Veteranclaims’s Blog

October 11, 2013

Fed. Cir. Jorgensen v. Shinseki, No. 2012-7034(Decided: October 11, 2013); Rice v. Shinseki, 22 Vet.App 447, 453 (2009); TDIU

Excerpt from decision below:
“Our holding does not preclude Jorgensen from later
seeking a TDIU because a veteran can independently
assert entitlement to a TDIU at any time. See Rice v.
Shinseki, 22 Vet.App 447, 453 (2009) (“[A] veteran may,
at any time, independently assert entitlement to TDIU
based on an existing service connected disability.”). Such
a claim may be viewed as a request for an increased
disability rating based upon unemployability. Id.”
===========================

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KARL A. JORGENSEN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7034
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-1892, Judge Lawrence B.
Hagel.
______________________
Decided: October 11, 2013
______________________
PERRY A. PIRSCH, Berry Law Firm, P.C., of Lincoln,
Nebraska, for claimant-appellant.
JANE C. DEMPSEY, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Director,
and SCOTT D. AUSTIN, Assistant Director. Of counsel
2 JORGENSEN v. SHINSEKI
on the brief were DAVID J. BARRANS, Deputy Assistant
General Counsel and MEGHAN ALPHONSO, Attorney,
United States Department of Veterans Affairs, of Washington,
DC.
______________________
Before REYNA, MAYER, and TARANTO, Circuit Judges.
PER CURIAM
Karl A. Jorgensen (“Jorgensen”) appeals the decision
of the United States Court of Appeals for Veterans Claims
(“Veterans Court”) finding that he had not properly raised
a request for a total disability based upon individual
unemployment (“TDIU”) rating. Because a request for a
TDIU rating was not expressly raised by Jorgensen nor
reasonably raised by the record, we affirm the Veterans
Court.
BACKGROUND
Jorgensen served on active duty in the United States
Army from October 1965 until June 1968. After his
release, Jorgenson received disability benefits for a number
of disabilities, including diabetes mellitus (“diabetes”).
Currently, Jorgensen has a combined disability rating of
70 percent.
In October 2006, Jorgensen sought disability benefits
for post-traumatic stress disorder (“PTSD”) and related
fibromyalgia. In June 2007, the U.S. Department of
Veteran’s Affairs (“VA”) regional office denied service
connection for both conditions. Jorgensen appealed to the
Board of Veteran’s Appeals (“Board”) and, in an April
2009 decision, the Board agreed with the regional office
that neither condition was service connected. Nonetheless,
the Board remanded to the regional office with
directions to reconsider Jorgensen’s service connected
diabetes. In July 2009, the regional office increased
Jorgensen’s disability rating for diabetes from 20 to 40
JORGENSEN v. SHINSEKI 3
percent and also increased his combined disability rating
from 40 to 70 percent. The regional office also found that
Jorgensen was not entitled to a TDIU rating.
In response to the regional office’s decision, Jorgensen’s
counsel sent a letter to the VA stating that Jorgensen
was “satisfied” with the disability rating the VA
awarded for his diabetes condition and that, as a result,
he wished “to withdraw [his] appeal for diabetes.” The
letter also stated, with respect to a TDIU rating, that “Mr.
Jorgensen is self-employed and is not seeking benefits for
individual unemployability at this time.”
Despite having withdrawn his diabetes appeal,
Jorgensen nevertheless appealed the Board’s denial of
service connection for PTSD and fibromyalgia to the
Veterans Court. While this appeal was pending, the
parties field a Joint Motion for Partial Remand. In that
motion, the parties requested that the Veterans Court
vacate the part of the 2009 Board decision “finding that
Appellant is not entitled to service connection for fibromyalgia,
and remand the matter for re-adjudication.” The
parties stated that remand was warranted because the
Board had failed to (1) obtain certain medical records
related to Jorgensen’s treatment for fibromyalgia and (2)
consider whether Jorgensen was entitled to a medical
examination. The Veterans Court granted the joint
motion to remand. The Board, in turn, instructed the
regional office to further investigate whether Jorgensen’s
fibromyalgia was service connected.
On remand, the regional office obtained all of Jorgensen’s
VA medical records and also conducted a medical
examination. In March 2011, the regional office issued its
