Veteranclaims’s Blog

January 3, 2019

Single Judge Application; TDIU; Withers, 30 Vet.App. at 144; interpretation of capable of sedentary work; how sedentary work, as understood by the examiner, does not encompass the physical or mental acts that the veteran is incapable of performing;

Excerpt from decision below:

To determine whether a TDIU rating is warranted in a given case, “VA conducts a holistic and individualized assessment of the veteran.” Withers, 30 Vet.App. at 144. “

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“If the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case.” Id. at 148. This interpretation must include, “where necessary”:
an explanation of how a finding that a veteran is capable of sedentary employment squares with the veteran’s educational and occupational history
. In other words, the meaning of “sedentary work” is arrived at inductively with the facts cited providing the context for understanding how the observation applies in a given situation. This allows for individualized assessment; absent such factual context however, the phrase can be regarded as conclusory and meaningless on its own.
Id. (internal citation omitted). Further, when an examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that the veteran is incapable of performing. Id. at 147-48.

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” The Board’s cursory conclusion that Mr. Evans was not entitled to a TDIU rating because his service-connected disabilities “do not preclude less strenuous or sedentary employment such as the [v]eteran’s online teaching” is inadequate under Withers. See 30 Vet.App. at 148. R. at 14. The Board must explain how it interpreted the concept of “sedentary work” in the context of this case, or how that concept squares with Mr. Evans’s educational and occupational history and its finding that he has several functional limitations. See R.at 13-14. The Board needs to clarify whether this type of work would entail manipulating a mouse on the computer, or commuting to work on occasion, as was required by Mr. Evans’s most recent employment. Without this clarification, the Board’s conclusion that Mr. Evans can perform sedentary work is meaningless and constitutes error requiring remand. See Withers, 30 Vet.App. at 148.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0331
EVAN E. EVANS, JR., APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
GREENE, Senior Judge: The appellant, Evan E. Evans, Jr., appeals, through counsel, a December 1, 2016, Board of Veterans’ Appeals (Board) decision that, inter alia, denied a rating of total disability based on individual unemployability (TDIU).2 Record of Proceedings (R.) at 2-15. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). On December 18, 2017, the Court stayed proceedings in this case, pending the issuance of a decision by the Court in Withers v. Wilkie, No. 16-1543. On August 10, 2018, the Court issued a decision on this matter. 30 Vet.App. 139, 144 (2018). By order dated August 21, 2018, the Court lifted the stay of proceedings.
For the reasons that follow, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.
1 Judge Greene is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 01-18 (Jan. 16, 2018).
2 The Board also denied an initial rating higher than 20% for degenerative joint disease (DJD) of the right ankle. R. at 4. Mr. Evans does not challenge the Board’s finding, in this regard. Accordingly, this matter is deemed abandoned and the Court will dismiss the appeal as to this issue. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
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I. BACKGROUND
Mr. Evans served on active duty in the U.S. Air Force from March 1966 through January 1970. R. at 1507. He is currently service connected for right total knee arthroplasty, partial amputation of right thumb and fracture of right 3rd – 5th metacarpals, scars at right forearm and right thigh, degenerative joint disease of the right ankle, traumatic peripheral neuropathy, and right ear hearing loss. R. at 12.
In June 2009, Mr. Evans claimed a rating of TDIU. R. at 1142, 1262-64. That claim was denied in December 2009; on appeal, the Board considered that claim as part of Mr. Evans’s claim for an increased rating for his right ankle condition. R. at 3.
In discussing Mr. Evans’s eligibility for a TDIU rating, the Board noted that he had a college degree and that his primary occupation was teaching online courses for various colleges. R. at 12. The Board also acknowledged various lay evidence of record attesting to his functional impairments in the workplace. For example, the Board related his supervisor’s description of the long time it took for Mr. Evans to “get right to work,” to “grade students’ work[,] and to communicate with them.” R. at 12-13, 1019. The supervisor also described Mr. Evans complaining of pain when using the mouse on his computer and stated that he was unsure how much longer Mr. Evans could continue to teach online courses due to the poor condition of his hands. Id. Additionally, the Board considered Mr. Evans’s friend’s general observations of Mr. Evans’s back pain and difficulties with walking and using a ladder. R. at 13, 1024.
Other evidence before the Board included a 2009 VA examiner’s notation that Mr. Evans “had difficulty performing fine motor skills” with his right hand because of weakness and paresthesia. R. at 13. The Board also discussed findings of an April 2016 VA physical examination, which noted that Mr. Evans had diminished range of motion in his right hand, including the inability to forcefully grasp or pinch or lift anything over 10 pounds, with no fine manipulation ability. R. at 14, 52.
The medical nexus opinions of record stated that Mr. Evans’s functional loss due to his service-connected disabilities did not preclude him from performing sedentary work. R. at 13. Thus, the Board concluded that, based on the medical evidence of record, “while the [v]eteran’s right knee, right ankle, and right hand may limit his ability to perform sustained strenuous employment, they do not preclude less strenuous or sedentary employment such as the [v]eteran’s online teaching.” R. at 14. Accordingly, it denied a TDIU rating under 38 C.F.R. § 4.16(a). Id.
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On appeal, Mr. Evans, relying on Withers, argues, among other things, that the Board’s statement of reasons or bases for denying a TDIU rating was deficient because the Board failed to explain what mental and physical acts its concept of “less strenuous or sedentary” employment entailed, and what standard it was using to define “sedentary employment.” Reply Br. at 1-6. The Secretary disputes Mr. Evans’s arguments and urges the Court to affirm the Board decision. Secretary’s Br. at 7-24.
II. ANALYSIS
A rating of TDIU may be assigned to certain veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (2018). To determine whether a TDIU rating is warranted in a given case, “VA conducts a holistic and individualized assessment of the veteran.” Withers, 30 Vet.App. at 144. When conducting a TDIU analysis, the Board “‘must take into account the individual veteran’s education, training, and work history.'” Id. (quoting Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc)).
“If the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case.” Id. at 148. This interpretation must include, “where necessary”:
an explanation of how a finding that a veteran is capable of sedentary employment squares with the veteran’s educational and occupational history. In other words, the meaning of “sedentary work” is arrived at inductively with the facts cited providing the context for understanding how the observation applies in a given situation. This allows for individualized assessment; absent such factual context however, the phrase can be regarded as conclusory and meaningless on its own. Id. (internal citation omitted). Further, when an examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the Board may need to determine whether a common-sense inference can be drawn that the concept of sedentary work, as understood by the examiner, does not encompass the physical or mental acts that the veteran is incapable of performing. Id. at 147-48.

