Thursday, April 26, 2012

Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011); Board Error when Failure to Address Issue Raised

Excerpt from decision below: "Further, although Mr. Ramirez-Arce argues that the Board should have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-3678 ORLANDO RAMIREZ-ARCE, 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 Orlando Ramirez-Arce appeals through counsel that part of an October 4, 2010, decision of the Board of Veterans' Appeals (Board) that (1) denied a disability rating in excess of 10% for hemorrhoids, (2) denied entitlement to service connection for an upper back disorder, and (3) denied entitlement to service connection for erectile dysfunction (ED). Mr. Ramirez-Arce argues that the Board clearly erred in finding that the Secretary satisfied his duty to assist, and provided inadequate reasons or bases for its determinations. The Secretary agrees that the Board provided inadequate reasons or bases for the ED matter, but disputes Mr. Ramirez-Arce's remaining contentions. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of the Board decision denying a disability rating in excess of 10% for hemorrhoids will be affirmed, and that part of the decision denying entitlement to service connection for an upper back disorder and ED will be set aside and the matters remanded for further adjudication. The record does not support Mr. Ramirez-Arce's arguments regarding the hemorrhoids matter. The Board found that a 20% disability rating was unwarranted because the 2008 medical report noted hemorrhoids with "frequent" bleeding (Record (R.) at 272; see 38 C.F.R. § 4.114, Diagnostic Code (DC) 7336 (2011) (requirement for a 10% rating)), not hemorrhoids with "persistent bleeding and with secondary anemia, or with fissures" (DC 7336 (requirement for a 20% rating)). Although Mr. Ramirez-Arce asserts that the 2008 report is inadequate because it did not address anemia, the Secretary correctly notes that even a finding of anemia would not meet the schedular requirement for a 20% rating without a finding of persistent bleeding. Although Mr. Ramirez-Arce responds that a finding of anemia could warrant a 20% ratingbased on 38 C.F.R. § 4.7 (2011) ("Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."), he fails to explain how a finding of anemia without persistent bleeding would create "a question as to which of two evaluations shall be applied." Id.; see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). Further,although Mr.Ramirez-Arce argues that the Board should have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011) (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record). In fact, the record reflects that he acknowledged his lack of anemia. See R. at 46 (stating, in his "Informal Hearing Presentation" to the Board, that he "does not presently exhibit secondary anemia or fissures"). Accordingly, Mr. Ramirez-Arce fails to demonstrate clear error in the Board's duty-to-assist determination or inadequate reasons or bases for its rating determination on this matter. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (Board determination that Secretary satisfied the dutyto assist is reviewed under the "clearly erroneous" standard); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is clearly erroneous when . . . the reviewing court on the entire evidence is left with the definite and firmconvictionthat a mistake has been committed.'"(quoting United States v. U.S. GypsumCo.,333 U.S. 364, 395 (1948))); see also Hilkert, supra; Allday v. Brown, 7 Vet. App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). On the other hand, the record supports Mr.Ramirez-Arce's argumentthattheBoard provided inadequate reasons or bases for denying service connection for a back condition. The Board acknowledged a 1989 psychiatric report discussing the interplay of his back condition and post- 2 traumatic stress disorder (PTSD), but found that the report "did not specifically relate" the back condition to PTSD and therefore that there was "no medical evidence linking" the back condition to PTSD. R. at 14, 15. However, the Board's interpretation of that report is not understandable in light of the report's statement that Mr. Ramirez-Arce's PTSD "adds" to his back condition. R. at 1669 ("The associated symptoms of the [PTSD] with anxiety, hyper-vigilance, tension state, and fearfulness, adds to the [back] disability."); see Allday, supra. Moreover, although the Board noted evidence that his PTSD is unrelated to his back condition – including a June 2006 fibromyalgia report not in the record of proceedings and a November 2003 report attributing the back condition to the 1987 restraining of a man attempting suicide (which was caused by PTSD according to the 