Single Judge Application; TDIU, Cogent Evidence of Unemployability, Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009)

Single Judge Application, Comer, 552 F.3d 1362, 1367 (Fed. Cir. 2009), Cogent Evidence of Unemployability

Excerpt from decision below:
"TDIU may also be awarded under 38 C.F.R. § 4.16(b) on an extraschedular basis where the veteran is "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." The Board stated that the "only medical report clearly suggesting an inability to work was the VA hospital report from February to March of 1991," but this report referenced multiple disabilities that were not service connected at the time. R. at 11. However, evidence of an
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inability to work need not be limited to medical evidence. Rather, all that is required is "cogent evidence of unemployability." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Therefore, because the Board improperly limited its analysis of the evidence in determining whether Mr.Harvey was entitled to an award of TDIU under 38 C.F.R. § 4.16(b), the Court must remand the matter for readjudication."

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2601
SIDNEY HARVEY, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Army veteran Sidney Harvey appeals pro se from a June
25, 2009,
Board of Veterans' Appeals (Board) decision that determined he was not
entitled to an effective date
earlier than May 12, 1992, for the grant of a total disability evaluation
based on individual
unemployability due to service-connected disabilities (TDIU). For the
reasons stated below, the
Court will set aside the Board's decision and remand the matter for
readjudication.
I. ANALYSIS
Mr. Harvey argues that the Board failed to consider evidence in the record
that indicates he
requested consideration for TDIU prior to 1992. He asserts in his informal
brief that he mentioned
on his May 12, 1989, application for service connection for post-traumatic
stress disorder (PTSD)
that he was not able to work. See Record (R.) at 1967. He further asserts
that when he testified at
a hearing before the Board in December 1989, he claimed his PTSD prevented
him from working.
See R. at 1789-90, 1793.
Generally,foranoriginalclaimoraclaimreopenedafterfinaladjudication,
theeffectivedate
can be no earlier than the date of the claim. See 38 U.S.C. § 5110(a). In
the case of TDIU, however,
this Court has noted that a request for TDIU is not a freestanding claim;
rather, where there is


evidence of unemployability, it is properly considered a part of the
claim for benefits of the
underlying disability. See Rice v. Shinseki, 22 Vet.App. 447 (2009).
Consequently, a separate
formal claim for TDIU is unnecessary; in an original service-connection
claim, the effective date for
TDIU may date back to the date of the original claim for the underlying
disability. See id. As in all
claims, VA is required to "fully and sympathetically develop the veteran's
claim to its optimum"
before deciding the claim on the merits. Roberson v. Principi, 251 F.3d
1378, 1383 (Fed. Cir. 2001)
(quoting Norris v. West, 12 Vet.App. 413, 420 (1999)).
Pursuant to 38 C.F.R. § 4.16(a), when a veteran is assigned a
disabilityrating of 60% or more
for a single disability, or a combined disability rating of at least 70%
where at least one disability is
rated 40% or above, and is "unable to secure or follow a substantially
gainful occupation as a result
of service-connecteddisabilities,"a claimantiseligibleto receiveTDIU. A
Board's decision to grant
or deny an award of TDIU must be accompanied by a written statement of the
reasons or bases for
its findings and conclusions on all material issues of fact and law
presented on the record; that
statement must be adequate to enable a claimant to understand the precise
basis for the Board's
decision, as well as to facilitate informed review in this Court. See 38 U.
S.C. § 7104(d)(1); Allday
v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,
56-57 (1990).
The Board stated that "a review of [Mr. Harvey's] own statements and
hearing testimony . . .
indicates no stated intention to pursue a total disability rating based
upon disabilities for which
service connection was in effect during" the period of December 1980 to
May 1992. R. at 11. This
statement bythe Board is a misapplication of the law. Service connection
did not need to be in effect
at the time Mr. Harvey pursued a total disability rating; he only needed
to indicate that he was
seeking service connection for a disability and that he was unemployable
due to his disability. See
Roberson, 251 F.3d at 1384 ("Once a veteran submits evidence of a medical
disability and makes
a claim for the highest ratingpossible, and additionally submits evidence
of unemployability . . . VA
must consider TDIU.").
Mr. Harvey's May 12, 1989, application for service connection for PTSD
stated that he
"would like to be considered for a permanent and total evaluation and
considered for [non-service-
connected] pension." R. at 1967. He continued: "The only income that I
have is the VA 10%
compensation [for eczema]." Id. The Board concluded "there is no language
in this correspondence
2


