Veteranclaims’s Blog

June 9, 2014

Single Judge Application; TDIU; Beaty, 6 Vet.App. at 537; Evidence Not Mere Conjecture; Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991); 38 C.F.R. § 4.15 (2013);

Excerpt from decision below:

“The Court disagrees.
In the decision here on appeal, the Board provided, at most, a cursory discussion of the appellant’s educational background and work history. R. at 9. The Board merely stated: “The evidence reveals that the [v]eteran had completed her high school education; her employment history involved sedentary work and included employment as an admitting clerk at a hospital as well as a
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Xerox operator.” Id. The Board primarily denied an earlier effective date for TDIU based on the August 2011 VA examination and August 2012 addendum opinion that it would have been possible for the appellant to perform sedentary work with accommodations between 1987 and 2000. See R. at 41; see also R. at 35.
Although the Board referred to the appellant’s high school education and occupational history, given that the examiner stated she cannot perform manual work, and her only sedentary work experience appears to be working as a keypunch operator in the 1970s, the Board failed to explain how her education and occupational history provide her with the skills to perform sedentary work. See Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991) (“[T]o merely allude to educational and occupational history, attempt in no way to relate these factors to the disabilities of the appellant, and conclude that some form of employment is available, comes very close to placing upon the appellant the burden of showing he can’t get work.”); 38 C.F.R. § 4.15 (2013) (providing that “full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability”); see also Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.”) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992).
Moreover, in Beaty, the Court stated that the Board “may not reject [a] claim [for TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” 6 Vet.App. at 537. The Board’s determination that the physical limitations caused by the appellant’s service-connected disabilities did not preclude her from securing and following substantially gainful employment is not based on any independent evidence that the appellant can perform, given her educational and occupational history, sedentary nonphysical work that is more than marginal employment. See id. (holding that the “Board’s finding that ‘with eye protection, these occupations [“farmwork or heavy equipment operation”] would still be feasible’ ha[d] no evidentiary basis in the record” (citation omitted)).
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Here, the Board relied on the examiner’s opinion that during the reference period of 1987 to 2000, the appellant would have been able to perform sedentary work with certain accommodations, but the examiner was assessing only the appellant’s physical capabilities. R. at 41. It is the Board’s responsibility to assess whether the appellant’s service-connected disabilities – in light of the appellant’s educational and occupational history – render her unable to maintain substantially gainful employment. See Gleicher, supra. Therefore, the Court will remand the matter for the Board to consider whether the appellant, in light of her educational and occupational history, is entitled to an earlier effective date for TDIU.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1383
CHARLIE M. WILLETT, APPELLANT,
V.
SLOAN D. GIBSON,
ACTING 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, Charlie M. Willett, through counsel, appeals a March
15, 2013, Board of Veterans’ Appeals (Board) decision that denied entitlement to an effective date earlier than November 18, 2002, for the grant of a total disability rating due to individual
unemployability resulting from service-connected disabilities (TDIU). Record of Proceedings (R.) at 3-13. 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 Board’s decision is vacated and the matter is remanded.

