Floore: Individual Unemployability Examined

Jimmy H. Floore v. Eric K. Shinseki, Opinion Number 12-2017, decided November 5, 2013 concerns the issue of individual unemployability or TDIU.

The veteran had a 90% rating for various ailments including diabetes, coronary artery disease, PTSD and peripheral neuropathy of the upper and lower extremities.  He sought TDIU but was denied by the Board.  The appealed to the Court and argued (1) the Board did not provide adequate reasons and bases for its determination that a combined effects medical examination was not required for his claim and (2) the Board provided inadequate analysis as to why it determined his service connected disabilities did not prevent him from working.

The Court rejected the first argument (that the Board should have directed a C&P examination of the combined effects of his multiple disabilities) and noted the veteran did not argue how the medical reports of record were inadequate.

However, the Court granted the reversed and remanded on the second ground.  The Court noted “the Board addressed the effects of Mr. Floore’s disabilities individually, but never explained what the cumulative functional impairment of all his service-connected disabilities might be and why they do not prevent substantial gainful employment.”  Id. at *8.  The Board also neglected to mention the effects of the veteran’s diabetes.  Id. at  *9.

The Court also noted the Board failed to address potentially favorable evidence, specifically identifying a VA examination addressing the veteran’s heart condition and saying it had a severe effect on exercise and the ability to engage in sports “which potentially can indicate some adverse occupational effects”.  Id. at *8.

“Finally, it appears as though the Board was influenced in its decision by the fact that Mr. Floore terminated his employment as a result of non-service-connected disabilities.  While the basis for Mr. Floore’s terminating his employment in the trucking industry is supported by the record, it is not clear how this was weighed by the Board and to what extent it is even relevant to its determination that Mr. Floore’s service-connected disabilities do not prevent him from undertaking any substantial gainful employment.”  Id. at *9.

Judge Bartley wrote a concurrence which took the VA to task for not ordering an examination to address the combined effects of the total disabilities calling the “failure to be absolutely diligent in assisting claimants is shortsighted behavior on VA’s part.”  Id. at *11.

This is a helpful case that shows the Court will dig into the facts of a TDIU claim.  It suggests a blueprint for demanding a combined effects examination.  It also is helpful in saying the decision to quit a job for another reason is potentially not relevant to the question of the service-connected disabilities’ impact on employment.  It also suggests an argument on appeal for many cases, that the medical examinations provided was so old as to have become stale.

Decided by Chief Judge Kasold and Judges Bartley and Greene.

Gill: Hypertension and Deference to VA Interpretation of a Regulation

Franklin Gill v. Eric K. Shinseki, Opinion Number 12-3428, decided October 28, 2013 concerns interpretation of a VA regulation governing the rating for hypertension.

The veteran was service connected for hypertension by the Board and the Board remanded for an “appropriate” examination and rating.  The VA conducted a C&P examination which took his blood pressure 3 times and the VARO granted him 10%.

The veteran appealed arguing the VA should have taken two blood pressure measurements on different days in order to determine what rating was appropriate, rather than three on the same day.  The Board rejected this argument and noted the veteran had numerous blood pressure readings throughout the rating period and none of them warranted a higher rating.

The veteran appealed to the Court arguing DC 7101 Note (1) requires two or readings before a rating can be assigned.  The Secretary argued the plain language of Note (1) applies only to the initial confirmation of the diagnosis of hypertension, not the assignment of a rating.

The Court noted it will defer to the Secretary’s interpretation if a regulation is unclear from its language as long as that interpretation is not inconsistent with the language of the regulation or plainly erroneous.  The Court found the Secretary’s interpretation was consistent with an explanation at the time of Note (1)’s modification and reflected “his considered judgment as to the need for a specified number of blood pressure readings over multiple days to confirm hypertension.  Id. at *7.

The Court also considered if the medical examination substantially complied with the earlier remand order.  The Court noted the Board decision did not rely only on the three ratings from the C&P examination but also numerous readings over multiple years, none of which supported a higher rating.

Decided by Chief Judge Kasold and Judges Davis and Pietsch.

Kyhn: Presumption of Regularity in Mailing

Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided October 22, 2013 concerns a Board decision finding against service-connection because the veteran did not attend a scheduled C&P examination.

The veteran claimed service-connection for tinnitus and presented evidence in the form of a private audiologist statement saying a history of noise exposure without benefit of ear protection was likely the beginning of the veteran’s tinnitus.  

The VA scheduled a C&P examination but he veteran did not attend.  The Board denied the claim saying the private medical record was of limited value because it was offered without the benefit of a review of the veteran’s claim folder. 

The veteran appealed saying he never received notice of a C&P examination.  The Court relied on supplemental affidavits from the VA and affirmed the Board decision based on a presumption of regularity that the examination notice was mailed.  However, the veteran again appealed to the Federal Circuit and the Federal Circuit found the CAVC acted beyond its jurisdiction by relying on affidavits not in the record before the Board and engaging in fact finding when the Court found the VA had a procedure to notify veterans of examinations.  The Federal Circuit explained the case was different from other instances where the presumption of regularity was premised upon independent legal authority rather than on evidentiary findings. 

The CAVC on review found the Board made factual findings about proper notifications when it stated “notification … was mailed to the veteran at his correct address of record and there is no indication that notice of this examination was returned by postal authorities as undeliverable.”  The CAVC found since the Board made factual findings on this issue it was obligated to provide adequate reasons and bases, and that the Board did not discuss the documents relied upon in making this finding and did not discuss whether this finding was based on a presumption of regularity.

