Veteranclaims’s Blog

May 11, 2011

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).

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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

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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.”

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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)
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