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).
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