Veteranclaims’s Blog

November 9, 2021

Single Judge Application; double negatives; Bowling v. Principi, 15 Vet.App. 1, 8 (2001) (rejecting, in TDIU context, “the Board’s use of double negatives” in finding that “[m]edical evidence that the Board has found persuasive also does not show that he is currently unable to be working”) (emphasis in original); Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (in considering absence of fact in an official record, Board must take into account whether that fact would normally be recorded); Geib, 733 F.3d at 1354 (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-3013
THOMAS L. GILFUS, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Thomas L. Gilfus appeals through counsel a June 21, 2013,
Board of Veterans’ Appeals (Board) decision denying entitlement to a disability evaluation higher
than 40% for lumbosacral strain on an extraschedular basis and denying an effective date earlier than
March 31, 2003, for an award of a total disability evaluation based on individual unemployability
(TDIU). Record (R.) at 3-29. This appeal is timely and the Court has jurisdiction to review the
Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons
that follow, the Court will set aside the June 2013 decision and remand the matters for further
development, if necessary, and readjudication consistent with this decision.
I. FACTS
Mr. Gilfus served on active duty in the U.S. Army from August 1963 to August 1966,
sustaining injury during a fall. R. at 10, 85, 175, 318, 1782. In a January 1967 rating decision, the
VA regional office (RO) granted service connection for lumbosacral strain, assigning a 10%
evaluation, and for a right ankle disability, assigning a noncompensable evaluation. R. at 1782-83.
A March 1999 Board decision increased the lumbosacral strain evaluation to 40%, effective April

  1. R. at 1549-53.
    In April 1998, Mr. Gilfus claimed entitlement to TDIU, indicating that his service-connected
    back disorder had prevented him from obtaining substantially gainful employment since June 1993.
    R. at 1600. The RO denied TDIU entitlement in November 1998 (R. at 1591-94), and the veteran
    filed a timely Notice of Disagreement (NOD) (R. at 1587). The RO issued a Statement of the Case
    (SOC) in December 1998 (R. at 1579-86), whereupon the veteran perfected his appeal to the Board
    (R. at 1564-65). In a May 1999 Supplemental SOC (SSOC), the Board continued to deny TDIU
    entitlement. R. at 1537-41.
    In January 2000, Mr. Gilfus indicated that he had last been employed as a manager for the
    OWI Corporation from June to November 1993 and had tried for a time to work in lawn and garden
    care but had to quit both jobs because of his service-connected back disorder. R. at 1503. He stated
    that he could lift no more than five pounds; had difficulty bending, stooping, and crawling; and could
    sit for only one hour at a time. Id. In May 2000, the Board remanded for a medical opinion on the
    impact of the veteran’s service-connected disabilities on his employability. R. at 1496-1501. In July
    2000, the veteran stated that his right ankle disability had worsened and sought an increased
    evaluation. R. at 1445.
    In August 2000, Mr. Gilfus submitted a statement averring that he had been informed by the
    New York Department of Labor that based on his education, work history, and disabilities, “[t]hey
    really [did not] know of any position in the work force that they could possibly refer [him] to.” R.
    at 1439. He indicated that he had been able to secure part-time employment with his church, for
    approximately eight to ten hours a week at $8.00 per hour, performing tasks such as dusting and
    watering flowers. Id. He stated his belief that this was the only type of work he would be able to
    do, because when he had flare-ups of back pain he would sometimes be unable to leave the house
    for 2 to 3 days at a time, and the church was willing to allow him a flexible schedule. Id.
    In April 2001, Mr. Gilfus underwent a VA joint and spine examination. R. at 1356-59. The
    examiner diagnosed intervertebral degenerative disk disease (DDD) with osteoarthritis of the facet
    joint of the lower lumbar spine and chronic right ankle sprain and noted that the veteran had worked
    in a job that was “sedentary in nature” until 1993, when “the company apparently went out of
    2
    business.” R. at 1356-57. The examiner noted that the veteran had been working temporary jobs
    since that time, mostly at his church. Id. The veteran stated during the examination that he had
    stiffness in his back and ankle, that sudden movements caused pain, and that flare-ups two to three
    times per month required oxycodone and rest. Id. He reported occasional numbness in his leg and
    pain in his back on coughing and sneezing and stated that he did not do any lifting, avoided stairs,
    and could not bend, stoop, or squat. R. at 1356-57. The examiner noted that the veteran ambulated
    very slowly and gingerly and appeared to turn from side-to-side with great difficulty. Id. He
    acknowledged that the examination took place during a period of quiescent symptoms and that
    during flare-ups symptoms could be significantly different. R. at 1357-58. The examiner opined that
    service-connected conditions should not render the veteran unable to secure substantially gainful
    employment because while he would not be able to pursue a “heavy duty type” occupation, the
    veteran previously had sedentary employment and he did not see a reason why the veteran would not
    be able to perform a sedentary occupation presently. R. at 1358.
    In May 2001, the RO granted a 10% evaluation for the right ankle disability (R. at 1329-37),
    and Mr. Gilfus timely filed an NOD requesting a higher evaluation (R. at 1316). A June 2001 SOC
    continued the 10% evaluation (R. at 1301-13), and the veteran perfected his appeal to the Board (R.
    at 1294-95). Also in May 2001, the RO issued an SSOC continuing to deny TDIU entitlement. R.
    at 1322-25. In response, Mr. Gilfus submitted a May 2001 letter in which he stated that working was
    not an option because of debilitating pain that limited his everyday activities. R. at 1318-20. He
    stated that he was taking cyclobenzaprine for muscle spasm and oxycodone for severe back pain and
    that these medications “cause[] sedation when I take them and I am unable to do anything.” R. at
    1318.
    In January 2003, Mr. Gilfus indicated that he had been unemployed since 1993 and that he
    had worked from 1966 to 1993 as a “Lab Technician (Die Room and Inspection of finished product
    and Manager)” and in 1993 in lawn and garden care. R. at 1255. In March 2003, he added that he
    could no longer drive because the pain medication he was taking impaired his judgment. R. at 1251.
    In May 2003, he indicated that he was no longer working at the church because he had been asked
    to do “heavier work than the sedentary work that was originally agreed upon.” R. at 1242.
    3
    In February 2004, Mr. Gilfus underwent a VA mental disorders examination, where he stated
    that his employment in a “stock room” had ended in 1993 because of his service-connected back
    injury. R. at 1213. He stated that back pain had increased in the past four to five years, which had
    led to loss of physical functioning and in turn had resulted in feelings of depression. Id. The
    examiner diagnosed moderate depressive disorder not otherwise specified secondary to serviceconnected
    back and ankle disabilities. R. at 1215.
    In March 2004, the RO issued an SSOC continuing to deny an ankle disability evaluation
    in excess of 10%. R. at 1147-58. That same month, the RO continued the 40% evaluation for
    chronic lumbosacral strain and granted service connection for depressive disorder, evaluated as 30%
    disabling, effective March 31, 2003. R. at 1131-39. In June 2004, the RO again continued the 40%
    evaluation for Mr. Gilfus’s chronic back condition. R. at 1108-14. Later that month, the RO issued
    an SSOC continuing to deny entitlement to TDIU (R. at 1097-1107) and another continuing to deny
    entitlement to a right ankle disability evaluation in excess of 10% (R. at 1094-96). In June 2004, Mr.
    Gilfus reiterated that he had not worked since 1993 and stated that he suffered from incapacitating
    back pain episodes daily, that he was unable to get out of bed without medication, and that his
    disabilities caused his morning routine to take one to two hours. R. at 1090.
    In May 2005, the Board increased the right ankle disability evaluation to 20%, remanded for
    an SOC as to the low back evaluation, and remanded the issue of TDIU entitlement as inextricably
    intertwined. R. at 1036-52. The RO issued an SOC continuing the 40% evaluation for lumbar spine
    degenerative disk disease with chronic lumbosacral strain in February 2007 (R. at 858-72), and Mr.
    Gilfus submitted a Substantive Appeal later that month (R. at 854-55).
    At a March 2007 VA spine and joints examination, the examiner noted that Mr. Gilfus had
    last worked in 1993 as a “clerk,” used a cane, could not walk a full city block, could not handle
    stairs, and experienced extreme pain when bending at the waist. R. at 846-47. At a March 2007 VA
    mental disorders examination, performed by the same examiner who had performed the February
    2004 examination, the examiner noted “evidence of a chronic and moderate major depression with
    related social phobic symptoms” and stated that the veteran’s condition had worsened since 2004 to
    the point where he “quite frankly is living like a hermit.” R. at 844. Referring to impairment caused
    by mental health symptoms, the examiner opined that “if the veteran were . . . to seek gainful
    4
    employment, he would have trouble with work-related situations in which he had to be around a lot
    of people” and that “if he were to work, he would be best suited for a job where he can work for the
    most by himself.” R. at 845. At a VA general medical examination in April 2007, the examiner
    noted that the veteran had last worked in 1993 as a general clerk in “shipping and receiving,” which
    the examiner described as a “computer desk job.” R. at 838.
