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Sean Kendall

Court rules that Medical Examination Not Always Necessary in Unemployability Claim with Multiple Service-Connected Disabilities

The Court has held in the recent case of Flores that a medical examination that takes into account the effect of all disabilities on whether a veteran is unemployable is not always required.  Mr.Flores primarily argues that, for a claimant with multiple service-connected disabilities, a medical opinion addressing the combined effects of all service-connected disabilities is required for the Board to render a decision on entitlement to unemployability, and the Board erred by not securing such an opinion in his case and by not explaining why it did not secure such an opinion.  This argument was rejected by the Court, though it did remand the claim because the Board failed to explain adequately .

Is this Case Bad for Veterans?  Or can we Use it for Advantage?

At first glance, this case seems bad for veterans, however, a closer reading shows that the Court will require that the VA have evidence in the file on each of a veterans multiple-service-connected disabilities and each disabilities' effect on employment.  Thus, with this case, one can argue at the Regional Office to the Decision Review Officer (DRO) that while a multiple-service-connected disability unemployability examination is not required, it certainly would overcome any ambiguity in a case by settling the issue.  Further, one could also use this case before the DRO to forestall any unnecessary development; one could argue to the DRO that a multiple-service-connected disability examination is not necessary under the case and that the DRO may grant the claim based on existing medical examinmations (or Disability Benefits Questionaires (DBQs)) for each individual disability.  Please contact my office if you need help in crafting this argument to present to the VA. My book, the Veterans Benefits Handbook, also has some insight on how to present this issue.