to suggest an intent to claim TDIU." R. at 7. Considering that VA is
required to read a pro se
veteran's filings sympathetically, see Szemraj v. Principi, 357 F.3d 1370 (
Fed. Cir. 2004), the Court
concludes that this statement bythe Board is clearlyerroneous. See 38 U.S.
C. § 7261(a)(4) (findings
of fact are reviewed under the "clearly erroneous" standard of review).
As for the December 1989 hearing testimony, the Board stated that Mr.
Harvey"asserted that
he was unable to work" and that he attributed this inability to work to
both his PTSD and back pain.
R. at 8. Because the Board recognized that Mr. Harvey requested
consideration for TDIU and
attributed it to PTSD, he Court discerns no clear error in this statement
by the Board.
The Court must next determine whetherMr. Harveywas prejudiced bythe
Board's error. See
38 U.S.C. § 7261(b)(2) (Court shall take due account of the rule of
prejudicial error); Shinseki v.
Sanders, 129 S. Ct. 1696, 1704 (2009). Despite the Board's
misinterpretation of the May 12, 1989,
statement from Mr. Harvey, the Board determined that TDIU was not
warranted prior to May 12,
1992, because "a rating meeting the minimum criteria of 38 C.F.R. § 4.16(
a) was not in effect until
May 12, 1992." R. at 11.
The regulation requires that, in order for TDIU to be awarded, one of two
criteria must be
met. Either one disability must be rated at 60% or more, or two or more
disabilities must equal a
combined disability rating of 70% or more and one of those disabilities
must be rated at 40% or
more. See 38 C.F.R. § 4.16(a) (2010). Mr. Harvey met that criteria after
a November 1996 decision
increased his disabilityrating for PTSD to 70% effective May12, 1992,
which gave him a combined
disabilityrating of 80%. See R. at 1106, 1114. Prior to that decision, Mr.
Harvey's highest disability
rating for a single disability had been 50% and his highest combined
disability rating had been 60%. See R. at 1106, 1612. Consequently, even if the Board had properly determined that the May 12, 1989, letter was a request for TDIU, Mr. Harvey would not have meet the regulatory criteria for an award of TDIU. Therefore the Board's error was harmless. TDIU may also be awarded under 38 C.F.R. § 4.16(b) on an extraschedular basis where the veteran is "unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities." The Board stated that the "only medical report clearly suggesting an inability to work was the VA hospital report from February to March of 1991," but this report referenced multiple disabilities that were not service connected at the time. R. at 11. However, evidence of an
3


inability to work need not be limited to medical evidence. Rather, all that is required is "cogent evidence of unemployability." Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009). Therefore, because the Board improperly limited its analysis of the evidence in determining whether Mr.Harvey was entitled to an award of TDIU under 38 C.F.R. § 4.16(b), the Court must remand the matter for readjudication.

II. CONCLUSION
On consideration of theforegoing,theCourt SETS ASIDEtheJune25, 2009, Board
decision
and REMANDS for readjudication the matter of an earlier effective date for
TDIU. In pursuing his
case on remand, Mr. Harvey will be free to submit additional evidence and
argument, and the Board
is required to consider any such evidence and argument. See Kay v.
Principi, 16 Vet.App. 529, 534
(2002). A final decision by the Board following the remand herein ordered
will constitute a new
decision that, if adverse, may be appealed to this Court on the filing of
a new Notice of Appeal with
the Court not later than 120 days after the date on which notice of the
Board's new final decision is
mailed to Mr. Harvey. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: May 12, 2011
Copies to:
Sidney Harvey
VA General Counsel (027)
4

Single Judge Application, TDIU, Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009); Bowling, 15 Vet. App. at 10

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). The U.S. Court of Appeals for the Federal Circuit reiterated this holding when it stated that "under Roberson, 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 merely by VA's receipt of hospitalization and medical examination reports. 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 evaluation of a condition is the general intent to seek increased compensation. Roberson and Comer, both supra; see also Ricev. Peake, 22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood as part of an initial claim for VA disability compensation"). Whether a sympathetic reading of prior filings raises an informal claim for benefits is a factual inquiry that is reviewed under the "clearly erroneous" standard of review. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005).

