met the
60% threshold as of
January 23, 1998, he was assigned an effective date of February 27, 2002.
R. at 281-88. Mr. Cole
disagreed with the TDIU effective date, but the Board denied his appeal in
February2006. R. at 150-
53. Mr. Cole appealed, and the Court granted a joint motion for remand. R.
at 32-37. Remand was
required because the Board had erroneouslyfound that Mr. Cole had not
appealed a June 2001 Board
decision denying entitlement to TDIU, and therefore erroneously found that
the earliest date Mr.
Cole was eligible for an award of TDIU was February 27, 2002, the date he
supposedly submitted
a new claim for TDIU. Id. On remand, the Board was required to satisfy its
duty to provide an
adequate statement of reasons or bases for the earliest potential
effective date for Mr. Cole's TDIU
award. Id. In June 2008, the Board found that July 29, 1993, was the
earliest possible effective date,
but denied entitlement to an effective date prior to February 27, 2002. R.
at 3-14. Mr. Cole's appeal
of that decision is currently before the Court.
2
On appeal here, the appellant argues that the Board failed to provide an
adequate statement
of reasons or bases for rejecting evidence favorable to him in denying his
claim for an earlier
effective date for the grant of TDIU. The evidence at issue includes two
SSA decisions and medical
records from two physicians, Dr. Karam and Dr. Pflum. The Secretary argues
that the Board
provided an adequate statement of reasons or bases for its findings.
II. ANALYSIS
A claim for TDIU is governed by 38 C.F.R. § 4.16. Section 4.16 provides
two avenues for
the assignment of total disability ratings for compensation where the
schedular rating is less than
total. 38 C.F.R. § 4.16. First, total disability ratings for compensation
may be assigned "when the
disabled person is, in the judgment of the rating agency, unable to secure
or follow a substantially
gainful occupation as a result of service-connected disabilities . . ."
and certain disability thresholds
have been met. 38 C.F.R. § 4.16(a). Alternatively, even if the disability
thresholds have not been
met, if the veteran is "unemployable by reason of service-connected
disabilities," the RO must
submit the veteran's claim to the director of VA Compensation and Pension
Service for "extra-
schedular consideration." 38 C.F.R. § 4.16(b). In either case, VA must
determine whether,
essentially, the veteran is unable to work due to his or her service-
connected disability or
disabilities.1
The Board's determination of an earlier effective date is reviewed under
the "clearly
erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See
Hanson v. Brown, 9 Vet.App.
29, 32 (1996). "'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)). If the Board's "'account of the
evidence is plausible in light
of the record viewed in its entirety, the court of appeals may not reverse
it.'" Id. (quoting Anderson
v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
1
The two sections use slightly different language to describe similar
concepts. Section 4.16(a) uses "unable
to secure or follow a substantially gainful occupation as a result of
service-connected disabilities." Section 4.16(b) uses
both this language and also "unemployable by reason of service-connected
disabilities." For the purposes of this case,
the Court sees no reason to distinguish these two standards.
3
The Board, as fact finder, is responsible for evaluating the medical
evidence of record and
assigning each report or opinion its due probative weight. Wood v.
Derwinski, 1 Vet.App. 190, 193
(1991). In reviewing the evidence, the Board is free to favor one medical
opinion over another if it
provides an adequately articulated rationale for its decision. See Owens v.
Brown, 7 Vet.App. 429,
433 (1995).
In addition, the Boardmust provideawrittenstatementof the reasons or bases
forits 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). To complywith this requirement, the Board must analyze the
credibilityand probative value
of the evidence, account for the evidence which it finds to be persuasive
or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the veteran. Allday,
7 Vet.App. at 527.
A. Reasons or Bases
1. Social Security Administration Decisions
The appellant argues that "[t]he Board inadequately explained its finding
that the SSA
decisions do not demonstrate an inability to obtain or retain
substantially gainful employment prior
to February 27, 2002." Appellant's Brief (Br.) at 10. This Court has
stated:
SSA's disability determinations are not binding on the VA because, while
there are
significant similarities, there are significant differences between the
two disability
determination schemes. Nevertheless, the SSA's determination is evidence "
and to
the extent its conclusions are not accepted, reasons or bases should be
given
therefor."
Holland v. Brown, 6 Vet.App. 443, 448 (1994) (internal citation omitted) (
quoting Collier v.
Derwinski, 1 Vet.App. 413, 417 (1991)); see also Martin v. Brown, 4 Vet.
App. 136, 140 (1993)
(SSA decision “pertinent” to determination of veteran's ability to
engage in substantially gainful
employment).
4
In the first SSA decision, dated May 1993, an administrative law judge (
ALJ) found the
appellant was "disabled" as defined by the Social Security Act.2
Specifically, the ALJ found the
appellant (1) met the disability insured status requirements of the Act of
April 4, 1992, the date he
stated he became unable to work, and continued to meet them through
December 31, 1995; (2) had
not engaged in substantial gainful activity since April 4, 1992, and (3)
had "severe musculoskeletal
impairments" to his left knee, the severity of which had precluded him
from working for at least
twelve continuous months.3
R. at 1703. The ALJ awarded the appellant a period of disability
commencing on April 4, 1992, and disability insurance benefits under
sections 216(i) and 223,
respectively, of the Social Security Act. R. at 1705. The ALJ further
decided that the appellant was
"disabled" as defined by section 1614(a)(3)(A) of the Social Security Act
as of June 9, 1992, and
remained disabled at least through the date of the decision. Id.
