Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6136
JOHNNY GILES, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Johnny Giles, Jr., appeals through counsel a September
18, 2019, Board of Veterans’ Appeals (Board) decision denying a total disability evaluation based
on individual unemployability (TDIU). Record (R.) at 23-32.1 For the reasons that follow, the
Court will affirm the September 2019 Board decision.
I. FACTS
Mr. Giles served on active duty in the U.S. Army from January 1971 to September 1977.
R. at 1602, 4001. He is service connected for left ventricular hypertrophy, peptic ulcer disease,
right and left knee disabilities, and hypertension with a combined 70% evaluation prior to
December 27, 2013, and 90% as of that date. R. at 27, 130, 1599-600. In July 2013, Mr. Giles
applied for TDIU, reporting that he last worked in January 2012 for GKN Aerospace and stopped
working due to his heart, knee, and stomach disabilities. R. at 1349. He specified that he left his
job voluntarily due to service-connected disabilities and has a Bachelor of Science degree in
aircraft maintenance engineering. R. at 1809.
1 The Board also referred its March 2018 award of separate 10% evaluations for right and left knee limitation
of flexion from December 27, 2013, to the agency of original jurisdiction for implementation. R. at 23.
2
At a December 2013 VA cardiac examination, Mr. Giles reported symptoms of dizziness,
weakness, fatigue, and chest pain that prevent him from climbing up onto aircraft. R. at 434, 445, 449. The examiner estimated greater than 3 to 5 METs with symptoms of dyspnea, fatigue, and
dizziness and attributed these symptoms to both service-connected cardiac disabilities and nonservice-
connected diabetes. R. at 442-43. For hypertension, Mr. Giles reported symptoms of
dizziness, fatigue, and headaches. R. at 448. The examiner opined that Mr. Giles would be able
to perform sedentary work for a normal 8-hour workday. R. at 445, 450. The same examiner
performed gastroenterologic and orthopedic examinations. Mr. Giles reported dyspepsia or
indigestion. R. at 451. The examiner offered that gastric ulcer would not impact the veteran’s
employability. R. at 454-55. As to his knees, Mr. Giles described pain and giving way, severely
limiting the time he can stand or walk before having to sit. R. at 457, 463. The examiner noted
Mr. Giles’s use of a cane and opined that the veteran could perform sedentary work for a normal
8-hour workday. R. at 462, 464.
The regional office (RO) denied TDIU in March 2014, finding Mr. Giles capable of gainful
employment and that he left his last job due to a reduction in force rather than an inability to work.
R. at 1602-05. He appealed, R. at 1552, and the RO responded with a June 2014 Statement of the
Case (SOC), R. at 1349-62. Mr. Giles perfected his appeal, requesting a Board hearing. R. at
1343.
At a July 2016 Board hearing, Mr. Giles testified that he can sit for no more than 15 minutes
and walk for no more than 10 minutes but that he is still able to cook and clean around the house.
R. at 1227, 1236. He stated that he could not perform a sit-down job because he cannot sit for 6
to 8 hours without getting up to straighten out his knees. R. at 1230, 1248. As to the end of his
employment, Mr. Giles recalled that the company was laying people off and that, while he was not
initially laid off, the smaller workforce left him with increased work burden, and he then
volunteered for later layoffs due to his inability to meet the increased burden. R. at 1243-44, 1256.
He also reported that he missed 5 to 6 days in a 6-month period due to his service-connected knees
and has been in receipt of Social Security Administration (SSA) benefits since July 2012. R. at
1246, 1255. Following the hearing, the Board remanded this case to obtain Mr. Giles’s SSA
records and a new orthopedic examination to comply with recent caselaw. R. at 1183-94, 1198-
204; Correia v. MacDonald, 28 Vet.App. 158 (2016).
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The SSA records obtained by VA show that Mr. Giles claimed benefits based on both
service-connected and non-service-connected conditions, including degenerative joint disease of
the back, disc herniation, knee disabilities, and diabetes. R. at 967-68, 990. The SSA found Mr.
