Veteranclaims’s Blog

March 7, 2011

Single Judge Application Extraschedular, Colayong v. West, 12 Vet.App., CFR 3.321

Filed under: Uncategorized — Tags: , — veteranclaims @ 9:38 pm

Excerpt from decision below:

“However, the Board should have addressed the potential applicability of extraschedular consideration under 38 C.F.R. § 3.321. See Colayong v. West, 12 Vet.App. 524, 536 (1999) (“Where there is evidence in the record that shows exceptional or unusual circumstances . . . the Board must specifically adjudicate the issue of whether an extraschedular-rating analysis is appropriate”); R. at 14 (“The veteran’s award of [Social Security Administration] disability benefits raises a question as to whether referral of the case for extraschedular consideration is warranted”); see also Kellar v. Brown, 6 Vet.App. 157, 162 (1994) (determining that the “appellant’s claim for extraschedular consideration of his service-connected condition is not inextricably intertwined with the TDIU claim which has been referred to the [agency of original jurisdiction]”). On remand, the Board is required to discuss, regardless of whether an RO determination as to TDIU has been issued or not, extraschedular consideration under 38 C.F.R. § 3.321.
++++++++++++++++++++++++++++++

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1027
RICHARD L. BORNHEIM, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.

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

MOORMAN, Judge: The appellant, Richard L. Bornheim, appeals through
counsel a December 9, 2008, Board of Veterans’ Appeals (Board) decision that denied
entitlement to an effective date prior to December 3, 2001, for the assignment of a rating in excess of 30% for post-traumatic stress disorder (PTSD) and granted a 70% rating for PTSD, effective from the earlier effective date of August 30, 2001. Record (R.) at 3-15. Both parties filed briefs, and the appellant filed a reply brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review because the outcome in this case is controlled by the Court’s precedents and “is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate and remand the Board’s December 2008 decision.

I. FACTS
Mr. Bornheim served in the U.S. Army from January 1968 to December 1969. R.
at 890. In January 1993, Mr. Bornheim filed a VA application for compensation or
pension. R. at 1467-70. On February 4, 2000, the Board remanded the appellant’s claim for entitlement to serviceconnection for PTSD. R. at 734-43. On August 30, 2001, the RO granted service connection for PTSD at a

disability rating of 30% effective January 20, 1993. R. at 624-30.
Notification of this RO decision was sent to the appellant on September 12, 2001. R. at 621-23. On November 14, 2001, the appellant filed a statement in support of claim that read:
I am asking for my claim file under the freedom of information act.
Please send me a copy of my entire claim file. I want to appeal the rating
decision of August 30, 2001.
This is not a Notice of Disagreement [(NOD)] for appeal purposes at this
point. I just want my entire claim file so I can perfect my claim, that will result in an appeal. R. at 592-93. VA sent his claims file to him. See id.; R. at 591. On June 28, 2002, the appellant filed an additional statement in support of claim with the heading “Request Increase.” R. at 568.
On March 5, 2003, an RO rating decision stated: “[The appellant] filed a
claim for increased evaluation that was received June 28, 2002.” R. at 542. The RO determined that a higher evaluation was not warranted and continued the 30% disability rating. R. at 542-46. In June 2003, the appellant filed a notarized statement that: “This is a NOTICE OF DISAGREEMENT with rating decisions dated August 30, 2001, and March 5[], 2003.” R. at 516; see R. at 493. In a January 2004 decision review officer determination, the appellant’s PTSD rating was increased to 50 %, effective December 3, 2001. R. at 490-94. In March 2004, the appellant filed a statement in support of claim with the heading “Notice of Disagreement,” and stating, in relevant part, “Please consider this as my notice of disagreement.” R. at 477. In February 2005, the appellant perfected his Substantive Appeal to the Board. R. at 448. On December 9, 2008, the Board issued the decision here on appeal.
The appellant argues: (1) that the Board erred in finding that the evidence submitted during the one-year appeal period after the August 2001 RO decision constituted a new claim; (2) the Board erred in finding that his November 2001 statement was not an NOD, and thus erred in holding that the August 2001 RO decision was final; (3) because his NOD was timely, he is entitled to an effective date consistent with the facts found but no earlier than the date of his original claim; (4) because his January 1993 claim remains pending, the Board erred in not applying the correct diagnostic codes and 38 C.F.R. § 4.16(c); (5) in the alternative, if the November 2001 statement is not a valid NOD, that the Board then erred by failing to consider whether he was entitled to an earlier effective date under 38 C.F.R. § 3.156(b); and (6) the Board erred in refusing to review the issue of
2

total disability based on individual unemployability (TDIU) and the potential applicability of an extraschedular rating. Appellant’s (App.) Brief (Br.) at 9-10, 16-18, 20.
The appellant asserts that remand is warranted, but also appears to argue that the Court should
reverse and order a remand directly to the RO. App. Br. at 22-23; see App. Reply Br. at 7, 11. The
Secretary argues that the Court should remand the 2008 Board decision because its statement of
reasons or bases is inadequate, but should affirm the Board’s finding that the appellant’s
November 2001 did not constitute an NOD. Secretary’s Br. at 2.

