Geib v. Shinseki

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.