Veteranclaims’s Blog

December 30, 2021

Single Judge Application; TDIU referral standard; Ray’s referral standard; the Board used a “preponderance of the evidence” standard, which the Court recently held is too strict a standard for the referral stage of the TDIU inquiry. See Snider v. McDonough, __ Vet.App., , No. 19-6707, 2021 WL 5443661, at *5 (Nov. 19, 2021). Instead, when the Board considers whether to refer a claim to the Director for extraschedular TDIU review, the proper standard is “whether there [is] sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities.” Id.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4861
RICHARD W. SHEPHERD, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Richard W. Shepherd, through counsel appeals an
April 10, 2020, Board of Veterans’ Appeals (Board) decision that denied entitlement to a total
disability rating based on individual unemployability (TDIU). Record (R.) at 4-12. 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. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision
and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from February 1970 to October 1971,
including service in Vietnam, R. at 2305, and from February 1973 to January 1976, R. at 2003. In
March 1972, VA granted disability benefits for multiple shrapnel wounds the appellant sustained
in February 1971 and resulting scars. R. at 2053. More specifically, the appellant was awarded
benefits for a shell fragment wound of the left wrist, rated 10% disabling; and scars on the left ring
and little fingers, the right wrist and little finger, and the right thigh, all of which were assigned
noncompensable disability ratings. R. at 2054.
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In addition to the conditions listed above, at the time of the Board decision on appeal, the
appellant was also receiving disability compensation for the following conditions: post-traumatic
stress disorder (PTSD) (50%), tinnitus (10%), chloracne (10%), and bilateral hearing loss
(noncompensable). R. at 123-24. His combined disability rating was 60%. R. at 124; see
38 C.F.R. § 4.25 (2021). Each of his disabilities has been related to his combat experience in
Vietnam. See R. at 1837-44 (July 2009 VA PTSD examination), 1771-72 (Sept. 2010 VA
audiology examination), 1428-31 (Dec. 2013 VA skin conditions examination); see also 38 C.F.R.
§ 3.307(a)(6)(iii) (2021) (providing a presumption of exposure to herbicides for veterans who
served in Vietnam); 38 C.F.R. § 3.309(e) (2021) (listing chloracne as a condition presumptively
caused by exposure to herbicides).
The record reflects that, after service, the appellant worked as a bartender for
approximately 8 years and as a supervisor for a pharmaceutical company for 3 years, and then
spent 25 years as a letter carrier for the U.S. Postal Service (USPS). See R. at 1203, 1536, 1745.
He retired from that position in November 2012. R. at 1203.
In January 2014, the appellant reported to VA that he had been unemployed since
November 2012 because of the effects of his PTSD. R. at 1380. A VA examiner in June 2014
determined that the appellant’s PTSD resulted in “[o]ccupational and social impairment with
occasional decrease in work efficiency and intermittent periods of inability to perform
occupational tasks, although generally functioning satisfactorily, with normal routine behavior,
self-care and conversation.” R. at 1201. At that time, the appellant told the examiner that he
retired from the USPS because “management . . . were idiots and [he] could [not] deal with them.”
R. at 1203. He also stated that he had planned to work for the USPS until age 65, but that he “had
to get out of there.” Id. He explained that he had been written up “for using [his] own sick leave”
and reported that he “called in sick a lot” throughout his employment. Id. He further stated that
he experienced conflicts with supervisors, although he was never reprimanded. Id. The appellant
submitted a formal application for TDIU in July 2015, asserting that he had left his job at the USPS
in October 2011 and was unable to work as a result of his service-connected disabilities. R. at
899-900.
After an October 2016 Court remand, R. at 885-89, the appellant underwent several VA
examinations. In August 2017, a VA audiologist recorded the appellant’s report that his hearing
loss sometimes required him to have to ask others to repeat themselves and that his tinnitus caused
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headaches. R. at 673, 674. At a September 2017 skin conditions examination, the examiner stated
that the appellant’s skin condition did not affect his ability to work. R. at 661.
Also in September 2017, a VA examiner determined that the appellant’s PTSD resulted in
“[o]ccupational and social impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational tasks, although generally functioning
satisfactorily, with normal routine behavior, self-care, and conversation.” R. at 639. The examiner
noted that the appellant’s symptoms included depressed mood, suspiciousness, chronic sleep
impairment, difficulty establishing and maintaining effective work and social relationships, and
difficulty adapting to stressful circumstances. R. at 645. The examiner recorded the appellant’s
report that he retired from the USPS in November 2012 and was not then seeking new employment.
