Williams v. McDonough

1

Jerry A. Williams, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.

No. 21-7762

United States Court of Appeals For Veterans Claims

May 5, 2023

Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.

Alexandra Curran, Esq. VA General Counsel

Before LAURER, Judge.

MEMORANDUM DECISION

LAURER, Judge:

United States Marine Corps veteran Jerry A. Williams appeals through counsel, an August 5, 2021, Board of Veterans' Appeals (Board) decision denying a total disability rating based on individual unemployability (TDIU).^[1] Both parties agree that the Board erred since it failed to properly explain why it concluded that appellant was capable of substantially gainful employment.^[2] More precisely, they agree that the Board failed to properly consider whether appellant works in a protected work environment, which could establish that he's capable of only marginal employment and not substantially gainful employment.^[3] The dispute-if one exists-is over the particulars of the Board's duty on remand. The Court will remand the claim and clarify the Board's responsibilities when readjudicating it.

I. ANALYSIS

A. Legal Landscape

The Board is the initial factfinder, and it must weigh and analyze the record.^[4] The Court reviews the Board's denial of TDIU under the "clearly erroneous" standard.^[5] Under this standard of review, the Court must affirm the Board's findings so long as there's plausible support for them in the record.^[6] In short, the Court reviews the Board's factual findings and doesn't weigh the evidence itself.^[7]

TDIU is appropriate if a veteran's service-connected disabilities render him or her unable to secure and follow a substantially gainful occupation.^[8] The central inquiry in deciding whether a veteran is entitled to TDIU is "whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."^[9] The Board must consider the combined effects of all the service-connected disabilities when it assesses for TDIU. ^[10] The Board's TDIU determination depends on the veteran's particular circumstances and must "take into account the individual veteran's education, training, and work history." ^[11] "Marginal employment is not considered substantially gainful, meaning that veterans who are engaged in marginal employment may be awarded TDIU even though they are working."^[12]

In all decisions, the Board must support its legal conclusions and factual determinations with adequate reasons or bases that enable appellant to understand the precise bases for its decision and facilitate this Court's review. ^[13] To satisfy this requirement, the Board must analyze the credibility and probative value of relevant evidence, account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to appellant.^[14]

B. Reasons or Bases

Appellant asks the Court to remand his claim for TDIU since the Board didn't properly consider whether his employment in a family business qualifies as marginal employment. ^[15]Appellant also requests that the Board explain the term "protected environment" when it rereviews his claim for TDIU.^[16] The Secretary concedes that remand is warranted because the Board didn't explain (1) what factors it considered when determining appellant didn't work in a protected environment, and (2) the legal standard for assessing what constitutes a protected environment.^[17]The Court accepts the Secretary's concession and holds that remand of appellant's claim for TDIU is proper.^[18] On remand, the Board must reassess whether appellant qualifies for TDIU and evaluate whether his employment was in a protected environment.

The Court next turns to the Board's duties on remand. The Secretary requests that the Court allow the Board to reassess whether VA complied with its predecisional duty to assist.^[19] In his reply brief, appellant agrees but takes a further step, contending that "VA failed to obtain information about [appellant's] vending business though it was reported multiple times in the record." ^[20] By statute, the Board must rereview and assess whether VA complied with its predecisional duty to assist under the modernized appeal system. ^[21] And if VA undertakes development, it must comply with the law.^[22]

Also in his reply brief, appellant makes a request that wasn't part of his opening brief.^[23]He cites Andrews^[24] and asks the Court to instruct that on remand he may submit additional evidence and argument to the Board.^[25] But Andrews urges otherwise, and it supports that the Court find the argument forfeited.^[26] The Andrews Court cautioned against the practice of failing to properly develop an argument in the opening brief.^[27] Thus, consistent with its general practice, the Court declines to review appellant's late request. ^[28] On remand, the Board must undertake a thorough and critical review of the evidence and must do so in an expeditious manner, in accordance with 38 U.S.C. § 7112.^[29]

II. CONCLUSION

For these reasons, the Court SETS ASIDE that part of the Board's August 5, 2021, decision denying TDIU, and the Court REMANDS the matter. The Court DISMISSES the appeal of those parts of the Board's decision denying a rating above 20% for type 2 diabetes mellitus with diabetic neuropathy and denying a rating above 70% for PTSD.