In the second SSA decision, dated January 1998, a disability hearing
officer made the
following pertinent conclusions: (1) the appellant had not engaged in
substantial gainful activity
since April 4, 1992; (2) the appellant underwent left knee arthroscopic
surgery since the December
1996 cessation of benefits; and (3) the appellant was disabled. R. at 1288-
90; see R. at 1285.
The Board acknowledged its duty to "provide the basis for disagreeing with
or not accepting
a finding of disability by a Social Security Administration administrative
law judge." R. at 8 (citing
Holland, 6 Vet. App. at 448). However, in addressing the May 1993 SSA
determination, the Board
stated that because the ALJ did not actually determine whether the
appellant "was totally incapable
of obtaining and maintaining substantially gainful employment," the SSA
determination "had no
bearing on the veteran's claim with VA," and the Board discussed it no
further. R. at 8 (emphasis
in original). In addressing the January 1998 decision, the Board stated: "
On appeal [at the SSA], the
veteran' [sic] eligibility was reinstated on the same basis as it was
originally awarded, which did not
Specifically, the ALJ found the appellant's medical condition met the "
criteria of section 1.03(B) of the Listing
of Impairments found in Appendix 1, Subpart P of the Regulations No. 4
dealing with arthritis of a major weight bearing
joint due to any cause with the history of persistent joint pain and
stiffness with signs of marked limitation of motion or
abnormal motion of the affected joint on current physical examination with
reconstructive surgery or surgical arthrodesis
of a major weight bearing joint and returned to full weight bearing status
did not occur, or is not expected to occur, within
twelve months of onset." R. at 1701, 1703.
Whether the ALJ meant the appellant was precluded from working in his
postal job or any job—an issue
raised by the parties regarding another item in the record—is immaterial
to the present analysis.
3
2
5
factor in the his [sic] ability to perform any other type of gainful
employment." R. at 9. Apparently
the Board's position was that since the SSA decisions did not determine
whether the appellant could
obtain and maintain substantially gainful employment, the findings and
conclusions regarding the
appellant's disability were irrelevant to the appellant's claim before VA,
and the Board was not
required to provide reasons or bases for not accepting them.
The Board misunderstands the mandate of Holland and Collier. Those cases
hold that if the
Board does not accept the SSA "conclusions," it must provide reasons or
bases for not doing so.
Holland, 6 Vet.App. at 448, Collier, 1 Vet.App. at 417. It is immaterial
that the SSA did not make
the conclusion required of VA in awardingTDIU benefits. See 38 C.F.R. § 4.
16(a) ("Total disability
ratings for compensation may be assigned, where the schedular rating is
less than total, when the
disabled person is, in the judgment of the rating agency, unable to secure
or follow a substantially
gainful occupation asaresultofservice-connecteddisabilities.. . ."). The
conclusions contemplated
by Holland and Collier include, in this instance, (1) the finding that the
appellant had not engaged
in substantial gainful activity since April 4, 1992; (2) the finding that
the appellant had "severe
musculoskeletal impairments;" (3) the finding that the appellant's
impairments precluded him from
working for at least twelve continuous months; and (4) the finding that as
of June 9, 1992, the
appellant was disabled as defined by section 1614(a)(3)(A) of the Social
Security Act and remained
disabled at least through the date of the decision. The Board did not
provide any reasons or bases
for rejecting these conclusions, it merely stated it was not required to
do so because the agencies
used different disability determination schemes. This interpretation would
eviscerate this Court's
holdings that even though the schemes are different, VA must nevertheless
provide reasons or bases
for rejecting SSA conclusions. Therefore, while the Board is free to
reject SSA conclusions, its
failure to provide reasons or bases for doing so is contrary to 38 U.S.C. §
7104(d)(1), Holland,
and Collier.
2. Dr. Karam Medical Report
The appellant argues that the Board failed to address an August 1992
medical report by Dr.
Karam, which found the appellant had a "severe internal derangement at the
left knee" that
"[s]everely limited" his ability to do work-related activities.
Appellant's Br. at 11-12 (citing R. at
6
7-9, 1948-50). The Secretaryrespondsthat"whiletheBoarddid not
specificallydiscuss Dr. Karam's
findings, it did thoroughly discuss the 1993 SSA decision which referenced
Dr. Karam' findings."
Sec'y Br. at 12. Because the Court concluded that the Board did not
provide an adequate statement
of reasons or bases for rejecting favorable evidence in the May 1993 SSA
decision, this argument
is unavailing. The Secretarypoints out that Dr. Karam's opinion
onlysuggests that the appellant was
limited in his work at the U.S. Postal Service but does not suggest he was
unable to engage in other
substantially gainful activity. Id. To the extent that the
Secretaryattempts to explain whythe Board
rejected Dr. Karam's opinion, the Court cannot accept the post hoc
rationalization of an implicit
rejection in lieu of an adequate statement of reasons or bases by the
Board. See Martin v.
Occupational Safety &Health Review Comm'n, 499 U.S. 144, 156 (1991).
Accordingly, the Board's
failure to provide an adequate statement of reasons or bases for its
treatment of this evidence as it
relates to the appellant's claim for an earlier effective date warrants a
remand.
3. Dr. Pflum Medical Reports
The appellant argues that the Board inadequately explained its rejection
of three of Dr.
