Veteranclaims’s Blog

August 27, 2018

Single Judge Application; intervening cause; Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); 38 C.F.R. § 3.310(a) (2018);

Excerpt from decision below:

“A. The extent of back injury caused by the 1983 fall is irrelevant.
The Board, and to some extent the medical reports, seems to assume that the injury
resulting from the 1983 fall was an intervening cause apart from Mr. Connors’s service-connected injury. That reasoning is specious for at least two reasons.
First, the uncontroverted evidence is that Mr. Connors’s 1983 fall was caused by the
deterioration of his service-connected back condition that was caused by the in-service back injury.
“[D]isability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” 53 Additionally, “[w]hen service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.”54 So, any additional disability attributable to the 1983 fall would be a condition secondary to the original service-connected condition. There is no reason to attempt to separate the symptoms attributable to the two injuries; no legal consequence would result from such separation.
Even assuming, for the sake of argument, that any additional disability arising from the 1983 fall would not be service connected, the service-connection analysis would be unaltered on the facts of this case. There is no evidence that the effects of the 1983 fall are separable from those of the original in-service injury. In December 1996, VA sought a compensation and pension examination, and requested that the examiner to “indicate what symptomatology is attributable to each disorder found.”55 The subsequent April 1997 examination report stated that the diagnosed back conditions were “a natural progression of the patient’s acute injury pattern while in the
service.”56 While the import of that statement is not entirely clear, it certainly provides no basis to separate the symptoms caused by each injury. The April 1997 report is the only evidence that even broaches the separation of symptoms, and it provides no basis to do so. Therefore, in any service-
52 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
53 38 C.F.R. § 3.310(a) (2018).
54 Id.
55 R. at 3336.
56 R. at 3270.
9
connection context, VA would have to attribute all Mr. Connors’s back symptoms to the serviceconnected injury.57”

==========================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1720
GARRETT A. CONNORS II, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Navy veteran Garrett A. Connors II served honorably from
February 1958 to January 1960. While stationed in Iceland, Mr. Connors sustained a fall resulting
in a back injury that caused him difficulty in using his legs. He was flown to a U.S. Navy hospital
in Brunswick, Maine, where he underwent treatment for 14 days after physicians placed him in
traction.
After service, Mr. Connors continued to have trouble with his back and VA awarded him
disability benefits for a back condition. Mr. Connors then sought entitlement to a total disability
rating based on individual unemployability (TDIU); this claim has been in appellate status for
approximately 26 years. In the course of proceedings, VA awarded schedular TDIU1 from August
12, 1988, to January 20002 and from September 2005.3
1 See 38 C.F.R. § 4.16(a) (2018).
2 See Record (R.) at 888, 4612 (May 2012 rating decision granting TDIU from Aug. 2008 to Jan. 2000). From
2000 to 2005 Mr. Connors found employment through friendship with the head of a company selling specialty
lubricants to local racing teams. R. at 941-43 (Apr. 2012 statement in support of claim).
3 R. at 1112 (Nov. 2011 rating decision granting TDIU from Sept. 2005).
2
Mr. Connors now appeals the Board’s denial of TDIU on an extraschedular basis4 from
November 1985 to August 1988, based solely on his service-connected back condition. The Board
found that Mr. Connors withdrew his appeal for increased ratings of left eye and bilateral eye
disabilities, and he confirms this withdrawal in his primary brief.5 The Court therefore will not
consider these claims.6
In this case the Court is asked to review the Board’s finding that Mr. Connors’s back
condition did not prevent him from “secur[ing] or follow[ing] a substantially gainful occupation”7
from November 1985 to August 1988. Mr. Connors argues for reversal of the Board’s finding or,
in the alternative, remand for an insufficient statement of reasons or bases. The Court’s review of
the record leads to the conclusion that the Board clearly erred in this finding. The Court therefore
will reverse the Board’s denial of TDIU from November 1985 to August 1988 and remand the case
with instructions to grant TDIU during that period.
