Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1550
JERRY C. HULSEY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
GREENE, Senior Judge: The self-represented appellant, Jerry C. Hulsey, appeals a February 8, 2016, Board of Veterans’ Appeals (Board) decision that denied (1) an effective date earlier than February 10, 1999, for an award of service connection for degenerative changes, right and left ankles; (2) an effective date earlier than December 26, 1996, for a rating of total disability based on individual unemployability (TDIU); and (3) reversal of a December 2011 rating decision that reduced his rating for bronchial asthma with bronchitis and bronchiectasis from 100% to 60% based on clear and unmistakable error (CUE) in a December 2001 rating decision. Record of Proceedings (R.) at 2-18.2 Single-judge disposition is appropriate. See Frankel v. Derwinski,
1 Judge Greene is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 01-21 (Jan. 4, 2021). 2 The Board granted (1) restoration of a 60% disability rating for chronic obstructive pulmonary disease with bronchial asthma and bronchitis and bronchiectasis, effective September 6, 2011; and (2) service connection for chronic rhinitis. These are favorable findings that the Court will not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part and dismissed in part sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . . decisions which are adverse to a claimant.”). The Board also remanded Mr. Hulsey’s claim for service connection for bilateral lower extremity peripheral neuropathy. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider this matter at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2021).
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1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm, in part, and vacate, in part, the Board’s decision, and remand the vacated matters for readjudication.
I. BACKGROUND
Mr. Hulsey served on active duty in the U.S. Marine Corps from April 1969 to December 1969. R. at 10379. In January 1970, he applied for service connection for feet and ankle conditions and chronic bronchitis. R. at 10,380-83. In a May 1970 rating decision, VA awarded him, among other things, a 30% disability rating for bronchitis, effective December 1969, but denied him service connection for his feet and ankle conditions. R. at 10,346-47, 8414. In correspondence dated June 1970, VA confirmed its May 1970 decision. R. at 10,328. In December 1970, Mr. Hulsey submitted a statement in support of his claim for service connection for “injury to feet,” along with some medical records. R. at 10,255.
In March 1971 correspondence, VA stated that it had “considered [his] claim for increased compensation,” but that a rating higher than 30% was not warranted for his service-connected bronchitis and that service connection was not warranted for his foot and ankle conditions. R. at 10,238. According to the 2016 Board decision, R. at 7, and as conceded by Mr. Hulsey, see Appellant’s Informal Brief (Br.) at 11, he did not appeal this decision.
In December 1996, Mr. Hulsey applied for an increased rating for his service-connected bronchitis. R. at 8409, 8413. He also attempted to reopen a claim for service connection for a foot condition. R. at 8415.
In February 1999 Mr. Hulsey submitted a claim for service connection for various conditions; according to the 2016 Board decision, these conditions did not include degenerative changes, bilateral ankles (as secondary to service-connected bilateral pes planus). R. at 7; but see R. at 812 (suggesting that a claim for service connection for an ankle condition was filed).
In a December 2001 hearing officer decision, VA determined that Mr. Hulsey did not appeal within one year from the March 1971 notification of the denial of his claim for service Finally, the Board referred the issue of CUE in the assigned rating and effective date for the July 2010 grant of service connection for dysthymia with major depression to the RO, because the issue “has been raised by the record . . . but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).” R. at 3. This action was proper. See Godfrey v. Brown, 7 Vet.App. 398, 408-10 (1995) (when a claim is raised for the first time on appeal to the Board, the Board must refer the claim to the RO for an initial adjudication).
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connection for a feet disability, so the May 1970 rating decision became final, and new and material evidence had not been submitted sufficient to reopen this claim. R. at 8406, 8414-18. However, the RO increased Mr. Hulsey’s bronchitis rating to 100%, effective December 1996. R. at 8413. Mr. Hulsey appealed. R. at 8344-94.
In 2003, Mr. Hulsey submitted evidence of unemployability. R. at 807, 7795. The record of proceedings includes information regarding Mr. Hulsey’s earnings and employment. See, e.g., R. at 8137, 8159- 8171. In a September 2003 decision review officer decision, VA denied Mr. Hulsey a rating of TDIU, on the basis that he had been granted a 100% rating for bronchitis effective December 1996, and that, prior to 1996, he did not meet the TDIU percentage requirements under 38 C.F.R. § 4.16. R. at 7797-98.
