Veteranclaims’s Blog

April 26, 2012

Githens v. Shinseki, No. 2010-7129(Decided: April 26, 2012); TDIU, 4.16(a), Considered on Service-connected Disabilities

Excerpt from decision below:
“The Veterans Court in a series of cases has consistently interpreted § 4.16(a) to require that only service-connected disabilities may be
considered in a § 4.16(a) TDIU analysis.3”

United States Court of Appeals
for the Federal Circuit
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 08-4239, Judge Alan G.
Lance, Sr.
Decided: April 26, 2012
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
L. MISHA PREHEIM, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondentappellee.
With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
sel on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel, and TRACEY P. WARREN, Attorney,
United States Department of Veterans Affairs, of Washington,
Before RADER, Chief Judge, and NEWMAN and REYNA,
Circuit Judges.
REYNA, Circuit Judge.
Ms. Karen S. Githens-Bellas appeals the decision of
the Court of Appeals for Veterans Claims (“Veterans
Court”) that affirmed the Regional Office’s (“RO”) 1996
denial of total disability based on individual unemployability
(“TDIU”). Githens-Bellas v. Shinseki, No. 08-4239,
at *1 (CAVC May 12, 2010) (“Op.”). Ms. Githens-Bellas
believes that the Veterans Court erred when it upheld a
finding that the RO did not commit clear and unmistakable
error (“CUE”). For lack of jurisdiction, we dismiss.
Ms. Githens-Bellas served in the U.S. Army from September
1980 to February 1981 and from April 1981 to
May 1983. During her service, Ms. Githens-Bellas suffered
an injury to her knees and wrist. The RO assigned
a 10 percent rating to her left wrist with an effective date
of November 12, 1986. In 1987, Ms. Githens-Bellas’s
right upper arm was injured as a result of the medical
care she received from the Department of Veterans Affairs
(“VA”). In 1990, her injury to right knee and shoulder
were each rated at 20 percent and her left knee at 30
percent. After leaving service, she received disability
benefits for the service-related injuries and the injury to
her upper arm. In 1996, she was unable to continue
working as a bookkeeper.
In August 1996, Ms. Githens-Bellas brought a claim
before the VA for TDIU. A VA examiner diagnosed her
with the following service-connected disabilities: stress
fractures of her left and right knees and a contusion of the
spinal accessory nerve with wasting of the upper region of
her right trapezius muscle and limitation of motion. She
was also diagnosed with non-service-connected disabilities,
including lipoma in her lower back, migraine headaches,
and anxiety disorder due to chronic pain syndrome.
The Veterans Affairs Regional Office (“RO”) rated her
service-connected disabilities at 70 percent, but denied a
total rating based on unemployability under 38 C.F.R.
§ 4.16(a) on grounds that her service-connected disabilities
did not meet the schedular requirements.1 A veteran
that has not been rated 100 percent disabled can meet the
schedular requirements if the veteran’s service connected
disabilities fall within the exceptions under § 4.16(a)
which provides that: at least one service-connected
disability rated at 60 percent or higher, or the service-
connected disabilities add up to at least 70 percent
with at least one service-connected disability rated at 40
percent or higher. Id. Section 4.16(a) also provides that
disabilities of “both lower extremities, including the
bilateral factor, if applicable” are to be “considered as one
disability.” Id.
The RO, however, failed to consider Ms.
Githens-Bellas’s two distinct knee injuries as a single
injury. As a result, the RO based the unemployability
1 The RO evaluated service connected disabilities as
70 percent, but the record indicates that the correct
evaluation should have been rated at 80 percent. See
Joint Appendix at 15, 17.
determination on § 4.16(b), which provides that “the
rating board will include a full statement as to the veteran’s
service-connected disabilities, employment history,
educational and vocational attainment and all other
factors having a bearing on the issue.” Applying § 4.16(b),
the RO found that “[e]ntitlement to individual unemployability
is denied because the claimant has not been found