Pflum'sreports asevidenceofunemployabilitydueto service-
connecteddisabilities. Appellant's Br.
at 12-13. In the first report, dated March 1997, Dr. Pflum opined that the
appellant "has a total
disability secondary to a previous knee injuryNext Hit sustained in boot camp." R.
at 1489. Regarding this
report, the Board stated: "Although a March 1997 report by Dr. Pflum also
noted the veteran was
totally disabled, it is clear he was referring to the veteran's ability to
lift the heavy mail bags as he
formerly did." R. at 9. In response, the Secretary concedes Dr. Pflum did
not limit his "total
disability" opinion to the appellant's abilityto lift heavymail bags but
asserts it is "within the Board's
'purview' to assess the evidence of record, in this case, the fact that
the medical evidence noted [the]
[a]ppellant's inability to do his previous work with the U.S. Post Office."
Sec'y Br. at 13 (citing
Dalton v. Nicholson, 21 Vet.App. 23, 38 (2007)). Although Dalton provides
that "[d]eterminations
of credibility are findings of fact to be made by the Board in the first
instance," (21 Vet.App. at 38),
it also stands for the proposition that the Board must make certain
credibility determinations and
explain them to provide an adequate statement of reasons or bases for its
decision. See id. at 38-39
(noting that Board's failure to describe credibility determination "does
not facilitate judicial review
7
nor is it helpful to understanding the basis for the Board's decision");
see also Gabrielson v. Brown,
7 Vet.App 36, 39-40 (1994). In this instance, the Board presumably gave
little or no weight to Dr.
Pflum's March 1997 report that the appellant was totally disabled,
choosing instead to favor a
medical record that limited the appellant's disability to his prior
occupation. While the Board is free
to favor one medical opinion over another, its failure to provide a
statement of the reasons or bases
for its rejection of evidence favorable to the appellant constitutes error.
Next, the parties dispute whether the Board complied with section 7104(d)(
1) regarding a
July 1997 report of Dr. Pflum. The Board stated: "A July 1997 record from
Dr. Pflum noted that the
appellant was totally disabled, but that opinion considered a nonservice
connected shoulder
disorder." Sec'y Br. at 13-14. The Court presumes the Board's position was
that, because Dr. Pflum
considered a non-service-connected Previous HitinjuryNext Document in conjunction with service-
connected injuries in
concludingthat the appellant was totallydisabled, the Board could not
determine to what extent each
oftheappellant's injuriescontributedto Dr.Pflum'sconclusion,renderingit of
little probativevalue.
Nevertheless, the Court concludes that the Board failed to provide a
statement of reasons or bases
that is adequate to enable a claimant to understand the precise basis for
its decision.
Finally, in February 2001, Dr. Pflum again stated that the appellant "is
disabled secondary
to an old anterior cruciate ligament tear." R. at 739. The Secretary
concedes that the Board did not
address this record. Sec'y Br. at 15. On remand the Board must address
this evidence in relation to
the appellant's claim for an effective date prior to February 2002 for
TDIU.
4. Benefit of the Doubt
The appellant argues that the Board's statement that the preponderance of
the evidence was
against an effective date earlier than February27, 2002,was conclusoryand
inadequatelyexplained.
Appellant's Br. at 14 (citing R. at 11). The Secretary did not respond to
this argument. In light of
the Court's other conclusions, it need not reach this issue. On remand, if
the Board still finds the
benefit-of-the-doubt doctrine inapplicable, it must provide a satisfactory
explanation as to why the
evidence is not in equipoise as there appears to be significant evidence
in support of the appellant's
claim. See 38 U.S.C. § 5107(b); Williams v. Brown, 4 Vet.App. 270, 273-74 (
1993).
8
B. Precise Language Not Required
As noted above, when a veteran seeks a grant of TDIU, VA must determine
whether the
veteran is unable to work due to his or her disability. See 38 C.F.R. § 4.
16(a) ("[W]hen the disabled
person is, in the judgment of the rating agency, unable to secure or
follow a substantially gainful
occupation as a result of service-connected disabilities . . . .") (
emphasis added); § 4.16(b) (requiring
ratings board to submit cases of veterans who are "unemployable by reason
of service-connected
disabilities"to directorofVACompensationandPensionServiceforextra-
schedularconsideration).
Section 4.16(a) expressly requires the rating agency to make this
employability determination;
§ 4.16(b) implies as much. In this case, however, the Board appears to
have required a medical
opinion to make that determination.
In denying the appellant's claim for an earlier effective date, the Board
seems to have relied
on the fact that many pieces of evidence that appear favorable to the
appellant—SSA decisions and
medical records from private physicians—do not expressly state that the
appellant is "unable to
secure or follow a substantially gainful occupation as a result of service-
connected disabilities" or
some iteration of that phrase. See, e.g., R. at 8 (finding that SSA
decision had "no bearing" on claim
with VA because it did not discuss § 4.16(a) standard). In response to Dr.
Pflum's March 2002
report stating the appellant's injuries were "a very significant
disability causing him to be unable to
find employment" (R. at 620), the Board stated "an inability to find
employment is not equivalent
to a medical determination that one is physical [sic] or mentally
incapable of obtaining and
maintaining substantially gainful employment."4
R. at 10. The Secretary repeated these statements
to support its argument that the Board provided adequate reasons or bases
for rejecting certain
evidence. See, e.g., Sec'y Br. at 11, 12, 15, 16. In addition, the Board
found entitlement to TDIU
arose only after specifically asking a physician, using the terms of § 4.
16(a), whether the standard
had been met. See R. at 304.
The March 2002 report is relevant because, while the RO granted the
appellant an effective date of February
27, 2002, the Board found the appropriate date to be March 2, 2004,
because between the date the claim was received
and the date entitlement arose, the effective date is the later of the two.
R. at 11 (citing 38 C.F.R. § 3.400(o)). The
appellant's claim was received in July 1993; the Board found entitlement
to TDIU arose on March 2, 2004, the date of
a spine examination. Id.