II. ANALYSIS
A. The November 2001 Statement
Because a significant portion of the parties’ arguments centers on the
classification of the appellant’s November 2001 statement, the Court will address this contention first.
TheCourt reviews de novo whether a certain document constitutes an NOD. See 38 U.S.C. §
7261(a)(1); Young v. Shinseki, 22 Vet.App. 461, 466 (2009). “In determining whether a written
communication constitutes an NOD, the Court looks at both the actual wording of the
communication and the context in which it was written.” Jarvis v. West, 12 Vet.App. 559, 561 (
1999). An NOD must be in terms that can be reasonably construed as disagreeing with a determination and desiring appellate review. 38 C.F.R. § 20.201 (2010). The Board determined that the appellant’s November 2001 statement could not be construed as an NOD because it explicitlystated: “‘This is not a notice of disagreement for appeal purposes at this point.'” R. at 9 (quoting the November 2001 statement). The Court agrees that the language explaining that the November 2001 statement did not constitute an NOD, combined with a lack of any indication as to a then-current disagreement with the RO decision, shows that the November 2001 statement cannot be reasonablyconstrued as constituting an NOD, regardless of the appellant’s assertion that he planned to appeal after review of his claims file. See Jarvis, supra; 38 C.F.R. § 20.201 (explainingthat an NOD “must be in terms which
canbereasonablyconstrued”as expressing dissatisfaction or disagreement with a determination and a desire to contest the result); R. at 592 (“I just want my entire claim file so I can perfect my claim, that will result in an appeal.”). Further, to the extent the appellant argues that VA did not sympathetically read his November 2001 statement,
3

this is not supported by the evidence of record. See R. at 591 (letter stating the appellant’s entire claims file, including military records, was furnished to him in response to his request); see also Hilkert v. West, 12 Vet.App. 145, 151 (1999) (“An appellant bears the burden of persuasion on appeals to this Court.”); Berger v. Brown, 10 Vet.App. 166, 169 (1997) (“[T]he appellant . . . always bears the burden of persuasion on appeals to this Court.”). Thus, the Court concludes that the Board did not err in determining that the November 2001 statement did not constitute an NOD. The appellant’s remaining arguments that are dependent on a determination that the November 2001 statement was an NOD are moot.

B. The June 2002 Statement
As this Court explained in Muehl, when new and material evidence is received within the appeal period, that evidence will be considered as having been filed in connection with the claim pending at the beginning of that period. Muehl v. West, 13 Vet. App. 159, 161 (1999) (citing 38 C.F.R. § 3.156(b)); see Charles v. Shinseki, 587 F.3d 1318, 1322-23 (Fed. Cir. 2009); see also Voracek v. Nicholson, 421 F.3d 1299, 1304-05 (Fed. Cir. 2005) (applying definition from 38 C.F.R. § 3.156(a) to § 3.156(b) for terms “new” and “material”).
The appellant’s June 2002 statement in support of claim stated:
. . . REQUEST INCREASE . . .
I request an increase in my service connected PTSD as it has increased in
severity.
My condition has so greatly increased that at time I can hardly function
as a result.
I am seen by the Columbus VAOPC, please obtain those records to well
ground my claim. R. at 568. VA has continually interpreted the appellant’s June 2002
statement as a new claim for an increased rating. See R. at 457, 542. Additionally, the Board’s 2008 findings of fact states that “[o]n June 28, 2002, the RO received the veteran’s claim requesting an increased rating for his PTSD.” R. at 4.
Both parties now question the classification of the June 2002 statement.
See App. Br. at 10; Secretary’s Br. at 3. The appellant argues that the June 2002 statement
could not, as a matter of law, be a new claim for an increased rating. App. Br. at 10 (citing to Young, 22 Vet.App. at 466-67).
However, the appellant misinterprets Young, which explains that a document
filed before an RO
4