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities.” Joint
Appendix at 15. In June 1997, Ms. Githens-Bellas filed a
request with the RO to reopen her claim for TDIU. The
RO denied her request.
Over six years later, in March 2004, Ms.
Githens-Bellas requested that her 1996 rating decision be
reviewed on grounds that the RO had committed CUE
and sought retroactive benefits with an effective date of
January 1, 1996 for TDIU. In November 2004, the RO
denied her request for review. Ms. Githens-Bellas filed a
Notice of Disagreement with the Board of Veterans’
Appeals (“Board”) on October 4, 2005. In March 2006, the
RO issued a statement of the case denying Ms.
Githens-Bellas retroactive benefits for total disability on
the basis of the 1996 denial. In April 2006, Ms.
Githens-Bellas appealed the RO’s determination to the
Board. On August 27, 2008, the Board determined that
the RO’s decision to deny benefits for TDIU did not constitute
Ms. Githens-Bellas appealed the Board’s decision to
the Veterans Court. In her appeal, Ms. Githens-Bellas
asserted that the RO’s miscalculation was CUE, and that
this error prevented the VA from assisting her in developing
evidence to support her claim for TDIU, which she
contended resulted in a manifestly different outcome.
During the appeal, the Secretary conceded that the RO
committed error by incorrectly computing Ms.
Githens-Bellas’s rating under § 4.16(a). The Secretary
acknowledged that the RO should have treated Ms.
Githens-Bellas’s injuries to two lower extremities as one
disability that met the 40 percent or higher disability
rating pursuant to § 4.16(a)(1). Both parties agreed that
because the RO correctly rated her other service-
connected disabilities to her wrist and upper right
arm as 10 percent and 20 percent respectively, for a total
of 30 percent, the RO should have determined therefore
that Ms. Githens-Bellas met the requirement under
§ 4.16(a): she had one rated disability at 40 percent or
higher which, when added to the 20 percent and 10 percent
ratings, provided a disability rating that met the 70
percent or higher requirement. However, the government
asserted that the RO’s miscalculation did not constitute
The Veterans Court agreed with the government and
affirmed the Board’s finding that the RO’s 1996 denial of
TDIU did not constitute CUE. The Veterans Court cited
to Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en
banc) for the proposition that a breach in the duty to
assist cannot constitute CUE. The Veterans Court acknowledged
that the RO had erred in computing Ms.
Githens-Bellas’s schedular disability rating, but determined
that the error was harmless because the record
showed that the RO had made an unemployability determination
that satisfied the requirements for a § 4.16(a)
This appeal followed.
The jurisdiction of this court to review a decision of
the Veterans Court is limited. This court has jurisdiction
to review a Veterans Court decision if it addresses (1) the
validity of statutes or regulations on which the decision of
the Veterans Court depended; (2) issues of interpretation
if the Veterans Court elaborated upon the meaning of a
statute or regulation and the decision depended on that
interpretation; and (3) issues of validity or interpretation
raised before the Veterans Court but not decided, if the
decision would have been altered by adopting the position
that was urged. See Szemraj v. Principi, 357 F.3d 1370,
1374 (Fed. Cir. 2004) (quoting Forshey, 284 F.3d. 1335,
1338 (Fed. Cir. 2002) (en banc)). We also have jurisdiction
to review a decision of the Veterans Court on a rule of
law. See 38 U.S.C. § 7292(a); Szemraj, 357 F.3d at 1374.
This court may not review the Veterans Court for an
“application of a legal standard to the facts of the particular
case to determine whether there has been an error
that is essentially factual in nature.” Id. at 1375 (citing
Lennox v. Principi, 353 F.3d 941, 946 (Fed. Cir. 2003);
Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003);
Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010);
Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed.
Cir. 2002)). We may affirm or, if the decision of the
Veterans Court is not in accordance with law, modify or
reverse the decision of the Veterans Court or remand the
matter, as appropriate. 38 U.S.C. § 7292(e)(1)(2000).

The sole issue on appeal is whether the Veterans Court’s decision is based on an erroneous interpretation of 38 C.F.R. § 4.16(a). Ms. Githens-Bellas argues that the Veterans Court misinterpreted § 4.16(a), and then relied

on the misinterpretation to affirm the Board’s determination that the 1996 TDIU denial was not based on CUE. In support, she cites a statement by the Veterans Court that “it was predominantly her non-service-connected disabilities that prevented her from obtaining employment.” Op. at 4. Ms. Githens-Bellas argues that this statement demonstrates that the Veterans Court misinterprets § 4.16(a) as permitting non-service connected disabilities to be considered in TDIU determinations once the § 4.16(a) schedular requirements are met.2

2 The paragraph that includes the statement relied on by appellant provides that:
In this case, the RO had to determine
whether the appellant’s service-connected
disabilities prevent her from obtaining
employment. The Secretary concedes
that in 1996, the RO “incorrectly found
that [the a]ppellant did not meet the
schedul[a]r requirements.” Secretary’s
Br. at 5. However, after assessing the
schedular requirements, the RO still had
to determine whether the serviceconnected
disabilities rendered the claimant unemployable. 38 C.F.R. §
4.16(a). In its 1996 rating decision, the
RO stated that “[t]he medical reports
show both service connected and nonservice-
connected disabilities which interfere
with employment, with the
greater degree of disability being from
non-service connected disabilities[.]” R.
at 776. Thus, the RO’s error did not
cause a manifestly different outcome in
the 1996 decision. Even if the RO had
correctly found that the appellant’s combined
service-connected disabilities did
meet the schedular requirements, it still
would have denied her claim because it

We disagree that the statement constitutes an interpretation of § 4.16(a). The issue before the Veterans Court was whether the 1996 TDIU determination was based on CUE. There is no indication that issues concerning interpretation of § 4.16(a) were before the Veterans Court. In addition, the Veterans Court’s decision does not address the validity, or elaboration of § 4.16(a), or reflect that a different decision would have resulted had the position urged by appellant been adopted. Forshey, 284
F.3d at 1349.
Further, when the statement is viewed in the context of the entire decision, in particular the paragraph that contains the statement, it is clear that the Veterans Court was not making a statement of interpretation on § 4.16(a), but rather explaining why “the RO’s error did not cause a
manifestly different outcome in the 1996 decision.” Op. at 4.
Indeed, the Veterans Court decision reflects a view of § 4.16(a) that is precisely the same as the view that appellant argues should be adopted by this court. Appellant ignores that the paragraph that contains the statement begins with “[i]n this case, the RO had to determine
whether the appellant’s service-connected disabilities prevent her from obtaining employment.” Id. In addition, was predominantly her non-serviceconnected disabilities that prevented her from obtaining employment. Thus, it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” for the Board to conclude that there was no CUE in the September 1996 decision that denied
TDIU. Accordingly, the Court will affirm the Board decision. Op. at 4 (emphases added).

when addressing the Secretary’s concession that the RO
had erred in computing the schedular requirements, the
Veterans Court stated “the RO still had to determine
whether the service-connected disabilities rendered the
claimant unemployable.” Id. The Veterans Court in a
series of cases has consistently interpreted § 4.16(a) to
require that only service-connected disabilities may be
considered in a § 4.16(a) TDIU analysis.3

We have no jurisdiction over an issue of interpretation
that does not exist. We conclude that the sentence in the
Veterans Court’s decision cited by the appellant was a
mere statement of the Veterans Court’s view on whether
the RO’s error constituted CUE, and not a statement of
interpretation of § 4.16(a). See, e.g., Conway v. Principi,
353 F.3d 1369, 1373 (Fed. Cir. 2004) (Lack of jurisdiction
existed where the Veterans Court statement that
§ 5103(a) had not been “properly administered” was not
an interpretation of section § 5103(a)). In sum, the Veterans
Court decision is silent as to the adoption of a particular
interpretation of § 4.16(a). Ferguson v. Principi, 273
F.3d 1072, 1075 (Fed. Cir. 2001). Because this appeal
does not involve an interpretation of § 4.16(a), we dismiss.

Each party shall bear its own costs.
3 See, e.g., Hermann v. Shinseki, 2011 WL
2599914, at *2 (Vet. Ct. 2011) (“[A]n award of VA benefits
for TDIU is based solely on service-connected disabilities.”);
Ruybal v. Nicholson, 25 Vet. App. 114 (2007); Pratt
v. Derwinski, 3 Vet. App. 269, 272 (1992).

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