I. FACTUAL BACKGROUND
In 1973, Mr. Connors obtained service connection for the back condition, rated initially as
a noncompensable back strain.8 A February 1985 rating decision raised the disability rating to
10%,9 which is the disability rating that he had at all times relevant to this appeal.
Mr. Connors stated that by 1983, his back condition had deteriorated to the point that he
was dragging his right leg and using a cane.10 He further stated that in September 1983 this inability
to lift his right leg caused him to slip on a tire while he was working as a tire salesman, causing a
second fall.11 After that incident, he could no longer perform his duties as a tire salesman, and had
no earnings above the poverty level from 1984 until 2000.12
4 See 38 C.F.R. § 4.16(b) (2018).
5 Appellant’s Brief (Br.) at 1 Note 1.
6 Pederson v. McDonald, 27 Vet.App. 276 (2015) (en banc).
7 38 C.F.R. § 4.16(b).
8 R. at 3782.
9 R. at 641, 3646-47.
10 R. at 3651, 3654 (Board hearing transcript).
11 R. at 641, 666 (statement in support of claim).
12 See R. at 888-92 (May 2012 rating decision).
3
In November 1985, Mr. Connors filed an application for TDIU, which VA denied in a
February 1986 rating decision.13 In a November 2011 rating decision, VA increased the disability
rating for Mr. Connors’s back condition to 60%, effective August 12, 1988.14 Emphasizing the fact
that he therefore met the schedular rating, VA granted TDIU from that date in a May 2012 rating
decision.15 A later rating decision granted TDIU from September 2005.16
A. From 1983 to 1988, nonsurgical treatment afforded only temporary palliative
relief.
In October 1983, Dr. G. Howard Bathon diagnosed Mr. Connors with spastic scoliosis and
right-side sciatica.17 A computed tomography scan revealed “probabl[e] herniation or bulging of
the L4-5 disc on the right side.”18 Dr. Bathon prescribed a 4-week course of physical therapy, to
include “moist heat, intermittent traction, ultrasound with galvanic stimulation, hydrocortisone
cream[,] and flexion exercises.” 19 Though Mr. Connors initially responded positively to this
treatment,20 in December 1983, Dr. Bathon stated that “[h]e has not responded to conservative
therapy and I think that a referral for consideration of interdiscal therapy or surgery should be
considered.”21
From January through November 1984, Mr. Connors underwent 24 separate acupuncture
treatments from Dr. E.H. Park.22 Though Mr. Connors testified that this treatment improved his
ability to walk,23 in November 1984 Dr. Park stated: “I find Mr. Connors still totally incapacitated
with a slight improvement in his condition.”24
13 R. at 3610.
14 R. at 1112.
15 See supra note 2.
16 See supra note 3.
17 R. at 3751.
18 Id.
19 Id.
20 See R. at 3751 (Bathon medical notes), 3761 (Nov. 1983 Bathon letter to Mr. Connors’s employer, Capital
Tire Co.).
21 R. at 3753.
22 See R. at 3767, 3769, 3771, 3773.
23 See R. at 3654.
24 R. at 3764.
4
Mr. Connors was subsequently treated by Dr. Scott Baron, who admitted him to a hospital
in July 1985 for an 8-day “vigorous in-house treatment plan of daily therapy, traction, bedrest, and
intravenous Decadron therapy.”25 Mr. Connors showed some improvement in his symptoms and
Dr. Baron discharged him with a lumbosacral corset.
Nevertheless, Mr. Connors returned to the hospital in September 1985 for an epidural
block. “Postoperatively, he had excellent results with good decrease in his back and leg pain.”26
Even so, Mr. Connors returned to the hospital again in October 1985; the admission record states
that since the 1983 injury, Mr. Connors was “treated by a variety of physicians . . . with only partial
intermittent improvement. He has never been entirely pain free despite extensive conservative
treatment modalities.”27 In a letter to an insurance company written that same month, Dr. Baron
stated that Mr. Connors had good and bad days, and noted that “[h]e may need intermittent out
patient physical therapy, and may need intermittent admissions to the hospital should symptoms
increase in severity.”28
B. The medical evidence uniformly suggests that, after 1983, Mr. Connors’s back
disability prevented him from performing the tasks required by his post-service
employment and raises the issue of unemployability.
