Veteranclaims’s Blog

July 6, 2020

Single Judge Application; due process under 38 C.F.R. § 19.37(b) and 38 C.F.R. § 20.1304(c); Ray v. Wilkie, 31 Vet.App. 58, 73 (2019); Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0601
DAVID DEWETH, APPELLANT,
V.
ROBERT L. WILKIE,
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 appellant, David Deweth, appeals through counsel an
October 3, 2018, Board of Veterans’ Appeals (Board) decision that denied a rating higher than
20% for radiculopathy of the left lower extremity and a rating higher than 20% for post-operative
residuals of L5-S1 microdiscetomy with chronic pain syndrome before June 22, 2015, and higher
than 40% thereafter. The Board also denied a rating of total disability based on individual
unemployability for these (and other) service-connected disabilities (TDIU). 2 Record of
Proceedings (R.) at 4-28. Single-judge disposition is appropriate. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990).
On April 22, 2020, Mr. Deweth filed an opposed motion for oral argument. Because the
Court finds that oral argument will not “materially assist in the disposition of this appeal,” Hackett
1 Judge Greene is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC.
ORDER 01-20 (Jan. 2, 2020).
2 Additionally, the Board denied a rating higher than 10% for radiculopathy of the right lower extremity, a
rating higher than 50% for migraine headaches, and a rating higher than 70% for post-traumatic stress disorder
(PTSD). Mr. Deweth does not challenge these portions of the Board decision. Any appeal as to these matters is,
therefore, dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that, where an
appellant abandons an issue or claim, the Court will not address it).
2
v. Principi, 18 Vet.App. 477, 478 (2004), it will be denied. See U.S. VET. APP. R. 34(b) (“Oral
argument normally is not granted on . . . matters being decided by a single Judge.”). As explained
below, the Court will vacate the Board’s decision and remand the matter for further proceedings
consistent with this decision.
I. BACKGROUND
Mr. Deweth served on active duty in the U.S. Army from August 2005 to May 2012. R. at

  1. He applied for disability compensation for, among other things, a right leg condition and a
    back condition. R. at 4494. He was awarded service connection for radiculopathy of the right
    lower extremity rated 10% and degenerative disc disease (DDD) (back condition) rated 20% in
  2. R. at 3210. In 2013, Mr. Deweth sought an increased rating for his back condition. R. at
  3. In a 2014 rating decision, VA continued Mr. Deweth’s 20% rating for his back condition,
    but granted service connection for radiculopathy of the left lower extremity (left leg condition)
    with a 10% rating. R. at 1915. Mr. Deweth appealed that decision to the Board, R. at 1881, and in
    March 2015 also filed with the RO a claim for a rating of TDIU, R. at 1507, 1853.
    In a March 2016 Statement of the Case (SOC), VA increased Mr. Deweth’s rating for his
    back condition (recategorizing it as “post-operative residuals of a L5-S1 microdiscetomy with
    chronic pain syndrome”) to 40%, effective June 2015 (based on a June 2015 VA examination
    showing worsening symptoms), but maintained his 20% rating before June 2015. R. at 1537. VA
    also continued Mr. Deweth’s 10% rating for his left leg condition. In a separate SOC issued the
    same day, VA denied a rating of TDIU. R. at 1487. Mr. Deweth again appealed to the Board.
    In June 2016, the TDIU, back condition, and left leg condition appeals were certified to the
    Board. R. at 1159-63, 1024. Subsequently, it appears that new relevant medical records were
    received. See, e.g., R. at 235 (November 2017 medical examination of, among other things, Mr.
    Deweth’s lower back).3 In October 2017, Mr. Deweth’s representative requested a Supplemental
    SOC (SSOC), noting that “[a] significant amount of medical outpatient records [had] been received
    by VA after the []RO decision.” R. at 893.
    3 The record also contains VA procedural and other records that appear to be related to claims discrete from
    those on appeal. See, e.g., R. at 51, 886 (January 2018 SOC related to claims for chondromalacia patella, GERD, right
    knee strain); R. at 51, 88 (April 2018 appeal); R. at 50 (August 2018 Certification of Appeal to the Board).
