Veteranclaims’s Blog

December 15, 2010

Application of Comer v. Peake, 552 F.3d, by Single Judge, TDIU

Single Judge Decision, citing to Comer v. Peake in regard to TDIU.

“Here, the evidence of unemployability first appears in the record in August 2000, while Mr. Crawford’s November1999 claim for an increased disability rating for post-traumatic stress disorder was pending; therefore, the question of entitlement to a total disability rating based on individual unemployability is properly considered part of that pending claim. See id. For reasons not explained in the record, by the Board, or by the Secretary, this issue was not addressed by either the regional office in its various decisions or the Board in its October 2006 decision. It was not until Mrs. Moore-Crawford’s counsel expressly brought the matter to the Board’s attention that the Board determined in its October 2008 decision that there was an “inferred claim” for a total disability rating based on individual unemployability. See R. at 5. This, in itself, is error on the part of VA. See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009
) (“A claim to [entitlement to a total disability rating based on individual
unemployability] 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.”); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that consideration of entitlement to a total disability rating based on individual unemployability is required once “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability” ); Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (holding that the Board is required to address issues raised by the appellant or reasonably raised by the record).
Once the Board recognized this error, it attempted to correct it by
referring the “inferred claim” to the regional office for adjudication in the first instance. This was improper. As the Court explained in Rice, entitlement to a total disability rating based on individual unemployability is not a distinct claim that can be separated from the disability; rather, “a finding that an individual is entitled to [a total disability rating based on individual unemployability] merely means that the veteran has met certain qualifications entitling him to a ‘total disability’ rating; in
other words, a disability rating of 100%.” Rice, 22 Vet.App. at 452; see
Norris v West, 12 Vet.App. 413, 420-21 (1999) (“A [total disability rating based on individual unemployability] is not a basis
7

for an award of service connection. Rather, it is merely an alternate way
to obtain a total disability rating without being rated 100% disabled under the Rating Schedule.”).
Simply put, the consideration of entitlement to total disabilityrating based on individual unemployability is part and parcel of the determination of the proper disability rating for the underlying condition where the veteran has submitted evidence of unemployability.
Here, the resolution of the question of the proper disability rating to be
assigned for post-traumatic stress disorder, whether schedular or extraschedular (in the form of a total disability rating based on individual unemployability in combination with Mr. Crawford’s other service-connected disabilities), was incomplete as a result of VA’s failure to adjudicate the issue of entitlement to a total disability rating based on individual unemployability.4″
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0020
DONITA MOORE-CRAWFORD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Donita Moore-Crawford appeals through counsel an October 28,
2008,
Board of Veterans’ Appeals (Board) decision that denied entitlement to a
disability rating in excess
of 50% for post-traumatic stress disorder for the purposes of accrued
benefits.1
The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
Board decision. Because
the Board did not consider the question of entitlement to a total
disability rating based on individual
unemployability, the Court will vacate the Board’s October 2008 decision
and remand the matter for
readjudication consistent with this decision.
I. FACTS
Mrs.Moore-Crawford’shusband,OrenL.Crawford,servedonactivedutyintheU.S.
Marine
Corps from October 1967 to May 1970, including service in Viet Nam. At the
time of his death in
The Board decision also remanded three other claims: entitlement to (1)
benefits for the cause of the veteran’s
death, (2) eligibility for dependents’ educational assistance benefits,
and (3) dependency and indemnity compensation
under 38 U.S.C. § 1318. Those matters are therefore not before the Court
at this time. See 38 U.S.C. § 7266 (stating
that the Court reviews only final decisions of the Board); see also Howard
v. Gober, 220 F.3d 1341, 1344 (Fed. Cir.
2000) (Board remand does not constitute a final decision that may be
appealed (citing 38 C.F.R. § 20.1100(b) (1999))).
1

