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March 18, 2020

Single Judge Application; Ray v. Wilkie, 31 Vet.App. 58, 73 (2019); phrase “unable to secure and follow a substantially gainful occupation” in § 4.16 has economic and noneconomic components; sedentary work; Withers v. Wilkie, 30 Vet.App. 139, 144-45 (2018); 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. This includes, 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;

Filed under: Uncategorized — veteranclaims @ 8:22 pm

” In Ray v. Wilkie, 31 Vet.App. 58, 73 (2019), the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16 has economic and noneconomic components. The noneconomic component includes the veteran’s history, education, skill, and training, as well as the veteran’s capacity to perform “the physical and mental acts required by employment.” Id. (citing Van Hoose, 4 Vet.App. at 363); see also Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991). Although § 4.16 makes no mention of sedentary work, the Court acknowledged in Withers v. Wilkie, 30 Vet.App. 139, 144-45 (2018), that use of the term in the TDIU context is pervasive. In Withers, the Court declined to accept either party’s invitation to define “sedentary” for VA purposes. Instead, the Court held as follows:
Although § 4.16 does not make the concept of sedentary work an explicit TDIU
factor, 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. This includes, 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
. Id. at 148.

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-7388
KENNETH D. LINDABURY, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Kenneth D. Lindabury appeals through counsel a
November 27, 2018, Board of Veterans’ Appeals (Board) decision denying an effective date earlier
than June 12, 2017, for the grant of a total disability evaluation based on individual
unemployability (TDIU). Record (R.) at 4-9. For the reasons set forth below, the Court will set
aside the November 2018 Board decision and remand the matter for readjudication consistent with
this decision.
I. FACTS
Mr. Lindabury served honorably on active duty in the U.S. Army from April 1969 until
November 1971, including service in Vietnam. R. at 4479. In 2000, he was diagnosed with diabetes
mellitus, type II, R. at 2453-64; he filed for service connection in December 2001. R. at 4466-75.
In April 2002, the veteran attended a VA examination. R. at 4420-22. The VA examiner
noted that Mr. Lindabury had experienced intermittent visual problems, as well as neurologic
problems in his left shoulder. R. at 4421. The examiner also noted that Mr. Lindabury was on
restricted/limited duty at work. R. at 4421-22. Later that month, a VA regional office (RO) granted
2
service connection for, inter alia, diabetes mellitus, type II, on a presumptive basis due to herbicide
exposure, and assigned a 40% evaluation effective July 9, 2001. R. at 4413-14.
In January 2003, Mr. Lindabury submitted correspondence to VA reporting that he had
pain and weakness in both shoulders. R. at 4407-08. He stated that, although physical therapy was
helpful for his right shoulder, his left shoulder had experienced very little benefit. R. at 4407. He
indicated that he had blurred vision, both at work and at home. Id. An enclosed letter from the
veteran’s private treating physician, Dr. Sandler, reported that Mr. Lindabury had mild diabetic
retinopathy and neuropathy and that he had complained of aching and limited range of motion in
both shoulders for more than a year. R. at 4405. Dr. Sandler also explained that a local orthopedist
had confirmed a diagnosis of diabetic frozen shoulder. Id. Physical therapy records from the threemonth
period preceding Mr. Lindabury’s letter to VA document the veteran’s complaints of
worsening (8/10) pain in his arms, R. at 4391-92. VA treated Mr. Lindabury’s letter as a claim for
an increased evaluation. See R. at 4324.
In August 2003, VA granted service connection for adhesive capsulitis of the right and left
shoulders, and for diabetic retinopathy; it also granted an earlier effective date for his diabetes
mellitus based on liberalizing regulations. R. at 4324-33. VA denied service connection for
peripheral neuropathy in all extremities, based on a lack of diagnoses. R. at 4328-30.
In January 2004, Mr. Lindabury filed a Notice of Disagreement (NOD). R. at 4317-18. He
expressed that he experienced problems with blurred and distorted vision and that his shoulder
problems—specifically, pain, and limited range of motion—were interfering with his ability to do
his job. Id. Mr. Lindabury described problems with circulation in his hands, arms, shoulders, and
feet. R. at 4318.
In March 2007, the veteran attended a VA examination. R. at 4189-4204. At that time, Mr.
Lindabury explained that his condition had significant effects at his job, where he had been
assigned different duties. R. at 4195. The examiner diagnosed bilateral shoulder capsulitis and
noted significant effects on occupational activities, including problems with lifting and carrying,
as well as effects on activities of daily living. R. at 4203-04. Examination of the veteran’s joints
revealed instability, pain, and weakness in both shoulders. R. at 4197.
In April 2007, Mr. Lindabury filed an application for increased compensation based on
unemployability. R. at 4209-10. He explained that he had worked as a maintenance supervisor in
an optical lab since 1995; he expressed that he was “afraid [he would] be let go at any time because
3

