Veteranclaims’s Blog

September 30, 2021

Single Judge Application; Board’s use of double negatives (“not shown” and “unable”); In Bowling, the Court found that the Board’s use of double negatives (“not shown” and “unable”) to suggest the feasibility of some of the veteran’s past occupations revealed that the Board relied on the lack of evidence rather than on any affirmative evidence of employability and that, with no such evidence, the Board’s speculation could not sustain a TDIU denial. Id. at 8.;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:23 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6707
PATRICIA K. SNIDER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Patricia K. Snider, surviving spouse of deceased Army veteran Norman
J. Snider, through counsel, appeals a June 4, 2019, Board of Veterans’ Appeals decision denying a
total disability rating based on individual unemployability (TDIU).1 The appeal is timely; the Court
has jurisdiction to review the Board decision; and single-judge disposition is appropriate. See 38
U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board clearly erred by denying a referral of the TDIU
claim or, in the alternative, whether the Board provided inadequate reasons or bases for that
determination and whether VA failed to satisfy its duty to assist by not obtaining a vocational
opinion. Because Ms. Snider has not shown that the Board clearly erred or provided inadequate
reasons or bases or that a vocational opinion was necessary, the Court will affirm the appealed part
of the Board decision.
1 The Board also granted an initial 30% rating for sinusitis. This is a favorable determination that the Court
may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). Because a grant of this benefit is not an
adverse decision, the Court has no jurisdiction over this part of the Board decision. See 38 U.S.C. § 7261(a)(4).
2
I. FACTS
Mr. Snider served on active duty from November 1942 to February 1946. Record (R.) at 895. VA granted him service connection for a hemorrhoidectomy with a 0% rating effective
February 1946. R. at 6851. VA later granted a 10% rating for hemorrhoids effective December
2003, R. 5251, 5269, and then increased the rating to 20% effective July 2016, R. at 4610. VA also
granted service connection for sinusitis with a 10% rating effective March 1997. R. at 6186.
In an October 2017 statement, Mr. Snider explained that for his sinusitis he used Breathe
Right strips as well as a saline nasal spray six times a day and that if he did not do so his “sinuses
clog up and I cannot breathe.” R. at 4861. He stated that with this treatment he only had flare-ups
about four times a year, which included a sore throat, post-nasal drip, and headache pressure and
pain. Id.
In May 2019, Mr. Snider applied for TDIU. R. at 3603. The veteran noted that he completed
high school and attended business school for a year and a half but did not graduate. R. at 3604. He
stated that from 1971 to 1984 he oversaw a bowling alley bar and restaurant, working at least 40
hours a week, and he delivered flowers from 1986 to 1996, working about 20 hours a week. R. at
3604, 3606-07. He reported that his sinusitis and hemorrhoids worsened by the 1990s. R. at 3606.
He again stated that, to control his sinusitis symptoms, he used Breathe Right strips and followed
a rigorous schedule of using a saline solution six times a day for many years, requiring him to be
in a sitting position with his head tilted back and then nose blowing to clear the debris. Id. He noted
that even with this treatment, however, liquid occasionally fell from his nose. Id. He reported that
he also regularly applied hemorrhoid ointments. R. at 3607. He stated that, based on his experience
in the food and beverage industry, a restaurant or bar would not hire him on a full- or part-time
basis because of his need to often use the bathroom to perform his saline cleansing procedures and
apply his hemorrhoid cream and because customers did not want to see his unpleasant symptoms
while eating and drinking. Id. He also stated that he did not have other skills consistent with
substantially gainful employment because, although he had delivered flowers part-time, he would
be unable to work full-time in such a job given his need for frequent bathroom stops. Id.
In the June 2019 decision on appeal, the Board granted an initial 30% sinusitis rating and
denied TDIU. R. at 5.