October 2001, Mr. Crawford was receiving–relevant to the matter before
the Court–VA benefits for
post-traumatic stress disorder, rated 30% disabling, and had a pending
claim for an increased
disability rating for that condition. His combined disability rating at
the time of his death, including
all service-connected disabilities, was 70%.
Evidence in the record at the time of Mr. Crawford’s death included the
following:
1. A December 1999 VA post-traumatic stress disorder examination report
that
includesMr.Crawford’scomplaintsof”flashbacks,nightmares,
problemscontrolling
anger,sleepydifficulty,irritability,depression,andisolationsinceVietnam.”
Record
(R.) at 1689. He also reported feeling isolated, hypervigilant, and
irritable. The
examiner noted that Mr. Crawford was alert and oriented, had “good contact
with
reality,” denied suicidal or homicidal ideations, and had intact insight
and judgment.
R. at 1691. The examiner concluded, “Mr. Crawford has some symptoms of
post[-]
traumaticstress disorder such as recurrentflashbacks,nightmares,
sleepingproblems,
irritability, hypervigilance, and a problem with alcohol,” and assigned a
Global
Assessment of Functioning score of 50.2
Id.
2. An August 2000 letter from a VA vocational consultant who had reviewed
Mr.
Crawford’s medical and claims files. The consultant stated:
In reviewing the psychological information in the file it is repeatedly
stated that this veteran has a [Global Assessment of Functioning] of
50. With a rating of 50, this individual would be able to secure
employment but could not keep it for extended periods. In reviewing
the records . . . it [appears] that Mr. Crawford has a problem with job
stability and since 1995, has four different employers and the length
of time with those employers were two months, seven months, two
months[,] and nine months. It also indicated that he was unable to
followrulesandregulationsforproceduralcomplianceforhispresent
job. In addition, throughout the file there is mention of alcohol, but
it is related each time to his flashbacks, re-occurrent nightmares, and
Post-Traumatic Stress Disorder stressors.
Based on all of the above information from the file, I feel that
probably with a [Global Assessment of Functioning] of 50, this
claimant would be totally unemployable. Especially as the claimant
gets older and he reaches the mark of 50 when it seems that the
A Global Assessment of Functioning score represents “the clinician’s
judgment of the individual’s overall level
of functioning” and is “useful in planning treatment and measuring its
impact[ ] and in predicting outcome.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 30 (4th ed. 1994); see Richard
v. Brown, 9 Vet.App. 266, 267 (1996).
2
2

majority of veterans have extreme difficulty with the [post-traumatic
stress disorder] overtaking their personalities. . . .
It is my professional opinion that[,] while this individual is able to get
a job and keep it for short periods of time, . . . he is actually
unemployable until an overall assessment and treatment are provided
to him.
R. at 1669.
3. A November 2000 private psychological assessment. The examiner noted:
[Mr. Crawford’s] response to experiences in Vietnam included
feelings of intense helplessness and fear. He presently experiences
difficultieswith sadness,intrusivethoughts,increasedfear,increased
patterns of isolation, panic, feelings of rage/anger, flashbacks,
nightmares/night terrors, depression, periods of hypervigilance, and
periods of hyperarousal. . . . He also continues to experience
physiological responses to nightmares that include an inability to
concentrate, feeling of muscle tightness, severe night sweats, hot
flashes, chills[,] and feelings of impending doom.
R. at 743. In addition, Mr. Crawford reported difficulties with sleeping,
concentrating, and relating to others. The examiner noted that he had been
married
five times and spends the majority of his time alone. Mr. Crawford
reported an
inabilityto maintain employment as a result of his disorder: “I have had
40 or 50 jobs
since leaving the military. I just cannot stand someone telling me what to
do. I just
get mad and quit.” R. at 747. The examiner noted that Mr. Crawford was ”
somewhat
disheveled” but presented normal emotional responses until they began
discussing
his combat service, at which time he appeared restless, sorrowful, anxious,
and tense.
R. at 749. The examiner continued:
He has intact memories to remote traumatic military events, but
demonstrates limited recollection in recent and present memories.
Although he has a paranoid attitude directed at some people this does
not appear to have become organized into a delusional belief system.
He denies tactile hallucinations, [but] report[s] auditory/visual
flashbacks. . . . He reports suicidal ideation especially at the holidays,
with no plan to complete. . . . His cognitive functioning is measured
by thought processes and clinical history and would appear to be
within normal limits, but impaired by paranoid thinking.
3