1989 psychiatric report) – the Board did not explain how it might have weighed these reports against the other medical evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 367 (2005) ("[T]he Board must analyze the credibility and probative weight of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant."); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial fact finding."). Accordingly, remand is warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has incorrectlyapplied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). The record also supports the parties' argument that the Board provided inadequate reasons or bases for denying serviceconnection for ED. More specifically, Mr.Ramirez-Arce raised a theory of service connection – that his ED is related to his PTSD medications – and the Board failed to address or obtain medical evidence1 on this theory. See R. at 523 (Notice of Disagreement stating: "PTSD stress is a major contributor in ED as well as medication used to treat PTSD."), 1264 (statement in support of claim asserting: "I am requesting [service connection] for [ED] secondary to PTSD condition [and] medications taken for same condition."); see also R. at 14-16 (Board not addressing PTSD medications), 446-50 (2007 report not addressing PTSD medications), 1244-48 1 The Secretary generally must provide a medical examination or opinion on a theory of service connection if there is, inter alia, an indication that his disability "may be associated with the veteran's service" through that theory and insufficient medical evidence on that theory. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see Robinson v. Peake, 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). 3 (2005 report not addressing PTSD medications). The Board's failure to address a theory for service connection raised by a claimant frustrates judicial review, such that remand is warranted. See Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a theoryof entitlement that was raised . . . by the appellant"); Tucker and Allday, both supra. The parties also note that the Board did not address the 2007 medical report's statement that ED was a " diabetic related genitourinary symptom." R. at 440. The Board should address this statement on remand. See Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a theoryof entitlement that was [reasonably] raised . . . by the evidence of record"). Also on remand, Mr. Ramirez-Arce may present, and the Board must consider, any additional evidence and argument in support of the remanded matters. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. Accordingly, that part of the October 4, 2010, Board decision denying a disability rating in excess of 10% for hemorrhoids is AFFIRMED, and that part of the decision denying entitlement to service connection for an upper back disorder and ED is SET ASIDE and the matters REMANDED for further adjudication. DATED: April 19, 2012 Copies to: Glenn R. Bergmann, Esq. VA General Counsel (027) 4

Briley v. Shinseki, No. 11-1579(DATED: April 19, 2012); Substitution Following Veterans Death

Excerpt from decision below: "For the purposes of this opinion, it is sufficient to observe that Mrs. Briley died while her appeal was pending before this Court and no one who would be potentially eligible to receive accrued benefits has sought substitution." ============================= ---------------------------------------------------- UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1579 ANNETTE B. BRILEY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge, and HAGEL and LANCE, Judges. ORDER On May 18, 2011, the appellant, widow of deceased veteran Richard R. Briley, through counsel, filed a Notice of Appeal from a January 31, 2011, Board of Veterans' Appeals (Board) decision denying entitlement to service connection for the veteran's colon cancer for the purposes of accrued benefits. On February 7, 2012, appellant's counsel notified the Court that the appellant died on January 29, 2012, provided a copy of the appellant's obituary, and filed a motion requesting a 30-day stay to locate a potential accrued benefits claimant for substitution. On March 14, 2012, the Court denied the motion as moot as more than 30 days had already elapsed and ordered appellant's counsel to show cause, within 14 days, why the appeal should not be dismissed. Appellant's counsel did not respond to the Court's order. In Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990), the Court chose "to adhere to the case or controversy jurisdictional restraints adopted by Article III Courts." Although the Court initially adopted the case-or-controversy requirement "as a matter of policy," the Court, as our concurring colleague admits, did not make the application of