Veteranclaims’s Blog

August 2, 2021

Single Judge Application; in Dallman, this Court stated:[T]his Court cannot consider an appellant’s contentions regarding the Board’s finality determination after reopening, but prior to the award of service connection, because that finality decision, along with the decision to reopen and remand a matter does not constitute a final Board decision as to his service-connection claim or the effective date of an award. 33 Vet. App. at 107;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0555
ROBERT L. WALLACE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Senior Judge: The appellant, Robert L. Wallace, through counsel, appeals a February 1, 2017, Board of Veterans’ Appeals (Board) decision in which the Board found that the criteria for an initial compensable schedular or extraschedular rating for a bilateral hearing loss disability had not been met. R. at 6, 2-19. The Board additionally found that the criteria for service connection for a seizure disorder had been met and referred to the agency of original jurisdiction (AOJ) the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. R. at 5-6.
Following the Court’s recent precedential holding in Long v. Wilkie, the appellant withdrew his argument “that the Board erred in failing to address the functional effects of hearing loss that went beyond difficulty hearing and understanding speech, in concluding that extraschedular referral was not warranted.” 33 Vet.App. 167; Appellant’s Notice of Withdrawal of Issue at 1. Accordingly, the Court finds that the appellant has abandoned his appeal of the Board’s decision as to that issue, and the Court will dismiss the appeal as to the abandoned issue. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). As to the Board’s remand for the RO to
1 Judge Schoelen is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 04-21 (Jan. 4, 2021).
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adjudicate the issue of TDIU, the Court lacks jurisdiction and will dismiss the matter for the reasons that follow.
I. BACKGROUND
The appellant served honorably on active duty in the U.S. Marine Corps from March 1974 to March 1978. R. at 976. Following his active service, he was transferred to the Marine Corps Reserve for 2 years and served in the Oklahoma Army National Guard until his retirement in 2008. R. at 976, 1192.
The appellant filed an initial disability compensation claim for bilateral hearing loss and tinnitus in March 2011, R. at 964-74, and in a subsequent VA examination he was found to have hearing loss in both ears, as well as tinnitus. R. at 878. An August 2011 rating decision granted the appellant service connection for bilateral hearing loss and assigned a noncompensable disability rating. R. at 869-73. At this time, the issue of service connection for tinnitus was deferred for “development and a VA examination.” R. at 871.
In June 2012, the appellant submitted a statement in support of claim, which served as a “[N]otice of [D]isagreement (NOD) to the VA rating decision dated September 16, 2011.” R. at 845. He also submitted a supplemental claim for compensation, which requested service connection for “[r]esiduals of [a] tick bite.” R. at 843.
In December 2012, the RO issued a Statement of the Case continuing the appellant’s noncompensable rating for bilateral hearing loss and denying service connection for tinnitus. R. at 701. The appellant appealed these claims to the Board that same month. R. at 677.
In May 2015, the appellant testified at a video conference before the Board and discussed symptoms of his hearing loss as well as the history and origination of his seizure disorder. R. at 1180-1214. Regarding his seizure disorder, he testified that he received tick bites while in training for the Oklahoma National Guard in 2002, and as a result contracted Rocky Mountain Spotted Fever. R. at 1198-99. His first seizure occurred shortly after being hospitalized for that condition, and he was treated with medication for seizures. R. at 1198-1204. The appellant also clarified that he was unable to work because of his seizure disorder and had been “off work” for 8 months. R. at 1205-07. Finally, the appellant testified that epilepsy was the sole residual of tick bites being appealed, and that the issues of seizure disorder and residuals of tick bites should be combined.
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R. at 1208 (stating that “the original injury was the tick bites which occurred during annual training [,] which is actually active duty for training”).
In July 2015, the Board issued a decision granting the appellant’s claim for service connection for tinnitus and remanding the appellant’s claims for seizure disorder as a residual of tick bites and bilateral hearing loss. R. at 172-87. The Board found that the issue of TDIU was raised during the May 2015 hearing but had not yet been adjudicated by the RO. R. at 175. Therefore, the Board decided that it did not have jurisdiction over this claim and referred it to the RO for appropriate action, id., including obtaining the appellant’s service treatment records during his annual training with the Oklahoma Army National Guard, R. at 179, and conducting “a full clinical evaluation of the symptomology of the Veterans’ seizure disorder.” R. at 183.
