Veteranclaims’s Blog

February 8, 2012

Single Judge Application, Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011), Prejudice Where Error Could of Made Difference

Filed under: Uncategorized — veteranclaims @ 7:27 pm

Excerpt from decision below:
“Here, because the Board did not believe it had jurisdiction over the issue,
it did not address whether there were facts supporting an award of TDIU between the periods that were adjudicated separately, and after the last adjudication for TDIU. Remand is warranted for the Board to address
this matter in the first instance. See Arneson v. Shinseki, 24 Vet.App.
379, 388-89 (2011) (finding prejudice where error could have made a difference in outcome)
; Tucker v. West, 11 Vet.App. 369, 374(1998)(remand is appropriate”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”); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo factfinding but rather to remand for the Board to find facts in the first
instance, subject to later
2

review by Court).”
========================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-3176
ANTHONY G. HARRIS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Anthony G. Harris appeals pro se a July 14,
2010, decision
of the Board of Veterans’ Appeals (Board) that denied his claim for a
disability rating in excess of
20% for a right-knee disability from February 1 to October 14, 2005, and
from January1, 2006, to
February 2, 2010, and determined it lacked jurisdiction over entitlement
to total disability based on
individual unemployability (TDIU). Mr. Harris argues that the Board erred
by (1) not properly
applying 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2011) and DC 5003,
and (2) not finding
that he has been totallydisabled since 2005. The Secretarydisputes these
contentions. Single-judge
disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the reasons
stated below, the decision of the Board will be affirmed in part, and set
aside in part, and the matter
remanded for further adjudication.
Although Mr. Harris argues that the Board did not properly apply DCs 5257
and 5003, he
fails to demonstrate how the Board misapplied these DCs, or that the Board
erred in its rating, and
error is not discerned on review of the record of proceedings. See
Johnston v. Brown, 10 Vet.App.
80, 84 (1997) (holding that the Board’s decision regarding the degree of
disability under the rating
schedule is a finding of fact subject to the “clearly erroneous” standard
of review); Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990) (“‘A finding is “clearly erroneous”
when although there is

evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm
conviction thatamistakehasbeencommitted.'”(quotingUnitedStatesv.U.S.
GypsumCo., 333 U.S.
364, 395 (1948))); see also Stankevich v. Nicholson, 19 Vet.App. 470, 472 (
2006) (stating that “the
Court reviews the selection of a DC under the [‘]arbitrary-and-capricious[‘
] standard of review”).
With regard to TDIU, the Board noted that Mr. Harris had March 2005 and
January 2007
requests for TDIU denied in July 2006 and February 2008, respectively, and
their denials were not
appealed. The Board therefore concluded that it did not have jurisdiction
over the issue. Although
the Board is correct with regard to the periods covered by the July 2006
and February 2008
decisions, such decision did not divest the Board of jurisdiction overthe
issue of TDIU for the period
between July 2006 and January 2007 and after February 2008. This is
because potential entitlement
to TDIU is part of every claim for disability compensation. See Rice v.
Shinseki, 22 Vet.App. 447,
454-55 (2009) (TDIU “is part and parcel of the determination of the
initial rating for [a] disability”).
Although the Secretaryand the Board can separate parts of a claim and
develop and adjudicate them
separately, see Fagre v. Peake, 22 Vet.App. 188, 191 n.4 (2008) (noting
the Secretary is free to
“issu[e] separate Board decisions with regard to each,some,
oralldisabilitiesclaimedbya veteran”),
TDIU remains a component of an increased rating claim for any period not
adjudicated separately,
and the Board has jurisdiction over the issue as long as it has
jurisdiction over an increased rating
claim, see Rice, supra. Evidence of unemployability subsequent to a
decision denying TDIU and
while a claim for increased benefits is still being processed may lead to
an award of TDIU for the
time period under adjudication.
Here, because the Board did not believe it had jurisdiction over the issue,
it did not address
whether there were facts supporting an award of TDIU between the periods
that were adjudicated
separately, and after the last adjudication for TDIU. Remand is warranted
for the Board to address
this matter in the first instance. See ArnesonNext Document v. Shinseki, 24 Vet.App.
379, 388-89 (2011) (finding
prejudice where error could have made a difference in outcome); Tucker v.
West, 11 Vet.App. 369,
374(1998)(remandis appropriate”wheretheBoardhasincorrectlyappliedthelaw,
failedto provide
an adequate statement of reasons or bases for its determinations, or where
the record is otherwise
inadequate”); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is
not to conduct de novo
factfinding but rather to remand for the Board to find facts in the first
instance, subject to later
2

review by Court).
On remand, Mr. Harris may present, and the Board must consider, any
additional evidence
and argument in support of the matter remanded. See Kay v. Principi, 16
Vet.App. 529, 534 (2002).
The remanded matter is to be provided expeditious treatment. See 38 U.S.C.
§ 7112.
Upon consideration of the foregoing, that part of the Board’s July 14,
2010, decision that
found the Board did not have jurisdiction over TDIU is SET ASIDE and the
matter REMANDED
for further adjudication consistent with this opinion, and the remainder
of the Board’s decision is
AFFIRMED.
DATED: February 6, 2012
Copies to:
Anthony G. Harris
VA General Counsel (027)
3

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