    3
    In a 2018 decision, the Board considered, among other things, Mr. Deweth’s eligibility for
    a higher rating for his back condition and for his left leg condition. In its discussion, the Board
    referenced November 2017 records relating to his back and January 2017 records relating to his
    left leg condition. R. at 11-12, 18. The Board also determined that Mr. Deweth was not entitled to
    a TDIU rating for the period between December 2014 and December 2015 because he was
    “attending school and doing well,” “finished his coursework,” and, around December 2015,
    “received a job offer.” R. at 27. He appealed these decisions.
    On appeal, Mr. Deweth presents two arguments: First, that VA violated his right to due process under 38 C.F.R. § 19.37(b) and 38 C.F.R. § 20.1304(c), concerning his claims for a higher
    rating for his back condition, left leg condition, and TDIU, contending that the Board adjudicated
    his claims without issuing an SSOC after it acquired certain VA medical records. Appellant’s Brief
    (Br.) at 3-7. He focuses on the November 2017 records relating to his back and January 2017
    records relating to his left leg condition, both of which the Board references in its decision and
    post-date the March 2016 SOCs. See Appellant’s Br. at 3; Reply Br. at 4; R. at 11-12, 18. Second,
    he argues that the Board’s decision denying him a TDIU rating between December 2014 and
    December 2015 lacks an adequate statement of reasons or bases and is otherwise clearly erroneous
    on the basis that it improperly considered his attending school as a factor for this disability rating.
    The Secretary responds that the Board was not obligated to remand the claims pursuant to
    §§ 19.37(b) and 20.1304(c) because the records allegedly at issue were either already considered
    by the RO or were associated with an “entirely separate claim” so are not pertinent and “do not
    have any bearing on the current issues on appeal.” Secretary’s Br. at 10-11 (citing R. at 987-1023
    (records dated May 2016-May 2017) and 1489, 1517 (records dated September 2013 to September
    2015)). Concerning the TDIU claim, the Secretary disputes that the Board provided an inadequate
    statement of reasons or bases. Secretary’s Br. at 13-18.
    II. ANALYSIS
    A. Back Claim and Left Leg Condition Claim
    Section 19.37(b), “Evidence received after transfer of records to the Board of Veterans’ Appeals” provides that
    Additional evidence received by the agency of original jurisdiction after the records
    have been transferred to the Board of Veterans’ Appeals for appellate consideration
    will be forwarded to the Board if it has a bearing on the appellate issue or issues.
    4
    The Board will then determine what action is required with respect to the additional
    evidence.
    38 C.F.R. § 19.37(b) (2019). Section 20.1304(c) adds that
    Any pertinent evidence . . . referred to the Board by the agency of original
    jurisdiction under § 19.37(b) of this chapter . . .must be referred to the agency of
    original jurisdiction for review, unless this procedural right is waived by the
    appellant or representative, or unless the Board determines that the benefit or
    benefits to which the evidence relates may be fully allowed on appeal without such
    referral . . . . Evidence is not pertinent if it does not relate to or have a bearing on
    the appellate issue or issues.
    38 C.F.R. § 20.1304(c) (2019).
    In this case, the Secretary does not dispute that additional medical evidence received after the transfer of records to the Board was not referred to the RO. See, e.g., R. at 235; Secretary’s Br. at 11-12; 38 C.F.R. § 19.37. Instead, the Secretary argues that such evidence does not have a
    bearing on the appellate issues, so no referral was required. Secretary’s Br. at 11-12. The
    Secretary’s argument is unpersuasive.
    As Mr. Deweth notes, the Board decided the matters of Mr. Deweth’s back and left leg
    condition claims based, in part, on such additional medical evidence. R. at 11-12, 18 (referencing
    November 2017 and January 2017 records). Therefore, the Court cannot conclude that the evidence
    does not have a bearing on the appellate issues.
