Excerpt from decision below:
"VA must consider whether TDIU is warranted when a veteran who is seeking
an increased
disability rating submits evidence of unemployability. Roberson v.
Principi, 251 F.3d 1378, 1384(Fed. Cir. 2001); Norris v. West, 12 Vet.App. 413, 421-22 (1999). "[A] claim to TDIU benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran,who presents cogent evidence of unemployability, seeks to obtain a higher disability rating." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). An informal TDIU claim can be raised by VA's receipt of hospitalization and medical examination reports coupled with assertions of unemployability. See Norris, 12 Vet.App. at 421; 38 C.F.R. § 3.157 (2010).
Thus, all that is required to support consideration of TDIU within a claim for a higher disability rating is the general intent to seek increased compensation. Roberson and Comer, both supra; see also Rice v. Shinseki, 22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood as part of an initial claim
for VA disability compensation . . . or as a particular type of claim for
increased compensation").
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1533
GEORGE WYNN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before NEBEKER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
NEBEKER, Judge: The appellant, George Wynn, through counsel, seeks review
of a
December 30, 2008, decision of the Board of Veterans' Appeals (Board) that
denied entitlement to
a rating in excess of 50% for post-traumatic stress disorder (PTSD). Both
parties have filed briefs
and the appellant has filed a motion requesting oral argument. This appeal
is timely and the Court
has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-
judge disposition is
appropriate as the issue is "of relative simplicity" and "the outcome is
not reasonably debatable."
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Additionally, the Court
deems this appeal to
have sufficient merit as to the two issues argued. Rather than refer it to
a panel (with the attendant
additional delay), the Court concludes that a decision at this stage is
just under there circumstances.
See 38 U.S.C. § 7252(a) (the Court has the power to "affirm, modify, or
reverse a decision of the
Board or to remand the matter, as appropriate"). For the reasons set forth
below, the Court will
vacate the Board's December 2008 decision and remand the matter for
readjudication. The Court
will deny the appellant's motion for oral argument as it would not
materially assist in the disposition
of this appeal. See Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per
curiam).
I. FACTS
The appellant served on active duty in the U.S. Army from June 1967 to May
1970. Record
(R.) at 634. In April 2003, he filed a claim for service connection for
PTSD. R. at 463. The VA
regional office (RO) issued a rating decision granting service connection
and assigning a 50%
disability evaluation. R. at 435-37.
In August 2004, the appellant filed a claim for an increased rating for
his service-connected
PTSD. R. at 407. The RO denied his claim in February 2005 and the
appellant appealed that
decision. R. at 40, 45-48, 349-51. In March 2005, he submitted a statement
in support of claim
indicating that he was unemployed. R. at 321. That claim was denied by the
RO in August 2005
on the basis that the evidence did not indicate that the appellant was
unable to secure or follow a
substantially gainful occupation as a result of service-connected
disabilities. R. at 202-05. He was
afforded VA PTSD examinations in March and November 2006. R. at 64-69, 164-
68. On
December 30, 2008, the Board issued the decision here on appeal. R. at 3-
14. In that decision, the
Board found that the appellant's PTSD is manifested, at worst, by
occupational and social
impairment with reduced reliability and productivity. R. at 5. This appeal
followed.
II. ANALYSIS
A. Increased Rating
The appellant first argues that the Board erred in failing to award a
rating in excess of 50%
for his service-connected PTSD. Appellant's Brief (Br.) at 13-20. In
particular, he contends that the
Board failed to address evidence favorable to his claim. Id. The Secretary
incorrectly counters that
the appellant's argument is without merit. Secretary's Br. at 3-7.
The regulation governing the assignment of a disability evaluation for
PTSD, 38 C.F.R.
