Veteranclaims’s Blog

December 30, 2017

Single Judge Application; Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009); cogent evidence of unemployability;

Excerpt from decision below:

“The Court concludes that the Board erred in failing to adjudicate the matter of entitlement to TDIU. See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (the issue of TDIU is implicitly raised, and must be considered, whenever a pro se veteran “presents cogent evidence of unemployability, [and] seeks to obtain a higher disability rating”). It is not relevant that the appellant reported that he was “unemployed” because of a physical disability; the question is whether the appellant’s PTSD made him unemployable. See 38 C.F.R. § 4.16 (2017) (the Board is not permitted to consider non-service-connected disabilities where it finds that the service-connected disabilities in consideration render a veteran unemployable). Although the appellant has not worked during the period on appeal, the appellant’s “emotional lability,” which the Board found has resulted in physical abuse of his ex-wife, reasonably raises the issue of whether the appellant is unemployable as a result of his PTSD. R. at 10-17, 750. In an August 2011 Board hearing, the appellant testified that he had experienced anger, sleeplessness, panic attacks, and memory loss. R. at 757-76. Further, the appellant was fired after only 1 week of working for a church. R. at 1089. Remand is required for the Board to adjudicate the matter of PTSD for the entire period on appeal.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0058
JOHN PENSO, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: The appellant, John Penso, appeals through counsel that part of a November 30, 2016, Board of Veterans’ Appeals (Board) decision that declined to determine the matter of the appellant’s entitlement to a total disability evaluation based on individual unemployability (TDIU).1 Record (R.) at 2-20. The appellant argues that the Board misinterpreted and misapplied the law when it concluded the issue of entitlement to TDIU was not reasonably raised by the record. Appellant’s Brief at 5-9. For the following reason, the Court will vacate that part of the November 30, 2016, Board decision and remand the matter for readjudication.
Justice Alito noted in Henderson v. Shinseki that our Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 562 U.S. 428, 432 n.2 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for veterans, and other specified relations such as their widows, is consistent with congressional intent as old as the Republic. See Hayburn’s Case, 2 U.S. (2 Dall.)
1 The Board granted a disability rating for post-traumatic stress disorder of 70%, effective for the entirety of his claims period. The Court does not have the jurisdiction to review favorable findings. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). To the extent that this finding is favorable, the Court will not disturb it. The Board also remanded the matters of entitlement to an effective date earlier than June 11, 2014, for non-service-connected pension and special monthly pension.
2
409, 410 n., 1 L. Ed. 436 (1792) (“[T]he objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress.”). “The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court.” 38 U.S.C. § 7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant to procedures established by the Court, is “unambiguous, unequivocal, and unlimited.” Conroy v. Aniskoff, 507 U.S. 511, 514 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
From the beginning of the Republic statutory construction concerning congressional promises to veterans has been of great concern. “By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?” Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803).
The appellant served on active duty in the U.S. Navy from January 1967 until January 1969 as a field medal service technician. R. at 726 (DD Form 214). The appellant states that his duties exposed him to severe trauma and death. R. at 1651. The appellant saw a young man die, and while preparing the body for the morgue, the appellant saw blood spewing out of the body. R. at 1552. The appellant also tried and failed to resuscitate a baby, but ultimately saw the baby die in front of him. R. at 1553.
In April 2002, the appellant filed for benefits based on service connection for PTSD. R. at 1906-16. The Board granted service connection for PTSD in December 2009. R. at 1108-14. That same month, the regional office (RO) assigned a 30% rating for PTSD, effective the date the claim was filed. The RO continued the 30% rating in January 2011, and the appellant appealed pro se in February 2011. R. at 839-52, 798.
In the November 30, 2016, Board decision on appeal, the Board increased the appellant’s rating to 70%, effective the date the claim was filed. R. at 2-20. However, the Board declined to adjudicate the matter of the appellant’s entitlement to TDIU after it found that the issue had not
3
been raised by the record because the appellant had testified that he was unemployed as a result of physical disability rather than PTSD. R. at 18 (citing R. at 764).
The Court concludes that the Board erred in failing to adjudicate the matter of entitlement to TDIU. See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (the issue of TDIU is implicitly raised, and must be considered, whenever a pro se veteran “presents cogent evidence of unemployability, [and] seeks to obtain a higher disability rating”). It is not relevant that the appellant reported that he was “unemployed” because of a physical disability; the question is whether the appellant’s PTSD made him unemployable. See 38 C.F.R. § 4.16 (2017) (the Board is not permitted to consider non-service-connected disabilities where it finds that the service-connected disabilities in consideration render a veteran unemployable). Although the appellant has not worked during the period on appeal, the appellant’s “emotional lability,” which the Board found has resulted in physical abuse of his ex-wife, reasonably raises the issue of whether the appellant is unemployable as a result of his PTSD. R. at 10-17, 750. In an August 2011 Board hearing, the appellant testified that he had experienced anger, sleeplessness, panic attacks, and memory loss. R. at 757-76. Further, the appellant was fired after only 1 week of working for a church. R. at 1089. Remand is required for the Board to adjudicate the matter of PTSD for the entire period on appeal.
Because the Court is remanding the appellant’s claim, it will not address the appellant’s remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) at 410, n.1 (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
For the foregoing reason, that part of the November 30, 2016, Board decision on appeal is VACATED and the matter is REMANDED for readjudication.
DATED: December 28, 2017
Copies to:
Megan M. Ellis, Esq.
VA General Counsel (027)

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