Id. The examiner administered a number of tests and concluded that Mr.
Crawford
suffered from severechronicpost-traumaticstress disorder that
severelyimpaired his
daily functions, severe depression, severe feelings of hopelessness, and
moderate to
severe anxiety. The examiner assigned a Global Assessment of Functioning
score
of 33. The examiner concluded that Mr. Crawford’s impairment as a result
of his
post-traumatic stress disorder was “so significant as to make regular
employment
almost impossible.” R. at 755.
4. December 2000 Board hearing testimony. Mr. Crawford testified that he
had
worked at more than 20 jobs since leaving the military but was unable to
maintain
employment because he had trouble getting along with people. He testified
as to the
symptoms of his post-traumatic stress disorder, that he had very few
relationships
outside of that with his wife, that he preferred to be alone, and that he
disliked being
in crowds. He also stated that he kept at least a dozen loaded guns all
around his
home and that he often slept on the couch because he felt safer having a
firearm
close at hand.
Mrs. Moore-Crawford filed a claim for accrued benefits in December 2001.
That claim was
denied in February 2002, and Mrs. Moore-Crawford appealed. In an October
2006 decision, the
Board granted an increased disability rating for post-traumatic stress
disorder to 50% for accrued
benefits purposes. Mrs. Moore-Crawford appealed that decision to the Court,
arguing that Mr.
Crawford was entitled to a greater than 50% disability rating for his
condition prior to his death.
That appeal was terminated when the parties entered into a joint motion to
remand the matter to the
Board, which the Court granted in March 2008. The joint motion directed
the Board to provide a
more thorough statement of reasons or bases for its determination that a
disability rating in excess
of 50% was not warranted. Specifically, the parties agreed that the Board
had not “adequately
discuss[ed] the impact of [Mr. Crawford’s] [post-traumatic stress disorder]
on his employment, nor
whether extra-schedular consideration was warranted in his case pursuant
to 38 C.F.R.
§ 3.321(b)(1).” R. at 24. The Board was also directed to reevaluate the
August 2000 statement from
Mr. Crawford’s VA vocational consultant in light of the Court’s then-
recent decision in Moore v.
Nicholson, 21 Vet.App. 211 (2007).
In October 2008, the Board issued the decision on appeal, denying Mrs.
Moore-Crawford’s
claim that her husband was entitled to a disability rating in excess of 50%
prior to his death. The
Boardfirstnotedthat,aftertheOctober2006Boarddecision,Mrs.Moore-
Crawford’sattorneyraised
the issue of entitlement to a total disability rating based on individual
unemployability for accrued
4

benefits purposes, asserting that such a claim should have been “inferred”
as pending at the time of
Mr. Crawford’s death, given the evidence of unemployability in the record.
The Board agreed, and
referred the matter to a VA regional office for initial adjudication.
Turning to the claim on appeal,
the Board stated:
With consideration of the directives of the Joint Motion, the Board finds
that
notwithstanding the August 2000 opinion of the . . . VA Vocational
Consultant, a 70
percent rating for [post-traumatic stress disorder] is not warranted based
on the
evidence of record at the time of [Mr. Crawford’s] death in light of the
fact that
specific criteria for a 70 percent rating codified at 38 C.F.R. § 4.130
simply were not
demonstrated by this evidence, to include the reports from a December 1999
VA
psychiatric examination.
R. at 11 (citing Massey v. Brown, 7 Vet.App. 204, 208 (1994); Pernorio v.
Derwinski, 2 Vet.App.
625, 628 (1992)).
The Board outlined the criteria for a 70% disability rating contained in
the general rating
formula for mental disorders, then noted that there was no evidence of
several of the criteria,
including intermittentlyillogical, obscure, or irrelevant speech;
obsessional rituals; near-continuous
panic; impaired impulse control; and spatial disorientation. The Board
acknowledged that Mr.
Crawford had appeared disheveled at the November 2000 private
psychological assessment, but
concluded that “the overall evidence does not exhibit neglect of
appearance or hygiene such as to
warrant a higher evaluation.” R. at 12. Likewise, the Board acknowledged
that Mr. Crawford
reported feeling suicidal around the holidays, but that he indicated that
had no plans to act on those
thoughts, and that he denied suicidal ideation in the December 1999 VA
examination and in an
August 2000 VA clinical record. Finally, the Board acknowledged that, in
the November 2000
private psychological assessment, Mr. Crawford was assigned a Global
Assessment of Functioning
score of 33. The Board noted that scores between 31 and 40 “reflect some
impairment in reality
testing or communication . . . or major impairment in several areas, such
as work or school, family
relations, judgment, thinking or mood,” but found no evidence in Mr.
Crawford’s case of impaired
reality testing or communication and determined that “the primarybasis for
the [Global Assessment
of Functioning] score of 33 appears to be [Mr. Crawford’s] depressed mood
and its effect on his daily
life.” R. at 13. According to the Board, “[s]uch symptomatology has
already been considered in a
50 percent evaluation.” Id. The Board therefore denied Mrs. Moore-
Crawford’s claim.
5