In the decision on appeal, the Board granted service connection for seizure disorder as a residual of tick bites. R. at 5. However, the Board stated that “it does not appear from a review of the Veteran’s electronic record that the AOJ has undertaken any action on this newly raised claim,” and referred the issue of TDIU to the RO for a second time. Id. This appeal followed.
II. ANALYSIS
The appellant argues that the Board “erred by instructing the AOJ to consider entitlement to TDIU as a ‘newly raised claim,’ rather than instructing it to adjudicate the issue as part and parcel of the Veteran’s clam for service connection for a seizure disorder.” Appellant’s Br. at 11. The appellant therefore requests that “[t]he Board’s decision should be modified to prevent prejudice to the Veteran” in determining the ultimate effective date of TDIU. Id. The Secretary responds that the Board did not err when it referred the appellant’s TDIU claim to the AOJ for adjudication, and that modifying the Board’s decision at this point, before a determination of whether the appellant is in fact entitled to TDIU, would be “speculative and premature.” Secretary’s Br. at 13-14.
TDIU will be awarded when a veteran meets certain percentage standards and is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a) (2020). “[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits.” Rice v. Shinseki, 22 Vet.App. 447, 454 (2000). Rather, the request for TDIU is an attempt “to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a
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disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation” for the service-connected disability. Id. at 454-55.
The Court has exclusive jurisdiction to review Board decisions. 38 U.S.C. § 7252(a). However, for the Court to review a Board decision, the decision must be final. 38 U.S.C. § 7266(a); In re Quigley, 11 Vet.App. 1 (1990). Because a remanded claim is not considered a final decision, a claimant may not appeal that remand to the Court. Kirkpatrick v. Nicholson, 417 F.3d 1362, 1365 (Fed. Cir. 2005); Dallman v. Wilkie, 33 Vet.App. 101, 108 (2020); Acosta v. Principi, 18 Vet.App. 53 (2004); Breeden v. Principi, 17 Vet.App. 475 (2004).
Recently in Dallman, this Court stated:
[T]his Court cannot consider an appellant’s contentions regarding the Board’s finality determination after reopening, but prior to the award of service connection, because that finality decision, along with the decision to reopen and remand a matter does not constitute a final Board decision as to his service-connection claim or the effective date of an award.
33 Vet. App. at 107.
Here, the Court additionally stated:
Simply put, we find no legal basis for Mr. Dallman’s argument that he will be precluded from an earlier effective date for his service-connected disability if he is not allowed to adjudicate the Board’s finality determination now. To the contrary, the Board’s threshold finality determination has no preclusive effect on potential effective dates during the downstream earlier effective-date litigation.
Id. at 108.
Here, the appellant contends that the Board’s characterization of “the issue of TDIU as ‘a newly raised claim’ prejudices the Veteran because the Board’s findings are binding on the AOJ.” Appellant’s Br. at 12. Therefore, “[i]f followed by the AOJ, this factual finding would lead the AOJ to assign an incorrect effective date for benefits should the claim ultimately be granted.” Id.
However, as stated, this Court only has jurisdiction to review final Board decisions. Because the Board remanded the appellant’s claim without making a final determination as to whether the appellant was entitled to TDIU, the decision as to this issue is not final, and the appeal should be dismissed. See Dallman, 33 Vet.App. at 107-08; Matthews v. Principi, 15 Vet.App. 138, 139 (2001) (dismissing for lack of jurisdiction because no final Board decision had been made); 38 C.F.R. § 20.1100. Additionally, following Dallman, the Board’s referral of the TDIU matter would not have preclusive effect on the potential effective date of the appellant’s TDIU claim. Dallman, 33 Vet. App. at 108. Determination of the effective date would be premature until
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entitlement to TDIU is adjudicated by the AOJ. This is because there has been no final decision granting TDIU, and any concern regarding the potential effective date is a downstream issue. Therefore, the appellant may raise his effective-date argument to VA during the adjudication of his TDIU claim. If he disagrees with an effective date assigned by the RO, he may appeal the matter to the Board, and subsequently to this Court, including its determination about when TDIU was raised. The appeal is therefore dismissed.
III. CONCLUSION
Based on the foregoing analysis, the appellant’s and the Secretary’s briefs, and a review of the record on appeal, the appeal of the February 1, 2017, Board decision remanding the appellant’s claim for entitlement for TDIU is DISMISSED. The appeal of the Board’s decision, to the extent it denied an extraschedular referral for hearing loss, is DISMISSED. See Pederson, 27 Vet.App. at 285.
DATED: May 4, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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