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^[1] Record (R.) at 5-18. The Board also granted an initial rating of 20% for both left and right lower extremity peripheral neuropathy, which are favorable determinations that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 Fed.Appx. 625 (Fed. Cir. 2009). The Board denied a rating above 20% for type 2 diabetes mellitus with diabetic neuropathy and denied a rating above 70% for post-traumatic stress disorder (PTSD). Because appellant doesn't challenge those parts of the Board decision, the Court dismisses the appeal on those matters. See Pederson v. McDonald, 27 Vet.App. 276, 28185 (2015) (en banc).

^[2] Compare Appellant's Brief (Br.) at 9-12, with Secretary's Br. at 8-11.

^[3] Compare Appellant's Br. at 9-12, with Secretary's Br. at 8-11.

^[4] 38 U.S.C. § 7261; see also Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013).

^[5] 38 U.S.C. § 7261(a)(4); see also Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009) (holding that the Court's review of the Board's decision under 38 U.S.C. § 7261(b)(2) must "take due account of the rule of prejudicial error"); Bowling v. Principi, 15 Vet.App. 1, 6 (2001).

^[6] Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).

^[7] Deloach, 704 F.3d at 1380.

^[8] 38 C.F.R. § 4.16 (2022).

^[9] Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993).

^[10] See Geib v. Shinseki, 733 F.3d 1350, 1354 (2013) (instructing that the Board's TDIU analysis must address the aggregate effect of multiple disabilities); see also Floore v. Shinseki, 26 Vet.App. 376, 382 (2013) (finding Board error for failing to review "the cumulative functional impairment of all his service-connected disabilities" when it considers entitlement to TDIU).

^[11] Pederson, 27 Vet.App. at 286; see Ray v. Wilkie, 31 Vet.App. 58, 70-71 (2019).

^[12] Arline v. McDonough, 34 Vet.App. 238, 245 (2021) (citing 38 C.F.R. § 4.16(a); Ortiz-Valles v. McDonald, 28 Vet.App. 65, 71 (2016)). Employment is marginal when a veteran works in a protected environment or fails to earn an income above the poverty threshold.

^[13] 38 U.S.C. § 7104(d)(1); Washington v. Nicholson, 19 Vet.App. 362, 366-67 (2005).

^[14] Washington, 19 Vet.App. at 366-67.

^[15] Appellant's Br. at 12.

^[16] Appellant's Br. at 12.

^[17] Appellant's Br. at 11.

^[18] Appellant's Br. at 9-12; Secretary's Br. at 8-11. Although the Court needn't accept the Secretary's concession of error, the Court generally encourages the parties to identify areas where they agree and concede when appropriate. See Minshall v. Brown, 4 Vet.App. 195, 198 (1993); see also Checo v. Shinseki, 748 F.3d 1373, 1378 n.5 (Fed. Cir. 2014).

^[19] Secretary's Br. at 11-14.

^[20] Appellant's Reply Br. at 4. Appellant also asked the Court to reject the Secretary's "misplaced focus" on appellant's failing to provide information about his vending machine business. But appellant refers to the part of the Secretary's brief relaying the relevant facts and not to any legal arguments presented. The Court finds that appellant overstates the Secretary's precise position on the duty to assist.

^[21] 38 U.S.C. § 5103A(f)(2)(A) ("If the Board . . . during review on appeal of an agency of original jurisdiction [(AOJ)] decision, identifies or learns of an error on the part of the [AOJ] to satisfy its duties under this section, and that error occurred prior to the [AOJ] decision on appeal, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the Board shall remand the claim to the [AOJ] for correction of such error and readjudication."); see Andrews v. McDonough, 34 Vet.App. 151, 159 (2021) (expecting the Board on remand to reexamine the record, seek any other evidence if the AOJ failed to satisfy the duty to assist, and issue a timely, well-supported decision).

^[22] Compare Douglas v. Shinseki, 23 Vet.App. 19, 25 (2009) (holding that the Secretary has an affirmative duty "to gather the evidence necessary to render an informed decision on the claim, even if that means gathering and developing negative evidence, provided he does so 'in an impartial, unbiased, and neutral manner.'" (citation omitted)), with Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (noting that it's improper for VA to develop a claim to purposely obtain evidence against an appellant's case).

^[23] Co...