that requirement discretionary. Id. at 15. Rather, beginning with Mokal and continuing unimpeded to this day, the Court has steadfastly held that a matter before this Court that does not present a live case or controversy must be dismissed for a lack of jurisdiction. See, e.g., Mendoza v. Shinseki, 25 Vet.App. 189 (2012) ( per curiam order); Moore v. Peake, 22 Vet.App. 239 (2008) (per curiamorder); Hyatt v. Peake, 22 Vet. App. 211 (2008); Nolan v. Nicholson, 20 Vet.App. 340 (2006); Ramsey v. Nicholson, 20 Vet.App. 223 ( 2006); Polovick v. Nicholson, 24 Vet.App. 257 (2006); Urban v. Principi, 18 Vet.App. 143 ( 2004) (per curiam order); Long v. Principi, 17 Vet.App. 555 (2004); Breeden v. Principi, 17 Vet.App. 475 (2004) (per curiam order); Herlehy v. Principi, 15 Vet.App. 33 (2001) (per curiam order); Hibbard v. West, 13 Vet.App. 546 (2000) (per curiam order); Haines v. Gober, 10 Vet. App. 446 (1997) ( per curiam order); Hudgins v. Brown, 8 Vet.App. 365 (1995) (per curiam order); Landicho v. Brown, 7 Vet.App. 42 (1994); Shoen v. Brown, 6 Vet.App. 456 (1994); Dofflemyer v. Brown, 4 Vet. App. 339 (1993) (per curiam order); Coombs v. Principi, 3 Vet.App. 530 (1992) (per curiam order ); Waterhouse v. Principi, 3 Vet.App. 473 (1992); Bond v. Derwinski, 2 Vet.App. 376 (1992) ( per curiam order); Mokal, 1 Vet.App. at 15. This Court has long grappled with the question of whether a live case or controversy exists after an appellant dies. See, e.g., Breedlove v. Shinseki, 24 Vet.App. 7, 14-22 (2010); Pekular v. Mansfield, 21 Vet.App. 495, 498-502 (2007); Landicho, 7 Vet.App. at 49-54. However, we need not venture down that tortuous path again. For the purposes of this opinion, it is sufficient to observe that Mrs. Briley died while her appeal was pending before this Court and no one who would be potentially eligible to receive accrued benefits has sought substitution. It is beyond axiomatic that, where there is no appellant, there is no case or controversy. To hold otherwise would be to empower the Court to issue advisory opinions that have no definite and concrete connection to the legal relations of the putative parties. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41 (1937) (explaining that a justiciable controversy "must be definite and concrete, touching the legal relations of parties having adverse legal interests" and "must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts"); see also GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 382 (1980) ("The purpose of the case-or-controversy requirement is to 'limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" (quoting Flast v. Cohen, 392 U.S. 83, 85 (1968))). Such a practice would contravene the venerable principle that federal courts are not "merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding," and the Court, therefore, will not condone it. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982). Instead, the Court will reiterate its unflinching adherence to the jurisdictional limitations contained in Article III, which "assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of judicial action." Id. at 472. Moreover, contrary to our concurring colleague's opinion, the decision of the U.S. Supreme Court in Henderson v. Shinseki, 131 S. Ct. 1197 (2011), did not in any way alter the Court's case-or-controversy analysis. In Henderson, the Supreme Court held that 38 U.S.C. § 7266(a), which provides that a person adversely affected by a final Board decision must file a Notice of Appeal within 120 days after the mailing of that decision to obtain review in this Court, was "an important procedural rule," but was not jurisdictional. 131 S. Ct. at 1206. In doing so, the Supreme Court clearly indicated that our authority must be based on what Congress intended and, therefore, did not enlarge our jurisdiction beyond that expressly given to us by Congress. See id. at 1203 ("The question here, therefore, is whether Congress mandated that the 120–day deadline be 'jurisdictional.'" (emphasis added). In fact, the Supreme Court has long held that federal courts "possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (internal citations omitted). Our concurring colleague fails to cite any authority suggesting that Congress, in creating this Court, intended to except it from the bedrock principle that courts may not issue advisory opinions in the absence of a live case or controversy. Accordingly, because the holding in Henderson only addressed the narrow question of "whether a veteran's failure to file a [N]otice of [A]ppeal within the 120-day period should be regarded as having 'jurisdictional' consequences," 2 131 S. Ct. at 1200, and because it reaffirmed the principle that our power is defined by Congress's intent, that decision