The evidence shows that Mr. Connors’s did not pursue education beyond high school and
that from 1960, when he left service, to 1983, he was employed as a traveling salesman for various
companies.29 He stated that he never held a desk job, in which products could be sold from an
office.30 From 1976 to 1983, he held sales jobs for tire manufacturers selling large-equipment tires
for enterprises such as strip mining. His duties included traveling to customer job sites to inspect
tires and assist in unloading tires delivered by his company’s trucks.31
Mr. Connors’s treating physicians concluded that after his 1983 injury he would be unable
to return to this type of physically demanding sales work. In his letter to the insurance company,
Dr. Baron stated that “[d]ue to the severity of the pain and spasm, I feel that [Mr. Connors] will
25 R. at 3703 (Oct. 1985 letter from Dr. Baron to Travelers Insurance Company).
26 R. at 3626 (Sept. 1985 discharge summary).
27 R. at 3618 (Oct. 1985 hospital admission record).
28 R. at 3622.
29 R. at 665 (Nov. 2012 statement in support of claim).
30 Id.
31 R. at 665-66.
5
most likely be unable to resume his former occupation. He will be unable to lift heavy objects, sit
or stand for long periods of time, bend stoop[,] or squat.”32 In a June 1986 letter to an attorney, Dr.
Selim El-Attrache stated that Mr. Connors “is unable to perform his duties as a travel salesman for
Capital Tire.”33
Other medical evidence supports the assessment of the private physicians. In January 1986,
Mr. Connors underwent an examination by Dr. Schwerha of the Pennsylvania Bureau of Disability
Determination; the Board substantially relied on Dr. Schwerha’s report. Dr. Schwerha concluded
that “[t]here is no doubt that [Mr. Connors] does have some disability due to his chronic back
condition . . . I feel that he is not a candidate for any kind of heavy or medium physical labor.”34
The Board did not find, and there is no medical evidence to suggest, that Mr. Connors was
physically able after 1983 to undertake the travel required of a traveling salesman. Though Dr.
Schwerha stated that Mr. Connors was able to drive a car, he also noted that he could sit for only
30 minutes at a time.35 In his Board hearing, Mr. Connors testified that his ability to sit was limited
to 20 minutes.36
There is also evidence raising the issue of total unemployability in the period from
November 1985 to August 1988. In October 1985, Dr. Baron noted that “at the present time [Mr.
Connors] is unable to work.”37 In a May 1986 letter to VA, Dr. El-Attrache discussed his medical
findings, and stated that though Mr. Connors might be a candidate for a rehabilitation program for
some sort of occupation, “[u]ntil then, he is permanently disabled.”38 In a July 1989 case summary,
detailing Mr. Connors’s treatment history beginning in June 1986, Dr. El-Attrache listed six
diagnoses of back maladies and stated that “[d]ue to his history of back problems . . . and the [six]
diagnoses, Mr. Garrett Connors is permanently disabled for gainful employment.”39
32 R. at 3703.
33 R. at 3725.
34 R. at 3712.
35 R. at 3710.
36 R. at 3650.
37 R. at 3625.
38 R. at 3322.
39 R. at 3320.
6
C. The only evidence regarding employability was from a vocational specialist who
concluded that, from 1985 to 1988, Mr. Connors was unable to secure and follow a
substantially gainful occupation in a sedentary position.
In a September 2012 remand, the Board found that “a social and industrial specialist should
review the claims file and determine if the [v]eteran was unable to secure or follow a substantially
gainful occupation as a result of the service-connected low back disability, based on his education
and work experience.”40 The Board stated that it “would like the opinion of someone with the
appropriate expertise” to determine that issue, and reiterated the extensive medical evidence for
the benefit of the expert.41 The Board further instructed the social and industrial specialist that if
he or she found Mr. Connors capable of substantially gainful employment from 1985 to 1988, the
specialist was to “provide an example or examples of the types of jobs he could obtain or maintain
at that time.”42
But VA did not obtain the opinion of a social and industrial specialist. Instead, it obtained
an October 2012 medical opinion from Dr. Nina Trespalacios. As discussed below, Dr.