3
II. ANALYSIS
Ms. Snider argues that, once the veteran submitted competent, credible evidence that his
service-connected disabilities interfered with his ability to obtain substantially gainful
employment, the burden of production shifted to VA and that, because the Board relied on its own
conjecture rather than evidence, its finding that it did not need to refer the TDIU claim was clearly
erroneous. Appellant’s Brief (Br.) at 14-22 (asserting that there was no evidence that he was able
to obtain or maintain substantially gainful employment). Alternatively, Ms. Snider contends that
VA failed to satisfy the duty to assist because it did not provide an expert vocational opinion and
that the Board offered inadequate reasons or bases for not referring the TDIU claim because it did
not address his claim under the “reasonable possibility” standard discussed in Ray v. Wilkie, 31
Vet.App. 58, 66 (2019) (noting that the initial extraschedular referral decision under 38 C.F.R. §
4.16(b) addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a
veteran is unemployable because of service-connected disabilities). Id. at 22-25. The Secretary
disputes Ms. Snider’s arguments and urges the Court to affirm the Board’s TDIU determination.
Secretary’s Br. at 6-28.
TDIU will be awarded when a veteran cannot secure or follow a substantially gainful
occupation as a result of service-connected disabilities and meets certain numeric evaluation
requirements. 38 C.F.R. § 4.16(a) (2021). When the veteran does not meet those numeric
requirements, TDIU may be granted on an extraschedular basis under 38 C.F.R. § 4.16(b), which
instructs VA adjudicators to refer to the Director of Compensation Services “all cases of veterans
who are unemployable by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b); see Ray,
31 Vet. App. at 64.
Here, the Board found that referral was not warranted because the evidence did not support
a finding that Mr. Snider’s service-connected sinusitis and hemorrhoids rendered him unable to
obtain or maintain substantially gainful employment. R. at 12. The Board stated that he did not
have constant sinusitis symptoms but instead experienced exacerbations or nonincapacitating
episodes about four times a year and that he regularly used saline and over-the-counter medications
to prevent these exacerbations. Id. The Board determined that, although Mr. Snider suggested that
performing the saline regimen six times a day and applying hemorrhoid cream multiple times a
day would prevent him from gainful employment, the evidence did not support this because these
tasks did not take an extraordinary amount of time each day and could be performed during non4
work hours or while on breaks. Id. The Board then referenced the Americans with Disabilities Act
(ADA) and noted that, although some employers may not permit an employee to take multiple
breaks, federal law required that employers provide reasonable accommodations that may include
allowing an employee to work a modified schedule to allow for such breaks. R. at 12-13.
The Board then considered Mr. Snider’s contention that he could not work in the food
service industry due to mucous dripping from his nose, but noted that he had experience working
in other venues, such as delivering flowers, and that his service-connected symptoms would not
interfere with the tasks of a delivery person, such as driving and carrying packages. R. at 13. The
Board also determined that, because Mr. Snider reported overseeing a bowling alley lounge and
restaurant, he had some managerial skills and, although he may be unable to work as a manager in
a restaurant or lounge, his management skills were transferrable to other industries not involving
food or extensive contact with customers. Id. The Board concluded that, given Mr. Snider’s
occupational history, he could work in occupations other than those involving food service where
symptoms such as dripping mucous and taking six bathroom breaks a day would not interfere with
the completion of work duties. Id.
A. Balance of Evidence
Ms. Snider first contends that, once the veteran submitted competent, credible evidence
that his service-connected disabilities interfered with his ability to obtain substantially gainful
employment, he met his burden under 38 U.S.C. § 5107(a), which provides that a claimant has the
responsibility to present and support a claim for benefits. Appellant’s Br. at 14; Appellant’s Reply
Br. at 6-8. She argues that 38 U.S.C. § 5107(b), which provides that the Secretary must give the
benefit of the doubt to the claimant where there is an approximate balance of positive and negative
evidence, then shifts the burden of production and nonpersuasion to VA. Appellant’s Br. at 14;
Appellant’s Reply Br. at 6-8 (citing Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001), for the
proposition that the benefit-of-the-doubt rule may be viewed as shifting the risk of persuasion onto
VA to prove that the veteran is not entitled to benefits, and Stankevich v. Nicholson, 19 Vet. App.
470, 473 (2006), for the proposition that, when the evidence does not preponderate one way or the
other, it sits in relative equipoise).