4
9
Despite the position of the Board and the Secretary, however, there is no
requirement that
a medical opinion use the precise language of a statute or regulation. Cf.
Dyment v. West,
13 Vet.App. 141 (1999) (holding medical examiner's word choice is not
error where opinion is
unambiguous); Holland, 6 Vet.App. at 448 (listing no magic words for SSA
decision to be
consideredevidence). Nordoesthemedicalopinion needto be"anunequivocal
professional opinion
of record that the veteran was unemployable" for an award of TDIU.
Beaty v. Brown,
6 Vet.App. 532, 539 (1994). The physician's task is to provide diagnoses
and opine as to medical
causation; VA is charged with finding facts and applying the appropriate
legal standards, including
using its judgment to determine whether the § 4.16 standard has been met.
Here, the Board was
required to determine whether the evidence supported a finding that the
appellant was unable to
secure or follow a substantially gainful occupation as a result of service-
connected disabilities prior
to February 2002, not whether a particular piece of evidence stated as
much.
C. Prejudicial Error
The Court is required to consider whether an error committed by the Board
is prejudicial.
See Shinseki v. Sanders, 129 S. Ct. 1696, 1708 (2009) (holding that this
Court must take due account
of the rule of prejudicial error). Here the Board did not provide an
adequate statement of reasons
or bases in reaching its conclusions by failing to describe its treatment
or rejection of certain
evidence that was favorable to the claimant. The Board also appears to
have misinterpreted
38 C.F.R. § 4.16 by requiring a medical opinion—as opposed to a VA
determination—to state that
a disabled person is unable to secure or follow a substantially gainful
occupation as a result of
service-connected disabilities. Had the Board not made these errors, it
may have reached a
materially different decision. Thus, the Court cannot say, based on the
record before it, that the
appellant here has not been prejudiced. Accordingly, the matter must be
remanded for the Board to
readjudicate the matter consistent with this decision.
D. Remand
The Board found that July 29, 1993, is the earliest possible date that the
appellant might be
assigned for his award of TDIU but found no evidence that his left knee
disability, the only service-
10
connected disability at the time, met the requirements of § 4.16(b) (R.
at 7). The Board also found
that he did not meet the schedular requirements for a TDIU award under §
4.16(a) until January 23,
1998 (see R. at 10, 288). The Board, however, did not provide an adequate
statement of reasons or
bases discussing whether the appellant met the requirements under § 4.16(
b) between July 29, 1993,
and February 26, 2002. Such discussion must analyze the matter under Thun
v. Peake, 22 Vet.App.
111, 115 (2008). Although the Board recognized that the schedular
requirements of § 4.16(a) were
met as of January 23, 1998, its statement of reasons or bases for
concluding that the appellant was
not entitled to an award of TDIU prior to February 27, 2002, was
inadequate for the reasons stated
above. On remand, the Board must reexamine and consider all the evidence
and, if it rejects or finds
unpersuasive any evidence that discusses the appellant's ability to work
prior to February 27, 2002,
under either § 4.16(a) or (b), the Board must provide an adequate
statement of reasons or bases for
doing so.
On remand the appellant is free to submit additional evidence and argument
on the remanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002). The Court has held that “[a]
remand is meant to entail a
critical examination of the justification for the decision.” Fletcher v.
Derwinski, 1 Vet.App. 394,
397 (1991) (noting Court expects critical examination to occur on remand,
in which Board will
reexamine evidence of record, seek additional evidence as necessary, and
issue well-supported
decision). The Board must proceed expeditiously, in accordance with 38 U.S.
C. § 7112.
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's June 17, 2008, decision denying an earlier effective date for
the grant of TDIU is
VACATED and the matter is REMANDED for adjudication consistent with this
decision.
DATED: March 1, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
11
"Despite the position of the Board and the Secretary, however, there is no
requirement that a medical opinion use the precise language of a statute or regulation. Cf. Dyment v. West, 13 Vet.App. 141 (1999) (holding medical examiner's word choice is not error where opinion is unambiguous); Holland, 6 Vet.App. at 448 (listing no magic words for SSA decision to be considered evidence). Nor does the medical opinion need to be "an unequivocal professional opinion of record that the veteran was unemployable" for an award of TDIU. Beaty v. Brown, 6 Vet.App. 532, 539 (1994). The physician's task is to provide diagnoses and opine as to medical causation; VA is charged with finding facts and applying the appropriate legal standards, including using its judgment to determine whether the § 4.16 standard has been met.
Here, the Board was required to determine whether the evidence supported a finding that the appellant was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to February 2002, not whether a particular piece of evidence stated as
much."
====================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-2650
WILLIE J. COLE, 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,Willie J. Cole, appeals through counsel a
June 17, 2008,
Board of Veterans' Appeals (Board) decision that denied entitlement to an
effective date prior to
February 27, 2002, for the award of a total disability rating based on
individual unemployability
(TDIU). Both parties filed briefs and the appellant filed a reply brief.
The Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the June 2008
Board decision. A single
judge may conduct that review. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the
following reasons, the Court will vacate the Board's June 2008 decision
and remand for adjudication
consistent with this decision.
I. BACKGROUND
Mr. Cole served in the U.S. Navy from May 1978 to October 1982. Record (R.)
at 2415.