Trespalacios criticized the medical evidence favorable to Mr. Connors. She then concluded that “it
would be expected that a position in sales with frequent breaks to allow for stretching/[relief] of
lumbar strain would be sustainable by the veteran during this time period.”43 In May 2013 the
Board noted that it was not clear that Dr. Trespalacios had the appropriate expertise to comment
on Mr. Connors’s employment capability and remanded again for VA to obtain an opinion from a
social and industrial specialist “to ensure compliance with [the Board’s] previous orders.”44
The Orlando, Florida, VA office had trouble locating an employee with the appropriate
expertise to comply with the Board’s instructions.45 The record contains a June 2013 email from
clinical social worker Christine Suarez, in which she states: “I do not feel that [I] have the
educational background in order to make a determination one way or another and any analysis I
40 R. at 778.
41 Id., R. at 781-86.
42 R. at 787.
43 R. at 704.
44 R. at 542.
45 See R. at 485 (email from “Clinical Coordinator” stating that Orlando VAMC did not have anyone that
could render the appropriate opinion).
7
would be able to share would be mere speculation.”46 Ms. Suarez elaborated that “I do not have
the expertise to conduct a historical evaluation (thirty years ago) of a veteran’s social and industrial
status that is only applicable to a three year time frame of ‘unemployability’ (1985-1988).”47
Nevertheless, physician’s assistant Juan Marrero issued a July 2013 “Compensation and
Examination Report,” which states that it was initiated by Ms. Suarez, and reads:
With regard to [Mr. Connors’s] low back disability, it would be mere speculation
for me to render an opinion whether or not he could have obtained and maintained
substantially gainful employment around the time of his claim for individual
unemployability from 1985-1988.
* * * *
Upon review of this record it would be mere speculation for this writer to evaluate
the patient’s physical disability during that time period due to the fact that the
patient had a Workman’s Compensation case at the same time. It would be
impossible to speculate whether or not his inability to work at that time was due to
his service connected disability or his on the job injury.[48]
But Mr. Connors obtained an opinion from a private vocational expert, Patrick Clifford.
After reviewing Mr. Connors’s work history in heavy equipment tire sales, Mr. Clifford stated that
“[t]his type of sales occupation does not provide the worker with a skill base that transfers to
alternative employment . . . [in] any lighter sales occupations.”49 Mr. Clifford further opined that,
from 1983 to 1988, Mr. Connors was
unemployable due to the unexpected flare-ups of his condition resulting in the need
for extended periods of treatment which would cause frequent absences from work
and/or excessive breaks during a workday and accommodations to an extent that
would not be tolerated by an employer in a competitive market even at the sedentary
unskilled level of work.[50]
II. ANALYSIS
Whether a veteran is unable to secure or follow substantially gainful employment is a finding of fact that the Court reviews under the “clearly erroneous” standard.51 A finding of fact is
46 R. at 486.
47 R. at 487.
48 R. at 475.
49 R. at 31.
50 R. at 33.
51 Pederson, 27 Vet.App. at 286; Bowling v. Principi, 15 Vet.App. 1, 6 (2001).
8
clearly erroneous when the Court, after reviewing the entire evidence, “‘is left with the definite and firm conviction that a mistake has been committed.'”52
A. The extent of back injury caused by the 1983 fall is irrelevant.
The Board, and to some extent the medical reports, seems to assume that the injury resulting from the 1983 fall was an intervening cause apart from Mr. Connors’s service-connected injury. That reasoning is specious for at least two reasons.
First, the uncontroverted evidence is that Mr. Connors’s 1983 fall was caused by the deterioration of his service-connected back condition that was caused by the in-service back injury.
“[D]isability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” 53 Additionally, “[w]hen service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.”54 So, any additional disability attributable to the 1983 fall would be a condition secondary to the original service-connected condition. There is no reason to attempt to separate the symptoms attributable to the two injuries; no legal consequence would result from such separation.