Giles disabled as of January 2012 due primarily to degenerative disc disease of the back and
secondarily due to osteoarthritis. R. at 966, 972. The SSA records further reflect that Mr. Giles
can sit for about 6 hours of an 8-hour workday with normal breaks, R. at 970, and classified him
as skilled with the capability for sedentary work, R. at 972. Mr. Giles reported to SSA that he can
use a computer for email and online banking. R. at 982, 987.
At a January 2017 VA orthopedic examination, the examiner found functional impairment
in that Mr. Giles cannot squat or crouch and has difficulty with prolonged kneeling. R. at 826.
The examiner noted Mr. Giles’s use of a brace on each knee and opined that crouching, squatting,
or climbing the stairs would impact his ability to perform occupational tasks. R. at 834-36. The
case returned to the Board, and the Board denied TDIU in April 2018. R. at 132-79. Mr. Giles
appealed to this Court, and the parties filed a joint motion for remand (JMR), which the Court
granted, agreeing that the Board had failed to provide adequate reasons or bases regarding Mr.
Giles’s ability to perform sedentary work, citing Withers v. Wilkie, 30 Vet.App. 139, 142 (2018).
R. at 72-76.
In the September 2019 decision on appeal, the Board found that Mr. Giles met the schedular
criteria for TDIU throughout the appeal period, but that his service-connected disabilities do not
render him unable to secure or follow a substantially gainful occupation. R. at 27-28. The Board
reviewed his hearing testimony and the SSA records and noted his education and occupational
experience, including his degree in aircraft maintenance and engineering. R. at 28-29. The Board
also reviewed the December 2013 VA examination report and noted that it similarly reflected that
the veteran is able to perform sedentary work. R. at 29. The Board found industrial impairment
but concluded that his service-connected disabilities do not preclude substantially gainful
employment. R. at 30-31. The Board supported this conclusion by citing the SSA finding of
disability based in part on non-service-connected disabilities and affirmative evidence that his
background and abilities would not preclude sedentary work. R. at 31-32. This appeal followed.
4
I. JURISDICTION AND STANDARD OF REVIEW
Mr. Giles’s appeal is timely and the Court has jurisdiction to review the September 2019
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v Derwinski, 1 Vet.App. 23, 25-26 (1990).
TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (2021). When such
unemployability is shown and the veteran meets certain numeric evaluation requirements, the
Board may award TDIU in the first instance, 38 C.F.R. § 4.16(a); otherwise, the Board may only
refer the case to the Compensation Service Director for consideration of extraschedular TDIU,
38 C.F.R. § 4.16(b). See Cantrell v. Shulkin, 28 Vet.App. 382, 387 (2017). In determining whether
a veteran is unable to secure or follow a substantially gainful occupation, the central inquiry is
“whether that veteran’s service-connected disabilities alone are of sufficient severity to produce
unemployability.” Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993); Van Hoose v. Brown,
4 Vet.App. 361, 363 (1993) (explaining that, for TDIU, “[t]he question is whether the veteran is
capable of performing the physical and mental acts required by employment, not whether the
veteran can find employment”). “When the Board conducts a TDIU analysis, it must take into
account the individual veteran’s education, training, and work history.” Pederson v. McDonald,
27 Vet.App. 276, 286 (2015) (en banc).
The Board’s determination of whether a veteran is unable to secure or follow substantially
gainful employment is a finding of fact subject to the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); Bowling v. Principi, 15 Vet.App. 1, 6 (2001). “A factual finding ‘is
“clearly erroneous” when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.'” Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)); see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) (explaining that the Court “is not
permitted to substitute its judgment for that of the [Board] on issues of material fact” and therefore
may not overturn the Board’s factual determinations “if there is a ‘plausible’ basis in the record for
[those] determinations”).