In a December 2010 letter, VA notified Mr. Hulsey that it was working on his claims for, among other things, bilateral osteoarthritis, ankles, CUE “on Rating Decisions of 1970, 1971, and 1997,” special monthly compensation (SMC), and TDIU. R. at 1727; see also R. at 2485.
In a December 2011 rating decision, VA determined that there was CUE in the December 2001 hearing officer’s decision and reduced Mr. Hulsey’s bronchitis rating from 100% to 60%, because, at the time, his use of systemic steroids was apparently intermittent and his use of inhalational steroids did not meet the systemic steroid use definition under 38 C.F.R. § 4.97, diagnostic code (DC) 6602. R. at 814. Since the bronchitis rating was reduced, VA granted a TDIU rating, effective December 1996 (the date of his increased rating claim for bronchitis). R. at 808. VA also granted service connection, on a secondary basis, for degenerative changes, bilateral ankles, each rated at 10%, effective February 10, 1999. R. at 808. Mr. Hulsey appealed this decision to the Board. R. at 563-71, 326-52.
In February 2016, the Board determined that an effective date earlier than February 1999 was not warranted for Mr. Hulsey’s service-connected ankle disability, because he did not appeal the March 1971 denial of this claim, there was no unadjudicated claim prior to February 1999, and that, “although the 1999 claim did not include a request for service connection for [an] ankle disability, in a December 2011 rating decision the RO granted this benefit and assigned an effective date of February 10, 1999; the date of the [v]eteran’s claim for service connection.” R. at 7-8.
The Board determined that he was not entitled to an earlier effective date for a TDIU rating because, among other reasons, he did not meet the percentage requirements under 38 C.F.R. § 4.16 prior to December 26, 1996, and because he admitted that he “worked, full time, on his father’s
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farm until 1993″; that he had been on his father’s payroll until 1997; that he had “other, nonservice-connected health problems prior to December 1996;” and that there was “no competent evidence that his service-connected disabilities alone precluded employment prior to December 1996.” R. at 15.
Under a liberal construction of his brief, see Calma v. Brown, 9 Vet.App. 11, 15 (1996), Mr. Hulsey argues for reversal or remand of the Board decision, based on alleged errors in the Board’s statement of reasons or bases. First, he appears to contend that the Board failed to adequately address whether he had a pending claim for service connection for a foot and ankle condition prior to February 1999. Appellant’s Informal Brief (Br.) at 20-22 (arguing, for example, that he submitted new and material evidence concerning his ankle condition shortly after the 1970 rating decision (citing 38 C.F.R. §§3.160(c) and 3.156(b)); Reply Br. at 1-2, 9-11.
Next, he argues that the Board failed to consider certain facts and made improper assumptions in denying an effective date earlier than 1996 for the award of TDIU. Appellant’s Informal Br. at 23-25. As to his bronchial asthma condition, he alleges that the Board overlooked 38 C.F.R. § 3.951(b) (“Preservation of Disability Ratings”). Appellant’s Informal Br. at 12; Reply Br. at 6.
Mr. Hulsey also refers to several claims that were not the subject of the Board’s decision on appeal. For example, he argues that he previously presented CUE arguments concerning the 1970 and 1971 rating decisions, the RO implicitly denied these CUE claims, he appealed, and that appeal remains pending. Appellant’s Informal Br. at 15; Reply Br. at 3-5; see also R. at 1727 (2010 VA correspondence discussing CUE claims). He also contends that the Board missed what he refers to as “Manlincon Remand Issues,” see Manlincon v. West, 12 Vet.App. 238, 240-41 (1999) (holding that, where the Agency fails to furnish an SOC as to the claims appealed, the Board must remand the claims with instructions to issue an SOC), and specifically, that VA failed to issue an SOC in response to several of his NODs, which he alleges have resulted in due process violations. Appellant’s Informal Br. at 16-19, Reply Br. at 2-3. And, he raises several contentions regarding SMC and depression claims. Appellant’s Informal Br. at 16, 18, 30; Reply at 14. The Secretary urges the Court to affirm the Board’s decision, arguing that there is a plausible basis in the record for its determinations and Mr. Hulsey has not demonstrated prejudicial error. Secretary’s Br. at 7-17.