Even assuming, for the sake of argument, that any additional disability arising from the 1983 fall would not be service connected, the service-connection analysis would be unaltered on the facts of this case. There is no evidence that the effects of the 1983 fall are separable from those of the original in-service injury. In December 1996, VA sought a compensation and pension examination, and requested that the examiner to “indicate what symptomatology is attributable to each disorder found.”55 The subsequent April 1997 examination report stated that the diagnosed back conditions were “a natural progression of the patient’s acute injury pattern while in the service.”56 While the import of that statement is not entirely clear, it certainly provides no basis to separate the symptoms caused by each injury. The April 1997 report is the only evidence that even broaches the separation of symptoms, and it provides no basis to do so. Therefore, in any service-
52 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
53 38 C.F.R. § 3.310(a) (2018).
54 Id.
55 R. at 3336.
56 R. at 3270.
9
connection context, VA would have to attribute all Mr. Connors’s back symptoms to the serviceconnected injury.57
B. The Board’s reasons for assigning low probative value to certain evidence
favorable to Mr. Connors are legally incorrect.
Regarding Dr. Baron’s letter to the insurance company, the Board stated that “[w]hile the
[v]eteran may have been unable to perform his previous employment, he was not precluded from
all employment, as Dr. [Baron] suggests.”58 Preliminarily, the Court notes that Dr. Baron merely
stated Mr. Connors was unable to work in October 1985 after three hospitalizations. But the
Board’s assertion that Mr. Connors was not precluded from all employment is the ultimate factual
conclusion to be rendered after weighing all the evidence. To employ that conclusion to detract
from the probative value of Dr. Baron’s assessment, a preliminary inquiry to assigning weight to
the evidence, is circular reasoning.
The Board further criticized Dr. Baron’s letter on the basis that it “was directed to an
insurance carrier and related to injuries that the [v]eteran sustained to his low back in a 1983 onthe-
job injury.”59 That the letter was directed to an insurance company has no bearing on the
medical analysis it contains, and as discussed above, no legal significance derives from any
consideration of injuries resulting from the 1983 fall.
Though Dr. Baron’s letter does not establish total unemployability over the appeal period,
it does point to the likelihood that any employment Mr. Connors might have obtained in that period
would have had to accommodate absences for extended treatment and possible additional
hospitalizations. The letter should have been afforded probative value to that extent.
The Board discounted Dr. El-Attrache’s conclusion that Mr. Connors was permanently
disabled on the basis that Dr. El-Attrache “did not refer to any objective findings to support this
conclusion.” 60 The case summary containing that conclusion first notes that Mr. Connors’s
condition “prevented him from prolonged sitting, standing, and walking.”61 The report states that
57 See Mittleider v. West, 11 Vet.App. 191 (1998).
58 R. at 13-14.
59 R. at 14.
60 Id.
61 R. at 3318.
10
Mr. Connors had shown “spondylogenic compression of the lumbar spinal cord”62 and noted the
resulting lost range of motion. Dr. El-Attrache then diagnosed the following: (1) Osteophyte and
spur formations about L1, L2, L3 and L4 vertebrae; (2) spondylosis (lumbar spine) L2, L3, L4; (3)
bulging disks L3-L4, L4-L5, L5-S1; (4) polyarthralgia and myalgia; (5) myositis and myospasm
lumbar spine; and (6) left sciatic radiculitis. 63 To the extent that Dr. El-Attrache’s summary
evaluated Mr. Connors’s ability to perform the physical movements associated with employment,
his conclusions were amply supported by objective medical findings, and the Board clearly erred
in suggesting otherwise.
The Board’s primary reason for assigning low probative value to Mr. Clifford’s vocational
evaluation was that “his opinion failed to address the [v]eteran’s 1983 on-the-job injury and the
impact that on his employability [sic] versus impact [of] the [v]eteran’s service-connected
disability alone.”64 Again, such distinction would be of no consequence even if it were possible to
make the distinction, which on the facts of this case it is not, and the Board’s objection is a red
herring.