does not undermine Mokal or its progeny. Finally, although our concurring colleague cites Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007), to support his assertion that the Court could have issued a decision in this case nunc pro tunc to the date of Mrs. Briley's death, Padgett expressly states that nunc pro tunc relief would not be appropriate in a case such as this. Specifically, the U.S. Court of Appeals for the Federal Circuit rejected the Secretary's argument that "nunc pro tunc relief may cause the court to issue advisory opinions or decide hypothetical cases," holding that, "[if] the court were not aware of any potential accrued-benefits claimants, or if all potential accrued-benefits claimants failed to qualify," the only appropriate disposition would be to dismiss the appeal and vacate or reverse the underlying decision. Id. at 1371. Consequently, because this appeal has become moot by virtue of the death of the appellant, and because the Court has not received any request that another party be substituted for the appellant, the appeal will be dismissed and the underlying Board decision vacated. See Breedlove v. Shinseki, 24 Vet.App. 7, 21 (2010) (noting that where "no one seeks substitution . . . Board vacatur and dismissal of the appeal would be the appropriate action"); Landicho, 7 Vet.App. at 53-54. Upon consideration of the foregoing, it is hereby ORDERED that the January 31, 2011, Board decision is VACATED with respect to the matters appealed to the Court. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction. DATED: April 19, 2012 PER CURIAM KASOLD, Chief Judge, concurring in part: Inasmuch as counsel for the deceased appellant failed to respond to an order to show cause why the appeal should not be dismissed, I concur in now dismissing the appeal. Dismissal, however, should be for failing to respond, U.S. VET. APP. R. 38(b) ("Failure . . . to comply with an order of the Court . . . may be grounds for . . . dismissal of the appeal."), not for lack of jurisdiction. Our jurisdiction, like that of all federal courts other than the Supreme Court, is established solely by Congress, not the Court. Sheldon v. Sill, 49 U.S. 441, 449 (1850). As my colleagues seem to admit, the requirement in our Court for a case or controversy is an important prudential rule wisely adopted by the Court in its formative year, but it is not in our jurisdictional statute. See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting "as a matter of policy the jurisdictional restrictions of the Article III case or controversy rubric"); see also Padgett v. Nicholson, 473 F.3d 1364, 1370 (Fed. Cir. 2007) (noting that this Court is "not formally bound by" the case or controversy requirement but "nevertheless, adheres to it"). Accordingly, although application of the case or controversy requirement is not discretionary absent Mokal being overturned by the en banc Court or statute, Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992), dismissal under this important prudential rule nevertheless is not a dismissal for lack of jurisdiction. 49 U.S. at 449; cf. Henderson 3 v. Shinseki, 131 S. Ct. 1197, 1206 (2001) (finding that 38 U.S.C. § 7266( a) was an "important procedural rule" but not jurisdictional); see also Breedlove v. Shinseki, 24 Vet.App. 7, 17 n.5 (2010) (per curiam order) (citing Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996) and noting that the Court does not lack jurisdiction upon the death of the claimant). Indeed, in addition to dismissing the appeal, the Court also had the option of rendering a decision nunc pro tunc. See Mitchell v. Overman, 103 U.S. 62, 64-65 (1880) (noting the authority of a court to issue a decision nunc pro tunc generally, and specifically when death occurs after the matter has been submitted and any delay in issuing the decision was not due to the parties); Padgett, 473 F.3d at 1367 ("Where a party dies after his case is submitted, but before the opinion issues . . . , the Supreme Court has consistently entered judgment nunc pro tunc to the date of the party's death . . . ."). The appellant in this case died after the case was submitted, see Breedlove, 24 Vet.App. at 18 (noting that case is submitted for decision "upon completion of the briefing period"), and, although the attorney for the deceased appellant did not respond to the Court's show cause order, the decedent's estate, at a minimum, is a potential accrued benefits beneficiary, 38 U.S.C. § 5121(a)(6), such that issuance of a decision nunc pro tunc was a viable option. See Padgett, 473 F.3d at 1371 (finding dismissal appropriate "if the court were not aware of any potential accrued-benefits claimants" (emphasis added)); see also Mitchell, supra. Moreover, an accrued benefits beneficiary has