Veteranclaims’s Blog

September 24, 2010

Veterans Supportive Evidence Dismissed Because Lacked Cogent Explanation for its Conclusion, Stefl and Nieves-Rodriguez

This memorandum decision puts forth a note able example of how the Board is now dismissing Veterans supporting evidence by citing that they “lack[ed] cogent explanations for its ultimate conclusions.”

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

The Court has consistently held that the Board may not rely on an
examiner’s conclusory statements if they lack supporting analysis. Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007)(stating that the Board may not assess the probative value of “a mere conclusion by a medical doctor”); see also Nieves-Rodriguez, 22 Vet.App. at 301 (noting that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two“). Although Mr. Cody’s conclusions may have been based on his knowledge of job requirements and the availability of jobs (see Appellant’s Br. at 10), his report fails to include any supporting analysis for the Board to weigh and consider. Therefore, the Court is not convinced that the Board clearly erred when it rejected Mr. Cody’s report because it “lack[ed] cogent explanations for its ultimate conclusions.” See Owens v. Brown, 7 Vet.App. 429, 433 (1995)…”
==============================

Skip navigation
U.S. Court of Appeals for Veterans Claims
View | Download | Details Previous document | Next document
. 08-2941
MoorePA_08-2941.pdf
Search Terms: TDIU CreationDate: 08/31/2010 11:00:58
Creator: PrintServer130
ModDate: 09/10/2010 11:31:14
Producer: Corel PDF Engine Version 11.4.0.100; modified using iText 2.1.7
by 1T3XT
Title:
X_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04
X_XMPMETA_XMP_CREATEDATE: 08/31/2010 11:00:58
X_XMPMETA_XMP_CREATORTOOL: PrintServer130
X_XMPMETA_XMP_MODIFYDATE: 09/10/2010 11:31:14
X_XMPMETA_XMP_METADATADATE: 09/10/2010 11:31:14
X_XMPMETA_PDF_PRODUCER: Corel PDF Engine Version 11.4.0.100; modified
using iText 2.1.7 by 1T3XT
X_XMPMETA_DC_FORMAT: application/pdf
X_XMPMETA_XMPMM_DOCUMENTID: uuid:c2f50262-a81f-45d5-9f4c-8e97505f89c6
X_XMPMETA_XMPMM_INSTANCEID: uuid:ec9820e3-1ac1-4b8d-bbba-6c0d0069a2ff

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2941
PHILLIP A. MOORE, 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, Phillip A. Moore, through counsel, appeals
a July 1, 2008,Board of Veterans’Appeals(Board) decision that denied entitlement to an effective date earlier than May 18, 2004, for the award of a total disability rating based upon individual unemployability (TDIU) due to his service-connected disabilities. Record of Proceedings (R.) at 3-15. Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). This appeal is
timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Because the Board applied an incorrect legal standard and provided an
inadequate statement of
reason or bases for its decision, the Court will vacate the July 1, 2008,
decision and remand the
matter for further proceedings consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Air Force from June 1955
to January 1968.
R. at 5, 1271. The record demonstrates that the appellant is service
connected for the following
conditions: (1) Residuals, plantar warts and calluses, left foot, rated 30%
disabling from August 23,
1999; (2) residuals, plantar warts and calluses, right foot, rated 10%
from November 20, 1986, and
30% from May 18, 2004; (3) left ankle condition, rated 10% from August 23,
1999; (4) right knee

with degenerative osteoarthritis, rated 10% from February 20, 2001; (5)
residuals, fracture, second
left toe, rated 0% from November 20, 1986; (6) hearing loss, rated 0% from
January 25, 1999; and
(7) tinnitus, rated 10% from June 13, 2003. R. at 686-93.
The appellant filed his claim for entitlement to Previous HitTDIUNext Hit in January 1999. R.
at 1545-47. His
claim was denied by the VA regional office (RO) in July 1999 (R. at 1422-
28), and has remained in
appellate status (R. at 11, 702-08, 800-07, 1117-28, 1170-76, 1334-53,
1376-79).
Following a March 2005 Board remand for additional development, the
appellant submitted
a vocational assessment report byWilliam T. Cody, a diplomat of the
American Board of Vocational
Experts. R. at 696-98. Mr. Cody indicated that his assessment was based
upon his review of a
September 2004 medical report and the appellant’s initial application for
Previous HitTDIUNext Hit, which includes a
description of his educational and vocational histories. R. at 696; see
also R. at 855-56, 1315-16.
Based on the September 2004 medical report, Mr. Cody noted that the
appellant “‘has
significant difficulty to [sic] stand or walk'” and that “[t]his
limitation restricts consideration to
sedentarywork.” R. at 697. Mr. Codyfurther indicated that because the
appellant’s prior experience
was limited to physical work, and because the appellant had no skills or
experience that could be
transferred to sedentary work, only “unskilled sedentary work can be
considered as appropriate for
him.” Id. With regard to the appellant’s hearing loss, Mr. Cody noted that
the September 2004
medical report established “‘mild to severe sensorineural hearing loss’
. . . on both sides, but [that]
speech discrimination in either ear ‘is good in . . . qui[et].'” Id. Mr.
Cody opined that “[t]his
additional limitation precludes the unskilled sedentary work that could
otherwise be considered
appropriate for him as there can be no guarantee of a ‘qui[et]’ work
environment.” Id. Mr. Cody
concluded, “based on the appellant’s age, education, work history, and
primarily the physical
limitations that he has as a result of his service[-]related disability,”
that the appellant is
“permanently and totally occupationally disabled. That is, there are no
jobs in the local or national
economies that he is able to perform.” R. at 698. Finally, Mr. Cody stated
that “this appears to have
been the situation since 1994.” Id.
In March 2006, the RO granted entitlement to Previous HitTDIUNext Hit. R. at 657-62. The RO
assigned a May
18, 2004, effective date based on the date the appellant’s service-
connected disabilities met the
schedular requirements for Previous HitTDIUNext Hit pursuant to 38 C.F.R. § 4.16(a) (2005). R.
at 658-59. The
2

