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.