up to one year after date of death of a VA beneficiary to request substitution, 38 U.S.C. § 5121A(a)(1), such that – even after dismissal in this case – there very well might be judicial economy reasons to permit an accrued benefits beneficiary to seek substitution within the one-year period after the death of the appellant and prior to mandate entering in this case. See Breedlove, 24 Vet.App. at 17 (noting that substitution "'furthers judicial and administrative economy'" (quoting Padgett, 473 F.3d at 1370)). As noted at the outset of my concurring statement, however, the failure of counsel to respond to the Court's order is a valid basis for dismissing this matter at this time, and it is the basis for my concurrence in part with the order issued today by the majority. 4

Githens v. Shinseki, No. 2010-7129(Decided: April 26, 2012); TDIU, 4.16(a), Considered on Service-connected Disabilities

Excerpt from decision below: "The Veterans Court in a series of cases has consistently interpreted § 4.16(a) to require that only service-connected disabilities may be considered in a § 4.16(a) TDIU analysis.3" =========================== United States Court of Appeals for the Federal Circuit __________________________ KAREN S. GITHENS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2010-7129 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-4239, Judge Alan G. Lance, Sr. __________________________ Decided: April 26, 2012 __________________________ KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. L. MISHA PREHEIM, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of coun- GITHENS v. DVA 2 sel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and TRACEY P. WARREN, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before RADER, Chief Judge, and NEWMAN and REYNA, Circuit Judges. REYNA, Circuit Judge. Ms. Karen S. Githens-Bellas appeals the decision of the Court of Appeals for Veterans Claims (“Veterans Court”) that affirmed the Regional Office’s (“RO”) 1996 denial of total disability based on individual unemployability (“TDIU”). Githens-Bellas v. Shinseki, No. 08-4239, at *1 (CAVC May 12, 2010) (“Op.”). Ms. Githens-Bellas believes that the Veterans Court erred when it upheld a finding that the RO did not commit clear and unmistakable error (“CUE”). For lack of jurisdiction, we dismiss. I. FACTUAL HISTORY Ms. Githens-Bellas served in the U.S. Army from September 1980 to February 1981 and from April 1981 to May 1983. During her service, Ms. Githens-Bellas suffered an injury to her knees and wrist. The RO assigned a 10 percent rating to her left wrist with an effective date of November 12, 1986. In 1987, Ms. Githens-Bellas’s right upper arm was injured as a result of the medical care she received from the Department of Veterans Affairs (“VA”). In 1990, her injury to right knee and shoulder were each rated at 20 percent and her left knee at 30 percent. After leaving service, she received disability benefits for the service-related injuries and the injury to her upper arm. In 1996, she was unable to continue working as a bookkeeper. GITHENS v. DVA 3 II. PROCEDURAL HISTORY In August 1996, Ms. Githens-Bellas brought a claim before the VA for TDIU. A VA examiner diagnosed her with the following service-connected disabilities: stress fractures of her left and right knees and a contusion of the spinal accessory nerve with wasting of the upper region of her right trapezius muscle and limitation of motion. She was also diagnosed with non-service-connected disabilities, including lipoma in her lower back, migraine headaches, and anxiety disorder due to chronic pain syndrome. The Veterans Affairs Regional Office (“RO”) rated her service-connected disabilities at 70 percent, but denied a total rating based on unemployability under 38 C.F.R. § 4.16(a) on grounds that her service-connected disabilities did not meet the schedular requirements.1 A veteran that has not been rated 100 percent disabled can meet the schedular requirements if the veteran’s service connected disabilities fall within the exceptions under § 4.16(a) which provides that: at least one service-connected disability rated at 60 percent or higher, or the service- connected disabilities add up to at least 70 percent with at least one service-connected disability rated at 40 percent or higher. Id. Section 4.16(a) also provides that disabilities of “both lower extremities, including the bilateral factor, if applicable” are to be “considered as one disability.” Id. The RO, however, failed to consider Ms. Githens-Bellas’s two distinct knee injuries as a single injury. As a result, the RO based the unemployability 1 The RO evaluated service connected disabilities as 70 percent, but the record indicates that the correct evaluation should have