Veteranclaims’s Blog

November 20, 2018

Single Judge Application; TDIU; three errors; Bowling v. Principi, 15 Vet.App. 1, 8 (2001);Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991); “placing upon the appellant the burden of showing he can’t get work”; Board never considered the cumulative effects of his service-connected disabilities; Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see 38 C.F.R. § 4.15 (2018);

Excerpt from decision below:

Three aspects of the Board’s analysis render its statement of reasons and bases inadequate. First, it was improper for the Board to merely allude to Mr. Eaton’s educational and occupational history without attempting to relate those factors to his disabilities before concluding that some form of employment was available to him. See Bowling v. Principi, 15 Vet.App. 1, 8 (2001). The Board here cited only his degree, time spent in software engineering, and the business acumen he exhibited in hiring employees to do subcontracting work for him in his stead.
It did not, however, consider the evidence that Mr. Eaton offered during his hearing to show that certain of his skills were no longer useful for employment. In praising his business acumen, the Board overlooked the fact that, although he compensated for his disability by hiring people to do the physical tasks associated with his contracting jobs, he made no money that way and had to discontinue contracting altogether. And with regard to software engineering, he left that industry a decade earlier precisely because job prospects were dim.
But more importantly, the last ten years of Mr. Eaton’s career were spent in manual labor and construction, rendering his software-related knowledge obsolete. He explained this directly to the Board member when asked whether he had looked elsewhere for jobs. He acknowledged his considered and denied by the Board. The veteran does not appeal those findings, so any appeal as to those matters is dismissed. See Pederson, 27 Vet.App. at 283.
4
degree and experience in software engineering, but his ability to penetrate that market once again would require years of additional training just to catch up on the advances in technology.
This is not to say that the Board was required to analyze whether Mr. Eaton could return to the same line of work or what the state of the job market was. See Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). It is rather that the Board clearly declined to address evidence that contradicted a finding that he was “capable of performing the physical and mental acts required by employment.” Id. (emphasis in original omitted). As the Court stated long ago in Gleicher v. Derwinski, such short treatment of favorable evidence runs the risk of “placing upon the appellant the burden of showing he can’t get work.” 2 Vet.App. 26, 28 (1991).
Second, Mr. Eaton accurately points out that the Board never considered the cumulative effects of his service-connected disabilities. Specifically, he says his left foot condition did not factor into the Board’s analysis. Indeed, “VA is expected to give full consideration ‘to the effect of combinations of disability.'” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see 38 C.F.R. § 4.15 (2018). When the Board fails to address the aggregate effect of multiple disabilities, “the record is not adequate to enable the veteran to understand the precise basis for the decision on a TDIU claim and facilitate review.” Id. In other words, the Board was required to explain why the combined effects of Mr. Eaton’s multiple disabilities did not prevent substantially gainful employment. Floore v. Shinseki, 26 Vet.App. 376, 382 (2013). But here it didn’t. The Board only noted that he had a service-connected left foot condition and that as late as 2016 he had attributed his unemployment, in part, to lack of mobility. It offered no assessment of how Mr. Eaton’s left foot disability impacted his occupational outlook.
Third, and finally, Mr. Eaton argues that the Board adopted the VA examiners’ conclusions that he was capable of sedentary work without explaining what sedentary work entailed, given his specific physical limitations. The Court recently concluded in Withers v. Wilkie that the meaning of sedentary employment can’t be painted with a single, broad brush. 30 Vet.App. 139, 147–48 (2018). Its meaning is context-specific and “must be determined from the particulars of the medical opinion in which it is used.” Id. at 147. If the Board denies TDIU because the veteran is capable of sedentary employment, it “must explain how it interprets that concept in the context of that case.” Id. at 148.
The 2015 VA examiner concluded that Mr. Eaton’s fine motor skills were limited in such a way that he could not write, type, or grasp things with his right hand, but nonetheless found that
5
he was capable of sedentary employment. The Board denied TDIU in part because he was capable of sedentary employment. And so far as the decision shows, the Board merely adopted the examiner’s conclusion without explaining how it interpreted that term. As Withers stated, “when the examiner uses the term sedentary work, the surrounding medical opinion may give the term its content, based on the specific functional limitations . . . found by the examiner.” Id. When one considers the examiner’s opinion and accounts for the fact that Mr. Eaton’s left foot caused mobility issues and that he was precluded from heavier physical tasks, the universe of sedentary tasks that he could do would seem to shrink rapidly. Thus, the meaning of sedentary work was apparent neither from the Board’s overall discussion of the medical opinion nor the opinion itself.
The Board is responsible for interpreting medical opinions and ensuring that its findings are consistent with the evidence as a whole. Id. In this instance, it did not discuss certain evidence favorable to Mr. Eaton, much less fulfill its responsibility to reconcile favorable evidence with its own negative conclusions. See Floore, 26 Vet.App. at 382 (The Board must discuss material evidence favorable to the veteran.). In short, it’s unclear how the Board’s finding that Mr. Eaton was capable of sedentary employment fits with his overall disability picture, as well as how that disability picture affects his prospects for employment otherwise established by his educational and occupational history. For these reasons, the Board’s statement of reasons and bases for its decision is inadequate.