As with any finding on a material issue of fact and law presented on the record, the Board
must support its degree-of-disability determination, including entitlement to TDIU, with adequate
reasons or bases that enable the claimant to understand the precise basis for that determination and
5
facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57. To comply
with this requirement, the Board must analyze the credibility and probative value of evidence,
account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection
of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table)
III. ANALYSIS
Mr. Giles cites to Withers and Ray v. Wilkie, 31 Vet.App. 58 (2019), to argue that the Board
erred in denying TDIU without properly considering his employment history and educational
background or defining substantially gainful occupation and sedentary work. Appellant’s Brief
(Br.) at 3-4, 16, 19-25. He additionally cites Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008),
to argue that the December 2013 examination was inadequate, because the examiner failed to
support his conclusions with sufficient rationale, and that the Board erred in relying on this
examination. Id. at 17-19. The Secretary responds that the Board properly analyzed Mr. Giles’s
education and occupational background, weighed evidence of his physical abilities, and plausibly
determined that he was not precluded from substantially gainful employment. Secretary’s Br. at
As to the adequacy of the December 2013 examination, the Secretary argues that the examiner
offered his opinion based on the entire examination report, including the objective findings and
the veteran’s lay statements. Secretary’s Br. at 26-29. For the reasons that follow, the Court agrees
with the Secretary.
In Ray, the Court held that the phrase “unable to secure and follow a substantially gainful
occupation” in § 4.16 has economic and noneconomic components. 31 Vet.App. at 73. The
noneconomic component includes the veteran’s history, education, skill, and training, as well as
the veteran’s capacity to perform “the physical and mental acts required by employment.” Id.
(citing Van Hoose, 4 Vet.App. at 363); see also Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991).
Although § 4.16 makes no mention of sedentary work, the Court acknowledged in Withers, 30
Vet.App. at 144-45, that use of the term in the TDIU context is pervasive. In Withers, the Court
declined to accept either party’s invitation to define “sedentary” for VA purposes. Instead, the
Court held as follows:
Although § 4.16 does not make the concept of sedentary work an explicit TDIU
factor, if the Board bases its denial of TDIU in part on the conclusion that a veteran
is capable of sedentary work, then it must explain how it interprets that concept in
6
the context of that case. This includes, where necessary, an explanation of how a
finding that a veteran is capable of sedentary employment squares with the veteran’s
educational and occupational history.
Id. at 148. The Court further held that, where a veteran’s ability to perform sedentary work is a
basis for the Board’s decision, “the meaning of sedentary work must be determined from the
particulars of the medical opinion in which it is used.” Id. at 147. Where an examiner describes
certain types of functional limitations and still opines that a veteran is capable of sedentary work,
the relevant inquiry for the Board is the veteran’s functional limitations “as understood by the
examiner” in the context of sedentary work. Id. at 148 (emphasis added); see also Rouse v.
McDonough, 34 Vet.App. 43, 46 (2021).
Mr. Giles asserts that, contrary to this Court’s guidance in Withers and Ray, the Board failed
to adequately discuss his history because the Board’s mere recitation of his vocational abilities is
at odds with his lay testimony. Appellant’s Br. at 20. He specifies that the Board failed to discuss
his testimony at earlier hearings–an April 2012 Board hearing and a June 2004 RO hearing–as to
the effects of the medication he takes for knee pain (drowsiness), that his knees give out, and that
he had to break up a long drive to stretch his knees every 50 miles. Id. at 21.
Initially, the Court notes that at the July 2016 Board hearing Mr. Giles testified that he only
takes Advil for his knee pain, R. at 1242, and the SSA records list Alendronate as a prescription
for osteopenia, a non-service-connected condition, as the only prescription for an orthopedic
condition, R. at 993. Given the discrepancy between Mr. Giles’s earlier testimony and the other
evidence of record, Mr. Giles does not explain how the earlier testimony could prove potentially
favorable or how the Board’s failure to discuss that testimony would be prejudicial. Appellant’s
Br. at 21; see 38 U.S.C. § 7261(b)(2) (providing that the Court must “take due account of the rule
of prejudicial error”); see also Shinseki v. Sanders, 556 U.S. 396, 410 (2009). Additionally, Mr.
