Veteranclaims’s Blog

June 28, 2011

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

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,
the effective date 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-connected disabilities,”a claimant is eligible to receive TDIU. 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
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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 disability rating for PTSD to 70% effective May12, 1992, which gave him a combined disability rating 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 the foregoing, the Court SETS ASIDE the June25, 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)
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