Geib v. Shinseki , 733 F.3d 1350 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
EDWARD W. GEIB,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7164
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1501, Judge Lawrence B.
Hagel.
______________________
Decided: October 29, 2013
______________________
THOMAS R. BENDER, Chisholm Chisholm & Kilpatrick
Ltd., of Providence, Rhode Island, argued for claimant-
appellant. Of counsel was ZACHARY M. STOLZ.
ALLISON KIDD-MILLER, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent appellee. With her on the brief were STUART
F. DELERY, Principal Deputy Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
2 EDWARD GEIB v. SHINSEKI
and JOSHUA P. MAYER, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
______________________
Before DYK, PROST, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
Edward W. Geib appeals the final decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the March 21, 2011, decision
of the Board of Veterans’ Appeals (“Board”) denying Mr.
Geib’s claim for a total disability rating based on individ-
ual unemployability. Geib v. Shinseki, No. 11-1501, 2012
WL 2050416 (Vet. App. Jun. 7, 2012). For the reasons set
forth below, we affirm.
BACKGROUND
Mr. Geib is a World War II veteran who suffers from
multiple disabilities connected to his combat service. Mr.
Geib developed trenchfoot (a type of immersion injury
resembling frostbite) as a result of being exposed to
extreme cold weather conditions while stationed in Ger-
many in December 1944. After receiving treatment and
returning to duty, an enemy artillery shell exploded in
close proximity to Mr. Geib, causing hearing damage.
The Department of Veterans Affairs (VA) has granted
Mr. Geib disability benefits. Mr. Geib was first assigned
a 10% disability rating in connection with left trenchfoot
when he was discharged from duty in March 1946. The
VA subsequently increased Mr. Geib’s disability rating to
20%, effective August 16, 2003, to account for trenchfoot
on his right foot. On February 3, 2005, Mr. Geib was
assigned a 70% combined disability rating after he was
diagnosed with service-connected bilateral hearing loss
and tinnitus (ringing in the ears).
On April 11, 2007, Mr. Geib applied for total disability
based on individual unemployability (TDIU). In his
EDWARD GEIB v. SHINSEKI 3
application, Mr. Geib indicated that he had worked as a
self-employed carpet consultant from August 1984 to
August 1989, prior to becoming too disabled to work.
Before 1984, Mr. Geib had worked as a supervisor in the
carpet industry. Mr. Geib also indicated in his applica-
tion that he was high-school educated and had completed
some correspondence courses in industrial engineering
between 1947 and 1951.
On June 29, 2007, the VA’s regional office denied Mr.
Geib’s TDIU claim on the basis that the evidence of record
did not demonstrate that he was unemployable. Mr. Geib
appealed to the Board, which in July 2009 remanded the
case to the regional office with orders to provide Mr. Geib
with medical examinations and to re-adjudicate his TDIU
claim.
In April 2010, the regional office ordered a cold
weather examination to address the severity of Mr. Geib’s
bilateral trenchfoot, and an audiological examination to
evaluate his hearing impairment. The regional office
requested that each examiner describe “the extent of
functional impairment due to the veteran’s service-
connected disability(ies) and how that impairment im-
pacts on physical and sedentary employment.”
Mr. Geib underwent an audio examination on May 18,
2010. An audiologist confirmed that Mr. Geib suffered
from hearing loss and tinnitus, with “poor” speech recog-
nition in both ears. With respect to employability, the
audiologist opined:
It is the opinion of this examiner that the veter-
an’s currently diagnosed hearing loss and tinnitus
do not prevent him from seeking or maintaining
gainful physical or sedentary employment within
his community. In fact, individuals with hearing
loss much worse than his are successfully em-
ployed. It can be expected that the veteran’s hear-
ing loss may result in some difficulty
4 EDWARD GEIB v. SHINSEKI
understanding speech in noisy settings or over the
phone. Employment would be more than feasible
in a loosely-supervised situation, requiring mini-
mal interaction with the public.
App. at 60.
The trenchfoot evaluation took place on June 23,
2010. During the evaluation, Mr. Geib reported that his
trenchfoot did not affect his prior job as a supervisor
because he was able to sit at a desk, but that he was
unable to walk more than several miles as a result of his
condition. The medical examiner confirmed that Mr. Geib
suffered from trenchfoot and osteoarthritis. Regarding
employability, the report indicated:
Based on the above facts, it is my opinion that Mr.