    Moreover, the Board, itself, did not address whether §§ 20.1304(c) or 19.37 required
    referral of this evidence. The Court will not accept the Secretary’s post hoc rationalization of this
    omission. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991)
    (“‘[L]itigation positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”). In
    short, the Board’s failure to address this matter results in an inadequate statement of reasons and
    bases, warranting remand. See 38 U.S.C. § 7104(a), (d)(1); Tucker v. West, 11 Vet.App. 369, 374
    (1998) (holding that remand is warranted “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”). On remand, the Board must either refer the additional relevant medical
    evidence to the RO or explain why it does not have a bearing on the appellate issues. See 38 C.F.R.
    §§ 19.37(b), 20.1304(c).
    5
    B. TDIU
    A rating of TDIU is available to veterans who are “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2019). When determining whether a veteran can secure and follow a substantially gainful occupation, “potentially relevant factors” include, inter alia, whether the veteran has “the physical ability (both exertional and nonexertional) to perform the type of activities . . . required by the occupation at issue,” as well as whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, [and the] ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.
    Ray v. Wilkie, 31 Vet.App. 58, 73 (2019). Although these factors are not a “checklist that must be run completely through in every case,” discussion of them is necessary if they are raised by the evidence. Id. When the Board’s TDIU discussion is inadequate, remand is appropriate. See Tucker
    v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate where the Board has failed to provide
    an adequate statement of reasons or bases for its determinations or where the record is otherwise
    inadequate).
    In this case, the Board’s TDIU discussion is inadequate. The Board determined that Mr.
    Deweth was not eligible for a rating of TDIU between December 2014 and December 2015
    because he was “attending school and doing well,” “finished his coursework,” and “received a job
    offer around December 2015.” R. at 27. However, the Board does not explain how this evidence
    relates to whether Mr. Deweth was capable of securing or following substantially gainful
    employment. As noted in one of this Court’s earliest cases, “the skills needed to attend school are
    different from the skills needed to compete successfully in the workplace.” Washington v.
    Derwinski, 1 Vet.App. 459, 465 (1991). This discussion, alone, renders inadequate the Board’s
    statement of reasons or bases for denying TDIU, necessitating remand. See Tucker, 11 Vet.App.
    at 374.
    In addition, remand is required because the Board did not consider whether Mr. Deweth
    had the physical and mental ability to perform the activities required by his occupation. For
    example, earlier in its discussion, the Board acknowledged 2015 medical evidence documenting
    “worsening PTSD symptoms” including insomnia, difficulty concentrating, and “intermittent
    6
    periods of inability to perform occupational tasks,” as well as chronic back pain. R. at 23-24.
    However, in its TDIU analysis, the Board did not address this clearly relevant evidence. See Ray,
    31 Vet.App. at 73. Further, the Board’s reliance on Mr. Deweth’s ability to find employment in
    December 2015 was misplaced. For TDIU, “[t]he question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993) (emphasis added).
    Without a proper analysis, the Court is unable to effectively review the Board’s
    determination that Mr. Deweth’s service-connected disabilities did not preclude him from
    obtaining and retaining substantially gainful employment during the relevant time period. And, the
    Court is unable to conclude that the Board’s inadequate discussion did not prejudice him. See
    38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”);
    Southall-Norman v. McDonald, 28 Vet.App. 346, 356 (2016) (remanding where the Court was
    unable to conclude that a reasons or bases error was harmless). Accordingly, remand is warranted
    for the Board to readjudicate Mr. Deweth’s TDIU claim in accordance with this decision. See Ray,
    31 Vet.App. at 74; see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that
    “appellate tribunals are not appropriate fora for factfinding”).
    In pursuing the matters on remand, Mr. Deweth may submit additional evidence and
    argument on the remanded matter, 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 Court has held
    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). The Board must proceed expeditiously, in
    accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment”
    of claims remanded by the Court).
    III. CONCLUSION
    Based on the foregoing analysis, the appellant’s and the Secretary’s briefs, and a review of
    the record of proceedings, the appellant’s motion for oral argument is denied. Further, the Board’s
    October 3, 2018, decision is VACATED and the matter is REMANDED for further proceedings
    consistent with this decision.
    7
    DATED: July 2, 2020
    Copies to:
    Kenneth H. Dojaquez, Esq.
    VA General Counsel (027)
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