    In March 2009, the Board denied entitlement to a disability evaluation in excess of 40% for
    Mr. Gilfus’s low back disability and remanded the issue of TDIU entitlement. R. at 701-25. After
    an appeal to this Court, the parties submitted a joint motion for remand (JMR) based on the Board’s
    failure to provide adequate reasons or bases regarding potential referral of the claim for
    extraschedular consideration. R. at 646-51. This Court remanded (R. at 645), and the Board in turn
    remanded to the RO the issues of increased evaluation for lumbosacral strain, including on an
    extraschedular basis, and entitlement to TDIU (R. at 625-31).
    In May 2010, the RO granted entitlement to TDIU, effective March 2007, the date of the
    most recent VA examinations. R. at 584-95. Mr. Gilfus filed a timely NOD contending that the
    effective date should be April 27, 1998, the date he first applied for TDIU (R. at 581), and the RO
    issued a December 2010 SOC granting an effective date of March 31, 2003, for the TDIU award (R.
    at 369-89). The RO stated that March 31, 2003, was the date service connection for depression was
    established and the date the veteran met the schedular criteria for TDIU entitlement; the RO found
    that prior to March 31, 2003, the veteran did not meet the criteria for referral for extraschedular
    TDIU consideration. R. at 386.
    In August 2011, the RO issued an SSOC continuing to deny an effective date earlier than
    March 31, 2003, for entitlement to TDIU. R. at 295-99. In a separate August 2011 SSOC, the RO
    continued to deny a disability evaluation in excess of 40% for lumbosacral strain. R. at 266-93. In
    April 2012, the Board denied a schedular evaluation in excess of 40% for lumbosacral strain but
    remanded the issues of an evaluation in excess of 40% on an extraschedular basis and entitlement
    to TDIU. R. at 189-235.
    Following additional development, the Board issued the decision on appeal in June 2013.
    R. at 3-29. In denying referral of lumbosacral strain for extraschedular consideration, the Board
    found that the diagnostic codes corresponding to Mr. Gilfus’s current disability evaluation adequately
    5
    contemplated his symptoms of pain and limitation of motion with no more than slight neurologic
    symptoms. R. at 21-22. The Board stated that prior to March 31, 2003, Mr. Gilfus did not meet the
    schedular requirements for a TDIU award under 38 C.F.R. § 4.16(a), and that prior to that date,
    therefore, he would only be potentially entitled to TDIU based on referral for extraschedular
    consideration under 38 C.F.R. § 4.16(b). R. at 25. The Board noted the veteran’s statements that he
    last worked full-time in 1993 and that he had four years of high school and no college and found
    credible his statements that he believed his service-connected back and ankle disabilities rendered
    him unemployable prior to March 31, 2003. R. at 26, 28. However, the Board found that there was
    no medical evidence showing unemployability prior to March 31, 2003, and it found the April 2001
    VA examiner’s opinion more probative than the veteran’s opinion on the question of
    unemployability, specifically relying on the examiner’s opinion that the veteran could have
    performed sedentary employment. R. at 28. This appeal followed.
    II. ANALYSIS
    Mr. Gilfus argues on appeal that the Board’s reasons or bases were inadequate to deny an
    earlier effective date for entitlement to TDIU because the Board failed to define a vague term and
    failed to adequately discuss Mr. Gilfus’s employment history. Appellant’s Brief (Br.) at 22-27. He
    argues that the Board’s reasons or bases were inadequate to deny referral for extraschedular
    consideration of a higher evaluation for lumbosacral strain because the Board failed to consider a
    variety of relevant factors, including the debilitating effects of medication on his overall disability
    level. Id. at 15-22. The Secretary acknowledges that remand is required to address inadequacy in
    the Board’s reasons or bases as to referral for extraschedular consideration of the service-connected
    lumbosacral strain (Secretary’s Br. at 7-10) but argues that the Board’s reasons or bases were
    adequate to deny an effective date earlier than March 31, 2003, for entitlement to TDIU (id. at 10-
    16).
    For the reasons stated below, the Court agrees with both parties that remand is required to
    address reasons-or-bases inadequacies as to whether referral for extraschedular consideration of
    service-connected lumbosacral strain is warranted. Additionally, because the Board failed to analyze
    relevant evidence about the effects of medication on employability, took the absence of evidence
    6
    showing unemployability as affirmative evidence of employability, and assigned more probative
    value to a medical examiner’s opinion than to the veteran’s lay opinion on the issue of
    unemployability without stating why, the Court will remand the issue of entitlement to an earlier
    effective date for TDIU as well.
