Veteranclaims’s Blog

January 10, 2022

Single Judge Application; Rouse v. McDonough; the Court recently held, “[t]here is no warrant for this Court to define the term ‘sedentary work’ or ‘sedentary employment,’ still less any reason to compel VA’s adoption of the specific definition used by the Social Security Administration or any other agency.” Rouse v. McDonough, Vet.App., 2021 WL 1379408 (Vet. App. Apr. 13, 2021);

Filed under: Uncategorized — veteranclaims @ 9:47 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7178
NARCISO CABALLERO RIVERA, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Narciso Caballero Rivera, appeals a September 16, 2019,
Board of Veterans’ Appeals (Board) decision that denied total disability based on individual
unemployability (TDIU). 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
because the issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will affirm the
Board’s decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from September 1951 until
September 1953. While serving in Korea he was wounded, fracturing his right leg’s tibia and fibula.
Ultimately, the appellant was discharged as a result of disability.
In October 1953, VA granted the appellant service connection for residuals of the shell
fragment wounds, assigning a temporary 100% disability rating, effective during convalescence.
In July 1953, VA reduced the rating for right leg fracture to 40%, and awarded a 20% disability
rating for shell fragment wounds; a 10% disability rating for sensory loss to the right leg; a 10%
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disability rating for a right ankle scar; and a 10% disability rating for a left wrist scar. These
disability ratings were effective from April 1, 1954, and since this time the appellant has had a
70% combined disability rating.
After discharge, the appellant worked as a draftsman from 1957 to 1960, and later owned
a hardware store until 1982. After the appellant sold the hardware store, he worked from 1990 to
2006 as a salesperson in a hardware store, working 8 hours a day and 40 hours a week, but losing,
according to the appellant, 3 weeks during his last 12 months of employment for illness; the
appellant retired in 2006. See R. at 1667, 1679.
In April 2011, the appellant filed a claim for TDIU. During a September 2011 VA
examination, the examiner found that the residuals of the appellant’s right tibia and fibula fracture
reduced his range of motion, caused pain and difficulty ambulating, and caused problems with
lifting and carrying. The examiner concluded that the appellant’s right leg disabilities would have
a severe impact on his ability to perform the tasks of physical employment, but no impact on his
ability to perform the tasks of sedentary employment.
In September 2011, the regional office (RO) denied TDIU and the appellant appealed to
the Board. In 2018, the Board denied TDIU, and after the appellant appealed to the Court, the
parties agreed to remand the case because the Board did not explain how it interpreted the term
“sedentary employment.”
In June 2019, the appellant submitted a private vocational report, opining that his serviceconnected
disabilities “resulted in severe distracting pain and the need for frequent unscheduled
breaks leading to decreased productivity and time off which would far exceed an employer’s
tolerance.” R. at 9. The vocational examiner concluded that the appellant’s service-connected right
leg disabilities more likely than not precluded him from sedentary employment.
In 2019, the Board again denied TDIU, discounting the private vocational report because
the examiner premised her opinion on incorrect facts and misrepresented the appellant’s
limitations. The Board concluded that the appellant had several physical limitations, such as
reduced tolerance for ambulating, standing, lifting, sitting, and carrying as a result of his serviceconnected
right leg disabilities. Despite his physical limitations, however, the Board found that the
appellant’s vocational skills would allow him to obtain and maintain substantial gainful
employment in an environment that allowed him to alternate between sitting and standing and
required no lifting or carrying. The Board identified positions such as telephone customer service
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agent or receptionist that could accommodate his physical limitations and for which he had the
requisite educational and vocational skills.
On appeal, the appellant argues that the Board provided an inadequate statement of reasons
or bases for denying TDIU. Specifically, he asserts that the Board did not adequately explain why
it rejected the favorable private vocational expert’s opinion or how the Board substantially
complied with the Court remand. In addition, the appellant alleges that the Board relied on its own
assessment of employability to deny TDIU, without addressing his arguments as to work
requirements or identifying the sedentary work standard. Moreover, he contends that the Board
speculated on his skills and the availability of accommodations necessary for him to obtain and
follow a substantial occupation.
In response, the Secretary asserts that the Board provided an adequate statement of its
reasons or bases for its decision, substantially complied with the December 2018 motion for
remand, and provided an understandable contextual definition of sedentary employment. The
Secretary seeks affirmance because the appellant failed to demonstrate prejudicial error.
II. ANAYLSIS
TDIU may be awarded to a veteran who meets certain disability percentage standards and
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) (2021); see Pederson v. McDonald, 27 Vet.App. 276,
285 (2015) (en banc). 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). An award of TDIU does not require a showing of 100% unemployability; rather, the
question is whether the veteran is unable to pursue a substantially gainful occupation. Roberson v.
Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).