On appeal, Mrs. Moore-Crawford first contends that the Board erred in
referring the issue
of entitlement to a total disability rating based on individual
unemployability to the regional office
for adjudication in the first instance because, in light of Rice v.
Shinseki, 22 Vet.App. 447 (2009),
“the issue of [a total disability rating based on individual
unemployability] is properly in appellate
status” as a result of the claim for an increased disability rating, and
therefore the Board should have
considered it. Appellant’s Reply Brief (Br.) at 1.3
Next, Mrs. Moore-Crawford contends that the
Board’s decision denying entitlement to a 70% disability rating is clearly
erroneous and should be
reversed. In particular, she argues that the Board restricted its
discussion to symptoms contained in
the rating criteria, in violation of Mauerhan v. Principi, 16 Vet.App. 436 (
2002), and also failed to
give proper weight to the Global Assessment of Functioning score of 33
assigned to Mr. Crawford
in November 2000. Alternatively, she contends that the Board failed to
provide an adequate
statement of reasons or bases for its decision.
Inresponse,
theSecretaryfirstarguesthattheBoardproperlyreferredtheissueofentitlement
to a total disability rating based on individual unemployability to the
regional office. Next the
Secretary contends that the Board’s decision is not clearly erroneous and
that the Board provided
adequate reasons or bases for its decision.
II. ANALYSIS
A total disability rating based on individual unemployability is a means
other than the
disability rating schedule to be considered when considering the highest
disability rating to which
a claimant is entitled. See Rice, 22 Vet.App. at 453. To be entitled to a
total disability rating based
on unemployability, a veteran must have already been found to have a
disability or disabilities that
are service connected, the service-connected disability or disabilities
are ratable at a certain
percentage, and the service-connected disability or disabilities render
the veteran unable to secure
substantially gainful employment. 38 C.F.R. § 4.16(a), (b) (2010). “[D]
epending upon the status
of a veteran’s adjudicated disabilities at the time he or she presents
evidence of unemployability, the
This argument was raised, although inartfully, in Mrs. Moore-Crawford’s
principal brief; the argument was
clarified, not raised for the first time, in her reply brief. See Carbino
v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (noting
that arguments not raised in the principal brief are deemed waived).
3
6

issue of whether a total disability rating [based on unemployability]
will be handled either during
the determination of the initial disability rating assigned . . . or as a
claim for increased
compensation.” Rice, 22 Vet.App. at 452-53 (citing Dalton v. Nicholson, 21
Vet.App. 23, 32-34
(2007)). Here, the evidence of unemployabilityfirst appears in the record
in August 2000, while Mr.
Crawford’sNovember1999 claimfor anincreased disabilityratingforpost-
traumaticstressdisorder
was pending; therefore, the question of entitlement to a total disability
rating based on individual
unemployability is properly considered part of that pending claim. See id.
For reasons not explained in the record, by the Board, or by the Secretary,
this issue was not
addressed by either the regional office in its various decisions or the
Board in its October 2006
decision. It was not until Mrs. Moore-Crawford’s counsel expresslybrought
thematter totheBoard’s
attention that the Board determined in its October 2008 decision that
there was an “inferred claim”
for a total disability rating based on individual unemployability. See R.
at 5. This, in itself, is error
on the part of VA. See ComerNext Hit v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009
) (“A claim to
[entitlement to a total disability rating based on individual
unemployability] 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.”); Roberson
v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that
consideration of entitlement to a total
disability rating based on individual unemployability is required once “a
veteran submits evidence
of a medical disability and makes a claim for the highest rating possible,
and additionally submits
evidence of unemployability”); Robinson v. Peake, 21 Vet.App. 545, 552 (
2008) (holding that the
Board is required to address issues raised by the appellant or reasonably
raised by the record).
Once the Board recognized this error, it attempted to correct it by
referring the “inferred
claim” to the regional office for adjudication in the first instance. This
was improper. As the Court
explained in Rice, entitlement to a total disability rating based on
individual unemployability is not
a distinct claim that can be separated from the claim for the underlying
disability; rather, “a finding
that an individual is entitled to [a total disabilityrating based on
individual unemployability] merely
means that the veteran has met certain qualifications entitling him to a
‘total disability’ rating; in
other words, a disability rating of 100%.” Rice, 22 Vet.App. at 452; see
Norris v West, 12 Vet.App.
413, 420-21 (1999) (“A [total disability rating based on individual
unemployability] is not a basis
7