Recently, the U.S. Court of Appeals for the Federal Circuit noted that it was bound by its
prior holding in Ortiz that the benefit-of-the-doubt rule does not apply when the preponderance of
the evidence is found to be against the claimant. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed.
5
Cir. 2021). The Federal Circuit also stated that it had explained in Ortiz that “if the Board is
persuaded that the preponderant evidence weighs either for or against the veteran’s claim, it
necessarily has determined that the evidence is not ‘nearly equal’ . . . and the benefit of the doubt
rule therefore has no application.” Id. at 1395 (citing Ortiz, 274 F.3d at 1365-66, and further noting
that Ortiz stated that a finding by “the preponderance of the evidence” reflects that the Board “has
been persuaded” to find in one direction or the other).
Here, the Board found that the preponderance of evidence was against Mr. Snider’s claim
and that the benefit-of-the-doubt rule did not apply. R. at 15. Ms. Snider does not explain how the
evidence was in approximate balance so that her husband should have received the benefit of the
doubt and thus why the burden of persuasion should have then shifted to VA. Nor does she provide
authority for her contention that, once the veteran submitted evidence, then the benefit -of-thedoubt
rule essentially applied automatically. See Evans v. West, 12 Vet.App. 22, 31 (1998) (noting
that the Court will disregard an “unsupported contention”). To the contrary, the Board must weigh
that evidence and determine whether there is an approximate balance of positive and negative
evidence. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible
for assessing the weight of evidence and that the Court may overturn the Board’s decision only if
it is clearly erroneous). As we discuss later, Ms. Snider has not shown that the Board’s weighing
of the evidence was clearly erroneous and we thus find unpersuasive her burden-shifting argument
and therefore we will not address her related assertions that the Board produced no evidence that
the veteran could obtain or maintain substantially gainful employment. See Appellant’s Br. at 14-
20; Appellant’s Reply Br. at 7-8.
Further, although Ms. Snider referenced the benefit-of-the-doubt rule, which applies when
there is an approximate balance of positive and negative evidence, she seems to argue that there
was only evidence favorable to the veteran’s TDIU claim, asserting that Bowling v. Principi, 15
Vet. App. 1 (2001), is controlling. Appellant’s Br. at 16-17. In Bowling, the Court found that the Board’s use of double negatives (“not shown” and “unable”) to suggest the feasibility of some of the veteran’s past occupations revealed that the Board relied on the lack of evidence rather than on any affirmative evidence of employability and that, with no such evidence, the Board’s speculation could not sustain a TDIU denial. Id. at 8. But as the Secretary points out, Secretary’s Br. at 14-15,
the facts in Bowling are distinguishable. The evidence in Mr. Bowling’s case included a VA
examination stating that his post-traumatic stress disorder (PTSD) interfered with occupational
6
function to the extent that he was totally disabled, a letter from a VA social worker stating that the
veteran needed to be on leave from work for 30 days for continuing medical interventions, a VA
psychiatrist letter noting that Mr. Bowling was considered unable to work due to PTSD, a letter
from the veteran’s employer explaining that he was on temporary disability status, another VA
social worker letter stating that Mr. Bowling’s ability to maintain employment was severely
affected by his PTSD, and a VA examination noting serious impairment in occupational function.
Bowling, 15 Vet.App. at 3-5. Similar evidence does not exist here and, although there was evidence
that Mr. Snider’s sinusitis and hemorrhoid conditions impacted his employment, he was
compensated for that impairment. See R. at 5 (30% rating for sinusitis); R. at 4610, 5251, 5269
(10% rating for hemorrhoids from December 2003 and 20% rating from July 2016). Thus, we find
this argument unpersuasive.