Unlike the regular disability rating schedule, which is based on the average work-related
impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular
circumstances.” Rice v. Shinseki, 22 Vet.App. 447, 452 (2009). Therefore, when determining
entitlement to an award of TDIU, the Board is required to consider and discuss the veteran’s
education, training, and occupational history and explicitly relate these factors to the disabilities
of the individual veteran. Cathell v. Brown, 8 Vet.App. 539, 544 (1996). Whether the veteran can
actually find employment is not determinative, as the focus of the inquiry is on “whether the
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veteran is capable of performing the physical and mental acts required by employment.” Van
Hoose v. Brown, 4 Vet.App. 361, 363 (1993).
The Board’s determination of whether the record establishes entitlement to a rating of TDIU
is a finding of fact, which the Court reviews under the “clearly erroneous” standard. Russo v.
Brown, 9 Vet.App. 46, 50 (1996). 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.
A. 2019 Vocational Report
The appellant argues that the Board provided an inadequate statement of reasons or bases
for discounting the 2019 vocational assessment report, which concluded that he was unable to
secure and follow substantially gainful employment since 2006 as a result of his service-connected
right leg disabilities. The vocational examiner stated that the appellant’s right leg condition more
likely than not precluded him from performing work at the sedentary physical demand level. See
R. at 63.
The Board explained that it afforded little probative value to the vocational report because
the report was based on incorrect facts and misrepresented the appellant’s limitations attributable
to his service-connected right leg disabilities. The Board also noted that the vocational report failed
to address the evidence that the appellant was physically active and experienced pain and
limitations from his non-service-connected medical conditions. Therefore, the Board concluded
that the vocational examiner’s report was entitled to little probative value.
As factfinder, the Board is required to assess the credibility of the evidence and is provided
wide latitude in doing so. Washington v. Nicholson, 19 Vet.App. 362, 369 (2005). Here, the Board
explained its reasoning for affording little probative value to the vocational report. The appellant
asserts that because the Board conceded that the appellant had limitations identified by the
vocational examiner–problems with ambulating, lifting, standing, and carrying–the Board
improperly discounted her opinion. The Board, however, afforded less probative value to the
vocational report because the examiner did not base her opinion on the correct facts from the
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medical reports as they were known at the time and misrepresented evidence she cited in support
of her opinion. Notably, to support her conclusion that the appellant’s limitations in standing and
walking were inconsistent with sedentary employment, the vocational examiner relied on a
September 2007 medical report that stated that the appellant could not walk more than 320 feet
without a rolling walker and needed assistance for transfers. See R. at 64-65. Yet, the Board pointed
out that the examiner ignored the fact that this report addressed the appellant’s limitations after a
July 2007 non-service-connected back surgery. Moreover, the Board identified another September
2007 report, finding that the appellant could ambulate more than 300 feet using a one-point cane
and needed no assistance for transfers, which the examiner did not address. Additionally, the
vocational report focused on medical records reflecting the appellant’s use of assistive devices for
balance, but the report failed to discuss the medical reports that attributed these problems to the
appellant’s non-service-connected back pain and neuropathy. For these reasons, the Board
concluded that the vocational examiner ignored key facts and thus did not consider the appellant’s
full medical history or physical abilities in forming her opinion.
The Board found that the appellant’s vocational skills and physical limitations did not
preclude sedentary employment. As to the argument that the Board erred by failing to address
evidence that while the appellant worked as a hardware utility salesman, his leg pain compelled
him to take breaks, the Board did not identify the job of a salesman as a sedentary job.
Consequently, the appellant has not demonstrated that the Board erred in not addressing pain
associated with a nonsedentary job.
The appellant has not demonstrated that the Board clearly erred in affording little probative
value to the vocational examiner’s opinion or provided an inadequate statement of reasons or bases
for doing so. Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant
bears the burden of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000)
(table); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (“It is the responsibility of the [Board], not
this Court, to assess the credibility and weight to be given to evidence.”); Gilbert, 1 Vet.App. at
52 (reviewing the Board’s weighing of the evidence under the “clearly erroneous” standard).
B. Ability To Work
The appellant also argues that the Board failed to explain how its decision substantially
complied with the Court remand because the Board did not define “sedentary employment.” The
Court has previously declined to adopt a definition of “sedentary” work for VA purposes. Withers
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v. Wilkie, 30 Vet.App. 139, 147 (2018). Instead, the Court held that “if the Board bases its denial
of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain
how it interprets that concept in the context of that case.” Id. at 148. The Court stated that this
explanation may need to include a discussion of the veteran’s educational and occupational history.
Id. (citing Pederson v. McDonald, 27 Vet.App. 276, 287 (2015)).