The VA argued that the Board was not required to provide adequate reasons and bases on this issue because the veteran did not assert the issue to the Board.  The CAVC said under Maggitt it could address the issue.

The VA also argued that reliance on veteran’s argument he did not receive was itself reliance on extra record evidence.  But, the Court distinguished between evidence and argument and said “The Appellant’s assertion to the Court that he did not receive proper notification of the scheduled examination is not made for the purpose of having this Court make a factual finding that he did not receive notice of the examination.  Rather, he is making this assertion as part of a legal argument regarding whether the Secretary provided proper notification of the examination.”  Id. at *6.

This is an usual case which provides a blueprint to attack the presumption of regularity in the case of a missed appointment.

Decided by Judges Moorman, Schoelen and Greene.

Copeland: Substitution of a Spouse and Medical Opinions

Constance Copeland v. Eric K. Shinseki, Opinion Number 11-2408, decided November 14, 2012 concerns a Board decision where the veteran’s spouse sought substitution after his death and also treats the adequacy of a medical opinion.

The veteran sought to reopen a claim in 2007 but died within 6 months.  His spouse filed for accrued benefits and DIC within months of his death in 2007.  Congress changed the law in 2008 allowing for substitution of a spouse in a pending claim for benefits for the purposes of processing the claim to completion if the substitution is sought within 1 year of the veteran’s death.  Substitution allows submission of evidence and gives the same right to the spouse as the veteran had.

The veteran’s spouse argued Congress’s assignment of an effective date to allow substitution violated the equal protection clause of the Fifth Amendment.  The court considered reviewed this argument under a rational basis rubric and it was not unconstitutional because the law had at least two rational bases exist: 1) avoidance of procedural difficulties of retroactive application of a new law, and 2) protection of public resources.

The veteran’s spouse also argued the Board failed to provide an adequate medical opinion.  Specifically, she says the medical opinion incorrectly stated the facts (lack of trauma to the affected area) and that no significant studies indicated a relationship between a tumor and trauma.  The Court noted the Board found no medical records evidencing a trauma to the left mandible and the Board determination was not clearly erroneous when it found the more recent allegation of a trauma was not an accurate reflection of the facts.

 Regarding the medical literature of trauma inducing tumors, the veteran’s spouse could only point to two studies and that they did not necessarily concern trauma occurring several years in the past.

Judge Hagel wrote dissenting opinion, though he agreed with the outcome.  He wrote that he thought the language authorizing the Court’s existence does not have the power to entertain facial constitutional challenges to statutes as opposed to rules and regulations of the Secretary.

This case makes clear Congress’s authorization of substitution of a spouse beginning in 2008 is not unconstitutional and that the Court will dig into the language of the medical opinion to see if it is adequate.

Decided by Chief Judge Kasold and Judges Hagel and Lance.

Schertz: Section 1151 Claims, the Standard for Disclosure

Gene R. Schertz v. Eric K. Shinseki, Opinion Number 11-2694, decided September 26, 2013 involves a Section 1151 (medical malpractice) case and the question of what is the standard for disclosure of medical risks.

The veteran had a bifemoral bypass graft surgery at a VA Medical Center.  Prior to surgery he signed an informed consent form which included a reference to possibly permanent spinal cord damage.  His wife also admitted a physician informed them of a very slight risk of paralysis that was “played … down”.

After the surgery, the veteran could walk but within 5 days had lost the ability to move his legs and was diagnosed with a spinal cord infarction.  As a result, he filed a claim for compensation under 38 U.S.C. § 1151.  The director of the VAMC spinal cord rehabilitation program opined that the loss of blood flow to the spinal cord is a common but not wholly predicable outcome, and that “this situation is not a routinely anticipated consequence of the vascular disease process, and he should be considered for service-connected benefits.”

On remand, the Board asked for an examiner to state whether the risk of spinal cord infarction was the type of risk a reasonable medical provider would have disclosed.  The chief of surgery stated paralysis as a result of the aortobifemoral graft “is an infrequent complication of less than 1% and is not emphasized prior to the operative procedure.  The complication would have been foreseen; however, it would not normally be discussed in the preoperative discussion because of its low frequency.”

The Board denied compensation saying the VA physician did not commit negligence or a similar instance of fault and the spinal cord impairment and paralysis were reasonably foreseeable complications.

Importantly, 38 CFR § 3.361 states regarding to foreseeability that “The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk”.

The veteran argued it was immaterial whether his surgeon “actually” considered the possibility of paralysis and told him about it, but the proper question is whether it is “reasonably foreseeable” as defined by 38 CFR § 3.361.  He relies on the statement by the chief of surgery to say that a reasonable health care provider would not have disclosed the risk of paralysis.

The Court determined that the term “not reasonably foreseeable” is susceptible to multiple interpretations and that the VA’s interpretation found in 38 CFR § 3.361 is permissible.  The Court then states this is an objective standard of the reasonable health care provider and that the actual foreseeability of an event by a treating physician is not dispositive.  Id. at *8. 

The Court remanded the case for a consideration of the objective standard.  However, they did state the scope of the consent actually provided could be evidence if the physician acted in a manner consistent with how a reasonable provider would have acted.

Decided by Chief Judge Kasold, and Judges Pietsch and Greenberg.