B. Board Evidentiary Consideration
Next, Ms. Snider argues that the Board relied on its own speculation rather than evidence
to deny a TDIU referral. Appellant’s Br. at 19-22; Appellant’s Reply Br. at 8-10. First, she asserts
that, to the extent that the Board read into § 4.16(b) a requirement of incapacitating sinusitis
episodes for TDIU, it erred. Appellant’s Br. at 19. But the Court discerns no such error. The Board
was simply summarizing the severity of Mr. Snider’s sinusitis in its assessment of whether that
service-connected disability rendered him unemployable. R. at 12 (the Board stating that the
veteran did not have constant sinusitis symptoms but instead experienced exacerbations or nonincapacitating
episodes about four times a year and that he regularly used saline and over-thecounter
medications to prevent these exacerbations). Second, Ms. Snider references nonincapacitating
sinusitis episodes and then contends that medical records showed that the veteran’s
sinusitis symptoms occurred less often after he increased his saline cleanse regimen, Appellant’s
Br. at 20, but she makes no argument about this contention, see Evans, 12 Vet.App. at 31; see also
R. at 12 (the Board noting that he regularly used saline and over-the-counter medications to prevent
exacerbations).
Third, Ms. Snider challenges the Board’s finding that there was no evidence that the saline
cleanse regimen and hemorrhoid cream application took an extraordinary amount of time each day
and that they could be performed during non-work hours or while on breaks. Appellant’s Br. at 20-

She argues that this finding was contradicted by the veteran’s statement that frequent bathroom
trips interfered with employment and that there was no “rebuttal” evidence that those procedures
7
could be effectively performed during non-work hours or that an employer would afford sufficient
bathroom breaks and facilities. Id.; Appellant’s Reply Br. at 9-10 (arguing that no evidence
supported the Board’s inference about the time it took Mr. Snider to complete the saline and cream
regimens). But as the Secretary notes, Secretary’s Br. at 20, the Board considered Mr. Snider’s
statement about interference with employment, but found it insufficient to establish
unemployability, R. at 12; see Owens, 7 Vet.App. at 433 (holding that the Board is responsible for
assessing the weight of evidence).
Further, because the evidence did not quantify how long these tasks took, Appellant’s Reply
Br. at 9—that is, not showing that they took a long or short time—the Board as fact-finder could
draw appropriate inferences from the evidence, Secretary’s Br. at 17-18, as it did here, and
determine that these tasks did not take an extraordinary amount of time each day and that some of
the saline cleanses and hemorrhoid cream applications could be done before or after work and the
rest could be done during work breaks. R. at 12; see Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed.
Cir. 2010) (finding that “the evaluation and weighing of evidence and the drawing of appropriate
inferences from it are factual determinations committed to the discretion of the fact-finder”),
overruled on other grounds by Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019); cf. Arline v.
McDonough, _ Vet.App. , , No. 18-0765, 2021 WL 2701448, at *9 (July 1, 2021)
(holding that, when a Board member draws upon common knowledge or general experience about
work environments when assessing TDIU evidence, that Board member does not assume the role
of a competing vocational expert). We thus find unpersuasive Ms. Snider’s argument that the Board
relied on its own speculation rather than evidence to deny a TDIU referral.
Ms. Snider also argues that no evidence supported the Board’s speculation that the ADA
would have compelled an employer to accommodate Mr. Snider’s circumstances. Appellant’s Br.
at 21. Although the Board’s reference to the ADA could have been clearer, R. at 12-13, as the
Secretary points out, Secretary’s Br. at 21 (noting that the Board began its brief discussion of the
ADA with “[m]oreover,” conveying that the ADA reference was ancillary to its primary
reasoning), the Board did not rely solely or even mainly on its observation about the ADA to find
that a TDIU referral was not warranted. Thus, we also find this argument unpersuasive.
Fourth, Ms. Snider questions the Board’s determination that, because the veteran reported
overseeing a bowling alley lounge and restaurant, he had some managerial skills and, although he
may be unable to work as a manager in a restaurant or lounge, his management skills were
8
transferrable to other industries not involving food or extensive contact with customers. R. at 13;
Appellant’s Br. at 17-18; Appellant’s Reply Br. at 10. Ms. Snider argues that the Board’s
determination contradicts the veteran’s statement that he does not have skills consistent with fulltime,
substantially gainful employment. Id. But, again, it is the Board’s job to weigh the evidence,
including the veteran’s statements, which it did here. R. at 13 (considering the veteran’s contentions
of being unable to work full-time, but finding that his work history weighed against this assertion);
see Owens, 7 Vet.App. at 433.