    A. Referral of Service-Connected Lumbosacral Strain for Extraschedular Consideration
    In “the exceptional case where the schedular evaluations are found to be inadequate, the
    Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station
    submission, is authorized to approve . . . an extra-schedular evaluation commensurate with the
    average earning capacity impairment due exclusively to the service-connected disability or
    disabilities.” 38 C.F.R. § 3.321(b)(1) (2014). Referral for extraschedular consideration is warranted
    where “evidence before VA presents such an exceptional disability picture that the available
    schedular evaluations for that service-connected disability are inadequate” and “the claimant’s
    exceptional disability picture exhibits other related factors,” such as marked interference with
    employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet.App. 111, 115-16 (2008),
    aff’d, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009)
    (outlining the “elements that must be established before an extraschedular rating can be awarded”);
    38 C.F.R. § 3.321(b)(1). The Court reviews the Board’s determination of whether referral for
    extraschedular consideration is warranted under the “clearly erroneous” standard of review set forth
    in 38 U.S.C. § 7261(a)(4). Thun, 22 Vet.App. at 115.
    As with any material issue of fact and law presented on the record, the Board must support
    its determination whether to refer for extraschedular consideration with an adequate statement of
    reasons or bases that enables the claimant to understand the precise basis for that determination and
    facilitates informed review in this Court. See 38 U.S.C. § 7104(d)(1); Washington v. Nicholson,
    19 Vet.App. 362, 366-67 (2005). To comply with this requirement, the Board must analyze the
    credibility and probative value of the evidence, account for evidence it finds persuasive or
    unpersuasive, and provide reasons for its rejection of any 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).
    7
    As both parties agree, remand is required for the Board to provide adequate reasons or bases
    as to whether referral for extraschedular consideration of an evaluation in excess of 40% for
    lumbosacral strain is warranted. Appellant’s Br. at 15-22; Secretary’s Br. at 7-10. In finding the
    veteran’s symptoms adequately addressed by the schedular evaluation, the Board failed to address
    the impact of side-effects of medications Mr. Gilfus takes to reduce back pain caused by serviceconnected
    lumbosacral strain. See R. at 1318 (veteran states in May 2001 that he takes
    cyclobenzaprine for muscle spasm and oxycodone for severe pain due to his back pain, which
    “cause[] sedation when I take them and I am unable to do anything”); R. at 1251 (veteran states in
    March 2003 that his pain medication causes impaired judgment, rendering him no longer able to
    drive); see also R. at 13 (Board references a January 2004 physical therapy note that back pain was
    relieved by change in position and medication). Mr. Gilfus’s lumbosacral strain is evaluated under
    38 C.F.R. § 4.71a, Diagnostic Code 5237, which does not contemplate the effect of medications on
    the veteran’s overall level of impairment. And, as the Secretary concedes, the effect of medications
    is a factor affecting whether a referral for extraschedular consideration is appropriate. See Fisher
    v. Principi, 4 Vet.App. 57, 60 (1993) (veteran’s “heavy medications” were among “factors” that
    “could have led the Director of VA’s Compensation and Pension Service to consider” an
    extraschedular evaluation); VA Gen. Coun. Prec. 06-96 (Aug. 16, 1996) (noting that referral for
    extraschedular consideration may be required where schedular evaluations contemplate range of
    motion limitations but evidence shows that medication required for the disability interferes with
    employment).
    Accordingly, in determining whether the “evidence before VA presents such an exceptional
    disability picture that the available schedular evaluations for that service-connected disability are
    inadequate,” Thun, 22 Vet.App. at 115-16, the Board failed to consider and discuss the impact of a
    relevant factor not contemplated by the veteran’s schedular evaluation. As the Secretary
    acknowledges, the Board’s failure to consider this factor frustrates judicial review and requires
    remand. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is the appropriate remedy “where
    the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
    for its determinations, or where the record is otherwise inadequate”).
    8
    B. Effective Date for TDIU Entitlement
    TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful
    occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a) (2014).