[he could not]

do his job because of [his] left arm and shoulder, and right shoulder.” Id. Mr.
Lindabury included with his application a statement in support of claim written by a co-worker,
who stated that he had “known and seen a deterioration in health of [his] friend,” who “for a long
time . . . [hadn’t] had the full function of his arms.” R. at 4206. The co-worker asserted that Mr.
Lindabury’s health had become “a hindrance” at work. Id. In April 2011, Mr. Lindabury left his
job, citing complications from diabetes. R. at 4039-40.
In October 2011, Mr. Lindabury underwent another VA examination. R. at 2763-68. The
examiner noted that the veteran had complications of diabetic peripheral neuropathy and diabetic
retinopathy. R. at 2763-68. The examiner opined that, as a result of his diabetes:
with neuropathies [and] painful, adhesive conditions with his shoulders . . . he
truly is limited on his physical ability to do labor activities as related to his upper
extremities. The physical demands of a maintenance supervisor has [caused] him
to feel that he could [not] be productive and/or safe [at his job].
R. at 3092. The VA examiner further opined that Mr. Lindabury “has the ability to be productive
in a less physical, more sedentary environment that can accommodate his [upper extremity]
limitations,” in light of his “good mobility” of the torso and bilateral lower extremities. Id. The
examiner concluded, “[he] has many years of supervisory [experience], and today his judgment is
clear. He demonstrates good interpersonal communication skills.” Id.
That same month, Mr. Lindabury submitted a new application for increased compensation
based on unemployability. R. at 4039-40. In December 2011, he underwent a peripheral nerve
examination, which indicated that he had “[p]ossible neuropathic symptoms, includ[ing] pain in
mid soles and toes,” as well as numbness in his toes, bilateral pain radiating to his fingers, and
numbness in his fingers. R. at 2732. He was unable to complete the pronator drift test, due to pain
and limited abduction in his shoulders. R. at 3859. In January 2012, the RO denied Mr. Lindabury’s
entitlement to TDIU. R. at 3818-27. Mr. Lindabury timely filed an NOD. R. at 3812-13.
In July 2015, a VA examiner diagnosed diabetic retinopathy in both of the veteran’s eyes.
R. at 3306-50. This caused a contraction in his visual field. R. at 2975. Mr. Lindabury reported to
the examiner that “it’s all I can do to get dressed;” “my wife takes care of me now and drives.” R.
at 3320. Following a September 2015 Statement of the Case (SOC), R. at 3272-89, he perfected
an appeal to the Board. R. at 2555.
In August 2017, Mr. Lindabury underwent another VA examination. R. at 1837-41. The
examiner opined that the veteran’s diabetes limited his physical exertional capabilities, caused
4
approximately two episodes of ketoacidosis and hypoglycemia requiring hospitalization over the
prior year, and caused peripheral neuropathy, nephropathy, and retinopathy. Id. The examiner
noted that Mr. Lindabury’s symptoms of neuropathy had first manifested in 2003 and had worsened
over time. R. at 1860. As a result, the RO granted service connection for peripheral neuropathy,
assigning a 20% evaluation for each of his upper extremities, and 10% for each of his lower
extremities, with an effective date of June 12, 2017. R. at 1798-1805.
In May 2018, Mr. Lindabury underwent an additional VA examination. R. at 468-74. At
that time, the examiner noted moderate constant and intermittent pain, severe paresthesia and/or
dysesthesia, and severe numbness in all four extremities. R. at 468-69. Mr. Lindabury reported
difficulty “performing all types of occupational tasks due to the severity of his bilateral upper and
lower extremity weakness and instability,” and that he was unable to write, type, drive, or ambulate
for prolonged periods. R. at 473. The following month, the RO issued a decision increasing his
evaluations for his right upper extremity radiculopathy from 20 to 70%, for left upper extremity
radiculopathy from 20 to 60%, and for right lower extremity (sciatic) from 10% to 40%, and
granted service connection for right and left lower extremity radiculopathy (femoral) with an
evaluation of 20% for each side. R. at 411-12.
In the November 2018 decision on appeal, the Board granted Mr. Lindabury’s entitlement
to TDIU and assigned an effective date of June 12, 2017, the date service connection was awarded
for peripheral neuropathy. R. at 3-11. The Board concluded that prior to June 12, 2017, Mr.
Lindabury’s service-connected disabilities would not have prevented substantially gainful