R. at 641. Finally, the examiner wrote that, with respect to the appellant’s “mental health condition
only,” he was “not precluded from occupational functioning.” R. at 648. More specifically, the
examiner stated:
It is possible that [the appellant’s] irritability and detachment from others may be
best accommodated in an environment that would require limited contact with the
public or groups of coworkers. Overall, there is not sufficient evidence to suggest
that his symptoms are of such severity as to impede his ability to obtain or maintain
gainful employment in either a physical or sedentary position.
Id.
In the April 2020 decision on appeal, the Board first found that the appellant did not meet
the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). R. at 7. Turning to the possibility
of extraschedular TDIU, the Board determined that the most probative evidence did not
demonstrate that the appellant’s service-connected disabilities prevented him from securing and
following substantially gainful employment for any part of the period on appeal. R. at 8-12. This
appeal followed.
II. ANALYSIS
A. Parties’ Arguments
The appellant argues that the Board failed to provide adequate reasons or bases for denying
entitlement to TDIU. Appellant’s Brief (Br.) at 11-26. In particular, he first contends that the
Board did not consider whether he met the schedular threshold for TDIU under the “one disability”
exception in § 4.16(a) for “disabilities resulting from common etiology or a single accident.”
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38 C.F.R. § 4.16(a) (2021); Appellant’s Br. at 13-17. Next, he asserts that the Board did not assess
the combined effects of his service-connected disabilities on his ability to work. Appellant’s Br.
at 17-19. He also argues that the Board failed to address all relevant factors that bear on his ability
to work, “such as [his] history, education, skill, and training[;] whether [he] has the physical ability
(both exertional and nonexertional) to perform the type of activities required by the occupation at
issue[;] and whether [he] has the mental ability to perform the activities required by the occupation
at issue.” Id. at 20. Finally, he contends that the Board improperly relied on evidence that predated
his retirement from the USPS to find that he was not unemployable, and that the Board did not
adequately explain why it rejected his reports that he stopped working in 2012 due to PTSD
symptoms. Id. at 24-26.
The Secretary generally disputes the appellant’s second, third, and fourth arguments.
Secretary’s Br. at 14-27. With respect to the appellant’s first argument, the Secretary asserts that
the Board’s failure to consider whether any of the appellant’s service-connected disabilities may
be considered one disability for the purposes of § 4.16(a) is harmless error because the Board’s
ultimate conclusion that the appellant is not unemployable is not clearly erroneous and is supported
by adequate reasons or bases. Id. at 27-30. Accordingly, the Secretary asks the Court to affirm
the Board decision. Id. at 30.
B. Law
TDIU may be assigned to a veteran who meets certain disability percentage thresholds and
is “unable to secure or follow a substantially gainful occupation as a result of service-connected
disabilities.” 38 C.F.R. § 4.16(a). If a claimant has only one service-connected disability, it must
be ratable at 60% or more; if there are two or more disabilities, at least one must be ratable at 40%
or more, with sufficient additional service-connected disability to bring the combination to 70%
or more. See id. Relevant to the arguments on appeal, subsection (a) also provides that “disabilities
resulting from common etiology or a single accident” will be treated as one disability “[f]or . . .
the purpose of one 60[%] disability.” Id. If, however, a veteran fails to meet the percentage
standards set forth in § 4.16(a) but is “unemployable by reason of service-connected disabilities,”
the matter should be submitted to the Director of the Compensation Service (Director) for
extraschedular consideration. 38 C.F.R. § 4.16(b).
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. 38 U.S.C.
5
§ 7261(a)(4); Bowling v. Principi, 15 Vet.App. 1, 6 (2001). A finding of fact is clearly erroneous
when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction
that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As with any material issue of fact or 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,
1 Vet.App. at 56-57.
C. Board Decision
The Board first determined that the appellant had not met the schedular threshold for TDIU
under § 4.16(a), noting that, although the appellant “did have at least one disability ratable at 40[%]
or more, . . . there are no additional service-connected disabilities to bring the combined rating to
70[%] or more.” R. at 7. Then, the Board turned to the question of extraschedular TDIU, first
noting that the appellant claimed that he left his job at the USPS “because of his disability,” and
acknowledging that the appellant had completed high school but did not attend college or have any
other training. R. at 8. The Board reviewed evidence dated between July 2009 and September
2017, R. at 8-10, and concluded that the preponderance of the evidence did not show that the
appellant was precluded from securing and following substantially gainful employment. R. at 10.