The Board also stated that Mr. Clifford “did not offer an opinion regarding the [v]eteran’s
ability to perform a reduced range of sedentary work while still being able to sustain substantial
gainful employment.”65 To the extent that the Board faults Mr. Clifford’s report for not analyzing
the physical limitations pertaining to Mr. Connors’s ability to work, that was not the task of a
vocational expert or a social and industrial expert. Mr. Connors’s physical limitations are not in
dispute. The medical evidence establishes that he was unable to bend or squat,66 stand or sit for
over 30 minutes and perhaps as little as 20 minutes,67 lift heavy objects,68 and may have required
extended treatment or hospitalization, or both, when his symptoms flare up.69
62 Id.
63 See R. at 3320.
64 R. at 14.
65 Id.
66 See supra notes 32, 35, and accompanying texts.
67 See supra notes 32, 35, 36, 37, and accompanying texts.
68 See supra notes 32, 34, and accompanying texts.
69 See supra note 28 and accompanying text.
11
The remaining issue is the likelihood that Mr. Connors could have acquired and maintained
a substantially gainful occupation given these limitations, and in view of his education and work
history. The Board recognized that evidence was needed on this question when it sought the
opinion of a social and industrial specialist. Despite being twice instructed to obtain such an
opinion, VA obtained no evidence that weighs one way or the other on the ultimate question of
employability.
But Mr. Clifford did provide such evidence. To the extent that the Board thought that he
did not opine on the likelihood that Mr. Connors could have obtained an occupation with “a
reduced range of sedentary work,” the Board was simply wrong. Mr. Clifford did opine on that
question and gave reasons for his conclusion.70
C. The medical evidence on which the Board relied is not competent on the
issue of employability.
The Board assigned “great probative value” to opinions expressed by Dr. Schwerha and
Dr. Trespalacios.71 The Board noted Dr. Schwerha’s observation that Mr. Connors had “no trouble
dressing and getting on and off the examining table [or] walking in or out or around the office.”72
This observation says nothing about the ability to acquire and maintain substantially gainful
employment. The Secretary’s regulations admonish the rating agent to remember that “a person
may be too disabled to engage in employment although he or she is up and about and fairly
comfortable at home or upon limited activity.”73 More to the point, Dr. Schwerha stated: “I feel
there are many types of selling positions [Mr. Connors] could hold at the present time, providing
his condition does not deteriorate.”74 Dr. Trespalacios opined that Mr. Connors could obtain a sales
position allowing for frequent breaks for stretching/relief, as quoted above.75
But these opinions carry no weight on the question of employability. Physicians are
presumed to be experts on medical questions within the scope of their medical training.76 But that
70 See supra note 50 and accompanying text.
71 R. at 12-13.
72 R. at 3720.
73 38 C.F.R. § 4.10 (2018).
74 R. at 3712.
75 See supra note 43 and accompanying text.
76 Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009).
12
presumption does not extend beyond medical issues. “[A] doctor is not an expert on employment
in general.”77 While it is appropriate for a medical expert to opine on the physical limitations of a
claimant, and the medical causes of those limitations, their assessment of employability is no better
than a lay statement, in the absence of additional training or expertise in that area.
Rather, “applicable regulations place responsibility for the ultimate TDIU determination
on . . . VA, not a medical examiner.”78 To assist in that determination, the Board must turn to those
trained in assessing employment opportunities for those with established disabilities.
Aside from Dr. Trespalacios’s inability to opine on the ultimate question of employability,
Dr. Trespalacios’s evaluation of medical evidence favorable to Mr. Connors proceeds from
inaccurate factual premises. She stated that Dr. Baron’s conclusions regarding employability are
inconsistent with the notes of improvement after hospital therapy.79 As described above, however,
it is misleading to focus on those statements of temporary relief and neglect the evidence that no
long-term improvement resulted. She also asserted that a 1985 VA examination found Mr.
Connors’s back condition “essentially normal.”80 The 1985 examination report found limited range
of motion, with flexion limited to 45 degrees and extension nonexistent, straight leg raising limited
to 60 degrees with discomfort, and deep tendon reflexes diminished bilaterally.81 These findings
are inconsistent with any conclusion of a normal condition.