Geib’s employment would certainly be affected by
his trenchfoot, and the fact that he could not do a
mildly or moderately physical job that would in-
clude standing or walking for long periods of time.
However, Mr. Geib should be able to obtain and
maintain gainful employment at a sedentary job.
App. at 62-63.
The regional office reassessed Mr. Geib’s TDIU claim
on December 1, 2010. The office increased the disability
rating associated with Mr. Geib’s hearing condition from
50% to 80% because the audio evaluation showed his
hearing loss had worsened. As a result, Mr. Geib’s com-
bined disability rating increased to 90%. The regional
office declined to grant Mr. Geib total disability.
On appeal, the Board determined that Mr. Geib was
not entitled to TDIU. The Board found that the medical
evaluations indicated that Mr. Geib “would be employable
in the type of sedentary position that he had previously
held.” App. at 28. Although it recognized that Mr. Geib’s
disabilities “do affect his employability,” the Board con-
cluded that they “do not prevent him from being em-
EDWARD GEIB v. SHINSEKI 5
ployed, and therefore entitlement to a TDIU is not war-
ranted.” Id.The Veterans Court affirmed the Board’s decision on
June 7, 2012. The court rejected Mr. Geib’s argument
that the Board was required to obtain a single medical
opinion that addressed the impact of all his service-
connected disabilities on employability. 2012 WL
20504126, at *3. The Veterans Court further found that
the Board provided an adequate rationale supporting its
decision not to grant TDIU, and that the Board properly
considered the combined effect of both medical evalua-
tions when it concluded that Mr. Geib was capable of
sedentary employment in the type of loosely supervised
setting described by the audiologist. Id. at *4. The court
also found that the medical examinations were adequate
because they sufficiently described the impact of Mr.
Geib’s hearing and trenchfoot conditions so as to allow the
Board to make an informed decision regarding entitle-
ment to TDIU. Id. at *5.
Mr. Geib timely appealed the decision of the Veterans
Court. We have jurisdiction under 38 U.S.C. § 7292(c).
DISCUSSION
We review de novo legal determinations of the Veter-
ans Court. Willsey v. Peake, 535 F.3d 1368, 1372 (Fed.
Cir. 2008). Except in cases involving constitutional
issues, we may not review challenges to factual determi-
nations or the application of law or regulation to the facts.
See 38 U.S.C. § 7292(d)(2) (2006).
Section 5103A(a) of the Veterans’ Benefits Code obli-
gates the VA to “make reasonable efforts” to assist a
claimant in obtaining the evidence necessary to substan-
tiate a claim for benefits. See 38 U.S.C. § 5103A(a)
(2006). In the context of disability claims, the assistance
provided by the VA shall include “providing a medical
examination or obtaining a medical opinion when such an
6 EDWARD GEIB v. SHINSEKI
examination or opinion is necessary to make a decision on
the claim.” § 5103A(d)(1).
The VA may assign a total disability rating where the
degree of impairment renders it impossible for the aver-
age person to maintain a substantially gainful occupation.
See 38 C.F.R. § 4.15 (2013). A veteran who suffers from
two or more service-connected disabilities is entitled to be
considered for total disability if at least one disability is
ratable at 40% or more, and additional disability brings
the combined rating to 70% or more. 38 C.F.R. § 4.16(a).
A veteran who fails to meet these percentage standards
may still qualify for an “extra-schedular” TDIU rating if
the VA determines that the veteran is unable to secure
employment by reason of his or her service-connected
disabilities. See 38 C.F.R. § 4.16(b).
Mr. Geib argues that the adjudication of a TDIU
claim, where a veteran suffers from multiple service-
connected disabilities, requires a single medical opinion
addressing the aggregate effect of all disabilities on
employability. According to Mr. Geib, this requirement is
implicit in the VA’s duty to assist and its obligation to
provide, in the context of extra-schedular TDIU ratings, a
“full statement as to the veteran’s service-connected
disabilities, employment history, educational and voca-
tional attainment and all other factors having a bearing
on the issue.” 38 C.F.R. § 4.16(b). Mr. Geib contends
that, when a medical opinion does not address all these
factors, the VA may not fill in the gaps by providing its
own “expert” opinion regarding the combined effect of the
veteran’s disabilities. See Appellant’s Br. at 20-22.