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II. ANALYSIS A. Earlier Effective Date, Bilateral Ankle Condition
“[T]he effective date of an award based on an initial claim, or a supplemental claim, of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a)(1). VA has a duty “‘to fully and sympathetically develop [a] veteran’s claim to its optimum,'” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (quoting Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998)), which includes giving “a sympathetic reading to the veteran’s filings by ‘determin[ing] all potential claims raised by the evidence, applying all relevant laws and regulations.'” Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson, 251 F.3d at 1384); see Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007) (“It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability” and “it is the Secretary who knows the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.”). In every decision, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. 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). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57. It also must discuss all issues reasonably raised by the claimant or the record. Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009).
In this case, the Board provided an inadequate statement of reasons or bases for its determination that February 10, 1999, was the appropriate effective date for the grant of service connection for degenerative changes, bilateral ankles. The Board approved the 1999 effective date based on the “date of the [v]eteran’s claim for service connection”; yet the Board also found that Mr. Hulsey did not submit a 1999 claim for service connection for an ankle disability. R. at 7. It is
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unclear to the Court how or why the 1999 date was assigned, and the Board does not clarify. Judicial review is frustrated.
And, the Court cannot conclude that this error did not prejudice Mr. Hulsey. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (noting that the statute requiring this Court to “take due account of prejudicial error [ ] requires the Veterans Court to apply the same kind of ‘harmless error’ rule that courts ordinarily apply in civil cases”). Remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand (rather than reversal) 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”); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”). On remand, the Board must examine all potential bilateral ankle condition claims raised by the evidence. See Szemraj, 357 F.3d at 1373; see also Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”). B. TDIU TDIU may be assigned to a veteran who meets certain disability percentage thresholds and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2021). If a veteran fails to meet the percentage standards set forth in § 4.16(a) but is “unemployable by reason of service-connected disabilities,” the Board may refer the case to the Compensation Service Director for extraschedular consideration. 38 C.F.R. § 4.16(b); see Youngblood v. Wilkie, 31 Vet.App. 412, 416 (2019); Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). Whether a veteran is unable to secure or follow substantially gainful employment is a finding of fact that this Court reviews under the “clearly erroneous” standard. 38 U.S.C. §7261(a)(4); Bowling v. Principi, 15 Vet.App. 1, 6 (2001). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
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Gilbert, 1 Vet.App. at 52. As with any material issue of fact or law, the Board must provide a statement of the reasons or bases for its determination “adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday, 7 Vet.App. at 527; see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57. As the Secretary appears to concede, remand is also warranted for the Board to readjudicate Mr. Hulsey’s entitlement to extraschedular TDIU, prior to December 1996. See Secretary’s Br. at 14-15. The Board’s statement of reasons or bases is insufficient for judicial review. See Kellar v. Brown, 6 Vet.App. 157, 161 (1994) (remanding the claim where the 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) (remanding TDIU claim for the Board to provide reasons or bases where the Board had not given extraschedular consideration to the claim); Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (remanding 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). The Board premised its denial of TDIU on the fact that that Mr. Hulsey “worked, full time, on his father’s farm until 1993,” and that he had been on his father’s payroll until 1997. R. at 15. However, the Board did not discuss whether any employment Mr. Hulsey could obtain was substantially gainful, or more than marginal. The Court is unable to conclude that this omission was not prejudicial, given evidence in the record of proceedings of Mr. Hulsey’s earnings, and given that his employment was for a family business. See, e.g., R. at 8137, 8159-8174 (suggesting that, prior to 1996, Mr. Hulsey was capable only of marginal employment); 38 C.F.R. § 4.16(a) (working for a family business may qualify as marginal employment); see also Delrio v. Wilkie, 32 Vet. App. 232, 245, n.4 (2019) (noting that “[a]lthough the term ‘marginal employment’ appears only in § 4.16(a), there is nothing in the regulation to suggest, nor has the Secretary asserted, that VA is precluded from determining that marginal employment exists for purposes of referring a case for consideration of extraschedular TDIU under § 4.16(b)”) (quoting Cantrell, 28 Vet.App. at 388 n.5)); Ray v. Wilkie, 31 Vet.App. 58, 72-73 (2019) (acknowledging that TDIU includes economic and noneconomic components, which consider whether the veteran’s income is below the Federal poverty threshold and the veteran’s ability to secure or follow substantially gainful employment); Ortiz-Valles v. McDonald, 28 Vet.App. 65, 71 (2016) (“[W]hen the facts of the case reasonably raise the issue of whether the veteran’s ability to work might be limited to marginal
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employment, the Board’s statement of reasons or bases must address this issue.”); Moore v. Derwinski, 1 Vet.App. 356, 358, 359 (1991) (describing substantially gainful employment as work that is more than “marginal” and that permits the individual to earn a “living wage “). Remand is required. See Tucker, 11 Vet.App. at 374.