for an award of service connection. Rather, it is merely an alternate way
to obtain a total disability
rating without being rated 100% disabled under the Rating Schedule.”).
Simply put, the
consideration of entitlement to total disabilityrating based on individual
unemployabilityis part and
parcel of the determination of the proper disability rating for the
underlying condition where the
veteran has submitted evidence of unemployability.
Here, the resolution of the question of the proper disability rating to be
assigned for post-
traumatic stress disorder, whether schedular or extraschedular (in the
form of a total disabilityrating
based on individual unemployability in combination with Mr. Crawford’s
other service-connected
disabilities), was incomplete as aresult of VA’s failure to adjudicate
theissue of entitlement to a total
disability rating based on individual unemployability.4
Because the Board failed to either
(1) consider entitlement to a total disability rating based on individual
unemployability when it
considered Mrs. Moore-Crawford’s appeal of the proper disability rating
assigned for her husband’s
post-traumatic stress disorder, or (2) remand or refer the entire claim,
including the issue of
entitlement to a total disability rating based on individual
unemployability, to the regional office for
readjudication in light of the prior failure by the regional office to
consider evidence of
unemployability in assigning the proper disability rating for the
underlying condition, the Board’s
decision lacks adequate reasons or bases and the Court’s review of that
decision is therefore
frustrated. See 38 U.S.C. § 7104(d)(1) (requiring that the Board provide
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.”). Accordingly, the Court must vacate the Board’s decision
denying entitlement to an
4
The Court is aware of Holland v. Brown, which stated:
Although a [total disability based on individual unemployability] rating
claim predicated on a
particular service-connected condition is “inextricably intertwined” with
a rating increase claim
regarding the same condition, it does not necessarily follow that a rating
increase claim for a particular
service-connected condition is “inextricably intertwined” with a [total
disability based on individual
unemployability] rating claim predicated on that condition.
6 Vet.App. 443, 446 (1994). However, Holland was decided well before this
Court’s decision in Rice, as well as the U.S.
Court of Appeals for the Federal Circuit’s decisions in Previous HitComerNext Document and Roberson,
all of which clearly state that there is no
freestanding “claim” for a total disability rating based on individual
unemployability. The question here is not whether
one claim is “inextricably intertwined” with another, but rather whether
the Board considered all of the evidence before
it in determining the proper disability rating–schedular or
otherwise–to be assigned for Mr. Crawford’s post-traumatic
stress disorder.
8

increased disability rating for post-traumatic stress disorder for
accrued benefits purposes and
remand the matter for readjudication consistent with this decision. See
Tucker v. West, 11 Vet.App.
369, 374 ( 1998) (“[W]here 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, a
remand is the appropriate remedy.”).
The Court recognizes that Mrs. Moore-Crawford has raised other arguments
related to the
Board’s discussion of the evidence and its reasons or bases for its
determination. Because the claim
must be readjudicated, the Board will necessarilyreweigh the evidence and
provide a new statement
of its reasons or bases.5
Accordingly, the Court need not address Mrs. Moore-Crawford’s additional
arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (“A
narrow decision preserves for the appellant an opportunity to argue those
claimed errors before the
Board at the readjudication, and, of course, before this Court in an
appeal, should the Board rule
against him.”).
On remand, Mrs. Moore-Crawford is free to submit additional argument in
support of her
claim–including those arguments raised to but not addressed bythe
Court–though the Court reminds
her that, for accrued benefits purposes, VA is limited to reviewing the
evidence in the record at the
time of her husband’s death. See 38 U.S.C. § 5121(a); Bonny v. Principi,
16 Vet.App. 504, 507-08
(2002) (scope of inquiry into accrued-benefits claim is limited to
evidence existing at time of
veteran’s death); 38 C.F.R. § 3.1000(a) (2010); see also Kay v. Principi,
16 Vet.App. 529, 534
(2002). The Court reminds the Board 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). In addition,
the Board shall proceed expeditiously, in accordance with 38 U.S.C. §
7112 (expedited treatment
of remanded claims).
5
As discussed earlier in this opinion, there is a substantial amount of
evidence to support Mrs. Moore-
Crawford’s allegation that her husband’s condition should properly be
assigned a greater disability rating than is currently
assigned. Thus, the Board should take careful notice of this evidence in
its decision and properly account for it when
it makes its determination on remand.
9

III. CONCLUSION
Upon consideration of the foregoing, the October 28, 2008, Board decision
is VACATED
and the matter is REMANDED for readjudication consistent with this
decision.
DATED: November 30, 2010
Copies to:
Zachery M. Stoltz, Esq.
VA General Counsel (027)
10

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