Veteranclaims’s Blog

January 22, 2016

Palmatier v. McDonald, No. 2014-7097(Decided: September 22, 2015); Claim Bifurcation; Elimination of Issues; 38 C.F.R. § 20.204(a)

Excerpt from decision below:

Palmatier v. McDonald, No. 2014-7097(Decided: September 22, 2015)

“The issue before the court is whether it is permissible
for the Board to determine that Mr. Palmatier had split
his claim. We conclude that whether the claims were
properly bifurcated, and ultimately whether this bifurcation
was properly affirmed by the Veterans Court is a
question of law, not one of fact. Thus, we have jurisdiction
pursuant to 38 U.S.C. §§ 7292(a) and (c) as the issue
before us is one of law.”

==================

“Mr. Palmatier argues that while the Board properly
determined it can bifurcate a claim, because here it only
provided a partial grant of TDIU benefits, there was no
legal bifurcation. Finally, Mr. Palmatier contends that he
did not bifurcate his claim, as his filings did not act to
eliminate his previous claims. We agree with Mr. Palmatier.
As Mr. Palmatier concedes, the VA can properly bifurcate
issues; however, the Board is obligated to decide all
matters on appeal. 38 U.S.C. § 7104(d)(1) (The Board
must include “a written statement of [its] findings and
conclusions, and the reasons or bases for those findings
and conclusions, on all material issues of fact and law
presented on the record.”). Furthermore, it is the appellant,
not the Board, who may unilaterally eliminate issues
on appeal. 38 C.F.R. § 20.204(a) (“Only an appellant, or
an appellant’s authorized representative, may withdraw
an appeal.”).
Here, there was no bifurcation of Mr. Palmatier’s
claim. First, Mr. Palmatier did not himself bifurcate his
appeal at any time. While Mr. Palmatier filed for TDIU
in both March 2003 and December 2009, these filings
were part and parcel with Mr. Palmatier’s initial June
2002 filing. Second, the VA contends that because Mr.
Palmatier did not appeal the Regional Office’s decision in
April 2011, regarding the effective date for his TDIU, his
argument for an early effective date is moot. However, we
conclude that the Regional Office’s grant did not serve to
bifurcate the appeal, but instead served simply to partially
grant Mr. Palmatier’s request for TDIU.”