In 1982, Mr. Cole claimed service connection for a left knee disability (R.
at 2453-56), and a VA
regional office (RO) granted entitlement and assigned a 20% disability
rating, decreased to 10% in
1983 (R. at 2428). Mr. Cole underwent left knee ligament reconstruction in
April 1992. R. at 2125-
26. In June 1993, the RO granted Mr. Cole a 30% rating for his left knee.
R. at 2051-52. In July
1993, Mr. Cole filed a claim for TDIU. R. at 2039-40. In April 1995, the
RO received an August
1992 orthopedic disability examination report prepared by Dr. Karam. R. at
1948-50. After the RO
denied TDIU in May1995, Mr. Cole appealed to the Board, and the Board
remanded the TDIU claim
in June 1996 and January 1997 for further development. R. at 1737-43, 1600-
05. In November
1997, the RO granted Mr. Cole service connection for chronic low back pain
secondary to his left
knee disability, effective July 1997 and assigned a 10% rating (R. at 1444-
47), which was later
increased to 20% with the same effective date (R. at 848-53). The RO
received a May 1993 Social
Security Administration (SSA) decision awarding Mr. Cole disability
benefits (R. at 1701-05) and
private medicalrecordsfromDr.Pflum (R. at 1489, 840), and Mr. Cole
underwent VA examinations
for his conditions (see, e.g., R. at 901, 1694-98). Subsequently, the TDIU
claim wasagain remanded
in October 2000 by the Board, in October 2002 by this Court, and again by
the Board in February
2004. R. at 780-802, 557, 314-22. Additional medical records were added to
the claims file,
including records from Dr. Pflum (R. at 739, 620) and VA examination
reports (R. at 485-89, 304).
In December 2004, Mr. Cole was granted service connection for right knee
patello-femoral
syndrome and assigned a 10% rating, effective January23, 1998, and
entitlement to TDIU, effective
February 27, 2002, on the claim originally filed in July 1993. R. at 281-
88. Mr. Cole was granted
TDIU because, as a result of his service-connected disabilities to his
knees and back, his disabilities
"met the minimum for a single disability rated at 60 percent," the minimum
rating threshold for
TDIU under 38 C.F.R. § 4.16(a). R. at 10, 288. Although Mr. Cole met the
60% threshold as of
January 23, 1998, he was assigned an effective date of February 27, 2002.
R. at 281-88. Mr. Cole
disagreed with the TDIU effective date, but the Board denied his appeal in
February2006. R. at 150-
53. Mr. Cole appealed, and the Court granted a joint motion for remand. R.
at 32-37. Remand was
required because the Board had erroneouslyfound that Mr. Cole had not
appealed a June 2001 Board
decision denying entitlement to TDIU, and therefore erroneously found that
the earliest date Mr.
Cole was eligible for an award of TDIU was February 27, 2002, the date he
supposedly submitted
a new claim for TDIU. Id. On remand, the Board was required to satisfy its
duty to provide an
adequate statement of reasons or bases for the earliest potential
effective date for Mr. Cole's TDIU
award. Id. In June 2008, the Board found that July 29, 1993, was the
earliest possible effective date,
but denied entitlement to an effective date prior to February 27, 2002. R.
at 3-14. Mr. Cole's appeal
of that decision is currently before the Court.
2
On appeal here, the appellant argues that the Board failed to provide an
adequate statement
of reasons or bases for rejecting evidence favorable to him in denying his
claim for an earlier
effective date for the grant of TDIU. The evidence at issue includes two
SSA decisions and medical
records from two physicians, Dr. Karam and Dr. Pflum. The Secretary argues
that the Board
provided an adequate statement of reasons or bases for its findings.
II. ANALYSIS
A claim for TDIU is governed by 38 C.F.R. § 4.16. Section 4.16 provides
two avenues for
the assignment of total disability ratings for compensation where the
schedular rating is less than
total. 38 C.F.R. § 4.16. First, total disability ratings for compensation
may be assigned "when the
disabled person is, in the judgment of the rating agency, unable to secure
or follow a substantially
gainful occupation as a result of service-connected disabilities . . ."
and certain disability thresholds
have been met. 38 C.F.R. § 4.16(a). Alternatively, even if the disability
thresholds have not been
met, if the veteran is "unemployable by reason of service-connected
disabilities," the RO must
submit the veteran's claim to the director of VA Compensation and Pension
Service for "extra-
schedular consideration." 38 C.F.R. § 4.16(b). In either case, VA must
determine whether,
essentially, the veteran is unable to work due to his or her service-
connected disability or
disabilities.1
The Board's determination of an earlier effective date is reviewed under
the "clearly
erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See
Hanson v. Brown, 9 Vet.App.
29, 32 (1996). "'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)). If the Board's "'account of the
evidence is plausible in light
of the record viewed in its entirety, the court of appeals may not reverse
it.'" Id. (quoting Anderson
v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
1
The two sections use slightly different language to describe similar
concepts. Section 4.16(a) uses "unable
to secure or follow a substantially gainful occupation as a result of
service-connected disabilities." Section 4.16(b) uses
both this language and also "unemployable by reason of service-connected
disabilities." For the purposes of this case,
the Court sees no reason to distinguish these two standards.
3
The Board, as fact finder, is responsible for evaluating the medical
evidence of record and
assigning each report or opinion its due probative weight. Wood v.
Derwinski, 1 Vet.App. 190, 193
(1991). In reviewing the evidence, the Board is free to favor one medical
opinion over another if it
provides an adequately articulated rationale for its decision. See Owens v.
Brown, 7 Vet.App. 429,
433 (1995).