§ 4.130, Diagnostic Code (DC) 9440 (2010), provides that a 70% rating is
warranted if the evidence
demonstrates:
Occupational and social impairment, with deficiencies in most areas, such
as work,
school, family relations, judgment, thinking, or mood, due to such
symptoms as:
suicidal ideation; obsessional rituals which interfere with routine
activities; speech
intermittently illogical, obscure, or irrelevant; near-continuous panic or
depression
affecting the ability to function independently, appropriately and
effectively;
impaired impulse control (such as unprovoked irritability with periods of
violence);
2
spatial disorientation; neglect of personal appearance and hygiene;
difficulty in
adapting to stressful circumstances (including work or a worklike setting);
inability
to establish and maintain effective relationships.
Here, applying that regulation, the Board found that:
Throughout the pendencyof this appeal, the veteran's PTSD has been
manifested by,
at worst, serious symptomatology. He complained consistently of trouble
sleeping,
depressive mood, and an inability to get along with other people. He had
been
married to his wife for at least 35 years and, although he reported
increasing marital
conflict in October 2005, he subsequently reported that his marital
relationship had
improved in March 2006. The veteran also initially reported a good
relationship with
his three grown children. He subsequently reported that his relationship
with his
eldest son was distant but he remained close to his grandson. He
repeatedly denied
panic attacks. No impaired impulse control, speech problems, or anxiety
was noted
on repeated mental status examination of the veteran conducted during the
pendency
of this appeal. The veteran's [Global Assessment of Functioning] GAF score
was 50
throughout this appeal which indicates, at worst, serious symptoms. The
veteran's
service[-]connected PTSD also was not totally disabling at any time during
this
appeal; in fact, at the veteran's most recent VA examination in March 2006,
the VA
examiner noted that the veteran's service-connected PTSD had minimal
symptoms.
Because few of the criteria for the next higher rating (i.e., a 70 or 100
percent rating)
are present, the Board finds that a disability rating greater than 50
percent for PTSD
is not warranted.
Record (R.) at 12.
The appellant contends that the Board failed to discuss evidence of his
inability to sustain
employment, difficulties with family relationships, and deficiencies in
judgment, thinking, and
mood. Appellant's Br. at 13-20, citing R. at 66-69, 165-66, 187-88, 321,
384-87, 450, 461. His
argument is persuasive. The Board must account for the evidence which it
finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
veteran. See Gabrielson v. Brown, 7 Vet.App 36, 39-40 (1994). In this case,
it failed to account for
evidence that may support entitlement to a 70% or greater evaluation for
PTSD, most notably
evidence noting an inability to maintain employment due to PTSD. See R. at
66, 69, 166, 168, 321,
384. Remand is required on this basis.
B. TDIU
The appellant also argues that the Board failed to discuss entitlement to
a total disability
rating based on individual unemployability (TDIU) pursuant to 38 C.F.R. §
4.16(b) (2010).
3
Appellant's Br. at 21-23. The Secretary argues that the issue of
entitlement to TDIU was previously
adjudicated by the RO in an August 2005 unappealed rating decision and the
issue is therefore not
ripe for review by the Court. Secretary's Br. at 7-10, citing R. at 197-
205.
VA must consider whether TDIU is warranted when a veteran who is seeking
an increased
disability rating submits evidence of unemployability. Roberson v.
Principi, 251 F.3d 1378, 1384
(Fed. Cir. 2001); Norris v. West, 12 Vet.App. 413, 421-22 (1999). "[A]
claim to TDIU benefits is
not a free-standing claim that must be pled with specificity; it is
implicitly raised whenever a pro se
veteran,whopresents cogentevidenceofunemployability,
seekstoobtainahigherdisabilityrating."
Previous DocumentComerNext Hit v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). An informal TDIU
claim can be raised by
VA's receipt of hospitalization and medical examination reports coupled
with assertions of
unemployability. See Norris, 12 Vet.App. at 421; 38 C.F.R. § 3.157 (2010).
Thus, all that is
required to support consideration of TDIU within a claim for a higher
disability rating is the general
intent to seek increased compensation. Roberson and Previous HitComerNext Hit, both supra; see
also Rice v. Shinseki,
22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood
as part of an initial claim
for VA disability compensation . . . or as a particular type of claim for
increased compensation").
Here, the RO issued a rating decision in August 2005 adjudicating, and
denying, entitlement
to TDIU. R. at 202-05. The appellant did not appeal that decision and it
became final. However,
the appellant continued to pursue entitlementto an increased ratingfor his
service-connected PTSD.