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1975
CLINTON T. EATON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: The question before the Board was whether Clinton T. Eaton was entitled to a total disability rating based on individual unemployability (TDIU). Entitlement to TDIU depends on whether the veteran’s service-connected disabilities render him, in light of his particular circumstances, unable to undertake substantially gainful employment. Rice v. Shinseki, 22 Vet.App. 447, 452 (2009). In considering this question, the Board had an obligation to provide a statement of reasons and bases that allowed the veteran to understand the precise basis for the decision and facilitated review in this Court. See Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc). It denied Mr. Eaton the rating, but its explanation for doing so does not reflect appropriate consideration of certain factors that inform this analysis, so the Court remands the claim.
Mr. Eaton served in the Navy from 1986 to 1996. He injured his left foot and tore his right pectoralis major muscle during service. The muscle tear eventually caused numbness, tingling, and pain throughout his arm, and it also cost him the ability to grip objects with his right hand. He is service connected for these injuries and is rated at 40% for the right pectoralis muscle tear, 30% for neuropathy in his right arm, and 10% for degenerative joint disease in his left foot.
2
In July 2012, Mr. Eaton appeared at a Board hearing as part of increased ratings claims for the muscle tear and neuropathy. He explained that his overall condition had worsened since his last VA exam. He had been in construction since around 2003, but lost his job in May 2012 as a subcontractor because he could no longer safely handle power tools and construction equipment. During the hearing, he submitted a recent functional capacity assessment from his treating chiropractor, which showed that he was capable of carrying out light duties and lifting up to 30 pounds—far less than his job at the time required. He attempted to compensate for his condition by hiring other employees to do the labor he could no longer do, but was unsuccessful because all the income went to paying the employees and he earned nothing himself. When asked by the Board member whether he had looked elsewhere for work, he explained that, although he had a degree in software engineering, a poor business outlook in that field was what led him into construction in the first place, and given how long it had been since he practiced in that field, it would take years of schooling to get back in that line of work.
After further proceedings, the Board determined that the issue of entitlement to a TDIU rating was raised and further development was needed. Mr. Eaton underwent another VA examination and a social work and industrial survey in 2015. At the time of the examination, his condition had worsened to a state of constant pain, especially when he twisted, reached, or lifted anything over 5 to 10 pounds. He also experienced numbness in his hand and arm, as well as “trigger finger,” where his middle two fingers involuntarily curled up in pain. The examiner described the functional impact of his neuropathy as causing difficulty with fine motor skills, such as buttoning his shirt, writing, typing, and grasping. Accordingly, he could not handle heavy or fast-moving equipment (for safety reasons) nor could he perform fine motor tasks. But he could fulfill duties outside those tasks.
The examiner added similar remarks regarding the muscle injury. She noted that Mr. Eaton had a college degree and worked for over a decade in quality assurance for software engineering. And, although his recent work was physically intensive, his past duties in engineering would be within his current abilities. She concluded by saying that sedentary and light duty employment opportunities were within the scope of his abilities.
In an April 2017 decision, the Board considered entitlement to TDIU.1 This type of rating can be assigned to veterans who meet certain rating thresholds and are “unable to secure or follow
1 Increased ratings for the right major pectoralis muscle tear and neuropathy in his right arm were also
3
a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2018). The dispute here lies with the Board’s determination that his disability picture didn’t meet this standard.
Entitlement to TDIU is a highly individualized assessment that draws on the veteran’s particular circumstances and accounts for his education, training, and work history. See Pederson, 27 Vet.App. at 286. This finding is reviewed for clear error, and the Court will not set it aside absent a “definite and firm conviction” that a mistake has been made. Id.
The Board recited the veteran’s medical and occupational history at length but offered only the few generalized findings that follow to support its conclusion. That is, given his college degree, 10 years spent in software engineering, the sound business judgment he exhibited in hiring subcontractors to do the work that he couldn’t, and his ability to engage in sedentary or light activities, the evidence did not show that his disabilities precluded him from obtaining or retaining substantially gainful employment.
Three aspects of the Board’s analysis render its statement of reasons and bases inadequate. First, it was improper for the Board to merely allude to Mr. Eaton’s educational and occupational history without attempting to relate those factors to his disabilities before concluding that some form of employment was available to him. See Bowling v. Principi, 15 Vet.App. 1, 8 (2001). The Board here cited only his degree, time spent in software engineering, and the business acumen he exhibited in hiring employees to do subcontracting work for him in his stead.