I. BACKGROUND
The appellant served in the U.S. Marine Corps from April 1962 to April 1966. R. at 872.
In October 1973, the appellant was granted disability compensation, at a noncompensable
rate, for urethral stenosis with recurrent urinary tract infections (UTIs) and a left leg injury with
bilateral idiopathic edema. R. at 4752-53. In March 1975, the Social Security Administration (SSA)
granted the appellant disability compensation from March 1973. R. at 1020-27. The decision noted
that the appellant’s work history included operating a Xerox machine, which was a “stand-up job
requiring constant attention to the machine and little opportunity to sit down.” R. at 1022.
Additionally, the appellant had worked at a hospital operating a keypunch machine and at a factory.
R. at 1023. According to the SSA decision, the appellant’s education consisted of having completed
high school and six months’ training in operating a keypunch machine and sorter. R. at 1022. It also
noted that the appellant needed to lie down and elevate her legs three times a day for 30 minutes to
relieve that pain in her legs, “as well as the tingling sensation in her feet.” R. at 1023.
In September 1988, VA received a VA Form 9 (Appeal to Board of Veterans’ Appeals) in
conjunction with a separate appeal, in which the appellant stated: “I have kidney problems that keep
me from working[.] I need my unemployability 100% disability.” R. at 2163. The Board issued a
decision in September 1989, but failed to address the 100% disability statement. R. at 2163-64.
In November 2002, the appellant filed an application for increased compensation based on
unemployability. R. at 2094-95. A March 2003 rating decision denied entitlement to TDIU. R. at
2074-81. In April 2003, the appellant submitted a Notice of Disagreement (NOD). R. at 2072. The
appellant perfected her appeal in February 2004. R. at 1592-93.
In May 2005, the appellant was awarded TDIU benefits, effective November 18, 2002. R.
at 1414-20. She subsequently submitted an NOD as to the effective date of the award, and perfected
her appeal in June 2006. R. at 1322-23, 1402.
In August 2007, the appellant testified before a Board hearing. R. at 1210-25. She explained
that she is collecting private disability insurance benefits from her previous employer and that they
“send [her] a paper every year” that she has to sign and return stating that she is still disabled. R. at
1220. The appellant explained that she had been out of work since she was hospitalized for her
condition in 1973. R. at 1223.
In April 2008, the Board remanded the appellant’s claim for an earlier effective date for TDIU
for additional development. R. at 954-68. Specifically, the Board found that entitlement to TDIU
had been raised by the appellant in a September 1988 VA Form 9, and remained pending until it was
adjudicated in May 2005. R. at 960-61. Consequently, the Board requested a retrospective medical
examination on the question whether the appellant had been rendered unemployable by reason of her
service-connected disabilities from September 1987 to November 2002. R. at 966.
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The appellant underwent a VA compensation and pension examination in November 2009.
R. at 546-47. After reviewing the appellant’s claims file and conducting an examination, the
examiner opined that the appellant’s bilateral leg condition had “not significantly changed” since “at
least 1981” and that the appellant’s diagnoses of “severe lower extremity edema and incontinence
are at least as likely as not a result of the similar conditions that she has had for the last 28 years and
therefore the same longstanding disabilities that have prevented her from obtaining and maintaining
substantially gainful employment.” R. at 547. In April 2011, the Board found that the November
2009 examination was insufficient to address whether the appellant had been rendered unemployable
by reason of her service-connected disabilities from September 1987 to November 2002, and the
Board again remanded the appellant’s claim for an earlier effective date. R. at 508.
The appellant was afforded another VA compensation and pension examination in August
2011. R. at 40-41. After reviewing the appellant’s claims file, the examiner opined:
[C]onsidering only her service[-]connected conditions, during the reference period
of 1987 to 2000, [the appellant] would have been unable to perform manual work
requiring standing, lifting, and walking or climbing. However, solely based on
service[-]connected conditions, it[] would have been possible to perform sedentary
work with accommodation for urinary frequency, and urge and stress incontine[n]ce.
R. at 41.
Thereafter, an addendum to the opinion was sought, as the examiner opined only as to the
appellant’s employment from 1987 to 2000, and not for the full period from September 1987 to
November 2002 as the Board had requested. R. at 38. In an August 2012 addendum, the examiner
reiterated that his earlier opinion remained as noted in the August 2011 examination. R. at 35.
The Board issued the decision here on appeal in March 2013. R. at 3-13. After noting that
the appellant was “eligible for [] TDIU on a schedular basis throughout the entire period on appeal,
as her combined service-connected bilateral lower extremity disability ratings were 60[%],” the
Board then concluded that the “evidence regarding the [appellant’s] service-connected disabilities
from September 1987 to November 2002 does not demonstrate that those disabilities rendered the
[appellant] unable to obtain or maintain ‘substantially gainful employment’ consistent with her
education and occupational experience.” R. at 8-9. The Board then noted that the appellant
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completed her high school education and that her employment history “involved sedentary work and
included employment as an admitting clerk at a hospital as well as a Xerox operator.” R. at 9.
II. ANALYSIS
A. Earlier Effective Date for TDIU
1. Law
Total disability ratings will be assigned “when there is present any impairment of mind or
body which is sufficient to render it impossible for the average person to follow a substantially
gainful occupation.” 38 C.F.R. § 3.340(a) (2013). A TDIU rating may be assigned to a veteran who
meets certain disability percentage thresholds 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) (2013).
An award of TDIU does not require a showing of 100% unemployability. See Roberson v.
Principi, 251 F.3d 1378, 1385 (2001). However, an award of TDIU requires that the claimant show
an inability to undertake substantially gainful employment as a result of a service-connected
disability or disabilities. 38 C.F.R. § 4.16(b) (“[A]ll veterans who are unable to secure and follow
a substantially gainful occupation by reason of service-connected disabilities shall be rated totally
disabled.”). In determining whether a claimant is unable to secure or follow a substantially gainful
occupation, the central inquiry is “whether the veteran’s service-connected disabilities alone are of
sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993).
When making this determination, VA may not consider non-service-connected disabilities or
advancing age. 38 C.F.R. §§ 3.341. 4.19 (2013); see also Van Hoose v. Brown, 4 Vet.App. 361, 363
(1993).
Unlike the regular disability rating schedule, which is based on the average work-related
impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular
circumstances.” Rice v. Shinseki, 22 Vet.App. 447, 452 (2009). Therefore, when the Board conducts
a TDIU analysis, it must take into account the individual veteran’s education, training, and work
history. Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991) (level of education is a factor in
deciding employability); see Friscia v. Brown, 7 Vet.App. 294, 295-97 (considering veteran’s
experience as a pilot, his training in business administration and computer programming, and his
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history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet.App. 532,
534 (1994) (considering veteran’s eighth-grade education and sole occupation as a farmer); Moore
v. Derwinski, 1 Vet.App. 356, 357 (1991) (considering veteran’s master’s degree in education and
his part-time work as a tutor).
Whether a claimant is unable to follow substantially gainful employment is a finding of fact
that this Court reviews under the “clearly erroneous” standard. 38 U.S.C. § 7261(a)(4); Bowling v.
Principi, 15 Vet.App. 1, 6 (2001). A finding of fact is clearly erroneous when the Court, after
reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990). As always, the Board must provide a statement of the reasons
and 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); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
2. Discussion
The appellant argues that the Board erred by denying her an earlier effective date for TDIU
without explaining how her vocational and educational history provided her with the tools necessary
to be able to work in a sedentary occupation. Appellant’s Brief (Br.) at 6-11. Specifically, the
appellant argues that the Board had an obligation to explain whether her vocational and educational
experience provided her with the skills she needed to work in a sedentary job. Id. at 10. The
appellant explains that her previous jobs involved standing most of the time and working with 1970s
technology, such as keypunch cards. Id. at 11.
The Secretary responds that because the appellant did not challenge the medical opinion that she was able to perform sedentary work,”the Board had no obligation to explain to her how she could have worked a sedentary job in light of her high school education and history of work that involved standing only jobs.” Secretary’s Br. at 4; see also Secretary’s Br. at 7-14. The Court disagrees.
In the decision here on appeal, the Board provided, at most, a cursory discussion of the
appellant’s educational background and work history. R. at 9. The Board merely stated: “The
evidence reveals that the [v]eteran had completed her high school education; her employment history involved sedentary work and included employment as an admitting clerk at a hospital as well as a
5
Xerox operator.” Id. The Board primarily denied an earlier effective date for TDIU based on the August 2011 VA examination and August 2012 addendum opinion that it would have been possible for the appellant to perform sedentary work with accommodations between 1987 and 2000. See R. at 41; see also R. at 35.
Although the Board referred to the appellant’s high school education and occupational
history, given that the examiner stated she cannot perform manual work, and her only sedentary work experience appears to be working as a keypunch operator in the 1970s, the Board failed to explain how her education and occupational history provide her with the skills to perform sedentary work. See Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991) (“[T]o merely allude to educational and occupational history, attempt in no way to relate these factors to the disabilities of the appellant, and conclude that some form of employment is available, comes very close to placing upon the appellant the burden of showing he can’t get work.”); 38 C.F.R. § 4.15 (2013) (providing that “full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability”); see also Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.”) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992).
Moreover, in Beaty, the Court stated that the Board “may not reject [a] claim [for TDIU]
without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” 6 Vet.App. at 537. The Board’s determination that the physical limitations caused by the appellant’s service-connected disabilities did not preclude her from securing and following substantially gainful employment is not based on any independent evidence that the appellant can perform, given her educational and occupational history, sedentary nonphysical work that is more than marginal employment. See id. (holding that the “Board’s finding that ‘with eye protection, these occupations [“farmwork or heavy equipment operation”] would still be feasible’ ha[d] no evidentiary basis in the record” (citation omitted)).
6
Here, the Board relied on the examiner’s opinion that during the reference period of 1987 to
2000, the appellant would have been able to perform sedentary work with certain accommodations, but the examiner was assessing only the appellant’s physical capabilities. R. at 41. It is the Board’s responsibility to assess whether the appellant’s service-connected disabilities – in light of the appellant’s educational and occupational history – render her unable to maintain substantially gainful employment. See Gleicher, supra. Therefore, the Court will remand the matter for the Board to consider whether the appellant, in light of her educational and occupational history, is entitled to an earlier effective date for TDIU.

B. Other Arguments
1. Medical Opinion Covering Entire Period on Appeal
The appellant argues that the Board erred by not requiring VA to provide her an examination
in which the examiner offered an opinion as to whether she was unemployable as a result of her
service-connected disorders between 2000 and 2002. Appellant’s Br. at 11-14. The appellant
explains that in both the August 2011 VA examination and the August 2012 addendum, the
examiner only addressed the period between 1987 and 2000. Id. at 12; see also R. at 35, 41.
In his brief, the Secretary concedes that the Board erred and asks the Court to remand the
issue of entitlement to an effective date for the award of TDIU for the period from January 1, 2000,
to November 2002. Secretary’s Br. at 5-7. The Court agrees and the matter will be remanded for VA
to obtain a medical opinion that addresses whether the appellant’s service-connected disabilities
rendered her unemployable from January 2000 to November 2002.
2. Other Arguments
Given this disposition, the Court will not, at this time, address the other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding
that “[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”). 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) (stating that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to benefit sought);
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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 Secretary to provide for “expeditious treatment” of claims
remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the Board’s March 15, 2013, decision is VACATED, and the matter is REMANDED for
further action consistent with this decision.
DATED: June 5, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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