appellant filed a Notice of Disagreement asserting that a January 1999
effective date should have
been assigned. R. at 631. The RO issued a Statement of the Case (R. at 96-
106) and the appellant
perfected his appeal to the Board (R. at 70-71).
On July 1, 2008, the Board issued the decision here on appeal. R. at 3-15.
The Board noted
that there was no contention in this case that the appellant met the
schedular requirements for Previous HitTDIUNext Hit
prior to May 2004. R. at 10. Instead, the appellant, relying on the
vocational assessment report
prepared by Mr. Cody, asserted that the evidence demonstrated entitlement
to Previous HitTDIUNext Hit on an
extraschedular basis since 1999. Id. at 10-11. Nonetheless, the Board
found that Mr. Cody’s report
was of “virtuallyno probative value” because Mr. Cody(1) did not examine
or interview the veteran,
(2) did not review the appellant’s VA medical records, and (3) only
reviewed a medical report that
postdated the appellant’s Previous HitTDIUNext Hit award. R. at 12. The Board further found
that Mr. Cody’s reasoning
was “flawed” because of his “utterly unsupported assumption that work
would not be available in
a quiet environment” and his failure to provide any support for his
ultimate conclusion that the
appellant has been unemployable since 1994. R. at 13. The Board stated
that Mr. Cody’s report
amounts to “rank speculation” and rejected his assessment because it ”
lacks cogent explanations for
its ultimate conclusions.” Id.
The Board then noted that the medical evidence from 1998 through 2004
established that the
appellant’s service-connected disabilities amounted to a “significant left
foot disability with some
lower extremity problems, which resulted in his walking with a limp and
using a cane; and some
hearing loss.” The Board stated:
Such limitations, in the opinion of the Board, do not result in marked
interference
with employment, over and above that which is contemplated in the
schedular
ratings. . . . While employment was undoubtedly made more difficult . . . ,
these
disabilities did not present such an exceptional or unusual disability
picture and are
not reflective of any factor which takes the veteran outside of the norm.
R. at 14. Accordingly, the Board concluded that referral for
extraschedular consideration under
38 C.F.R. § 4.16(b) was unwarranted. R. at 15.
On appeal, the appellant argues that the Board erred when it rejected the
private vocational
expert’s opinion that he is permanently and totally occupationally
disabled as a result of his service-
connected bilateral foot conditions and hearing loss. Appellant’s Brief (
Br.) at 7-11. The appellant
3

argues that the Board improperly substituted its own independent medical
opinion in violation of
Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); failed to provide an
adequate statement of reasons
or bases; and applied an incorrect legal standard under 38 C.F.R. § 4.16(
b) (2010). Id. at 11-13. The
appellant also argues that because the Board failed to provide an adequate
rationale for rejecting the
vocational expert’s opinion, the Court should remand the case for
readjudication and direct that the
matter be referred for extraschedular consideration pursuant to § 4.16(b).
Id. at 15-16. The
Secretary refutes each of these contentions and argues that the Board’s
decision should be affirmed.
Secretary’s Br. at 10-15.
II. ANALYSIS
Previous HitTDIUNext Hit may be assigned to a veteran who meets certain disability percentage
standards and
is “unable to secure or follow a substantially gainful occupation as a
result of service-connected
disabilities.” 38 C.F.R. § 4.16(a) (2010). Alternatively, if a claimant
is found to be unemployable
because of service-connected disabilities, but does not meet the
percentage standards set forth in
§ 4.16(a), the rating board should refer the matter to the director of
Compensation and Pension
Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board
must provide a statement
of the reasons or bases for its determination, adequate to enable an
appellant to understand the
precise basis for the Board’s decision as well as to facilitate review in
this Court. 38 U.S.C.
§ 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App.
49, 56-57 (1990). To comply with this requirement, the Board must analyze
the credibility and
probative value of the evidence, account for the evidence it finds
persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the claimant. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
1. Rejection of Vocational Expert’s Opinion
The appellant argues that the Board’s rejection of Mr. Cody’s opinion –
because he did not
examine the veteran or review the claims file – places form over
substance, particularly since the
Board ultimately agreed that the expert’s factual premises were accurate.
Appellant’s Br. at 7-8
(citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008)). The
appellant’s argument,
although persuasive, is unavailing because the Board did not reject Mr.
Cody’s opinion on the basis
4