The Board noted these comments, but did not explicitly rely on them in assessing the
probative value of any of the medical evidence favorable to Mr. Connors. Because Dr.
Trespalacios’s evaluation of the medical evidence is based on factually inaccurate premises, her
evaluation is entitled to no weight.82
77 Moore v. Nicholson, 21 Vet.App. 211, 218 (2007), rev’d on other grounds sub nom. Moore v. Shinseki,
555 F.3d 1360 (Fed. Cir. 2009).
78 Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also Floore v. Shinseki, 26 Vet.App. 376, 381
(2013). The Court notes that in addition to being an inappropriate delegation of the Board’s responsibility, VA’s
decision to obtain the Trespalacios opinion is questionable under Mariano v. Principi, 17 Vet.App. 305, 312 (2003)
(it is impermissible to undertake additional development for the purpose of obtaining evidence against a claimant’s
case).
79 R. at 704.
80 Id.
81 See R. at 3701.
82 See Reonal v. Brown, 5 Vet.App. 458, 461 (1993).
13
D. The Board clearly erred in concluding that Mr. Connors could secure and follow
a substantially gainful occupation from 1985 to 1988.
The Board may not reject a TDIU claim “without producing evidence, as distinguished
from mere conjecture, that the veteran can perform work that would produce sufficient income to
be other than marginal.”83 As described above, there is no competent evidence in the record that
Mr. Connors could obtain any substantially gainful occupation from 1985 to 1988. The report of
Mr. Marrero, which derives from Ms. Suarez, adds nothing to the analysis and is admittedly based
on inadequate expertise.84 The only evidence on employability concludes that Mr. Connors could
not obtain a substantially gainful occupation. The Court concludes that the Board’s finding to the
contrary has no support in the record, and therefore is clearly erroneous.
Of course, the Board’s error prejudiced Mr. Connors.85 It prevented the award of TIDU
from 1985 to 1988, to which Mr. Connors was clearly entitled on the evidence in this case.
E. The appropriate remedy is reversal.
“The dual requirement placed on the Court . . . by [section] 7261(a) and (b)—to hold
unlawful and set aside or reverse clearly erroneous findings and take due account of the Secretary’s
application of the benefit of the doubt standard—[invests] the Court with authority to reverse
certain Board decisions.”86 “[W]here the Board has performed the necessary fact-finding and
explicitly weighed the evidence, the [Court] should reverse when, on the entire evidence, it is left
with the definite and firm conviction that a mistake has been committed.”87 The Court may reverse
a finding of material fact, despite the existence of controverting evidence.88
Here, the Board has weighed the evidence and made the requisite factfinding. This is not a
case in which the Board failed to discuss evidence favorable to Mr. Connors. It is also not a case
where the Board’s reasoning is unclear in its statement of reasons or bases; rather, the reasoning is
flawed. This is simply a case in which the Court is left with a definite impression that a mistake
has been committed.
83 Beaty v. Brown, 6 Vet.App. 532, 537 (1994).
84 See Wise v. Shinseki, 26 Vet.App. 517, 527-28 (2014).
85 See 38 U.S.C. § 7261(b)(2) (Court must consider the effect of prejudicial error); Shinseki v. Sanders, 556
U.S. 396, 406 (2009) (appellant has burden of demonstrating prejudice).
86 Deloach v. Shinseki, 704 F.3d 1370, 1379 (Fed. Cir. 2013).
87 Deloach, 704 F.3d at 1380; Pettiti v. McDonald, 27 Vet.App. 415, 430 (2015).
88 Deloach, 704 F.3d at 1380; Padgett v. Nicholson, 22 Vet.App. 159 (2008) (en banc).
14
Moreover, the Court views the balance of evidence in this case as beyond equipoise. The
evidence substantially favors an award of TDIU from 1985 to 1988. It will be so ordered.
III. CONCLUSION
On consideration of the foregoing, the April 7, 2017, Board denial of TDIU from
November 6, 1985 to August 12, 1998, is REVERSED and the case is REMANDED with
instruction to award TDIU for that period.
DATED: August 24, 2018
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)

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