In November 2006, during the pendency of his claim for an increased rating
for PTSD, a VA
psychiatric examination was conducted and noted that the appellant's PTSD
impeded his ability to
sustain employment and that he was generally unable to work. R. at 69.
That evidence of
unemployability, in conjunction with the appellant's claim for an
increased rating for PTSD, raised
the issue of TDIU. See Roberson, Previous HitComerNext Document, and Norris, all supra. While the
Secretary is correct that
entitlement to TDIU had previously been denied, that does not foreclose
the appellant's ability to
reopen that issue. Accordingly, the Board should have considered whether
the November 2006
evidence of unemployability due to PTSD, in conjunction with a claim for
an increased rating, was
a claim to reopen the previously denied claim for TDIU. The Board's
failure to address that issue
necessitates remand. Beverly v. Nicholson, 19 Vet.App. 394, 404 (2005) ("'[
T]he Board is required
to adjudicate all issues reasonably raised by a liberal reading of the
appellant's substantive appeal,
4
including all documents and oral testimony in the record prior to the
Board's decision.'" (quoting
Brannon v. West, 12 Vet.App. 32, 34 (1998))); see also Robinson v.
Mansfield, 21 Vet.App. 545, 552
(2008) (Board required to consider all issues raised either by the
claimant or by evidence of record).
Onremand,theappellantis freeto submit
additionalevidenceandargumentontheremanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
"[a] remand is meant
to entail a critical examination of the justification for the decision."
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§7112(requiringSecretaryto provide for "expeditious treatment" of claims
remanded bytheCourt).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
Board's
December 30, 2008, decision is VACATED and the matters are REMANDED for
readjudication
consistent with this decision. The appellant's motion requesting oral
argument is DENIED.
DATED: March 31, 2011
Copies to:
Barbara C. McCurdy, Esq.
VA General Counsel (027)
5
Showing posts with label No. 2009-7015; TDIU. Show all posts
Showing posts with label No. 2009-7015; TDIU. Show all posts
Monday, April 11, 2011
Wednesday, November 25, 2009
TDIU Pled by Pro Se Veteran, Case, Jackson v. Shinseki, FedCir.
This case presents two items which are of interest, total disability rating based on individual unemployability [“TDIU”] pled by a pro se veteran and what constitutes a "case".
Jackson v. Shinseki, No. 2009-7015 (DECIDED: November 25, 2009)
============================
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability.
=================================
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”).
===================================
This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added).
==================================
Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
================================
United States Court of Appeals for the Federal Circuit
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Scott D. Austin, Senior Trial Attorney. Of counsel on the brief were David R. McLenachen, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge Robert N. Davis.
___________________________
DECIDED: November 25, 2009
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (the “Veterans Court”) held that attorney Francis M. Jackson was not entitled to fees for his representation of veteran Gerald Easler in connection with a service disability claim, which ultimately included a total disability rating based on individual unemployability (“TDIU”). Because Mr. Easler’s claim did not include the requisite evidence to support a TDIU claim before the Board of Veterans Appeals (the “Board”), Mr. Easler’s claim was not a part of the “case” as defined in 38 U.S.C. § 5904(c). For that reason, Mr. Jackson does not qualify for fees and this court therefore affirms.
I.
In January 2000, a Department of Veterans Affairs regional office (the “RO”) granted Mr. Easler an increased rating from twenty to forty percent for his lower back disorder. Mr. Easler then filed a supplementary claim seeking an increased rating on his lower back disorder and a new disability rating for a cervical spine disorder. The Board rejected both requests in July 2000.
Mr. Easler then hired Mr. Jackson on a contingency fee basis to prosecute his appeal to the Veterans Court. Under that contingency fee agreement, Mr. Jackson would receive a fee of twenty percent of “the total amount of any past-due benefits awarded on the basis of [Mr. Easler’s] claim before [the Veterans Administration (the ‘VA’)].” The VA would pay Mr. Jackson directly from the benefits recovered by Mr. Easler.
Mr. Jackson then filed an appeal to the Veterans Court on Mr. Easler’s behalf. The Veterans Court shortly thereafter granted a joint motion to vacate the Board’s opinion and remand. During the ensuing proceedings, Mr. Easler and Mr. Jackson entered into a second contingency fee agreement covering all future representations before the Veterans Court and subsequent remands to the Board and RO. The second agreement also provided for an automatic deduction of Mr. Jackson’s fee from any past-due benefits recovered by Mr. Easler.
On a subsequent remand to the RO, Mr. Easler filed a separate claim for depressive disorder. The RO eventually granted that claim assigning a thirty percent disability rating. Mr. Jackson then contacted the RO to inquire about Mr. Easler’s prospect of qualifying for TDIU benefits as a result of this depressive disorder and its
2009-7015 2
accompanying disability rating. The RO adopted Mr. Jackson’s suggestion and granted TDIU.
Under Mr. Jackson’s contingency fee agreements, the VA withheld $7,412.95- twenty percent of the past-due benefits collected-from Mr. Easler. But before disbursal of that amount, the VA informed Mr. Jackson that he was not eligible to receive any past-due benefits relating to TDIU because that issue had not been the subject of a final Board decision per 38 U.S.C. § 5904(c). Mr. Jackson appealed to the Board, which affirmed the RO’s decision:
In this case, there has been no final Board decision on the issue for which the appellant seeks payment, i.e., entitlement to a TDIU. The Board’s decision of July 2000 addressed the veteran’s appeal on the issues of service connection for a cervical spine disorder and increased ratings for a low back disability.
The Board also noted that “the evidence of record [did] not support a finding of unemployability”-a necessary element of TDIU-at the time of the Board’s July 2000 decision.
On appeal to the Veterans Court, Mr. Jackson argued that he had presented Mr. Easler’s TDIU claim to the Board prior to the July 2000 decision because it was reasonably and inherently related to Mr. Easler’s increased rating claim for lower back disorder. The Veterans Court rejected that argument:
To raise an informal TDIU-rating claim, the veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. The Court concludes that although the veteran made a claim for the highest rating possible and submitted evidence of a medical disability, he did not submit evidence of unemployability. . . . Here, evidence does not suggest the veteran was unemployable. Indeed, it suggests the opposite.
2009-7015 3
After the Veterans Court denied a subsequent motion for reconsideration, Mr. Jackson timely appealed.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited. This court may only review questions relating to the interpretation of constitutional and statutory provisions. 38 U.S.C. § 7292(c). This court has no jurisdiction to review questions of fact, or the application of law to a particular set of facts, unless a constitutional issue is presented. Id. § 7292(d)(2).
Section 5904(c) provides in pertinent part:
[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date.
38 U.S.C. § 5904(c)(1) (2000) (emphasis added). This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In that vein, this court has repeatedly endorsed liberal and broad constructions of veterans’ claims. See, e.g., Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) (“Like the regional office, the Board is required to construe all of the veteran's arguments in a liberal manner.” (citations and internal quotation marks omitted)). Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
2009-7015 4
This case asks whether Mr. Jackson presented a TDIU claim as part of Mr. Easler’s “case” for purposes of Section 5904(c) at the time of the Board’s July 2000 decision. If TDIU was a part of Mr. Easler’s case, then Mr. Jackson is entitled to attorney’s fees related to the payment of TDIU benefits. If it was not, the Board had yet to make “a final decision” on the matter and Mr. Jackson has no entitlement to attorney’s fees.
Before the Veterans Court and on appeal to this court, Mr. Jackson acknowledges that Mr. Easler did not expressly raise a claim for TDIU. Nonetheless, according to Mr. Jackson, a TDIU claim was encompassed by or inherent in the original two claims presented to the Board before the July 2000 decision. In other words, Mr. Jackson contends that a TDIU claim is implicitly raised before the Board where a veteran seeks an increased rating based on either a previous service connection injury or a new disability claim.
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”). In this case, as the Board determined before the July 2000 ruling, Mr. Easler’s claim included no evidence of unemployability.