Whether a veteran is unable to secure or follow substantially gainful employment is a finding of fact that this Court reviews under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Bowling v. Principi, 15 Vet.App. 1, 6 (2001). As with any material issue of fact or
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law, the Board must provide a statement of the reasons or bases for its determination “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
The Board’s cursory conclusion that Mr. Evans was not entitled to a TDIU rating because his service-connected disabilities “do not preclude less strenuous or sedentary employment such as the [v]eteran’s online teaching” is inadequate under Withers. See 30 Vet.App. at 148. R. at 14. The Board must explain how it interpreted the concept of “sedentary work” in the context of this case, or how that concept squares with Mr. Evans’s educational and occupational history and its finding that he has several functional limitations. See R.at 13-14. The Board needs to clarify whether this type of work would entail manipulating a mouse on the computer, or commuting to work on occasion, as was required by Mr. Evans’s most recent employment. Without this clarification, the Board’s conclusion that Mr. Evans can perform sedentary work is meaningless and constitutes error requiring remand. See Withers, 30 Vet.App. at 148. “A remand is meant to entail a critical examination of the justification for the decision. The Court expects that the [Board] will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must clarify its definition of “sedentary work,” including whether Mr. Evans’s service-connected functional limitations affect his ability to perform such work, and “undertake any additional fact finding it deems necessary to accomplish that task.” Withers, 30 Vet.App. at 149.
Since this matter is being remanded, Mr. Evans’s remaining arguments will not be addressed. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, he may submit additional evidence and argument on the remanded matter, 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 the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order). The Board must proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112.
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III. CONCLUSION
Based on the foregoing analysis, the appellant’s and the Secretary’s briefs, and a review of the Record of Proceedings, the Board’s December 1, 2016, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: January 2, 2019
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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