employment and that he was not limited from working in a position that “primarily encompassed
sitting.” R. at 8. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Lindabury’s appeal is timely and the Court has jurisdiction to review the December
2018 Board 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).
TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (2019). When such
unemployability is shown and the veteran meets certain numeric evaluation requirements, the
Board may award TDIU in the first instance, 38 C.F.R. § 4.16(a); otherwise, the Board may only
5
refer the case to the Compensation Service Director for consideration of extraschedular TDIU,
38 C.F.R. § 4.16(b). See Cantrell v. Shulkin, 28 Vet.App. 382, 387 (2017). In determining whether
a veteran is unable to secure or follow a substantially gainful occupation, the central inquiry is
“whether that veteran’s service-connected disabilities alone are of sufficient severity to produce
unemployability.” Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993); Van Hoose v. Brown,
4 Vet.App. 361, 363 (1993) (explaining that, for TDIU, “[t]he question is whether the veteran is
capable of performing the physical and mental acts required by employment, not whether the
veteran can find employment”). “When the Board conducts a TDIU analysis, it must take into
account the individual veteran’s education, training, and work history.” Pederson v. McDonald,
27 Vet.App. 276, 286 (2015)(en banc).
The Board’s determination of whether a veteran is unable to secure or follow substantially
gainful employment is a finding of fact subject to the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); Bowling v. Principi, 15 Vet.App. 1, 6 (2001). “A factual finding ‘is “clearly
erroneous” when although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.'” Hersey v.
Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (explaining that the Court “is not permitted to substitute its judgment for that of the [Board] on issues of material fact” and therefore may not overturn the Board’s factual determination “if there is a ‘plausible’ basis in the record for [those] determinations”).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its degree-of-disability determination with adequate reasons or bases that enables the
claimant to understand the precise basis for that determination and facilitates review in this Court.
38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board
must analyze the credibility and probative value of evidence, account for evidence that it finds
persuasive or unpersuasive, and provide reasons for its rejection of 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).
6
III. ANALYSIS
Mr. Lindabury argues that the Board erred in denying TDIU prior to June 12, 2017, by
relying on an incomplete definition of sedentary work, Appellant’s Brief (Br). at 9-10; failing to
provide adequate analysis of his exertional and nonexertional limitations and their impact on his
ability to obtain and maintain substantially gainful employment, id. at 13-15; and erroneously
relying on the October 2011 VA examiner’s speculation instead of reaching its own adjudicative
determination on the issue of his ability to engage in work, id. at 18-19.1 The Secretary contends
that the Board adequately assessed Mr. Lindabury’s occupational functioning, offering proper
support for its finding that Mr. Lindabury was capable of substantially gainful sedentary
employment at that time with adequate reasons or bases, and properly considered the medical
opinions of record. Secretary’s Br. at 6-17. For the reasons that follow, the Court agrees with the
veteran.
In Ray v. Wilkie, 31 Vet.App. 58, 73 (2019), the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16 has economic and noneconomic components. The noneconomic component includes the veteran’s history, education, skill, and training, as well as the veteran’s capacity to perform “the physical and mental acts required by employment.” Id. (citing Van Hoose, 4 Vet.App. at 363); see also Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991). Although § 4.16 makes no mention of sedentary work, the Court acknowledged in Withers v. Wilkie, 30 Vet.App. 139, 144-45 (2018), that use of the term in the TDIU context is pervasive. In Withers, the Court declined to accept either party’s invitation to define “sedentary” for VA purposes. Instead, the Court held as follows:
Although § 4.16 does not make the concept of sedentary work an explicit TDIU
factor, 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. This includes, 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. Id. at 148.