We agree with the Veterans Court’s determination
that the VA was not required to obtain a single medical
opinion that addressed the impact of all service-connected
disabilities on Mr. Geib’s ability to engage in substantial-
ly gainful employment. 2012 WL 2050416, at *3. Alt-
hough the VA is expected to give full consideration to “the
EDWARD GEIB v. SHINSEKI 7
effect of combinations of disability,” 38 C.F.R. § 4.15,
neither the statute nor the relevant regulations require
the combined effect to be assessed by a medical expert.
Indeed, applicable regulations place responsibility for the
ultimate TDIU determination on the VA, not a medical
examiner. See 38 C.F.R. § 4.16(a). As part of this ulti-
mate determination, the VA is required to obtain a medi-
cal examination or opinion only when “necessary to make
a decision on the claim.” 38 U.S.C. § 5103A(d)(1). Where,
as here, separate medical opinions address the impact on
employability resulting from independent disabilities, the
VA is authorized to assess the aggregate effect of all
disabilities, as it did.
To be clear, the VA is expected to give full considera-
tion to “the effect of combinations of disability.” 38 C.F.R.
§ 4.15. Additionally, the Board is subject to a statutory
obligation to provide “a written statement of [its] findings
and conclusions, and the reasons or bases for those find-
ings and conclusions, on all material issues of fact and
law presented on the record.” 38 U.S.C. § 7104(d) (2006).
Where neither the regional office nor the Board addresses
the aggregate effect of multiple service-connected disabili-
ties, the record is not adequate to enable the veteran to
understand the precise basis for the decision on a TDIU
claim and facilitate review. See Young v. Shinseki, 22
Vet. App. 461, 466-68 (Vet. App. 2009). But that is not
what happened here, as the regional office and the Board
properly addressed the aggregate effect of Mr. Geib’s
multiple disabilities.
The Board’s analysis was sufficient in this case. The
Veterans Court found that the medical examinations were
adequate and that the Board considered both examina-
tions in assessing the combined effect of Mr. Geib’s disa-
bilities. 2012 WL 2050416, at *4-5. Mr. Geib did not
assert that it was clearly erroneous for the Board to
conclude that both examinations indicated that he would
be employable in the type of sedentary position that he
8 EDWARD GEIB v. SHINSEKI
had previously held. See id. Therefore, the Veterans
Court correctly concluded that the Board’s decision was
adequate to facilitate review and inform Mr. Geib of the
reasons for denying his TDIU claim.
Having decided that the VA’s duty to assist does not
require obtaining a single medical opinion regarding the
combined impact of all service-connected disabilities, we
decline to address Mr. Geib’s remaining argument that
the two medical evaluations in this case were inadequate.
The Veterans Court examined the evidence and deter-
mined that the medical examinations provided a suffi-
cient description of the respective injuries to support the
Board’s ultimate conclusion regarding employability. We
lack jurisdiction to revisit the Veterans Court’s determi-
nation that the Board properly weighed the evidence in
reaching its conclusions. See 38 U.S.C. § 7292(d)(2);
Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010).
Mr. Geib asserts that we may review the Veterans
Court’s determination of the adequacy of the VA examina-
tions because it implicates his due process rights under
the Fifth Amendment. See Appellant’s Br. at 43. We
disagree. With respect to constitutional issues, we may
review decisions by the Veterans Court that (1) rely upon
an interpretation of regulation or statutory provisions
that is “contrary to constitutional right, power, privilege,
or immunity,” or (2) involve genuine “free-standing”
constitutional claims. See 38 U.S.C. § 7292(d)(1)(B); In re
Bailey, 182 F.3d 860, 869-70 (Fed. Cir. 1999). The deci-
sion at issue here implicates neither of these jurisdiction-
al grounds. Mr. Geib argues that denying a TDIU claim
on the basis of inadequate medical opinions violates due
process rights, but the Veterans Court did not interpret a
regulation or statute to permit reliance on inadequate
medical opinions. It simply found the two medical opin-
ions adequate. See 2012 WL 2050416, at *4-5. And it is
undisputed that Mr. Geib did not raise a “free-standing”
constitutional claim below on the basis of the inadequacy
EDWARD GEIB v. SHINSEKI 9
of the medical evaluations. We therefore decline to ad-
dress the adequacy of the medical evaluations on consti-
tutional grounds.
CONCLUSION
Because we perceive no legal error in the proceedings
below, we affirm the final decision of the Veterans Court
affirming the Board’s denial of Mr. Geib’s TDIU claim.
AFFIRMED
COSTS
Each party shall bear its own costs.