Ms. Snider then asks a series of questions about the managerial skills that the Board noted,
including what those particular skills are and how they are transferable to another industry, as well
as what work existed outside the food and beverage industry where the employer would
accommodate Mr. Snider’s situation. Appellant’s Br. at 18; Appellant’s Reply Br. at 10 (noting that,
aside from serving drinks and talking with customers, there was no other description of his duties
at the bowling alley). To the extent that she is asking the Board to identify specific types of work
available, as the Secretary notes, the Federal Circuit has held that a TDIU determination does not
require any analysis of the actual opportunities available in the job market. Smith v. Shinseki, 647
F.3d 1380, 1385 (Fed. Cir. 2011). And to the extent that Ms. Snider is arguing that the evidence
does not support the Board’s determination that he had managerial skills, she has not shown that
the Board clearly erred. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that
the appellant has the burden of proving error), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000)
(table); see also Evans, 12 Vet.App. at 31.
C. Ray v. Wilkie
Ms. Snider also argues that the Board offered inadequate reasons or bases for not referring
the TDIU claim because it did not address his claim under the “reasonable possibility” standard, a
lower evidentiary standard, discussed in Ray. Appellant’s Br. at 24-25; Appellant’s Reply Br. at 1-

But, regardless of whether a lower, “reasonable possibility” standard or a higher, on-the-merits
standard applies here, any Board error in failing to discuss that portion of Ray when denying
referral of Mr. Snider’s TDIU claim is harmless because the evidence would not satisfy either
standard. See 38 U.S.C. § 7261(b)(2) (providing that the Court must take due account of the rule
of prejudicial error). Like the Board, the Court acknowledges Mr. Snider’s statements that
performing the saline cleanse regimen six times a day and applying hemorrhoid cream multiple
times a day would prevent him from gainful employment and that he could not work in the food
9
service industry, but, consistent with the Board’s appropriate inferences and weighing of the
evidence, see Bastien, 599 F.3d at 1306; Owens, 7 Vet.App. at 433, those assertions alone did not
substantiate a reasonable possibility that Mr. Snider was unemployable due to his serviceconnected
disabilities, see Ray, 31 Vet.App. at 66; R. at 12-13 (the Board finding that the saline
and hemorrhoid regimens did not take a long amount of time and could be performed during nonwork
hours or while on breaks, that the veteran had experience working in venues other than the
food industry, and that the skills Mr. Snider gained from overseeing a bowling alley lounge and
restaurant could be used in other industries). Thus, the Court finds this argument unpersuasive.
D. Vocational Opinion
Finally, Ms. Snider argues that VA failed to satisfy its duty to assist because it did not
provide an expert vocational opinion and because the Board member did not have any special
expertise to render an opinion on the effect of the veteran’s unique circumstances. Appellant’s Br.
at 23-24. The Federal Circuit has held that “the fact that such an expert is sometimes necessary
does not suggest that a vocational expert is always required for this purpose, and we hold that such
an expert is not invariably required.” Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011)
(finding that, even if it were within its jurisdiction to consider whether a vocational expert was
necessary, the Federal Circuit could not conclude that VA abused its discretion in declining to
provide a vocational expert); id. at 1382-83 (VA examiners concluding that the veteran’s
disabilities were not so disabling as to prevent him from securing and maintaining sedentary
employment or light manual labor). And recently, this Court has determined that when a Board
member draws upon common knowledge or general experience about work environments when
assessing TDIU evidence, that Board member does not assume the role of a competing vocational
expert. Arline, No. 18-0765, 2021 WL 2701448, at *9; see id. at *8 (finding that being permitted
to review expert evidence differs from expert evidence being necessary or required for the Board
to make such a decision). Again, although Mr. Snider’s sinusitis and hemorrhoid conditions had
some impact on employment (for which he was compensated), Ms. Snider has not shown how the
veteran’s circumstances were so unique as to require that VA obtain a vocational opinion. See
Hilkert, 12 Vet.App. at 151.
10
III. CONCLUSION
On consideration of the above, the part of the June 4, 2019, Board decision denying TDIU
is AFFIRMED. The rest of the appeal is DISMISSED.
DATED: July 16, 2021
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)

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