Veteranclaims’s Blog

April 11, 2011

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

Filed under: Uncategorized — veteranclaims @ 3:29 pm

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).
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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)
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