Giles described the same knee symptoms including pain and giving way to the December 2013
VA examiner, R. at 457, and the Board reviewed that examination report, R. at 29. Similarly, Mr.
Giles testified in July 2016 that he could not perform a sit-down job because he cannot sit for 6 to
8 hours without getting up to straighten out his knees, and the Board discussed that testimony in
the decision on appeal. R. at 30, 1230, 1248. The veteran’s arguments appear to be based on
disagreement with the Board weighing the examination report and SSA records more heavily than
his testimony, but he has failed to demonstrate that the Board’s weighing of that evidence was
clearly erroneous or that the Board was otherwise required to discuss that evidence in more detail.
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See Smith v. Shinseki, 24 Vet.App. 40, 48 (2010) (“The Board, not the Court, is responsible for
assessing the credibility and weight to be given to evidence, and the Court may overturn the
Board’s assessments only if they are clearly erroneous.”) (citing Owens v. Brown, 7 Vet.App. 429,
433 (1995)). In short, he has failed to carry his burden of showing that the Board committed
prejudicial error in that regard. See Hilkert v. West, 12 Vet.App. 149, 151 (1999) (en banc)
(holding that the appellant bears the burden of demonstrating error), aff’d per curiam, 232 F.3d
908 (Fed.Cir.2000) (table).
Mr. Giles further specifies that the Board relied on “its own unsupported conjecture” to
define substantially gainful occupation rather than obtain vocational evidence relative to his ability
to transfer his technical expertise in aircraft maintenance engineering to sedentary work in the
same field. Appellant’s Br. at 22. He recognizes that the Board relied on the SSA records in
making that conclusion, but argues that this reliance is problematic because the SSA records do
not include an expert opinion and do not consider the impact of his service-connected knees on his
employment without also considering the impact of his non-service-connected back condition. Id.
at 22-24.
Mr. Giles’s argument is unpersuasive for two reasons. First, the Board is not required to
obtain an expert opinion in adjudicating TDIU. “The authority to make the ultimate determination
of whether a veteran meets the § 4.16 standards for TDIU belongs exclusively to the VA
adjudicator and may not be delegated out to one of the agency’s medical examiners.” Delrio v.
Wilkie, 32 Vet.App. 232, 243 (2019) (citing Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013),
and Floore v. Shinseki, 26 Vet.App. 376, 381 (2013)). “‘TDIU is to be awarded based on the
judgment of the rating agency that the veteran is unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities.'” Id. at 242. (quoting Floore, 26 Vet.App.
at 381). Despite Mr. Giles’s reliance on Withers, that case directs that it is the Board’s
responsibility to explain how it interprets sedentary work in the context of each case; Withers does
not require the Board to obtain a vocational opinion in every case. Withers, 30 Vet.App. at 148.
Second, the Board here adjudicated TDIU in consideration of not only the SSA records,
but also the VA examination reports. The December 2013 VA examiner and SSA records are
consistent with each other in showing that Mr. Giles is capable of sedentary work. R. at 445, 450,
464, 972. The Board reviewed this evidence of record, R. at 29, in addition to Mr. Giles’s lay
testimony that he has limitations on sitting for prolonged periods with the need to get up and walk
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to relieve stiffness, R. at 30. The Board reached the conclusion that the veteran can perform
sedentary work based on affirmative evidence including his background and abilities, citing his
ability to use a computer as documented in the SSA records, the SSA assessment of his
occupational experience as skilled, and extensive education and work history in aircraft
maintenance engineering demonstrating technical expertise. R. at 31-32, 972, 982, 987, 1808-09;
Contrary to the veteran’s contention, the Board’s analysis is consistent with Withers, 30 Vet.App.
at 147, which held that the Board may consider a veteran’s ability to engage in “sedentary”
employment so long as it describes “how the concept of sedentary work factors into the veteran’s
overall disability picture and vocational history, and the veteran’s ability to secure or follow a
substantially gainful occupation.” Moreover, the Board’s discussion of Mr. Giles’s extensive
education and work history in aircraft maintenance engineering, as reflected on his July 2013
TDIU application, R. at 1808-09, further addresses the noneconomic component of substantially
gainful employment by addressing his work history, education, skill, and training in accordance
with Ray, 31 Vet.App. at 73.
Additionally, the Board here defined the type of sedentary work for which Mr. Giles would
be qualified as nonphysical work involving oversight or handling paperwork in his aircraft
maintenance field of expertise, R. at 32, and this finding is supported by the SSA records and VA
examination report. Again, the SSA classified Mr. Giles as skilled with the capability for sedentary
work, R. at 972, and the December 2013 VA examiner considered all of Mr. Giles’s serviceconnected
disabilities and considered him able to perform sedentary work, R. at 455, 450, 462.
Despite Mr. Giles’s reliance on Withers, the Board’s analysis comports with that case because the
Board provided an explanation of sedentary work in the context of his case. See Withers, 30
Vet.App. at 148. In other words, the Board provided adequate reasons or bases for its finding that
the veteran was not entitled to TDIU because he could perform sedentary work and his educational
and occupational experience did not limit his ability to secure and follow substantially gainful
sedentary employment. See Gilbert, 1 Vet.App. at 56-57.
Finally, regarding the argument that the December 2013 examiner’s opinion lacks adequate
supporting rationale, Appellant’s Br. at 17-19, the December 2013 examiner supported his
conclusions regarding sedentary employment with specific consideration of Mr. Giles’s own report
of his symptoms. For example, Mr. Giles reported to the December 2013 examiner that
hypertension causes symptoms of dizziness, fatigue, and headaches, R. at 448, and that left
9
ventricular hypertrophy causes symptoms of dizziness, weakness, fatigue, and chest pain, R. at
The December 2013 examiner’s opinion regarding left ventricular hypertrophy quoted
symptoms of dizziness, weakness, fatigue, and dyspnea, R. at 445, and the opinion regarding
hypertension quoted symptoms of dizziness and fatigue, R. at 449-50. For his knees, Mr. Giles
reported symptoms of pain and giving way, severely limiting the time he can stand or walk before
having to sit, R. at 457, and the examiner’s opinion quoted symptoms of pain and limitations on
standing and walking, R. at 463-64. That rationale was adequate to provide the Board with the
information it needed to assess the veteran’s employability, including his ability to engage in
substantially gainful sedentary work.
To the extent that the veteran argues that he should have been provided an examination
addressing the combined impact of his service-connected disabilities, the December 2013
examiner performed cardiac, orthopedic, and gastroenterologic examinations and, in effect,
provided a combined effects opinion. Appellant’s Br. at 17-18. When the report is read as a whole,
the December 2013 examiner, after considering all service-connected disabilities, opined whether
and how they would impact his employability. See Nieves-Rodriguez, 22 Vet.App. at 301 (“[A]
medical examination report must contain not only clear conclusions with supporting data, but also
a reasoned medical explanation connecting the two.”). The veteran’s argument in this regard
therefore fails. See Hilkert, 12 Vet.App. at 151. Mr. Giles raises no argument with regard to his
service-connected peptic ulcer disease, the January 2017 orthopedic examination, or the Board’s
reasons or bases for relying on that examination.
IV. CONCLLUSION
Upon consideration of the foregoing, the September 18, 2019, Board decision denying
TDIU is AFFIRMED.
DATED: September 30, 2021
Copies to:
Jeffrey J. Bunten, Esq.
VA General Counsel (027)