2009-7015 5
Indeed, as the Veterans Court explained, the evidence on record “suggest[ed] the opposite”-i.e., that Mr. Easler was employed. This court may not review that factual finding. 38 U.S.C. § 7292(d)(2). Without any modicum of evidence suggesting Mr. Easler’s unemployability, and with the record suggesting the opposite, this court cannot say that TDIU was part of the “case” before the Board’s July 2000 decision. Thus, the Board was entirely correct to refuse to disburse the attorney’s fees to Mr. Jackson, but instead to send the full amount to the veteran.
The decisions relied on by Mr. Jackson do not support his argument. In Stanley v. Principi, 283 F.3d 1350, 1352 (Fed. Cir. 2002), the RO denied the veteran’s claim for service connection of a cervical spine disability. The veteran did not appeal, resulting in a final decision. Id. The RO then denied the veteran’s application to reopen the claim without the submission of new and material evidence. Id. The veteran then hired an attorney, Mr. James Stanley, to prosecute his claims on a contingency fee basis. Id. at 1353. On appeal, the Board vacated its finding because new and material evidence had been submitted by the veteran. Id. In its decision, the Board did not address TDIU. Id. The Board then remanded to the RO where the veteran added a claim for TDIU. Id. The RO eventually granted the veteran’s claim for service connection and his accompanying claim for TDIU benefits. Id. The Veterans Court, nonetheless, denied Mr. Stanley any attorney’s fees finding that no “final decision” had been issued by the Board on either the cervical spine or TDIU claims. Id.
This court vacated because: “attorneys' fees are available in connection with the proceedings associated with reopening a claim after the Board first makes a final decision with respect to a particular issue in the reopening proceedings, even if the
2009-7015 6
decision is not appealable.” Id. at 1359. Despite Stanley’s reference to the broad implications behind Section 5904(c), the decision was limited to only the cervical spine claim. It did not include the claim for TDIU benefits. As to that issue, this court expressly found no entitlement to attorney’s fees because it had not been properly raised by the veteran prior to the appeal to the Board. Id. This case presents facts similar to the TDIU claim in Stanley. No doubt, the TDIU claim in Stanley, as here, was directly related to and stemmed from the veteran’s service connection claim. Notwithstanding that fact, Mr. Stanley, like Mr. Jackson, was not entitled to attorney’s fees.
In Carpenter v. Nicholson, 452 F.3d 1379, 1380 (Fed. Cir. 2006), the veteran originally received a one hundred percent disability rating, which was later reduced by the RO to sixty percent. The veteran then twice brought claims to adjust his disability rating back to one hundred percent. Id. Both claims were denied by the Board. Id. Kenneth Carpenter was then hired as counsel. Id. at 1381. On appeal to the Veterans Court, the case was remanded for error based on a joint motion filed by the parties. Id. Mr. Carpenter’s efforts on remand were successful and the veteran was again awarded a one hundred percent disability rating. Id. The veteran then brought a separate claim seeking an earlier effective date on the ground that the earlier RO decision contained clear and unmistakable error. Id. The RO denied that claim, but on appeal the Board reversed and granted the veteran his requested effective date. Id. Despite his efforts, the Board informed Mr. Carpenter that he was not entitled to attorney’s fees for services rendered relating to the earlier effective date because “no final decision” had been made by the Board on that issue. Id. at 1382.
2009-7015 7
In reversing the Board’s decision, this court found that the Board had already squarely decided the question of effective date because it was necessarily encompassed in the veteran’s service connection claim. Id. at 1384. In other words, because proving an effective date is a necessary component of establishing a disability rating, the effective date of disability was an issue presented in the “case” when the Board considered the overall question of disability. Unlike Carpenter, however, establishing entitlement to TDIU is not a prerequisite to obtaining an increased disability rating. Significantly, there is an essential element of TDIU setting it separate and apart. That element is unemployability-the very element that Mr. Easler’s claim lacked.
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. The record in this case contains no such evidence before the Board’s July 2000 decision. As such, TDIU was not a part of the “case” as required by Section 5904(c).