In addition, the Boardmust provideawrittenstatementof the reasons or bases
forits 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). To complywith this requirement, the Board must analyze the
credibilityand probative value
of the evidence, account for the evidence which it finds to be persuasive
or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the veteran. Allday,
7 Vet.App. at 527.
A. Reasons or Bases
1. Social Security Administration Decisions
The appellant argues that "[t]he Board inadequately explained its finding
that the SSA
decisions do not demonstrate an inability to obtain or retain
substantially gainful employment prior
to February 27, 2002." Appellant's Brief (Br.) at 10. This Court has
stated:
SSA's disability determinations are not binding on the VA because, while
there are
significant similarities, there are significant differences between the
two disability
determination schemes. Nevertheless, the SSA's determination is evidence "
and to
the extent its conclusions are not accepted, reasons or bases should be
given
therefor."
Holland v. Brown, 6 Vet.App. 443, 448 (1994) (internal citation omitted) (
quoting Collier v.
Derwinski, 1 Vet.App. 413, 417 (1991)); see also Martin v. Brown, 4 Vet.
App. 136, 140 (1993)
(SSA decision “pertinent” to determination of veteran's ability to
engage in substantially gainful
employment).
4
In the first SSA decision, dated May 1993, an administrative law judge (
ALJ) found the
appellant was "disabled" as defined by the Social Security Act.2
Specifically, the ALJ found the
appellant (1) met the disability insured status requirements of the Act of
April 4, 1992, the date he
stated he became unable to work, and continued to meet them through
December 31, 1995; (2) had
not engaged in substantial gainful activity since April 4, 1992, and (3)
had "severe musculoskeletal
impairments" to his left knee, the severity of which had precluded him
from working for at least
twelve continuous months.3
R. at 1703. The ALJ awarded the appellant a period of disability
commencing on April 4, 1992, and disability insurance benefits under
sections 216(i) and 223,
respectively, of the Social Security Act. R. at 1705. The ALJ further
decided that the appellant was
"disabled" as defined by section 1614(a)(3)(A) of the Social Security Act
as of June 9, 1992, and
remained disabled at least through the date of the decision. Id.
In the second SSA decision, dated January 1998, a disability hearing
officer made the
following pertinent conclusions: (1) the appellant had not engaged in
substantial gainful activity
since April 4, 1992; (2) the appellant underwent left knee arthroscopic
surgery since the December
1996 cessation of benefits; and (3) the appellant was disabled. R. at 1288-
90; see R. at 1285.
The Board acknowledged its duty to "provide the basis for disagreeing with
or not accepting
a finding of disability by a Social Security Administration administrative
law judge." R. at 8 (citing
Holland, 6 Vet. App. at 448). However, in addressing the May 1993 SSA
determination, the Board
stated that because the ALJ did not actually determine whether the
appellant "was totally incapable
of obtaining and maintaining substantially gainful employment," the SSA
determination "had no
bearing on the veteran's claim with VA," and the Board discussed it no
further. R. at 8 (emphasis
in original). In addressing the January 1998 decision, the Board stated: "
On appeal [at the SSA], the
veteran' [sic] eligibility was reinstated on the same basis as it was
originally awarded, which did not
Specifically, the ALJ found the appellant's medical condition met the "
criteria of section 1.03(B) of the Listing
of Impairments found in Appendix 1, Subpart P of the Regulations No. 4
dealing with arthritis of a major weight bearing
joint due to any cause with the history of persistent joint pain and
stiffness with signs of marked limitation of motion or
abnormal motion of the affected joint on current physical examination with
reconstructive surgery or surgical arthrodesis
of a major weight bearing joint and returned to full weight bearing status
did not occur, or is not expected to occur, within
twelve months of onset." R. at 1701, 1703.
Whether the ALJ meant the appellant was precluded from working in his
postal job or any job—an issue
raised by the parties regarding another item in the record—is immaterial
to the present analysis.
3
2
5
factor in the his [sic] ability to perform any other type of gainful
employment." R. at 9. Apparently
the Board's position was that since the SSA decisions did not determine
whether the appellant could
obtain and maintain substantially gainful employment, the findings and
conclusions regarding the
appellant's disability were irrelevant to the appellant's claim before VA,
and the Board was not
required to provide reasons or bases for not accepting them.
The Board misunderstands the mandate of Holland and Collier. Those cases
hold that if the
Board does not accept the SSA "conclusions," it must provide reasons or
bases for not doing so.
Holland, 6 Vet.App. at 448, Collier, 1 Vet.App. at 417. It is immaterial
that the SSA did not make
the conclusion required of VA in awardingTDIU benefits. See 38 C.F.R. § 4.
16(a) ("Total disability
ratings for compensation may be assigned, where the schedular rating is
less than total, when the
disabled person is, in the judgment of the rating agency, unable to secure
or follow a substantially
gainful occupation asaresultofservice-connecteddisabilities.. . ."). The
conclusions contemplated
by Holland and Collier include, in this instance, (1) the finding that the
appellant had not engaged
in substantial gainful activity since April 4, 1992; (2) the finding that
the appellant had "severe
musculoskeletal impairments;" (3) the finding that the appellant's
impairments precluded him from
working for at least twelve continuous months; and (4) the finding that as
of June 9, 1992, the
appellant was disabled as defined by section 1614(a)(3)(A) of the Social
Security Act and remained
disabled at least through the date of the decision. The Board did not
provide any reasons or bases
for rejecting these conclusions, it merely stated it was not required to
do so because the agencies
used different disability determination schemes. This interpretation would
eviscerate this Court's
holdings that even though the schemes are different, VA must nevertheless
provide reasons or bases
for rejecting SSA conclusions. Therefore, while the Board is free to
reject SSA conclusions, its
failure to provide reasons or bases for doing so is contrary to 38 U.S.C. §
7104(d)(1), Holland,
and Collier.
2. Dr. Karam Medical Report
The appellant argues that the Board failed to address an August 1992
medical report by Dr.