of the above factors alone. Rather, the Board found that Mr. Cody’s
reasoning was “flawed” because
(1) his conclusion was based on the “utterly unsupported assumption that
work would not be
available in a quiet environment,” and (2) there was “absolutely no
support contained in his report”
for his conclusion that the veteran’s unemployability”appears to have been
the situation since 1994.”
R. at 13.
The Court has consistently held that the Board may not rely on an
examiner’s conclusory
statements if they lack supporting analysis. Stefl v. Nicholson, 21 Vet.
App. 120, 124-25 (2007)
(stating that the Board may not assess the probative value of “a mere
conclusion by a medical
doctor”); see also Nieves-Rodriguez, 22 Vet.App. at 301 (noting that “a
medical examination report
must contain not only clear conclusions with supporting data, but also a
reasoned explanation
connecting the two”). Although Mr. Cody’s conclusions may have been based
on his knowledge of
job requirements and the availabilityof jobs (see Appellant’s Br. at 10),
his report fails to include any
supporting analysis for the Board to weigh and consider. Therefore, the
Court is not convinced that
the Board clearly erred when it rejected Mr. Cody’s report because it ”
lack[ed] cogent explanations
for its ultimate conclusions.” See Owens v. Brown, 7 Vet.App. 429, 433 (
1995) (it is the Board, not
the Court, that is responsible for assessing the credibility and weight to
be given to evidence and the
Court may overturn the Board’s assessments only if they are clearly
erroneous); see also United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (a finding of fact is
clearly erroneous when the
Court, afterreviewingtheentireevidence, “is left with the definite and
firm conviction that a mistake
has been committed”); Gilbert, 1 Vet.App. at 52.
2. Board’s Statement of Reasons or Bases
The appellant also argues that the Board’s conclusion that the evidence
did not warrant
referral for extraschedular consideration under§ 4.16(b) must be set
aside because the Board applied
an incorrect legal standard, failed to support its decision with an
adequate statement of reasons, and
failed to account for his education and employment history. Appellant’s Br.
at 11-13. The Court
agrees.
A review of the Board’s decision reveals that the Board’s analysis of
whether the appellant
is entitled to referral under 38 C.F.R. § 4.16(b) is inadequate because
it conflates the criteria in
38 C.F.R. § 3.321(b) with the criteria for Previous HitTDIUNext Hit in § 4.16(b). This Court
has recognized that “the
5

effect of a service-connected disability appears to be measured
differently for purposes of
extraschedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for
purposes of a Previous HitTDIUNext Document claim
under 38 C.F.R. § 4.16.” Kellar v. Brown, 6 Vet.App. 157, 162 (1994).
While the former requires
marked interference with employment, the latter requires evidence of
unemployability. Id.
In this case, the Board concluded that referral under § 4.16(b) was not
warranted because it
foundthat theevidence failed toestablishmarked interference withemployment
orotherwisepresent
anexceptionalorunusualdisabilitypicture–criterianecessaryforconsideratio
rating under § 3.321(b)(1). R. at 14-15. The Board did not address
whether the evidence establishes
that the appellant is “unable to secure and follow substantially gainful
occupation by reason of his
service-connected disabilities.” 38 C.F.R. § 4.16(b). Nor does a review
of the Board’s decision
reveal any consideration of the appellant’s educational and occupational
history. See Cathell v.
Brown, 8 Vet.App. 539, 544 (1996) (when determining whether a veteran is
unemployable, the
Board must do more than “‘merely allude to [the appellant’s] educational
and occupational history'”
– it must “‘relate these factors to the disabilities of the appellant”
and provide an adequate statement
of reasons or bases for its decision (citing Gleicher v. Derwinski, 2 Vet.
App. 26, 28 (1991)).
Accordingly, because the Board applied an incorrect legal standard and
failed to provide an
adequate statement of reasons or bases for its decision, the Court will
vacate the July 1, 2008, Board
decision and remand the matter for readjudication consistent with this
decision. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that a remand is the appropriate
remedy “where the Board has
incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its
determinations, or where the record is otherwise inadequate”). On remand,
the Board should assess
and discuss the appellant’s education and occupational history and explain
how these factors are
related to his employability. See Cathell and Gleicher, both supra.
Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (
2001). “A narrow decision
preserves for the appellant an opportunity to argue those claimed errors
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him.”
Id. 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
6

v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,
theBoardmustconsideradditional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). 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). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring Secretaryto providefor “expeditious treatment”
ofclaimsremandedbytheCourt).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s July 1, 2008, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: August 31, 2010
Copies to:
Barbara J. Cook, Esq.
VA General Counsel (027)
7

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.