    “[T]he central inquiry in determining whether a veteran is entitled to TDIU is whether the veteran’s
    service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad
    v. Brown, 5 Vet.App. 524, 529 (1993). The relevant regulation requires percentage standards of (1) a
    single service-connected disability evaluated at 60% or more, or (2) two or more service-connected
    disabilities with one evaluated at 40% or more, and sufficient additional disability to bring the
    combined evaluation to 70% or more. 38 C.F.R. § 4.16(a). If a veteran does not meet the percentage
    standards for unemployability provided in § 4.16(a), he or she may be granted TDIU on an
    extraschedular basis. 38 C.F.R. § 4.16(b). Entitlement to extraschedular TDIU must be determined
    in the first instance by the Compensation Service Director; however, it is for the RO and the Board
    to determine in the first instance whether to refer the case to the Director for extraschedular
    consideration. Id.; see Fisher v. Principi, 4 Vet.App. 57, 60 (1993). In doing so, the Board must
    provide “a full statement as to the veteran’s service-connected disabilities, employment history,
    educational and vocational attainment and all other factors having a bearing on the issue.” 38 C.F.R.
    § 4.16(b).
    As stated above, the Board determined that Mr. Gilfus was not entitled to referral for
    consideration of extraschedular TDIU under § 4.16(b) for the period prior to March 31, 2003,
    providing as reasons (1) that there was “no medical evidence of record” showing that serviceconnected
    disabilities had caused unemployability during the relevant time period and (2) that the
    April 2001 examiner had opined that Mr. Gilfus should be able to work at a sedentary occupation,
    an opinion the Board found more probative than the veteran’s contrary opinion. R. at 27. However,
    this analysis is inadequate in several respects. See Washington, 19 Vet.App. at 366-67; 38 C.F.R.
    § 4.16(b). First, although the Board acknowledged Mr. Gilfus’s lay opinion that “his serviceconnected
    back and ankle disabilities rendered him unemployable prior to March 31, 2003″ (R. at
    28), the Board found that “his statements are less probative than the medical evidence finding that
    his back and ankle disabilities would not preclude substantially gainful employment” (id.). It is the
    Board’s province and responsibility to determine the credibility and weight of the evidence, Owens
    9
    v. Brown, 7 Vet.App. 429, 433 (1995); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); however,
    “[t]he Board must ‘account for the evidence [that] it finds to be persuasive or unpersuasive’ and
    provide reasons or bases for its rejection of evidence.” Abernathy v. Principi, 3 Vet.App. 461, 465
    (1992) (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990)). Here, in finding the medical
    examiner’s opinion more probative than Mr. Gilfus’s lay opinion, the Board explained that, although
    lay persons are competent to provide opinions “on some medical issues,” the issue of TDIU
    entitlement “falls outside the realm of common knowledge of a lay person.” R. at 28 (emphasis
    added). This reasoning, coupled with the Board’s earlier statement that it could find “no medical
    evidence of record,” indicates that the Board impermissibly analyzed TDIU entitlement as a purely
    medical question and for that reason gave short shrift to the lay evidence of record.
    The ultimate question of whether a veteran is capable of substantially gainful employment
    is an adjudicatory determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed.
    Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the
    VA, not a medical examiner”). This Court has never held that questions relating to the veteran’s
    employability are “medical” issues “outside the realm of common knowledge of a lay person.” R.
    at 28. To the contrary, to the extent that TDIU entails inquiry into whether the veteran could at the
    relevant time perform the physical and mental acts required by employment, see Van Hoose v.
    Brown, 4 Vet.App. 361, 363 (1993), veterans are qualified to render probative evidence on that issue.
    See Falzone v. Brown, 8 Vet.App. 398, 403 (1995) (veteran is competent to testify as to observable
    medical conditions); see also Geib, 733 F.3d at 1354 (“neither the statute nor the relevant regulations
    require the combined effect [of disabilities] to be assessed by a medical expert”).
    While there may
    be reasons for weighing a particular medical opinion as more probative than a particular lay opinion
    under the specific facts of a TDIU case, the Board here appears to have asserted that the question of
    whether service-connected disabilities prevented substantially gainful employment was per se a
    medical determination, cf. Geib, 733 F.3d at 1354, and therefore outside the ken of a lay veteran,
    without providing any support for that blanket assertion. Therefore, the Board failed to support its
    probative value determination with adequate reasons or bases. See Abernathy, 3 Vet.App. at 465.
