Wednesday, February 8, 2012

Single Judge Application, Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011), Prejudice Where Error Could of Made Difference

Excerpt from decision below: "Here, because the Board did not believe it had jurisdiction over the issue, it did not address whether there were facts supporting an award of TDIU between the periods that were adjudicated separately, and after the last adjudication for TDIU. Remand is warranted for the Board to address this matter in the first instance. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made a difference in outcome); Tucker v. West, 11 Vet.App. 369, 374(1998)(remand is appropriate"where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo factfinding but rather to remand for the Board to find facts in the first instance, subject to later 2 review by Court)." ======================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-3176 ANTHONY G. HARRIS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Anthony G. Harris appeals pro se a July 14, 2010, decision of the Board of Veterans' Appeals (Board) that denied his claim for a disability rating in excess of 20% for a right-knee disability from February 1 to October 14, 2005, and from January1, 2006, to February 2, 2010, and determined it lacked jurisdiction over entitlement to total disability based on individual unemployability (TDIU). Mr. Harris argues that the Board erred by (1) not properly applying 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2011) and DC 5003, and (2) not finding that he has been totallydisabled since 2005. The Secretarydisputes these contentions. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 ( 1990). For the reasons stated below, the decision of the Board will be affirmed in part, and set aside in part, and the matter remanded for further adjudication. Although Mr. Harris argues that the Board did not properly apply DCs 5257 and 5003, he fails to demonstrate how the Board misapplied these DCs, or that the Board erred in its rating, and error is not discerned on review of the record of proceedings. See Johnston v. Brown, 10 Vet.App. 80, 84 (1997) (holding that the Board's decision regarding the degree of disability under the rating schedule is a finding of fact subject to the "clearly erroneous" standard of review); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction thatamistakehasbeencommitted.'"(quotingUnitedStatesv.U.S. GypsumCo., 333 U.S. 364, 395 (1948))); see also Stankevich v. Nicholson, 19 Vet.App. 470, 472 ( 2006) (stating that "the Court reviews the selection of a DC under the [']arbitrary-and-capricious[' ] standard of review"). With regard to TDIU, the Board noted that Mr. Harris had March 2005 and January 2007 requests for TDIU denied in July 2006 and February 2008, respectively, and their denials were not appealed. The Board therefore concluded that it did not have jurisdiction over the issue. Although the Board is correct with regard to the periods covered by the July 2006 and February 2008 decisions, such decision did not divest the Board of jurisdiction overthe issue of TDIU for the period between July 2006 and January 2007 and after February 2008. This is because potential entitlement to TDIU is part of every claim for disability compensation. See Rice v. Shinseki, 22 Vet.App. 447, 454-55 (2009) (TDIU "is part and parcel of the determination of the initial rating for [a] disability"). Although the Secretaryand the Board can separate parts of a claim and develop and adjudicate them separately, see Fagre v. Peake, 22 Vet.App. 188, 191 n.4 (2008) (noting the Secretary is free to "issu[e] separate Board decisions with regard to each,some, oralldisabilitiesclaimedbya veteran"), TDIU remains a component of an increased rating claim for any period not adjudicated separately, and the Board has jurisdiction over the issue as long as it has jurisdiction over an increased rating claim, see Rice, supra. Evidence of unemployability subsequent to a decision denying TDIU and while a claim for increased benefits is still being processed may lead to an award of TDIU for the time period under adjudication. Here, because the Board did not believe it had jurisdiction over the issue, it did not address whether there were facts supporting an award of TDIU between the periods that were adjudicated separately, and after the last adjudication for TDIU. Remand is warranted for the Board to address this matter in the first instance. See ArnesonNext Document v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made a difference in outcome); Tucker v. West, 11 Vet.App. 369, 374(1998)(remandis appropriate"wheretheBoardhasincorrectlyappliedthelaw, failedto provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo factfinding but rather to remand for the Board to find facts in the first instance, subject to later 2 review by Court). On remand, Mr. Harris may present, and the Board must consider, any additional evidence and argument in support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The remanded matter is to be provided expeditious treatment. See 38 U.S.C. § 7112. Upon consideration of the foregoing, that part of the Board's July 14, 2010, decision that found the Board did not have jurisdiction over TDIU is SET ASIDE and the matter REMANDED for further adjudication consistent with this opinion, and the remainder of the Board's decision is AFFIRMED. DATED: February 6, 2012 Copies to: Anthony G. Harris VA General Counsel (027) 3