decision is final cannot constitute a claim to reopen that pending decision. See Young, 22 Vet.App at 466-67. Young does not stand for the proposition that a veteran may not file a claim for an
increased disabilityrating prior to the one-year finalization period of an RO decision. See id. at 469.
Rather, this Court in Young explained that if the Board determined a report submitted before the end of the one-year finalization period was not new and material evidence, it should then have determined whether the report constituted a claim for an increased disability rating. Id. at 468-69. The first step, thus, is a determination by the Board as to whether the June 2002 statement constituted new and material evidence.
The Secretary correctly argues that the Board failed to provide an adequate statement of
reasons or bases as to whether the 2002 June statement itself constituted new and material evidence. Secretary’s Br. at 3. And given the facts of this case, further factual
determinations may be needed to determine whether the Board erred by failing to consider whether the appellant was entitled to an earlier effective date under 38 C.F.R. § 3.156(b). See App. Br. at 17. For instance, the appellant argues that the 2002 June statement advised VA of treatment records that constituted new and material evidence and that such records were constructively before VA at that time because they were VA-generated medical records. App. Br. at 17-18.1
Because both parties’ arguments are premised on findings of fact that should be made by the Board in the first instance, remand to the Board is the proper course. See Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000)(explaining that the Supreme Court has held that when a court of appeals reviews a lower court’s decision, it may remand it if the previous adjudicator failed to make
findings of fact essential to the decision).
The appellant also argues that the Board erred in “refusing” to determine
whether he was entitled to TDIU and entitlement to an extraschedular rating. App. Br. at
20. The Board noted that the appellant submitted a claim for TDIU in July 2008 and stated that “the
veteran has filed a claim seeking TDIU which has yet to be adjudicated by the RO.” R. at 4, 14. To
the extent that the appellant implies that the claim for TDIU was properlybefore the Board
prior to the July2008 filing, he provides no support for this contention. See ComerNext Document v. Peake, 552 F.3d 1362, 1367 (Fed. Cir.

footnote 1.The appellant does not suggest that the VA medical records at issue were
obtained prior to the end of the one-year finalization period beginning after notice of the August 1, 2001, RO decision. See App. Br. at 17.

5

2009) (TDIU “is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating” (emphasis added)); Evans v. West, 12 Vet.App. 22, 31 (1998) (stating the Court will give no consideration to a “vague assertion” or “unsupported contention”). To the extent that the appellant asserts that the Board improperly requested that the RO adjudicate the issue of TDIU, “[b]ifurcation of a claim generally is within the Secretary’s discretion.” Locklear v. Shinseki, _ Vet.App. _, 2011 WL 474693, No. 09-2675, *3, (February 11, 2011). Thus, the Court is not persuaded that the Board committed any error in referring the issue of TDIU to the RO. See Hilkert and Berger, both supra.
In regard to the issue of TDIU itself, the Court does not have jurisdiction at this time. See 38
U.S.C. § 7252; see also Velez v. West, 11 Vet.App. 148, 157-58 (1998); Hampton v. Gober, 10 Vet.
App. 481, 483 (1997).
However, the Board should have addressed the potential applicability of extraschedular consideration under 38 C.F.R. § 3.321. See Colayong v. West, 12 Vet.App. 524, 536 (1999) (“Where there is evidence in the record that shows exceptional or unusual circumstances . . . the Board must specifically adjudicate the issue of whether an extraschedular-rating analysis is appropriate”); R. at 14 (“The veteran’s award of [Social Security Administration] disability benefits raises a question as to whether referral of the case for extraschedular consideration is warranted”); see also Kellar v. Brown, 6 Vet.App. 157, 162 (1994) (determining that the “appellant’s claim for extraschedular consideration of his service-connected condition is not inextricably intertwined with theTDIU claim which has been referred to the [agency of original jurisdiction]”). On remand, the Board is required to discuss, regardless of whether an RO determination as to TDIU has been issued or not, extraschedular consideration under 38 C.F.R. § 3.321.
Because the Court is remanding this matter for readjudication and VA will necessarily undertake further development, the appellant’s other arguments, including the potential applicability of the pre-1996 version of 38 C.F.R. § 4.130, Diagnostic Code 9411, and 38 C.F.R. § 4.16, are best addressed on remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam) (“A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at readjudication, and, of course, before this Court in an appeal, should the Board rule against him.”).
The appellant is free to submit additional evidence and raise his
arguments to the Board on remand; and the Board is required to consider them as it provides expeditious treatment of this matter. See
6

38 U.S.C. § 7112; see also Kay v. Principi, 16 Vet.App. 529, 534 (2002);
Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s December 9, 2008, decision is VACATED and REMANDED for further proceedings consistent with this opinion.
DATED: February 28, 2011
Copies to:
Sandra E. Booth, Esq.
General Counsel (027)
7

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: