Veteranclaims’s Blog

August 8, 2017

Single Judge Application; Jones (David) v. Shinseki, 26 Vet.App. 56, 61, 63 (2012); Ameliorative Effects of Medication;

Excerpt from decision below:

“This Court has held that the Board errs in considering the ameliorative effects of
medication when those effects are not explicitly contemplated by the rating schedule. Jones
4
(David) v. Shinseki, 26 Vet.App. 56, 61, 63 (2012).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 15-4843
COLEMAN D. TAYLOR, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Army veteran Coleman D. Taylor appeals pro se that portion
of an August 28, 2015, Board of Veterans’ Appeals (Board) decision that denied a disability rating
in excess of 30% for Crohn’s disease with gastroesophageal reflux disease (GERD).1,2 For the
following reasons, the Court will set aside the Board decision with respect to the appealed matter
and remand that matter for further proceedings.
I. ANALYSIS
A. TDIU
As a threshold matter, Mr. Taylor’s informal brief states that he wishes to appeal the issue
of total disability on the basis of individual unemployability (TDIU). In the decision here on
appeal the Board addressed the issue as follows:
1 The Board also granted service connection for bilateral hearing loss. This is a favorable finding that the
Court will not disturb. See Medrano v. Nicholson, 21 Vet.App 165, 170 (2007).
2 Crohn’s disease is “a chronic granulomatous inflammatory disease of unknown etiology . . . that is most
often found in the terminal ileum” with “[c]haracteristics includ[ing] scarring and thickening of the bowel wall.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 531 (32d ed. 2012). Gastroesophageal reflux disease is “any
condition noted clinically or hisotpathologically that results from gastroesophageal reflux . . . principal characteristics
are heartburn and regurgitation.” Id. at 533.
2
In the present appeal, the [v]eteran does not assert unemployability, due to
his Crohn’s disease with GERD, as evidenced by the [v]eteran’s hearing
testimony. He testified that symptoms related to Crohn’s or GERD had
improved, and that these conditions did not approximate a disability
warranting a finding of unemployability.
Record (R.) at 3. The Secretary concedes and the Court’s review of the record confirms that Mr.
Taylor gave no such testimony.
The Secretary asserts, however, that this mischaracterization of the record did not prejudice
Mr. Taylor. He observes that a July 2015 rating decision denied TDIU on the basis of posttraumatic
stress disorder (PTSD), suggesting that because Mr. Taylor did not file a Notice of
Disagreement with this rating decision, the issue was not before the Board.
The Secretary’s argument is not consistent with prevailing precedent. It is well settled that
TDIU is raised whenever a veteran seeks the highest disability rating possible and submits cogent
evidence of unemployability. Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009); Rice v. Shinseki,
22 Vet.App. 447, 453-54 (2009). Furthermore, TDIU is to be assessed on the basis of all serviceconnected
disabilities. See 38 C.F.R. § 4.16 (2017).3
The Court’s review of the record, however, reveals no cogent evidence of unemployability.
The Court notes medical evidence that Mr. Taylor must remain close to a bathroom, and that his
abdominal pain affects his concentration and attenuates his ability to perform. R. at 634.4 It has
also been established that his PTSD causes “occasional decrease in work efficiency and
intermittent periods of inability to perform occupational tasks.” 38 C.F.R. § 4.130, Diagnostic
Code (DC) 9411 (2017). There is no indication in the record whether or to what extent his bilateral
hearing loss may negatively affect his ability to work.5 Negative effects on occupational activities
are not tantamount to unemployability, and Mr. Taylor points to no evidence tending to establish
that he is unemployable.
Therefore, the Court concludes that the Board’s failure to discuss TDIU did not prejudice
Mr. Taylor, albeit on reasoning different than that advanced by the Board or the Secretary. See
3 The record indicates that Mr. Taylor has met the schedular requirements of § 4.16(a) since July 2011.
4 This page of the record is one of two pieces of evidence that Mr. Taylor argues the Board insufficiently
considered, presumably because of the information on the negative impact of his symptoms on his ability to work
effectively.
5 The record does indicate that VA has furnished hearing aids, which have been repaired and maintained at a
VA audiology clinic. See, e.g., R. at 709.
3
Shinseki v. Sanders, 556 U.S. 396 (2009) (appellant bears the burden of demonstrating prejudice
on appeal); Vogan v. Shinseki, 24 Vet.App. 159 (2010) (in assessing prejudicial error, Court not
limited to findings of the Board, but may review content of entire record). Mr. Taylor may
nevertheless present additional evidence and argument on remand on the issue of TDIU.
B. Disability Rating
Mr. Taylor has been separately service connected for Crohn’s disease, and for GERD. The
former is rated by analogy to ulcerative colitis. See 38 C.F.R. § 4.114, DC 7323 (2017). The latter
is rated, also by analogy, to hiatal hernia. Id. DC 7346. For reasons discussed more fully below,
the rating assigned is for “Crohn’s disease with GERD.” See R. at 566-68.
The appropriate degree of disability under the rating schedule is a factual finding reviewed
under the “clearly erroneous” standard. Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). A
finding of material 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.'” Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)).
The Board is required to support its determinations of fact and law with a written statement
of reasons or bases that is understandable by the claimant and facilitates review by this Court. See
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The statement of reasons
or bases must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober,
14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record,
Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation that are made “potentially
applicable through the assertions and issues raised in the record,” Schafrath v. Derwinski,
1 Vet.App. 589, 592 (1991).
1. Consideration of Medication
Mr. Taylor argues that the extent of his medication should be factored into his degree of
disability. The Court agrees that the Board erred in failing to assess the effect of multiple
medications he is taking for both service-connected digestive disabilities.
This Court has held that the Board errs in considering the ameliorative effects of
medication when those effects are not explicitly contemplated by the rating schedule. Jones
4
(David) v. Shinseki, 26 Vet.App. 56, 61, 63 (2012). Here, neither DC employed by the Board
mentions controlling either condition by medication.
Although the medical evidence reflects that Mr. Taylor requires continuous medications to
control both his Crohn’s disease and his GERD, R. at 579-80, 626, the Board attempted no
assessment of what his symptoms might be in the absence of his medication. The record includes
a medical report noting that before he was prescribed asulfidine, Mr. Taylor suffered a gross
intestinal bleed requiring a transfusion of 4 units of blood. R. at 626. Such episodes could be
relevant under the higher disability criteria for Crohn’s disease, which feature anemia and
attenuation of general health as characteristic symptoms. In any view of the matter, the Board may
not rate Mr. Taylor’s symptoms while ignoring the ameliorative effects of multiple medications
that are part of his treatment regimen. See Jones, supra.
On remand, the Board must reevaluate Mr. Taylor’s digestive conditions and may not
consider relief afforded by medications when doing so. The Board must determine whether a
medical opinion is required to address this issue, and, if so, provide an adequate examination for
that purpose.
2. Combining Effects of Separate Conditions
The record contains a letter from Mr. Taylor’s personal physician stating that Crohn’s
disease and GERD are separate conditions and are being treated separately. Therefore, Mr. Taylor
sought separate ratings for the two conditions. Because these conditions affect different parts of
the anatomy, and require different treatments, this argument has a certain force of logic.
As a legal matter, however, it is unavailing. The Secretary’s regulations state that
[r]atings under diagnostic codes 7301 to 7329, inclusive . . . and 7345 to
7348 inclusive will not be combined with each other. A single evaluation
will be assigned under the diagnostic code which reflects the predominant
disability picture, with elevation to the next higher evaluation where the
severity of the overall disability warrants such elevation.
38 C.F.R. § 4.114, Note (emphasis added). The Court may not review the Secretary’s schedule of
disability ratings. 38 U.S.C. § 7252(b). Therefore, Mr. Taylor may not receive separate ratings
for his two service-connected digestive disabilities.
That conclusion, however, does not end the analysis. Here, the Board assessed the ratings
that would be assigned under each of the applicable DCs, decided that DC 7323 yielded the higher
disability rating, and identified it as the predominant disability. The Board then assigned the
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disability rating solely on the basis of the symptoms of Crohn’s disease manifest in the record.
Thus, the Board apparently interpreted § 4.114 as allowing it to entirely disregard the symptoms
of the second disability once the predominant disability was identified.
The Court reviews the Board’s interpretation of regulations de novo. Tropf v. Nicholson,
20 Vet.App. 317, 320 (2006). To interpret a regulation, the Court must look to its plain language
and consider terms in accordance with their plain meaning. Thompson v. McDonald, 815 F.3d
781, 785 (Fed. Cir 2016). Here the plain language of the regulation requires the Board to evaluate
the severity of the overall disability to determine whether a higher evaluation is warranted under
the DC corresponding to the dominant disability.
The Board did not explain whether or how it melded the symptoms of GERD into
evaluation of the overall disability under DC 7323. Thus, the Court’s review is frustrated, requiring
remand. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527. On remand, the Board must
explain how it evaluated the two disabilities together to assess the severity of the overall disability
under the single DC for the predominant disability.
The Board’s erroneous reliance on the ameliorative effects of medication and its
insufficient explanation of the application of 38 C.F.R. § 4.114 warrants remand. Tucker v. West,
11 Vet.App. 369, 374 (1998). In pursuing his claim on remand, Mr. Taylor will be free to submit
additional argument and evidence as to the remanded matter, including TDIU, and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002).
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s August 28, 2015,
decision with respect to the disability rating for Crohn’s disease with GERD and REMANDS that
matter for further proceedings.
DATED: August 7, 2017
Copies to:
Coleman D. Taylor
VA General Counsel (027)

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