The Court further held that, where a veteran’s ability to perform sedentary work is a
basis for the Board’s decision, “the meaning of sedentary work must be determined from the
1 Mr. Lindabury also initially argued that the Board misapplied the law when it declined to consider his later service-connected peripheral neuropathy and diabetic nephropathy in its TDIU analysis, as service connection was not yet in effect for those conditions. Appellant’s Br. at 15-17. In light of the Court’s recent holding in Delrio v. Wilkie,
— Vet.App. —, 2019 WL 6907193, at *10 (Vet.App. Dec. 19, 2019), the veteran withdrew this argument. Appellant’s Reply Br. at 1.
7
particulars of the medical opinion in which it is used.” Id. at 147. Where an examiner describes certain types of functional limitations and still opines that a veteran is capable of sedentary work, the relevant inquiry for the Board is the veteran’s functional limitations “as understood by the examiner” in the context of sedentary work. Id. at 148 (emphasis added).
Mr. Lindabury asserts that, contrary to this Court’s guidance in Withers and Ray, the
Board’s reliance on the ordinary meaning of the word “sedentary” to inform its understanding of
sedentary employment failed to appropriately consider his full range of exertional and
nonexertional limitations. Appellant’s Br. at 9-15. The Secretary counters that the Board was
required only to explain its understanding of the term sedentary and apply it to the specifics of Mr.
Lindabury’s case. Secretary’s Br. at 9. The Secretary’s argument is unavailing.
The October 2011 VA examiner’s opinion highlighted the functional physical limitations
associated with Mr. Lindabury’s shoulders and upper extremities. Appellant’s Br. at 10-11; see also
R. at 3092 (“[Mr. Lindabury] is truly limited on his physical ability to do labor activities as related
to his upper extremities.”). Indeed, when considering the October 2011 VA examination, the Board
noted the following:
The examiner explained that the [v]eteran had diabetes with painful neuropathies
and adhesive capsulitis of his shoulder that would affect active range of motion and
that these disabilities would limit the [v]eteran’s physical ability to do labor
activities related to his upper extremities. The examiner felt that the Veteran still
had good mobility of the torso and bilateral lower extremities.
R. at 6. Despite the Board’s acknowledgment that the examiner’s analysis and ultimate conclusion
that the veteran would be capable of sedentary work focused on the veteran’s upper extremities
and shoulders, the Board’s chosen definition of “sedentary work” accounts only for the veteran’s
need to sit: “[a]s ‘sedentary’ is defined as ‘[r]equiring or marked by much sitting’ . . . the Board
takes this to mean the Veteran could work in a job where he primarily sat down.” R. at 6. The
Board did not consider how seated work would accommodate the veteran’s inability to engage in
labor activities related to his upper extremities. Moreover, the Board’s analysis disregards
“particulars of the medical opinion in which [the term sedentary] was used”—which made clear
that the veteran had “good mobility of the torso and [bilateral lower extremities]” and made no
reference to sitting. R. at 3092; see Withers, 30 Vet.App. at 147. The Board’s analysis failed to
consider whether the veteran’s upper extremity limitations would impair his physical ability to
perform the type of activities required to secure and follow a substantially gainful occupation. See
Ray, 31 Vet.App. at 73. This omission is of particular relevance given that the veteran was service
8
connected for disabilities of the upper extremities at the time of the 2011 examination. R. at 4324.
In light of the Board’s failure to consider the 2011 examiner’s opinion that the veteran was capable
of sedentary work that could accommodate the functional limitations of his upper extremities, the
Court is unable to effectively review the Board’s conclusions pertinent to this appealed issue. See
38 U.S.C. § 7104(d)(1); Ray, 31 Vet.App. at 74; Withers, 30 Vet.App. at 147. Accordingly, remand
is warranted for the Board to readjudicate Mr. Lindabury’s entitlement to TDIU prior to June 12,
2017, in accordance with this decision. See Ray, 31 Vet.App. at 74.
The Court identifies one additional reasons-or-bases error in the Board’s treatment of the
October 2011 VA examination. Specifically, Mr. Lindabury argues that the Board failed to
adequately relate his skills, education, and experience to the limitations imposed by his serviceconnected
disabilities. Appellant’s Br. at 14.
When determining whether a veteran’s service-connected disabilities preclude him or her
from securing or following substantially gainful employment, the Board is required to consider
and discuss the veteran’s educational and occupational history and explicitly relate these factors to
the disabilities of the appellant, and conclude that some form of employment is available. Cathell
v. Brown, 8 Vet.App. 539, 544 (1996). The Board may not “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.” Id., see Gleicher, 2 Vet.App. at 26.
In this case, the Board acknowledged that the veteran’s post-service work experience
included a 16-year career as a maintenance supervisor and that his educational background
consisted of a high school education. R. at 6. However, the Board did not relate those factors to
his service-connected disabilities. Instead, the Board merely described other evidence of record
and concluded that the veteran was capable of some form of employment. Without providing
reasons or bases, the Board recited the veteran’s work responsibilities at his job as a maintenance
supervisor and concluded that, as he had worked as a supervisor for many years, he would be
“qualified through experience” for a variety of positions. R. at 8. Merely concluding that sedentary
work “where he could sit for most of the day and did not have to do physical tasks with his arms”
was available to Mr. Lindabury, without discussing the relevance of his educational history,
renders inadequate the Board’s reasons or bases for entitlement to TDIU prior to June 12, 2017.
See Cathell, 8 Vet.App. at 544; Beaty v. Brown, 6 Vet.App. 532, 538-39 (1996); Gleicher,
2 Vet.App. at 28; Gilbert, 1 Vet.App. at 57. In the event that the Board meant to imply that the
9
veteran was capable of substantially gainful employment in an administrative capacity not related
to maintenance, the Court finds such an analysis devoid of adequate rationale.
On remand, Mr. Lindabury is free to submit additional arguments and evidence, including
the arguments raised in his brief to this Court, in accordance with Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such
evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court
reminds the Board that “[a] remand is meant to entail a critical examination of the justification for
the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed
in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the November 27, 2018, Board decision is SET
ASIDE and the matter is REMANDED for readjudication consistent with this decision.
DATED: March 17, 2020
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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