Tuesday, November 5, 2013

Floore v. Shinseki

Floore v. Shinseki, 26 Vet.App. 376 (Vet.App. Nov. 5, 2013)
This panel opinion was circulating within the Veterans Court for review when the Federal Circuit issued Geib v. Shinseki. The primary issue in Floore is the same as in Geib – whether VA is required to obtain a single medical opinion that assesses the aggregate effect of all service-connected conditions to determine entitlement to TDIU. 

In Floore, the Court discussed and distinguished the various cases relied on by the appellant, and found that none of these cases held that a combined-effects examination is required in assessing TDIU claims. The Court also considered VA’s Fast Letter 13-13, and found that this letter provides guidance, not direction, and that it is ultimately up to the rating agency to determine the need for a medical opinion. The Court held that “the need for a combined-effects medical examination report or opinion with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by the [RO] or the Board.” Floore, 26 Vet.App. at 381.

Nevertheless, the Court remanded because it found the Board’s reasons or bases inadequate for review. The Court stated that even though a combined-effects examination is not necessary, “the Board nevertheless must adequately explain how the record evidence supports its determination that the combined effects of multiple disabilities do not prevent substantially gainful employment.” Id. at 382. The Court noted that while the Board “recognized that the cumulative effects of service-connected disabilities can prevent substantially gainful employment, the Board addressed the effects of Mr. Floor’s disabilities individually, and never explained what the cumulative functional impairment of all his service-connected disabilities might be and why they do not prevent substantially gainful employment.” Id. The Court noted that the Board failed to discuss the effects of the veteran’s diabetes, one of his service-connected conditions. The Court also noted that the Board was influenced by the fact that the veteran terminated his employment as a result of non-service-connected conditions, but failed to explain how evidence of that termination was weighed 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 substantially gainful employment.” Id. at 383. Advocacy Practice Note: Many veterans are denied TDIU because they obtained Social Security disability benefits for non-service-connected conditions. The language in this case should be helpful in requiring VA to explain the relevance of such SSA decisions on the TDIU decision.

No comments:

Post a Comment