decision again denying service connection for fibromyalgia.
The regional office found that none of Jorgensen’s
medical records contained a diagnosis of fibromyalgia. In
addition, the medical examination revealed that Jorgensen
“did not fulfill the criteria for fibromyalgia, in that
4 JORGENSEN v. SHINSEKI
[Jorgensen has] a variety of other reasons for [his] musculoskeletal
complaints.” The medical examiner noted that
Jorgensen’s musculoskeletal complaints were related to
his diabetes, associated neuropathies, significant osteoarthritis,
and a L1 compression fracture sustained in a car
accident.
Jorgensen appealed the regional office’s decision to
the Board regarding the continued denial of service connection
for fibromyalgia. The Board’s June 2011 decision
noted that the question before it was whether Jorgensen
“currently has fibromyalgia as a result of active duty
service.” The Board agreed with the regional office that
Jorgensen’s medical records did not contain a diagnosis of
fibromyalgia and that the VA medical examination attributed
his musculoskeletal pain to a variety of other
causes. The Board concluded that “entitlement to service
connection for fibromyalgia is denied.” The Board did not
address, and Jorgensen did not raise, whether Jorgensen’s
40 percent rating for diabetes was correct because Jorgensen
had earlier withdrawn this issue from appeal. Similarly,
the Board did not address, and Jorgensen did not
raise, whether Jorgensen was entitled to a TDIU rating
because Jorgensen had expressly stated he was not seeking
such a benefit and because the Board was not making
any other rating decision that would, implicitly, raise the
consideration of a TDIU rating.
Jorgensen appealed to the Veterans Court, arguing
that the Board (1) failed to liberally construe his claim for
benefits due to fibromyalgia as one of “overall body pain”
and (2) failed to address the “reasonably raised” issue of
his entitlement to a TDIU rating. The Veterans Court
denied Jorgensen’s appeal. The court recognized that the
only issue before the Board was whether Jorgensen was
entitled to a service connection for fibromyalgia. The
court also noted that the basis for Jorgensen’s arguments
on appeal were present in the record at the time the
parties field the Joint Motion for Partial Remand in
JORGENSEN v. SHINSEKI 5
December 2009. Yet, according to the court, Jorgensen
did not preserve his current arguments in the joint motion.
The court noted that, when requesting remand, it is
“the parties’ responsibly to ‘enumerate clear and specific
instruction to the Board’ and a failure to do so will not
result in a second bite at the apple.”
Jorgensen appeals the Veterans Court’s decision, arguing
before us only that the Board erred in not considering
his entitlement to a TDIU rating. We have
jurisdiction under 38 U.S.C. § 7292(a).
DISCUSSION
Congress has limited the scope of this court’s review
of Veterans Court’s decisions. See Deloach v. Shinseki,
704 F.3d 1370, 1378 (Fed. Cir. 2013); 38 U.S.C. § 7292.
Absent a constitutional issue, we may not review challenges
to factual determinations or to the application of a
law or regulation to facts. 38 U.S.C. § 7292(d)(2). This
court reviews legal determinations of the Veterans Court
de novo. See Prenzler v. Derwinski, 928 F.2d 392, 393
(Fed. Cir. 1991).
Jorgensen maintains that the Veterans Court erred in
finding that he waived his argument that he was entitled
to a TDIU rating. He argues that a veteran’s entitlement
to a TDIU rating is implicitly “triggered by every adjudication”
where the record evidence establishes that the
veteran meets the regulatory requirements for a TDIU.
Jorgensen further contends that, under 38 C.F.R. §
3.103(a), the VA has a regulatory duty to maximize a
veteran’s benefits and must, therefore, presume that a
veteran is seeking maximum benefits, including a TDIU
rating.
The Government responds that the Board is not required
to consider a TDIU rating when a veteran expressly
states he does not wish to pursue it. The Government
notes that Jorgensen expressly elected not to pursue a
6 JORGENSEN v. SHINSEKI
TDIU claim before the regional office and the Board,
limiting his appeal to whether he was entitled to service
connection for fibromyalgia. The Government also contends
that the Board is not required to consider a TDIU
unless a veteran is seeking a higher disability rating.
Because the Board denied service connection for fibromyalgia,
the Government argues, there was no disability