The Board noted that the appellant had a high school education, that he had owned a
hardware store from 1971 to 1982, and that he had worked as a hardware utility salesman from
1990 to 2006. The Board determined that the appellant’s vocational skills obtained from managing
his own store–customer service, oral and written communication, and interpersonal skills–would
transfer to general customer service work. In addition, his skills obtained from his work as a
hardware utility salesman–time management, negotiation, and sales skills–would transfer to
various types of work. Based on his education and work history, the Board concluded that he had
the intellectual capacity and capability to work in skilled and unskilled positions.
Moreover, the Board discussed the medical records that showed that as a result of his
service-connected right leg disabilities, the appellant had physical limitations, such as limitations
in ambulating, standing, lifting, carrying, sitting, transferring, and climbing. The Board, however,
noted that the appellant had no limitations fingering, grasping, reaching, bending, hearing, or
seeing. See Ray v. Wilkie, 31 Vet.App. 58, 73 (2019) (requiring attention to be given to a veteran’s
history, education, skill, and training, and considering limitations in lifting, bending, sitting,
standing, walking, climbing, grasping, typing, reaching, seeing, and hearing). Considering the
appellant’s education, vocational history and skills, and his physical limitations, the Board found
that he could obtain and maintain substantial sedentary gainful employment as a telephone
customer service representative or a receptionist.
Here, the Board explained how the appellant was capable of certain types of work in light
of his overall disability picture and educational and occupational history. Therefore, the Board
applied sufficient context to understand sedentary employment in this case. As the Court recently
held, “[t]here is no warrant for this Court to define the term ‘sedentary work’ or ‘sedentary
employment,’ still less any reason to compel VA’s adoption of the specific definition used by the
Social Security Administration or any other agency.” Rouse v. McDonough, Vet.App., 2021
WL 1379408 (Vet. App. Apr. 13, 2021)
.
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As for the Board’s inference that the appellant could work in an administrative capacity,
the appellant asserts that this finding is unsupported by law or evidence. Specifically, he contends
that there is no evidence that he maintains the requisite computer skills to obtain a job as a customer
service representative or receptionist. However, the Board can draw reasonable, common sense
inferences from the evidence of record. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)
(“Drawing an inference based on the evidence is at the heart of any adjudication.”) And the
appellant’s work as a hardware store owner and a utility salesman in 2006 provide a reasonable
basis for inferring that he knew how to use both a telephone and computer.
The appellant argues that the Board failed to address his arguments concerning the work
restrictions, that is, work requiring a person to exert 10 pounds of force for up to 1/3 of the time,
and to carry, push, pull, or otherwise move objects, including the body. The appellant notes that
this definition is quoted from the Dictionary of Occupational Titles, a publication from the
Department of Labor (DOL). See Reply Brief at 3-4; see also R. at 45-52, 72. The Court, however,
has declined to adopt the definition of “work” found in the DOL’s defunct Dictionary of
Occupational Titles or to adopt the definition of “sedentary work” found in Social Security
Administration (SSA) regulations. Withers, 30 Vet. App. 148. Rather, the Court held that “the
Board is not obligated to consider the standard used by SSA or the DOT, but it must sufficiently
explain how it interpreted the examiner’s use of the term [“sedentary work”] and how the concept
of sedentary work figures into a veteran’s overall disability picture.” Id. at 149; see also Ray,
31 Vet.App. at 73 (“And, to be clear we don’t adopt Social Security’s regulations as VA
regulations.”).
Here, the Board found that the appellant’s vocational and physical limitations allowed him
to obtain and maintain substantial, gainful employment in a sedentary job. The Board explained
that the appellant could work in a job that allowed him to alternate between sitting and standing,
required walking short distances with an assistive device, and required lifting and carrying no more
than a telephone receiver and pen and paper. The Board explained its use of the term “sedentary
employment” in the context of this case and the appellant has failed to demonstrate prejudicial
error in the failure to address this argument. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008)
(requiring the Board to consider all theories of entitlement to VA benefits that are either raised by
the claimant or reasonably raised by the record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
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1355 (Fed. Cir. 2009); see also Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (holding that the
appellant bears burden of demonstrating prejudice on appeal).
Overall, the appellant has not met his burden of demonstrating prejudicial error in the
Board’s decision. See Hilkert, 12 Vet. App. at 151. The Board identified jobs such as a telephone
customer service agent or a receptionist that the appellant could perform, and he does not assert
that the evidence is contrary to the Board’s finding that he would be able to perform this type of
work, consistent with his education and experience, that allows for altering between sitting and
standing. Because the Board’s factual determinations reflect a plausible reading of the record, the
Court will not disturb them. See Warren v. McDonald, 28 Vet.App. 214, 218 (2016).
III. CONCLUSION
On consideration of the parties’ brief and the record on appeal, the Court AFFIRMS the
September 16, 2019, Board decision.
DATED: July 23, 2021
Copies to:
Zachary M. Stoltz, Esq.
VA General Counsel (027)

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