been rated at 80 percent. See Joint Appendix at 15, 17. GITHENS v. DVA 4 determination on § 4.16(b), which provides that “the rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.” Applying § 4.16(b), the RO found that “[e]ntitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” Joint Appendix at 15. In June 1997, Ms. Githens-Bellas filed a request with the RO to reopen her claim for TDIU. The RO denied her request. Over six years later, in March 2004, Ms. Githens-Bellas requested that her 1996 rating decision be reviewed on grounds that the RO had committed CUE and sought retroactive benefits with an effective date of January 1, 1996 for TDIU. In November 2004, the RO denied her request for review. Ms. Githens-Bellas filed a Notice of Disagreement with the Board of Veterans’ Appeals (“Board”) on October 4, 2005. In March 2006, the RO issued a statement of the case denying Ms. Githens-Bellas retroactive benefits for total disability on the basis of the 1996 denial. In April 2006, Ms. Githens-Bellas appealed the RO’s determination to the Board. On August 27, 2008, the Board determined that the RO’s decision to deny benefits for TDIU did not constitute CUE. Ms. Githens-Bellas appealed the Board’s decision to the Veterans Court. In her appeal, Ms. Githens-Bellas asserted that the RO’s miscalculation was CUE, and that this error prevented the VA from assisting her in developing evidence to support her claim for TDIU, which she contended resulted in a manifestly different outcome. During the appeal, the Secretary conceded that the RO GITHENS v. DVA 5 committed error by incorrectly computing Ms. Githens-Bellas’s rating under § 4.16(a). The Secretary acknowledged that the RO should have treated Ms. Githens-Bellas’s injuries to two lower extremities as one disability that met the 40 percent or higher disability rating pursuant to § 4.16(a)(1). Both parties agreed that because the RO correctly rated her other service- connected disabilities to her wrist and upper right arm as 10 percent and 20 percent respectively, for a total of 30 percent, the RO should have determined therefore that Ms. Githens-Bellas met the requirement under § 4.16(a): she had one rated disability at 40 percent or higher which, when added to the 20 percent and 10 percent ratings, provided a disability rating that met the 70 percent or higher requirement. However, the government asserted that the RO’s miscalculation did not constitute CUE. The Veterans Court agreed with the government and affirmed the Board’s finding that the RO’s 1996 denial of TDIU did not constitute CUE. The Veterans Court cited to Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc) for the proposition that a breach in the duty to assist cannot constitute CUE. The Veterans Court acknowledged that the RO had erred in computing Ms. Githens-Bellas’s schedular disability rating, but determined that the error was harmless because the record showed that the RO had made an unemployability determination that satisfied the requirements for a § 4.16(a) analysis. This appeal followed. GITHENS v. DVA 6 III. JURISDICTION The jurisdiction of this court to review a decision of the Veterans Court is limited. This court has jurisdiction to review a Veterans Court decision if it addresses (1) the validity of statutes or regulations on which the decision of the Veterans Court depended; (2) issues of interpretation if the Veterans Court elaborated upon the meaning of a statute or regulation and the decision depended on that interpretation; and (3) issues of validity or interpretation raised before the Veterans Court but not decided, if the decision would have been altered by adopting the position that was urged. See Szemraj v. Principi, 357 F.3d 1370, 1374 (Fed. Cir. 2004) (quoting Forshey, 284 F.3d. 1335, 1338 (Fed. Cir. 2002) (en banc)). We also have jurisdiction to review a decision of the Veterans Court on a rule of law. See 38 U.S.C. § 7292(a); Szemraj, 357 F.3d at 1374. This court may not review the Veterans Court for an “application of a legal standard to the facts of the particular case to determine whether there has been an error that is essentially factual in nature.” Id. at 1375 (citing Lennox v. Principi, 353 F.3d 941, 946 (Fed. Cir. 2003); Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed. Cir. 2002)). We may affirm or, if the decision of the Veterans Court is not in accordance with law, modify or reverse the decision of the Veterans Court or remand the matter, as appropriate. 38 U.S.C. § 7292(e)(1)(2000). IV. DISCUSSION The sole issue on appeal is whether the Veterans Court’s decision is based on an erroneous interpretation of 38 C.F.R. § 4.16(a). Ms. Githens-Bellas argues that the Veterans Court misinterpreted § 4.16(a), and then relied GITHENS v. DVA 7 on the misinterpretation to affirm the Board’s determination that the 1996 TDIU denial was not based on CUE. In support, she cites a statement by the Veterans Court that “it was predominantly her non-service-connected disabilities that prevented her from obtaining employment.” Op. at 4. Ms. Githens-Bellas argues that this statement demonstrates that the Veterans Court misinterprets § 4.16(a) as permitting non-service connected disabilities to be considered in TDIU determinations once the § 4.16(a) schedular requirements are met.2 2 The paragraph that includes the statement relied on by appellant provides that: In this case, the RO had to determine whether the appellant's service-connected disabilities prevent her from obtaining employment. The Secretary concedes that in 1996, the RO “incorrectly found that [the a]ppellant did not meet the schedul[a]r requirements.” Secretary's Br. at 5. However, after assessing the schedular requirements, the RO still had to determine whether the serviceconnected disabilities rendered the claimant unemployable. 38 C.F.R. § 4.16(a). In its 1996 rating decision, the RO stated that “[t]he medical reports show both service connected and nonservice- connected disabilities which interfere with employment, with the greater degree of disability being from non-service connected disabilities[.]” R. at 776. Thus, the RO's error did not cause a manifestly different outcome in the 1996 decision. Even if the RO had correctly found that the appellant's combined service-connected disabilities did meet the schedular requirements, it still would have denied her claim because it GITHENS v. DVA 8 We disagree that the statement constitutes an interpretation of § 4.16(a). The issue before the Veterans Court was whether the 1996 TDIU determination was based on CUE. There is no indication that issues concerning interpretation of § 4.16(a) were before the Veterans Court. In addition, the Veterans Court’s decision does not address the validity, or elaboration of § 4.16(a), or reflect that a different decision would have resulted had the position urged by appellant been adopted. Forshey, 284 F.3d at 1349. Further, when the statement is viewed in the context of the entire decision, in particular the paragraph that contains the statement, it is clear that the Veterans Court was not making a statement of interpretation on § 4.16(a), but rather explaining why “the RO’s error did not cause a manifestly different outcome in the 1996 decision.” Op. at 4. Indeed, the Veterans Court decision reflects a view of § 4.16(a) that is precisely the same as the view that appellant argues should be adopted by this court. Appellant ignores that the paragraph that contains the statement begins with “[i]n this case, the RO had to determine whether the appellant’s service-connected disabilities prevent her from obtaining employment.” Id. In addition, was predominantly her non-serviceconnected disabilities that prevented her from obtaining employment. Thus, it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” for the Board to conclude that there was no CUE in the September 1996 decision that denied TDIU. Accordingly, the Court will affirm the Board decision. Op. at 4 (emphases added). GITHENS v. DVA 9 when addressing the Secretary’s concession that the RO had erred in computing the schedular requirements, the Veterans Court stated “the RO still had to determine whether the service-connected disabilities rendered the claimant unemployable.” Id. The Veterans Court in a series of cases has consistently interpreted § 4.16(a) to require that only service-connected disabilities may be considered in a § 4.16(a) TDIU analysis.3 We have no jurisdiction over an issue of interpretation that does not exist. We conclude that the sentence in the Veterans Court’s decision cited by the appellant was a mere statement of the Veterans Court’s view on whether the RO’s error constituted CUE, and not a statement of interpretation of § 4.16(a). See, e.g., Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004) (Lack of jurisdiction existed where the Veterans Court statement that § 5103(a) had not been “properly administered” was not an interpretation of section § 5103(a)). In sum, the Veterans Court decision is silent as to the adoption of a particular interpretation of § 4.16(a). Ferguson v. Principi, 273 F.3d 1072, 1075 (Fed. Cir. 2001). Because this appeal does not involve an interpretation of § 4.16(a), we dismiss. DISMISSED Each party shall bear its own costs. 3 See, e.g., Hermann v. Shinseki, 2011 WL 2599914, at *2 (Vet. Ct. 2011) (“[A]n award of VA benefits for TDIU is based solely on service-connected disabilities.”); Ruybal v. Nicholson, 25 Vet. App. 114 (2007); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).