In that regard, the Board noted that the VA skin examination reports show that the
appellant’s chloracne had no effect on his ability to work and that the VA audiology reports reflect
that his hearing loss and tinnitus had “little impact” on his employability. Id. The Board reviewed
March 2011, June 2014, and September 2017 VA PTSD examination reports and concluded that
those reports did not support the appellant’s contention that his PTSD prevented him from working.
R. at 11. Next, the Board stated that the evidence related to the appellant’s shell fragment wound
residuals and associated scars did not show that those disabilities affected his ability to work and
that the appellant had not contended otherwise. Id. The Board also made the following finding:
Additionally, the lay evidence provided by the [appellant] indicates that his
unemployment/retirement is not due to any of his service-connected disabilities, to
include his service-connected PTSD. During the VA medical visits, to include the
examinations, the [appellant] consistently reported how he was looking forward to
retiring. He mentioned having disagreements with superiors in the work
environment. However, once retired, he consistently reported that he was not
seeking out employment. He was able to hold onto the same position with the
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USPS for [25] years. He did not provide detail to explain how it is he believed his
service-connected disabilities were the sole reason he could no longer work.
Id. Finally, the Board acknowledged that the appellant’s service-connected disabilities have
affected his ability to work, but noted that his current 60% combined disability rating “recognizes
significant industrial impairment resulting from his disabilities.” R. at 12. Ultimately, the Board
found that “[t]he preponderance of the evidence is against finding his service-connected disabilities
are of such severity to preclude his participation in any form of substantially gainful employment”
and thus concluded that “referral for extraschedular consideration is not warranted.” Id.
D. Discussion
As an initial matter, the parties agree that the Board erred in failing to discuss whether the
appellant could satisfy the percentage standards for schedular TDIU through the “one disability”
exception in § 4.16(a). Appellant’s Br. at 11-17; Secretary’s Br. at 27-28; Reply Br. at 1. The
Secretary, however, maintains that the error is harmless because the Board “already determined
that [the a]ppellant’s service-connected disabilities do not render him unable to obtain and maintain
substantial[ly] gainful employ[ment].” Secretary’s Br. at 28. Because, as discussed below, the
Board made that determination in addressing the separate question of whether referral for
extraschedular TDIU was warranted and because that extraschedular analysis is also flawed, the
Court cannot conclude that it rendered harmless any errors as to the threshold question of the
schedular percentage standards. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due
account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (holding
that the harmless-error analysis applies to the Court’s review of Board decisions and that the burden
is on the appellant to show that he or she suffered prejudice as a result of VA error).
In that regard, among his other arguments, the appellant contends that, “had the Board
addressed all the relevant evidence in the record pertaining to his ability to secure and maintain a
substantially gainful occupation, . . . it may have supported his entitlement to a TDIU [rating], to
include warranting the matter for referral for extraschedular consideration.” Appellant’s Br. at 24.
The Court notes that, because the Board found that the appellant did not meet the schedular
threshold for TDIU, R. at 7, the Board considered only whether referral for consideration of
entitlement to extraschedular TDIU was warranted, see R. at 10-12. But, in denying referral, the
Board used a “preponderance of the evidence” standard, which the Court recently held is too strict
a standard for the referral stage of the TDIU inquiry. See Snider v. McDonough, __ Vet.App.
7
, , No. 19-6707, 2021 WL 5443661, at *5 (Nov. 19, 2021). Instead, when the Board considers
whether to refer a claim to the Director for extraschedular TDIU review, the proper standard is
“whether there [is] sufficient evidence to substantiate a reasonable possibility that a veteran is
unemployable because of service-connected disabilities.” Id.
(emphasis added). Because the
Board used the incorrect standard to deny referral for extraschedular TDIU consideration, remand
of that issue is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“Generally, 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, a remand is the
appropriate remedy.”).
Accordingly, on remand, the Board should first consider the appellant’s contention that the
disabilities that are related to his service in Vietnam are “one disability” for the purposes of
§ 4.16(a). If the Board concludes that they are not, the Board should then consider whether referral
to the Director is warranted under the “reasonable possibility” standard, as explained in the Court’s
recent Snider decision. Given this disposition, the Court will not now address the remaining
arguments and issues raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009)
(noting that “the Court will not ordinarily consider additional allegations of error that have been
rendered moot by the Court’s opinion or that would require the Court to issue an advisory
opinion”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order).
Additionally, the appellant is free on remand to submit additional evidence and argument
on the remanded matter, including the specific arguments raised here on appeal, 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 Court reminds the Board that “[a] remand is meant to entail
a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
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III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s
April 10, 2020, decision is VACATED and the matter is REMANDED for further proceedings
consistent with this decision.
DATED: November 30, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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