It did not, however, consider the evidence that Mr. Eaton offered during his hearing to show that certain of his skills were no longer useful for employment. In praising his business acumen, the Board overlooked the fact that, although he compensated for his disability by hiring people to do the physical tasks associated with his contracting jobs, he made no money that way and had to discontinue contracting altogether. And with regard to software engineering, he left that industry a decade earlier precisely because job prospects were dim.
But more importantly, the last ten years of Mr. Eaton’s career were spent in manual labor and construction, rendering his software-related knowledge obsolete. He explained this directly to the Board member when asked whether he had looked elsewhere for jobs. He acknowledged his
considered and denied by the Board. The veteran does not appeal those findings, so any appeal as to those matters is dismissed. See Pederson, 27 Vet.App. at 283.
4
degree and experience in software engineering, but his ability to penetrate that market once again would require years of additional training just to catch up on the advances in technology.
This is not to say that the Board was required to analyze whether Mr. Eaton could return to the same line of work or what the state of the job market was. See Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). It is rather that the Board clearly declined to address evidence that contradicted a finding that he was “capable of performing the physical and mental acts required by employment.” Id. (emphasis in original omitted). As the Court stated long ago in Gleicher v. Derwinski, such short treatment of favorable evidence runs the risk of “placing upon the appellant the burden of showing he can’t get work.” 2 Vet.App. 26, 28 (1991).
Second, Mr. Eaton accurately points out that the Board never considered the cumulative effects of his service-connected disabilities. Specifically, he says his left foot condition did not factor into the Board’s analysis. Indeed, “VA is expected to give full consideration ‘to the effect of combinations of disability.'” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see 38 C.F.R. § 4.15 (2018). When the Board fails to address the aggregate effect of multiple disabilities, “the record is not adequate to enable the veteran to understand the precise basis for the decision on a TDIU claim and facilitate review.” Id. In other words, the Board was required to explain why the combined effects of Mr. Eaton’s multiple disabilities did not prevent substantially gainful employment. Floore v. Shinseki, 26 Vet.App. 376, 382 (2013). But here it didn’t. The Board only noted that he had a service-connected left foot condition and that as late as 2016 he had attributed his unemployment, in part, to lack of mobility. It offered no assessment of how Mr. Eaton’s left foot disability impacted his occupational outlook.
Third, and finally, Mr. Eaton argues that the Board adopted the VA examiners’ conclusions that he was capable of sedentary work without explaining what sedentary work entailed, given his specific physical limitations. The Court recently concluded in Withers v. Wilkie that the meaning of sedentary employment can’t be painted with a single, broad brush. 30 Vet.App. 139, 147–48 (2018). Its meaning is context-specific and “must be determined from the particulars of the medical opinion in which it is used.” Id. at 147. If the Board denies TDIU because the veteran is capable of sedentary employment, it “must explain how it interprets that concept in the context of that case.” Id. at 148.
The 2015 VA examiner concluded that Mr. Eaton’s fine motor skills were limited in such a way that he could not write, type, or grasp things with his right hand, but nonetheless found that
5
he was capable of sedentary employment. The Board denied TDIU in part because he was capable of sedentary employment. And so far as the decision shows, the Board merely adopted the examiner’s conclusion without explaining how it interpreted that term. As Withers stated, “when the examiner uses the term sedentary work, the surrounding medical opinion may give the term its content, based on the specific functional limitations . . . found by the examiner.” Id. When one considers the examiner’s opinion and accounts for the fact that Mr. Eaton’s left foot caused mobility issues and that he was precluded from heavier physical tasks, the universe of sedentary tasks that he could do would seem to shrink rapidly. Thus, the meaning of sedentary work was apparent neither from the Board’s overall discussion of the medical opinion nor the opinion itself.
The Board is responsible for interpreting medical opinions and ensuring that its findings are consistent with the evidence as a whole. Id. In this instance, it did not discuss certain evidence favorable to Mr. Eaton, much less fulfill its responsibility to reconcile favorable evidence with its own negative conclusions. See Floore, 26 Vet.App. at 382 (The Board must discuss material evidence favorable to the veteran.). In short, it’s unclear how the Board’s finding that Mr. Eaton was capable of sedentary employment fits with his overall disability picture, as well as how that disability picture affects his prospects for employment otherwise established by his educational and occupational history. For these reasons, the Board’s statement of reasons and bases for its decision is inadequate. The April 26, 2017, Board decision as to TDIU is VACATED, and the matter is REMANDED for further consideration. The balance of the appeal is DISMISSED.
DATED: November 16, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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.