    The other possible explanation the Board gave for favoring the VA medical opinion over the
    veteran’s lay opinion in assigning an effective date was that in April 2004 Mr. Gilfus had attributed
    10
    his inability to work to “his back, ankle, and depression disabilities,” and prior to March 31, 2003,
    only the back and ankle disabilities were service connected. R. at 28 (emphasis in original); see
    Hatlestad, 5 Vet.App. at 529 (“central inquiry” is “whether the veteran’s service-connected
    disabilities alone are of sufficient severity to produce unemployability”). However, this statement
    ignores multiple occasions prior to March 2003 when the veteran opined that he was unemployable
    due to service-connected back and ankle injuries alone. See R. at 1242 (veteran contends “that his
    service connected disabilities are of the degree and persistence and keep the veteran from
    maintaining substantial and gainful employment”), 1439 (explaining that part-time work at his
    church was the only work he could do because of the frequency of back pain flare-ups), 1600 (listing
    “lumbosacral strain” as the disability preventing him from securing or following substantially gainful
    occupation). This implausible basis for rejecting the veteran’s lay statements when considering the
    effective date issue does not excuse the otherwise inadequate basis identified above.
    Further, the Board failed to discuss various pieces of lay evidence material to the effective
    date determination. See Caluza, 7 Vet.App. at 506 (Board is required to analyze credibility and
    probative value of all material evidence in favor of claim). As with its decision not to refer the
    service-connected back condition for extraschedular consideration under § 3.321(b)(1), the Board
    did not consider the veteran’s lay testimony concerning the effects of medication on the effective date
    of TDIU benefits. R. at 25-29. As the Board acknowledged (R. at 26-27), determining the proper
    effective date for TDIU entails inquiry into whether the veteran could at the relevant time perform
    the physical and mental acts required by employment, see Van Hoose, 4 Vet.App. at 363, and there
    is evidence that medications taken by the veteran prior to March 31, 2003, for service-connected
    disabilities affected his physical and mental capabilities. See R. at 1318 (May 2001 statement that
    cyclobenzaprine and oxycodone “cause[] sedation when I take them and I am unable to do
    anything”); R. at 1251 (March 2003 statement that medication caused impaired judgment and
    rendered veteran unable to drive).
    Moreover, the Board listed various pieces of lay evidence without discussing what probative
    value it assigned this evidence, if any. See R. at 27 (Board notes without discussion that the veteran’s
    educational background was “four years of high school education and no college,” that in 1999 the
    veteran listed a number of jobs he had been unable to obtain due to his back injury, and that in 2000
    11
    the New York Department of Labor said it did not know of any positions to which the veteran could
    be referred). Merely listing such lay evidence without analyzing its effect on the Board’s TDIU
    analysis is insufficient. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (merely listing evidence
    before stating a conclusion does not constitute an adequate statement of reasons or bases); VanMeter
    v. Brown, 4 Vet.App. 477, 479 (1993) (in deciding TDIU issue, “the Board must consider the effects
    of the veteran’s service-connected disability or disabilities in the context of his or her employment
    and educational background”); Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991) (“to 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, comes very close to
    placing upon the appellant the burden of showing he can’t get work”). The inadequacies in the
    Board’s reasons or bases require remand of the issue of TDIU effective date. See Tucker,
    11 Vet.App. at 374.
    The Court also notes that, as to the Board’s finding that there was “no medical evidence”
    showing unemployability, the Court has rejected the kind of negative inference employed by the
    Board. See Bowling v. Principi, 15 Vet.App. 1, 8 (2001) (rejecting, in TDIU context, “the Board’s
    use of double negatives” in finding that “[m]edical evidence that the Board has found persuasive also
    does not show that he is currently unable to be working”) (emphasis in original); see also Buczynski
    v. Shinseki, 24 Vet.App. 221, 224 (2011) (in considering absence of fact in an official record, Board
    must take into account whether that fact would normally be recorded)
    . On remand, the Board is
    instructed to articulate the affirmative evidence it relies on for its TDIU effective date determination,
    rather than relying on the absence of evidence. See Bowling, 15 Vet.App. at 8.
    On remand, the Board is required to analyze all material medical and lay evidence of record,
    with particular regard to the considerations identified above, and provide reasons or bases for its
    probative value determinations as to both types of evidence. Because remand is required for the
    reasons stated above, the Court need not address Mr. Gilfus’s remaining arguments. On remand, Mr.
    Gilfus is free to submit any additional evidence and argument 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 Board shall
    proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112.
    12
    III. CONCLUSION
    Upon consideration of the foregoing, the Board’s June 21, 2013, decision is SET ASIDE, and
    the matter is REMANDED for readjudication and, if necessary, further development consistent with
    this decision.
    DATED: September 26, 2014
    Copies to:
    Sean A. Ravin, Esq.
    VA General Counsel (027)
    13

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.