Karam, which found the appellant had a "severe internal derangement at the
left knee" that
"[s]everely limited" his ability to do work-related activities.
Appellant's Br. at 11-12 (citing R. at
6
7-9, 1948-50). The Secretaryrespondsthat"whiletheBoarddid not
specificallydiscuss Dr. Karam's
findings, it did thoroughly discuss the 1993 SSA decision which referenced
Dr. Karam' findings."
Sec'y Br. at 12. Because the Court concluded that the Board did not
provide an adequate statement
of reasons or bases for rejecting favorable evidence in the May 1993 SSA
decision, this argument
is unavailing. The Secretarypoints out that Dr. Karam's opinion
onlysuggests that the appellant was
limited in his work at the U.S. Postal Service but does not suggest he was
unable to engage in other
substantially gainful activity. Id. To the extent that the
Secretaryattempts to explain whythe Board
rejected Dr. Karam's opinion, the Court cannot accept the post hoc
rationalization of an implicit
rejection in lieu of an adequate statement of reasons or bases by the
Board. See Martin v.
Occupational Safety &Health Review Comm'n, 499 U.S. 144, 156 (1991).
Accordingly, the Board's
failure to provide an adequate statement of reasons or bases for its
treatment of this evidence as it
relates to the appellant's claim for an earlier effective date warrants a
remand.
3. Dr. Pflum Medical Reports
The appellant argues that the Board inadequately explained its rejection
of three of Dr.
Pflum'sreports asevidenceofunemployabilitydueto service-
connecteddisabilities. Appellant's Br.
at 12-13. In the first report, dated March 1997, Dr. Pflum opined that the
appellant "has a total
disability secondary to a previous knee injuryNext Hit sustained in boot camp." R.
at 1489. Regarding this
report, the Board stated: "Although a March 1997 report by Dr. Pflum also
noted the veteran was
totally disabled, it is clear he was referring to the veteran's ability to
lift the heavy mail bags as he
formerly did." R. at 9. In response, the Secretary concedes Dr. Pflum did
not limit his "total
disability" opinion to the appellant's abilityto lift heavymail bags but
asserts it is "within the Board's
'purview' to assess the evidence of record, in this case, the fact that
the medical evidence noted [the]
[a]ppellant's inability to do his previous work with the U.S. Post Office."
Sec'y Br. at 13 (citing
Dalton v. Nicholson, 21 Vet.App. 23, 38 (2007)). Although Dalton provides
that "[d]eterminations
of credibility are findings of fact to be made by the Board in the first
instance," (21 Vet.App. at 38),
it also stands for the proposition that the Board must make certain
credibility determinations and
explain them to provide an adequate statement of reasons or bases for its
decision. See id. at 38-39
(noting that Board's failure to describe credibility determination "does
not facilitate judicial review
7
nor is it helpful to understanding the basis for the Board's decision");
see also Gabrielson v. Brown,
7 Vet.App 36, 39-40 (1994). In this instance, the Board presumably gave
little or no weight to Dr.
Pflum's March 1997 report that the appellant was totally disabled,
choosing instead to favor a
medical record that limited the appellant's disability to his prior
occupation. While the Board is free
to favor one medical opinion over another, its failure to provide a
statement of the reasons or bases
for its rejection of evidence favorable to the appellant constitutes error.
Next, the parties dispute whether the Board complied with section 7104(d)(
1) regarding a
July 1997 report of Dr. Pflum. The Board stated: "A July 1997 record from
Dr. Pflum noted that the
appellant was totally disabled, but that opinion considered a nonservice
connected shoulder
disorder." Sec'y Br. at 13-14. The Court presumes the Board's position was
that, because Dr. Pflum
considered a non-service-connected Previous HitinjuryNext Document in conjunction with service-
connected injuries in
concludingthat the appellant was totallydisabled, the Board could not
determine to what extent each
oftheappellant's injuriescontributedto Dr.Pflum'sconclusion,renderingit of
little probativevalue.
Nevertheless, the Court concludes that the Board failed to provide a
statement of reasons or bases
that is adequate to enable a claimant to understand the precise basis for
its decision.
Finally, in February 2001, Dr. Pflum again stated that the appellant "is
disabled secondary
to an old anterior cruciate ligament tear." R. at 739. The Secretary
concedes that the Board did not
address this record. Sec'y Br. at 15. On remand the Board must address
this evidence in relation to
the appellant's claim for an effective date prior to February 2002 for
TDIU.
4. Benefit of the Doubt
The appellant argues that the Board's statement that the preponderance of
the evidence was
against an effective date earlier than February27, 2002,was conclusoryand
inadequatelyexplained.
Appellant's Br. at 14 (citing R. at 11). The Secretary did not respond to
this argument. In light of
the Court's other conclusions, it need not reach this issue. On remand, if
the Board still finds the
benefit-of-the-doubt doctrine inapplicable, it must provide a satisfactory
explanation as to why the
evidence is not in equipoise as there appears to be significant evidence
in support of the appellant's
claim. See 38 U.S.C. § 5107(b); Williams v. Brown, 4 Vet.App. 270, 273-74 (
1993).
8
B. Precise Language Not Required
As noted above, when a veteran seeks a grant of TDIU, VA must determine
whether the
veteran is unable to work due to his or her disability. See 38 C.F.R. § 4.
16(a) ("[W]hen the disabled
person is, in the judgment of the rating agency, unable to secure or
follow a substantially gainful
occupation as a result of service-connected disabilities . . . .") (
emphasis added); § 4.16(b) (requiring
ratings board to submit cases of veterans who are "unemployable by reason
of service-connected
disabilities"to directorofVACompensationandPensionServiceforextra-
schedularconsideration).