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1156
JOHN S. HARMON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HOLDAWAY, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

HOLDAWAY, Judge: The appellant, John S. Harmon, appeals a December 2, 2008,
Board of Veterans' Appeals (Board) decision that denied entitlement to an initial evaluation in excess of 10% for residuals of a traumatic brain injury (TBI). This appeal is timely jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266. 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). For the reasons that follow, the Court will vacate the December 2008 Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS
The appellant served on active duty from November 1981 to May 2002. See
Record (R.) at 4, 366. On June 22, 2000, the appellant was thrown from a vehicle and
suffered significant injuries to his skull and right arm. R. at 2161. He was diagnosed with a TBI and
received extensive treatment for that injury and its residuals. See, e.g., R. at 25, 86-89,
1244-48, 2035-39, 2125-31, 2145-63. The appellant was granted entitlement to service connection for residuals of a TBI in February 2003 and assigned a 10% disability evaluation. See R. at 6. He
appealed that decision and on December 2, 2008, the Board issued the decision here on appeal. R. at 3-13, 830. In that decision, that Board found that the criteria for a disability rating in
excess of 10% for residuals of a TBI, including memory loss, personality changes, sleeping problems, and cognitive defects, had not been met. R. at 5. This appeal followed.

II. ANALYSIS
The sole issue on appeal is whether the Board erred in failing to adjudicate the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) and the appropriate remedy for such error. See Appellant's Brief (Br.) at 6-26; Secretary's Br. at 6-8. 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). The U.S. Court of Appeals for the Federal Circuit reiterated this holding when it stated that "under Roberson, 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 merely by VA's receipt of hospitalization and medical examination reports. 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 evaluation of a condition is the general intent to seek increased compensation. Roberson and Comer, both supra; seealso Rice v. Peake, 22 Vet.App. 447, 448 (holding that "a request for TDIU is best understood as part of an initial claim for VA disability compensation"). Whether a sympathetic reading of prior filings raises an informal claim for benefits is a factual inquiry that is reviewed under the "clearly erroneous" standard of review. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005).
In this case, as noted by the parties, the record contains evidence demonstrating that the appellant may be unable to work due to his TBI. See R. at 10, 13, 25, 37-38, 71-72, 368, 376, 830.
Accordingly, as argued by the appellant and conceded to by the Secretary, the Board should have
considered entitlement to TDIU. Appellant's Br. at 8-17; Secretary's Br. at 5-8; see Roberson and

2

Comer, both supra. The question then turns to the appropriate remedy. The
appellant argues that the Board should be required to refer the matter to the Director of
Compensation and Pension for consideration of TDIU under 38 C.F.R. § 4.16(b) (2010).1
Appellant's Br. at 17-25; Appellant's Reply Br. at 3-8. The Secretary does not directly address the appellant's argument for referral and simply urges the Court to remand the issue. Secretary's Br. at 6-8.
Remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 (1998). In addition, the Court is not
permitted to conduct de novo factfinding but rather must remand for the Board to find facts in the
first instance. See Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). In this case, the Board did
not simply fail to provide an adequate statement of reasons or bases on the issue of TDIU, it failed
to provide any analysis or conduct any factfinding pertaining to a TDIU claim. Therefore, the Court
will remand the matter for the Board to consider referral of TDIU in the first instance. See Kellar
v. Brown, 6 Vet.App. 157, 161 (1994) (Court remanded claim where Board failed to make requisite
findings of fact or give reasons or bases for its decision that referral to appropriate officials was not
warranted); Fanning v. Brown, 4 Vet.App. 225, 229 (1993) (Court remanded TDIU claim for Board
to provide reasons or bases where Board had not given extraschedular consideration to the claim);
Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (Court remanded TDIU claim where Board decision did not make requisite findings of fact or provide reasons or bases for its decision regarding extraschedular consideration of claim). While the appellant cites to Bowling v. Principi, 15 Vet.App. 1, 10 (2001) to support his argument that "it is proper to 'direct the Board to submit the matter to the C & P Director for extraschedular consideration under § 4.16(b),'" that argument is misplaced. Appellant's Reply Br. at 3. In Bowling, the Court held that: where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where the Board has not relied on any affirmative evidence to the contrary, the Court will reverse the Board's determination,
1
Section 4.16(b) provides that "rating Boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section."

3

as a matter of law, that the veteran's case is ineligible for
consideration under § 4.16(b) by referral to the C & P Director. 15 Vet. App. at 10. In Bowling, unlike the case at hand, the Board considered referral of TDIU but found that it was not warranted. See id. In this case, the Board has yet to make that baseline factual determination; remand mandating referral is therefore not warranted.

III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
Board's December 2, 2008, decision is VACATED and the matter is REMANDED for
readjudication consistent with this decision.
DATED: March 25, 2011
Copies to:
Wesley B. Derrick, Esq.
VA General Counsel (027)
4