2009-7015 8 2009-7015 9
III.
For the above-stated reasons, the decision of the Veterans Court to deny Mr. Jackson attorney’s fees in connection with Mr. Easler’s TDIU claim is affirmed. Because no evidence of Mr. Easler’s unemployability was submitted before the Board’s July 2000 decision, the “case” before the Board at that time did not include a claim for TDIU benefits and thus was not a compensable fee under Section 5904(c).
AFFIRMED
COSTS
Each party shall bear its own costs.
Jackson v. Shinseki, No. 2009-7015 (DECIDED: November 25, 2009)
============================
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability.
=================================
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”).
===================================
This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added).
==================================
Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
================================
United States Court of Appeals for the Federal Circuit
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Kirk T. Manhardt, Assistant Director, and Scott D. Austin, Senior Trial Attorney. Of counsel on the brief were David R. McLenachen, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-7015
FRANCIS M. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-0823, Judge Robert N. Davis.
___________________________
DECIDED: November 25, 2009
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims (the “Veterans Court”) held that attorney Francis M. Jackson was not entitled to fees for his representation of veteran Gerald Easler in connection with a service disability claim, which ultimately included a total disability rating based on individual unemployability (“TDIU”). Because Mr. Easler’s claim did not include the requisite evidence to support a TDIU claim before the Board of Veterans Appeals (the “Board”), Mr. Easler’s claim was not a part of the “case” as defined in 38 U.S.C. § 5904(c). For that reason, Mr. Jackson does not qualify for fees and this court therefore affirms.
I.
In January 2000, a Department of Veterans Affairs regional office (the “RO”) granted Mr. Easler an increased rating from twenty to forty percent for his lower back disorder. Mr. Easler then filed a supplementary claim seeking an increased rating on his lower back disorder and a new disability rating for a cervical spine disorder. The Board rejected both requests in July 2000.
Mr. Easler then hired Mr. Jackson on a contingency fee basis to prosecute his appeal to the Veterans Court. Under that contingency fee agreement, Mr. Jackson would receive a fee of twenty percent of “the total amount of any past-due benefits awarded on the basis of [Mr. Easler’s] claim before [the Veterans Administration (the ‘VA’)].” The VA would pay Mr. Jackson directly from the benefits recovered by Mr. Easler.
Mr. Jackson then filed an appeal to the Veterans Court on Mr. Easler’s behalf. The Veterans Court shortly thereafter granted a joint motion to vacate the Board’s opinion and remand. During the ensuing proceedings, Mr. Easler and Mr. Jackson entered into a second contingency fee agreement covering all future representations before the Veterans Court and subsequent remands to the Board and RO. The second agreement also provided for an automatic deduction of Mr. Jackson’s fee from any past-due benefits recovered by Mr. Easler.
On a subsequent remand to the RO, Mr. Easler filed a separate claim for depressive disorder. The RO eventually granted that claim assigning a thirty percent disability rating. Mr. Jackson then contacted the RO to inquire about Mr. Easler’s prospect of qualifying for TDIU benefits as a result of this depressive disorder and its
2009-7015 2
accompanying disability rating. The RO adopted Mr. Jackson’s suggestion and granted TDIU.
Under Mr. Jackson’s contingency fee agreements, the VA withheld $7,412.95- twenty percent of the past-due benefits collected-from Mr. Easler. But before disbursal of that amount, the VA informed Mr. Jackson that he was not eligible to receive any past-due benefits relating to TDIU because that issue had not been the subject of a final Board decision per 38 U.S.C. § 5904(c). Mr. Jackson appealed to the Board, which affirmed the RO’s decision:
In this case, there has been no final Board decision on the issue for which the appellant seeks payment, i.e., entitlement to a TDIU. The Board’s decision of July 2000 addressed the veteran’s appeal on the issues of service connection for a cervical spine disorder and increased ratings for a low back disability.
The Board also noted that “the evidence of record [did] not support a finding of unemployability”-a necessary element of TDIU-at the time of the Board’s July 2000 decision.