Section 4.16(a) expressly requires the rating agency to make this
employability determination;
§ 4.16(b) implies as much. In this case, however, the Board appears to
have required a medical
opinion to make that determination.
In denying the appellant's claim for an earlier effective date, the Board
seems to have relied
on the fact that many pieces of evidence that appear favorable to the
appellant—SSA decisions and
medical records from private physicians—do not expressly state that the
appellant is "unable to
secure or follow a substantially gainful occupation as a result of service-
connected disabilities" or
some iteration of that phrase. See, e.g., R. at 8 (finding that SSA
decision had "no bearing" on claim
with VA because it did not discuss § 4.16(a) standard). In response to Dr.
Pflum's March 2002
report stating the appellant's injuries were "a very significant
disability causing him to be unable to
find employment" (R. at 620), the Board stated "an inability to find
employment is not equivalent
to a medical determination that one is physical [sic] or mentally
incapable of obtaining and
maintaining substantially gainful employment."4
R. at 10. The Secretary repeated these statements
to support its argument that the Board provided adequate reasons or bases
for rejecting certain
evidence. See, e.g., Sec'y Br. at 11, 12, 15, 16. In addition, the Board
found entitlement to TDIU
arose only after specifically asking a physician, using the terms of § 4.
16(a), whether the standard
had been met. See R. at 304.
The March 2002 report is relevant because, while the RO granted the
appellant an effective date of February
27, 2002, the Board found the appropriate date to be March 2, 2004,
because between the date the claim was received
and the date entitlement arose, the effective date is the later of the two.
R. at 11 (citing 38 C.F.R. § 3.400(o)). The
appellant's claim was received in July 1993; the Board found entitlement
to TDIU arose on March 2, 2004, the date of
a spine examination. Id.
4
9
Despite the position of the Board and the Secretary, however, there is no
requirement that
a medical opinion use the precise language of a statute or regulation. Cf.
Dyment v. West,
13 Vet.App. 141 (1999) (holding medical examiner's word choice is not
error where opinion is
unambiguous); Holland, 6 Vet.App. at 448 (listing no magic words for SSA
decision to be
consideredevidence). Nordoesthemedicalopinion needto be"anunequivocal
professional opinion
of record that the veteran was unemployable" for an award of TDIU.
Beaty v. Brown,
6 Vet.App. 532, 539 (1994). The physician's task is to provide diagnoses
and opine as to medical
causation; VA is charged with finding facts and applying the appropriate
legal standards, including
using its judgment to determine whether the § 4.16 standard has been met.
Here, the Board was
required to determine whether the evidence supported a finding that the
appellant was unable to
secure or follow a substantially gainful occupation as a result of service-
connected disabilities prior
to February 2002, not whether a particular piece of evidence stated as
much.
C. Prejudicial Error
The Court is required to consider whether an error committed by the Board
is prejudicial.
See Shinseki v. Sanders, 129 S. Ct. 1696, 1708 (2009) (holding that this
Court must take due account
of the rule of prejudicial error). Here the Board did not provide an
adequate statement of reasons
or bases in reaching its conclusions by failing to describe its treatment
or rejection of certain
evidence that was favorable to the claimant. The Board also appears to
have misinterpreted
38 C.F.R. § 4.16 by requiring a medical opinion—as opposed to a VA
determination—to state that
a disabled person is unable to secure or follow a substantially gainful
occupation as a result of
service-connected disabilities. Had the Board not made these errors, it
may have reached a
materially different decision. Thus, the Court cannot say, based on the
record before it, that the
appellant here has not been prejudiced. Accordingly, the matter must be
remanded for the Board to
readjudicate the matter consistent with this decision.
D. Remand
The Board found that July 29, 1993, is the earliest possible date that the
appellant might be
assigned for his award of TDIU but found no evidence that his left knee
disability, the only service-
10
connected disability at the time, met the requirements of § 4.16(b) (R.
at 7). The Board also found
that he did not meet the schedular requirements for a TDIU award under §
4.16(a) until January 23,
1998 (see R. at 10, 288). The Board, however, did not provide an adequate
statement of reasons or
bases discussing whether the appellant met the requirements under § 4.16(
b) between July 29, 1993,
and February 26, 2002. Such discussion must analyze the matter under Thun
v. Peake, 22 Vet.App.
111, 115 (2008). Although the Board recognized that the schedular
requirements of § 4.16(a) were
met as of January 23, 1998, its statement of reasons or bases for
concluding that the appellant was
not entitled to an award of TDIU prior to February 27, 2002, was
inadequate for the reasons stated
above. On remand, the Board must reexamine and consider all the evidence
and, if it rejects or finds
unpersuasive any evidence that discusses the appellant's ability to work
prior to February 27, 2002,
under either § 4.16(a) or (b), the Board must provide an adequate
statement of reasons or bases for
doing so.
On remand the appellant is free to submit additional evidence and argument
on the remanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002). The Court has held that “[a]
remand is meant to entail a
critical examination of the justification for the decision.” Fletcher v.
Derwinski, 1 Vet.App. 394,
397 (1991) (noting Court expects critical examination to occur on remand,
in which Board will
reexamine evidence of record, seek additional evidence as necessary, and
issue well-supported
decision). The Board must proceed expeditiously, in accordance with 38 U.S.
C. § 7112.
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's June 17, 2008, decision denying an earlier effective date for
the grant of TDIU is
VACATED and the matter is REMANDED for adjudication consistent with this
decision.
DATED: March 1, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
11
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