====================

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
______________________
LAWRENCE J. PALMATIER,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7097
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2444, Judge Lawrence B.
Hagel.
______________________
Decided: September 22, 2015
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter,
Chartered, Topeka, KS, argued for claimant-appellant.
ELIZABETH ANNE SPECK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by JOYCE R. BRANDA, ROBERT E.
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR; MARTIE
2 PALMATIER v. MCDONALD
ADELMAN, Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs.
______________________
Before PROST, Chief Judge, NEWMAN and CHEN, Circuit
Judges.
PROST, Chief Judge.
Mr. Palmatier appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) finding that the issue of his entitlement to an
extraschedular total rating from June 2002 to December
2009 was rendered moot by the decision of the Department
of Veterans Affairs (“VA”) to grant an extraschedular
total rating made during the pendency of his appeal.
We reverse and remand with instructions for the Veterans
Court to remand the case to the Board of Veteran’s
Appeals (“Board”) to determine Mr. Palmatier’s proper
extraschedular rating from June 2002 to December 2009.
I. BACKGROUND
Mr. Palmatier served in the United States Army from
January 1962 to January 1963. In January 1963 Mr.
Palmatier was medically separated from the service due
to asthma. Mr. Palmatier was awarded compensation for
asthma with a rating of 10% effective August 18, 1976.
This rating was increased to 60% effective December 19,
2006.
In June 2002, Mr. Palmatier applied for service connected
compensation for lower back pain. In his request
for compensation, Mr. Palmatier stated:
I request that I be considered for service connection
for a back condition. Please consider the enclosed
service medical record, dated 26 October
1962, which indicates a diagnosis of bilateral low
back pain. Also, please refer to the enclosed priPALMATIER
v. MCDONALD 3
vate medical records which indicate the severity of
my back condition.
J.A. 25 (emphasis omitted). In March 2003, during the
pendency of Mr. Palmatier’s initial claim, Mr. Palmatier
requested a total disability rating based on individual
unemployability (“TDIU”) due to his lower back pain.
In April 2003, the VA Regional Office determined that
Mr. Palmatier’s back pain was not found to be chronic
during service. Mr. Palmatier appealed this denial and in
September 2008 the Board awarded Mr. Palmatier service
connection for his back disability. During the pendency of
this appeal, Mr. Palmatier’s TDIU request was denied. In
December 2009, Mr. Palmatier filed a second request for
TDIU. In this form, Mr. Palmatier responds to the question,
“What service-connected disability prevents you from
securing or following any substantially gainful occupation?”
by stating, “[a]sthma [and] [b]ack condition.” J.A.
67.
When the case was remanded to the Regional Office,
the Regional Office assigned Mr. Palmatier a 0% rating.
Mr. Palmatier filed a disagreement with this determination
and the Regional Office increased his rating to 40%
from April 2010 forward and a 10% from June 2002 to
April 2010.
On July 16, 2010, Mr. Palmatier appealed this rating
increase. In appealing the decision, Mr. Palmatier responded
to the question, “These are the issues I want to
appeal to the BVA” by stating:
I want to appeal the effective date of April 2010
for my 40% rating for my back. I retired from my
job due to back problems in February, 1992. At
the time I retired the doctor said do not bend over
to pick things up. My VA doctor told me in September,
2009 no bending, no long standing, no lifting
because of pain. In 2003 I received X-rays
4 PALMATIER v. MCDONALD
showing herniated disk at L-5; bulging L-2
through 4. L-5 was hurt in the military.
J.A. 74 (emphasis added). Furthermore, in response to
the question “Here is why I think that VA decided my
case incorrectly,” Mr. Palmatier responded:
The rating does not factor in the pain this veteran
experiences and has experienced since 1992 and
certainly since 2002. He wasn’t able to work due
to back pain and had to retire. He can’t drive a
truck because of jarring. He took magnesium
chloride trysalicylate for muscle spasms in his
back but had to discontinue it April, 2008 due to
GI upset. Since before 2002, he has taken Soma,
350 mg. a muscle relaxer at night before bedtime.
He also takes medication to sleep because he can’t
sleep due to back pain. This has been going on
since prior to 2002. Dr. Eric DelGiacco treated
the veteran for back pain since 1989. Dr. John
Dyer treats me for pain now.
J.A. 74 (emphasis added).
In April 2011, the Regional Office awarded Mr. Palmatier
benefits based on unemployability to due to his
lower back condition with an effective date of December
2009. The Regional Office determined the effective date
based on the date of Mr. Palmatier’s TDIU application.
Mr. Palmatier did not directly appeal this decision.
In June 2012, the Board determined that Mr. Palmatier
was owed a 40% rating for his back with an effective
date of July 2012. However, the Board did not consider
either Mr. Palmatier’s unemployability or the applicability
of either 38 C.F.R. § 4.16(a) or (b). Instead the Board
indicated that the issue of TDIU was moot. Mr. Palmatier
appealed this decision to the Veterans Court, which
affirmed the Board’s decision on February 11, 2014. Mr.
Palmatier then filed a motion for reconsideration and for
PALMATIER v. MCDONALD 5
panel review, which was denied on March 31, 2014. On
June 11, 2014, Mr. Palmatier timely appealed to this
court.
II. DISCUSSION
The VA contends that this court is without jurisdiction
over this case, because this case implicates a finding
of fact and not a finding of law. We disagree.
We review legal determinations of the Veterans Court
de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.
Cir. 1991). However, we “may not review (A) a challenge
to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case” 38
U.S.C. 7292(d)(2). Here, the VA contends that the primary
issue on appeal is that Mr. Palmatier disagrees with
the Board’s factual finding that his appeal requested only
a review of the effective date of his disability finding, not
a review of the VA’s TDIU decision. Conversely, Mr.
Palmatier argues that the VA mischaracterizes the appeal,
and that the appeal addresses a question of law;
specifically, whether the issue of entitlement to a TDIU
rating was moot. We agree with Mr. Palmatier.
The issue before the court is whether it is permissible
for the Board to determine that Mr. Palmatier had split
his claim. We conclude that whether the claims were
properly bifurcated, and ultimately whether this bifurcation
was properly affirmed by the Veterans Court is a
question of law, not one of fact. Thus, we have jurisdiction
pursuant to 38 U.S.C. §§ 7292(a) and (c) as the issue
before us is one of law.
The VA argues that Mr. Palmatier did not appeal the
issue of his TDIU and instead indicated to the Board that
he only wanted to appeal the effective date of his low back
injury. The VA relies on Mr. Palmatier’s July 2010 appeal,
which the VA argues proves Mr. Palmatier’s intent
not to appeal the TDIU decision. Conversely, Mr. Palmat6
PALMATIER v. MCDONALD
ier argues that by law the issue of entitlement to benefits
based on unemployability was on appeal to the Board,
because the Board was on notice of the claim. Furthermore,
Mr. Palmatier argues that while the Board properly
determined it can bifurcate a claim, because here it only
provided a partial grant of TDIU benefits, there was no
legal bifurcation. Finally, Mr. Palmatier contends that he
did not bifurcate his claim, as his filings did not act to
eliminate his previous claims. We agree with Mr. Palmatier.
As Mr. Palmatier concedes, the VA can properly bifurcate
issues; however, the Board is obligated to decide all
matters on appeal. 38 U.S.C. § 7104(d)(1) (The Board
must include “a written statement of [its] findings and
conclusions, and the reasons or bases for those findings
and conclusions, on all material issues of fact and law
presented on the record.”). Furthermore, it is the appellant,
not the Board, who may unilaterally eliminate issues
on appeal. 38 C.F.R. § 20.204(a) (“Only an appellant, or
an appellant’s authorized representative, may withdraw
an appeal.”).
Here, there was no bifurcation of Mr. Palmatier’s
claim. First, Mr. Palmatier did not himself bifurcate his
appeal at any time. While Mr. Palmatier filed for TDIU
in both March 2003 and December 2009, these filings
were part and parcel with Mr. Palmatier’s initial June
2002 filing. Second, the VA contends that because Mr.
Palmatier did not appeal the Regional Office’s decision in
April 2011, regarding the effective date for his TDIU, his
argument for an early effective date is moot. However, we
conclude that the Regional Office’s grant did not serve to
bifurcate the appeal, but instead served simply to partially
grant Mr. Palmatier’s request for TDIU.
Mr. Palmatier perfected his appeal regarding TDIU.
This court has made clear that when the record contains
evidence of his unemployability, “‘regardless of whether a
PALMATIER v. MCDONALD 7
claim is specifically labeled as a claim for TDIU,’ the VA
is obligated to ‘determine all potential claims raised by
the evidence.’” Comer v. Peake, 552 F.3d 1362, 1367 (Fed.
Cir. 2009) (quoting Roberson v. Principi, 251 F.3d 1378,
1384 (Fed. Cir. 2001)) (brackets omitted) (emphasis
added). Thus, the “VA must consider whether a TDIU
award is warranted whenever a veteran submits evidence
of a medical disability and makes a claim for the highest
rating possible, and additionally submits evidence of
unemployability.” Id. (internal quotation marks omitted)
(emphasis added). As we concluded in Roberson:
The VA must consider TDIU because, in order to
develop a claim “to its optimum” as mandated by
Hodge, the VA must determine all potential
claims raised by the evidence, applying all relevant
laws and regulations, regardless of whether
the claim is specifically labeled as a claim for
TDIU.
251 F.3d at 1384.
Here, the Mr. Palmatier placed the VA on notice on
multiple occasions. Not only did he file direct requests for
TDIU in March 2003 and January 2006–which themselves
would be sufficient to put the VA on notice—but his
July 16, 2010 appeal to the Board itself placed the VA on
notice of his TDIU claim. The VA argues that the appeal
did not raise the issue of TDIU; we disagree. As quoted
above, Mr. Palmatier explicitly stated that he could not
work because of his back injury. He further stated that
his retirement was due to his back injury. These statements
are sufficient to put the VA on notice that his 2002
claim included TDIU.
III. CONCLUSION
For the reasons stated above, we reverse the Veterans
Court and remand this case back to the Veterans Court
with instructions for this case to be remanded to the
8 PALMATIER v. MCDONALD
Board to determine Mr. Palmatier’s proper extraschedular
rating from June 2002 to December 2009.
REVERSED AND REMANDED
COSTS
Costs are awarded to Mr. Palmatier.

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