On appeal to the Veterans Court, Mr. Jackson argued that he had presented Mr. Easler’s TDIU claim to the Board prior to the July 2000 decision because it was reasonably and inherently related to Mr. Easler’s increased rating claim for lower back disorder. The Veterans Court rejected that argument:
To raise an informal TDIU-rating claim, the veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. The Court concludes that although the veteran made a claim for the highest rating possible and submitted evidence of a medical disability, he did not submit evidence of unemployability. . . . Here, evidence does not suggest the veteran was unemployable. Indeed, it suggests the opposite.
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After the Veterans Court denied a subsequent motion for reconsideration, Mr. Jackson timely appealed.
II.
This court’s jurisdiction to review decisions of the Veterans Court is limited. This court may only review questions relating to the interpretation of constitutional and statutory provisions. 38 U.S.C. § 7292(c). This court has no jurisdiction to review questions of fact, or the application of law to a particular set of facts, unless a constitutional issue is presented. Id. § 7292(d)(2).
Section 5904(c) provides in pertinent part:
[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided before the date on which the Board of Veterans' Appeals first makes a final decision in the case. Such a fee may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained with respect to such case before the end of the one-year period beginning on that date.
38 U.S.C. § 5904(c)(1) (2000) (emphasis added). This court has explained that a “case” within the meaning of Section 5904(c) encompasses “all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled . . . .” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (emphasis added). In that vein, this court has repeatedly endorsed liberal and broad constructions of veterans’ claims. See, e.g., Gambill v. Shinseki, 576 F.3d 1307, 1316 (Fed. Cir. 2009) (“Like the regional office, the Board is required to construe all of the veteran's arguments in a liberal manner.” (citations and internal quotation marks omitted)). Indeed, 38 C.F.R. § 20.202 expressly requires the Board to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.”
2009-7015 4
This case asks whether Mr. Jackson presented a TDIU claim as part of Mr. Easler’s “case” for purposes of Section 5904(c) at the time of the Board’s July 2000 decision. If TDIU was a part of Mr. Easler’s case, then Mr. Jackson is entitled to attorney’s fees related to the payment of TDIU benefits. If it was not, the Board had yet to make “a final decision” on the matter and Mr. Jackson has no entitlement to attorney’s fees.
Before the Veterans Court and on appeal to this court, Mr. Jackson acknowledges that Mr. Easler did not expressly raise a claim for TDIU. Nonetheless, according to Mr. Jackson, a TDIU claim was encompassed by or inherent in the original two claims presented to the Board before the July 2000 decision. In other words, Mr. Jackson contends that a TDIU claim is implicitly raised before the Board where a veteran seeks an increased rating based on either a previous service connection injury or a new disability claim.
While this court accepts that a TDIU claim may under certain circumstances necessarily be encompassed in a veteran’s claim for increased benefits despite not being expressly raised, those circumstances are absent here. To raise an informal TDIU claim, a veteran must make a claim for the highest rating possible, submit evidence of medical disability, and submit evidence of unemployability. See Roberson, 251 F.3d at 1384 (“Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”). In this case, as the Board determined before the July 2000 ruling, Mr. Easler’s claim included no evidence of unemployability.
2009-7015 5
Indeed, as the Veterans Court explained, the evidence on record “suggest[ed] the opposite”-i.e., that Mr. Easler was employed. This court may not review that factual finding. 38 U.S.C. § 7292(d)(2). Without any modicum of evidence suggesting Mr. Easler’s unemployability, and with the record suggesting the opposite, this court cannot say that TDIU was part of the “case” before the Board’s July 2000 decision. Thus, the Board was entirely correct to refuse to disburse the attorney’s fees to Mr. Jackson, but instead to send the full amount to the veteran.
The decisions relied on by Mr. Jackson do not support his argument. In Stanley v. Principi, 283 F.3d 1350, 1352 (Fed. Cir. 2002), the RO denied the veteran’s claim for service connection of a cervical spine disability. The veteran did not appeal, resulting in a final decision. Id. The RO then denied the veteran’s application to reopen the claim without the submission of new and material evidence. Id. The veteran then hired an attorney, Mr. James Stanley, to prosecute his claims on a contingency fee basis. Id. at 1353. On appeal, the Board vacated its finding because new and material evidence had been submitted by the veteran. Id. In its decision, the Board did not address TDIU. Id. The Board then remanded to the RO where the veteran added a claim for TDIU. Id. The RO eventually granted the veteran’s claim for service connection and his accompanying claim for TDIU benefits. Id. The Veterans Court, nonetheless, denied Mr. Stanley any attorney’s fees finding that no “final decision” had been issued by the Board on either the cervical spine or TDIU claims. Id.
This court vacated because: “attorneys' fees are available in connection with the proceedings associated with reopening a claim after the Board first makes a final decision with respect to a particular issue in the reopening proceedings, even if the
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decision is not appealable.” Id. at 1359. Despite Stanley’s reference to the broad implications behind Section 5904(c), the decision was limited to only the cervical spine claim. It did not include the claim for TDIU benefits. As to that issue, this court expressly found no entitlement to attorney’s fees because it had not been properly raised by the veteran prior to the appeal to the Board. Id. This case presents facts similar to the TDIU claim in Stanley. No doubt, the TDIU claim in Stanley, as here, was directly related to and stemmed from the veteran’s service connection claim. Notwithstanding that fact, Mr. Stanley, like Mr. Jackson, was not entitled to attorney’s fees.
In Carpenter v. Nicholson, 452 F.3d 1379, 1380 (Fed. Cir. 2006), the veteran originally received a one hundred percent disability rating, which was later reduced by the RO to sixty percent. The veteran then twice brought claims to adjust his disability rating back to one hundred percent. Id. Both claims were denied by the Board. Id. Kenneth Carpenter was then hired as counsel. Id. at 1381. On appeal to the Veterans Court, the case was remanded for error based on a joint motion filed by the parties. Id. Mr. Carpenter’s efforts on remand were successful and the veteran was again awarded a one hundred percent disability rating. Id. The veteran then brought a separate claim seeking an earlier effective date on the ground that the earlier RO decision contained clear and unmistakable error. Id. The RO denied that claim, but on appeal the Board reversed and granted the veteran his requested effective date. Id. Despite his efforts, the Board informed Mr. Carpenter that he was not entitled to attorney’s fees for services rendered relating to the earlier effective date because “no final decision” had been made by the Board on that issue. Id. at 1382.
2009-7015 7
In reversing the Board’s decision, this court found that the Board had already squarely decided the question of effective date because it was necessarily encompassed in the veteran’s service connection claim. Id. at 1384. In other words, because proving an effective date is a necessary component of establishing a disability rating, the effective date of disability was an issue presented in the “case” when the Board considered the overall question of disability. Unlike Carpenter, however, establishing entitlement to TDIU is not a prerequisite to obtaining an increased disability rating. Significantly, there is an essential element of TDIU setting it separate and apart. That element is unemployability-the very element that Mr. Easler’s claim lacked.
Last, in Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009), this court held that “a claim to TDIU benefits is not a free-standing claim that must be pled with specificity.” But, as further clarification, this court went on to explain that it could only be implicitly raised where “a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Id. (emphasis added). Similarly, in Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), a decision heavily cited in Comer, this court further instructed the VA to consider any implicit TDIU claim but only where the veteran “submits evidence of unemployability.” Together, Comer and Roberson make clear that a claim for TDIU can be implicitly raised only where the veteran proffers some evidence of unemployability. The record in this case contains no such evidence before the Board’s July 2000 decision. As such, TDIU was not a part of the “case” as required by Section 5904(c).
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III.
For the above-stated reasons, the decision of the Veterans Court to deny Mr. Jackson attorney’s fees in connection with Mr. Easler’s TDIU claim is affirmed. Because no evidence of Mr. Easler’s unemployability was submitted before the Board’s July 2000 decision, the “case” before the Board at that time did not include a claim for TDIU benefits and thus was not a compensable fee under Section 5904(c).
AFFIRMED
COSTS
Each party shall bear its own costs.
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