Evelyn M. Todd v. Robert A. McDonald
2014 U.S. Vet. App. LEXIS 1514
| Vet. App. | 2014Background
- Veteran Robert M. Todd served in the Air Force (1952–1954) and claimed service-connected bilateral hearing loss and tinnitus; VA eventually granted service connection and assigned an 80% rating for hearing loss (effective Nov. 9, 2011) and 10% for tinnitus.
- Mr. Todd reported severe functional limitations from hearing loss (unable to use telephone, difficulty understanding conversations especially with background noise, work termination(s) attributed to hearing), and his spouse corroborated these effects.
- VA obtained a January 2012 audiology opinion that, while recognizing significant word-recognition problems, stated the hearing loss alone would not preclude employment in contexts not dependent on auditory communication; the examiner also noted many deaf individuals have rewarding careers.
- The Board (Dec. 20, 2012) denied referral for an extraschedular rating and denied TDIU, relying on the January 2012 exam and other record evidence; the veteran died during appeal and his spouse was substituted.
- The Court found the Board failed to address potentially favorable non-medical evidence (notably Vocational Rehabilitation/Employment (VR&E) records and the veteran’s October 2012 letter reporting VR&E conclusions) and possibly failed to obtain those VR&E records, frustrating review.
- The Court set aside the Board decision and remanded both TDIU and extraschedular referral for additional development (including obtaining VR&E records if not already in file) and a readjudication considering the veteran’s individualized circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board erred in denying TDIU | Todd argued Board wrongly relied on generalizations in Jan. 2012 exam and ignored lay and medical evidence showing unemployability | Secretary argued Jan. 2012 exam and record support denial and are adequate | Remanded: Board failed to address potentially favorable evidence (VR&E records, lay statements) and must develop/readjudicate TDIU with individualized analysis |
| Adequacy of Jan. 2012 audiology exam | Todd: examiner’s general comment about deaf individuals is irrelevant to individualized TDIU assessment | Sec: exam was adequate and supports denial | Court: examiner’s generalization could be problematic, but here exam discussed veteran’s specifics; no prejudicial error solely on that basis, but record incomplete for TDIU determination |
| Whether VA satisfied duty to assist by obtaining VR&E records | Todd: VR&E records exist/are referenced and were not obtained; failure frustrates review | Sec: contends evidence sufficed and duty was met | Remanded: Board must obtain VR&E records the veteran identified or explain efforts; duty to assist requires obtaining relevant federal agency records unless futile |
| Whether referral for extraschedular rating under 38 C.F.R. §3.321 was required | Todd: Board improperly declined referral without complete record and without addressing VR&E evidence | Sec: argued schedular rating adequate and no extraschedular factors shown | Remanded: Because TDIU remand may produce relevant employability evidence, extraschedular referral must be reconsidered after full development; Board to evaluate collectively (per later precedent) if applicable |
Key Cases Cited
- Rice v. Shinseki, 22 Vet.App. 447 (2009) (TDIU requires individualized assessment)
- Hatlestad v. Derwinski, 3 Vet.App. 213 (1992) (consider individual, not average person, for disability ratings)
- VanMeter v. Brown, 4 Vet.App. 477 (1993) (TDIU standard discussion)
- Allday v. Brown, 7 Vet.App. 517 (1995) (Board must address material favorable evidence)
- Caluza v. Brown, 7 Vet.App. 498 (1995) (Board must analyze probative value and reasons for rejecting favorable evidence)
- Thun v. Peake, 22 Vet.App. 111 (2008) (three-step extraschedular referral framework)
- Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013) (standard for reversal vs. remand; reversal only when only permissible view of evidence supports relief)
- Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (VA must obtain records adequately identified and authorized by claimant)