rating at issue, and no requirement to consider Jorgensen’s
entitlement to a TDIU rating. The Government also
notes, as the Veterans Court recognized, that Jorgensen
did not include a request for a TDIU rating in the parties’
joint motion for remand in 2009.
Entitlement to a TDIU can be either explicitly raised
by a veteran or reasonably raised by the record. Comer v.
Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (“the VA is
obligated ‘to determine all potential claims raised by the
evidence’”) (quoting Roberson v. Principi, 251 F.3d 1378,
1384 (Fed. Cir. 2001)); see also Rice v. Shinseki, 22
Vet.App 447 447, 453 (2009). In particular, when the VA
is deciding what percentage to rate a service connected
disability, if evidence of unemployability is present, the
VA must consider a TDIU rating. This is true whether
the veteran is seeking an increased rating or an initial
rating. Comer, 552 F.3d at 1367 (a TDIU request is
“implicitly raised whenever a pro se veteran, who presents
cogent evidence of unemployability, seeks to obtain a
higher disability rating.”); Roberson, 251 F.3d at 1384
(initial claim for benefits). Roberson explains that, when
a veteran makes a claim for the highest rating possible
and submits evidence of unemployability, “the ‘identify
the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is
met and the VA must consider a TDIU.” Id. (citing Hodge
v. West, 155 F.3d 1356 (Fed. Cir. 1998).
Here, Jorgensen did not expressly request a TDIU
rating and the record evidence does not reasonably raise
such a request. After the regional office denied Jorgensen
a TDIU rating, Jorgensen’s counsel expressly stated that
JORGENSEN v. SHINSEKI 7
“Mr. Jorgensen is self-employed and is not seeking benefits
for individual unemployability at this time.” Thus,
unlike Roberson, Jorgensen was not seeking the highest
maximum rating on appeal. Roberson, 251 F.3d at 1384.
In addition, the Board was not deciding what percentage
to rate a service connected disability. First,
unlike Comer, Jorgensen was not seeking an increased
rating for his currently service connected conditions
before the Board. Comer, 552 F.3d at 1367. While it is
true that Jorgensen sought an increase in his disability
rating for his diabetes condition before the regional office,
after the regional office raised his rating to 40 percent,
Jorgensen’s counsel expressly withdrew that claim from
his appeal. (“Karl A. Jorgensen wishes to withdraw the
appeal for diabetes type II currently 40 percent service
connected. He is satisfied with the percentage awarded.”).
Thus, Jorgensen’s appeal to the Board did not
include a request to increase his disability rating. Second,
because the Board found that Jorgensen’s fibromyalgia
claims were not service connected, there was no basis
to issue a rating for these claims. Certainly, had the
Board decided that fibromyalgia was service connected,
Jorgensen could have argued, as in Roberson, that the
record evidence requires the VA to consider his entitlement
to a TDIU. Roberson, 251 F.3d at 1384. But, that is
not the case before us.1 Accordingly, because Jorgensen
expressly disclaimed any request for a TDIU rating based
upon his current service connected conditions, and because
the Board found no further service connected conditions,
the record does not reasonably raise a TDIU
request.
1 Jorgensen does not argue on appeal to this court
that his PTSD and fibromyalgia conditions are service
connected.
8 JORGENSEN v. SHINSEKI

Our holding does not preclude Jorgensen from later
seeking a TDIU because a veteran can independently
assert entitlement to a TDIU at any time. See Rice v.
Shinseki, 22 Vet.App 447, 453 (2009) (“[A] veteran may,
at any time, independently assert entitlement to TDIU
based on an existing service connected disability.”). Such
a claim may be viewed as a request for an increased
disability rating based upon unemployability. Id.

Jorgensen is merely unable to seek a TDIU rating in his
current appeal because he affirmatively withdrew any
request for individual unemployability benefits, and he is
not seeking either an increased rating for any current
condition, nor an initial rating for any new service connected
condition.

CONCLUSION
Because a request for a TDIU rating was not expressly
raised by Jorgensen nor reasonably raised by the
record, we affirm the decision of the Veterans Court.
AFFIRMED
COSTS
Each party shall bear its own costs.

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