Moreover, the Board’s conclusory statements that Mr. Hulsey had “other, nonservice-connected health problems prior to December 1996,” and that there was “no competent evidence that his service-connected disabilities alone precluded employment prior to December 1996,” R. at 15, are insufficient for judicial review. No discussion or analysis precedes this determination. Remand is required for the Board to clarify. See 38 U.S.C. § 7104(d)(1); Tucker, 11 Vet.App. at 374; Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. On remand, Mr. Hulsey may submit additional evidence and argument on the remanded matters, including the specific arguments raised here on appeal, 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 the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board is reminded 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), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
C. Bronchial Asthma
Concerning Mr. Hulsey’s bronchial asthma rating, Mr. Hulsey alleges that the Board failed to address 38 C.F.R. § 3.951(b). Under this regulation, a “disability which has been continuously rated at or above [any] evaluation for twenty or more years for compensation purposes . . . shall not thereafter be rated at less than such evaluation, except upon a showing that such rating was based on fraud.” 38 U.S.C. § 110; see 38 C.F.R. § 3.951(b) (2021).
Here, VA increased Mr. Hulsey’s bronchitis rating to 100%, effective December 1996, in 2001, R. at 8413, and reduced it to 60% in December 2011. R. at 814. As this disability has not been continuously rated at 100% for 20 or more years, the potential applicability of § 3.951(b) was not reasonably raised by the record, see Robinson, 21 Vet.App. at 552-53, and the Board did not err by not addressing it. Remand of this matter is not warranted. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (holding that “strict adherence” to the reasons-or-bases requirement is not warranted where it would impose additional burdens on the Board with no benefit flowing to
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the veteran); see also 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); Sanders, 556 U.S. at 407-10 (under the harmless error rule, the appellant has the burden of showing that he or she suffered prejudice as a result of VA error).
D. Other Arguments The Court has no jurisdiction to consider Mr. Hulsey’s arguments concerning CUE (in the 1970 and 1971 rating decisions) and SMC, see, e.g., Appellant’s Informal Br. at 4-10, 12-15; Reply Br. at 1-4, 9-11, because the Board in this case did not adjudicate these matters. See 38 U.S.C. § 7252(a); Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364-65 (Fed. Cir. 2005) (holding that, where the Board has not issued a final decision on a claim, the Court may not review that claim on appeal); Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (“[T]he court’s jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed.”). And, there is no indication in the record of proceedings that these matters were pending before the Board. Should Mr. Hulsey wish to pursue these matters, the appropriate procedure is to follow up with VA. See Dallman v. Wilkie, 33 Vet.App. 101, 108 n.5 (2020) (“Nothing in this decision should be read as precluding a veteran from asserting before the RO that there is a pending, unadjudicated matter.”). The Court has considered Mr. Hulsey’s remaining arguments not explicitly addressed above and finds that they are either undeveloped or insufficient to demonstrate prejudicial error in the decision on appeal. See 38 U.S.C. § 7261(b)(2); Sanders, 556 U.S. at 409; Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (per curiam) vacated on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order) (citing Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (holding that the appellant, who comes to the court of appeals as the challenger of the underlying decision, “bears the burden of demonstrating the alleged error and the precise relief sought” and, where the appellant fails to meet this burden, the “court of appeals is not required to manufacture” the appellant’s argument)). Any new arguments raised in Mr. Hulsey’s reply brief will not be addressed. See Carbino v. Gober, 10 Vet.App. 507, 511 (1997) (declining to review argument first raised in appellant’s reply brief), aff’d sub nom. Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (“[I]mproper or late presentation of an issue or argument . . . ordinarily should not be considered.”).
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III. CONCLUSION
Based on the foregoing analysis, the parties’ briefs, and a review of the record on appeal, the Board’s February 8, 2016, decision that denied Mr. Hulsey’s claims for an earlier effective date for the grant of service connection for a bilateral ankle condition and for a TDIU is VACATED and these matters are REMANDED for readjudication. The decision is otherwise AFFIRMED.
DATED: September 16, 2021
Copies to:
Jerry C. Hulsey
VA General Counsel (027)