Veteranclaims’s Blog

October 20, 2021

Single Judge Application; The Board cannot avoid adjudicating an issue before it, here the proper rating, simply because it may also arise in a different claim. See Rice, 22 Vet.App. at 450-54 (clarifying that TDIU is not a “claim” but an entitlement to a total disability rating when certain qualifications are met); As appellant notes, the Board’s failure to address entitlement to TDIU based solely on the veteran’s migraine headaches was prejudicial because that entitlement may lead to eligibility for SMC under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet.App. 280, 293 (2008) (“[S]ection 1114(s) does not limit ‘a service-connected disability rated as total’ to only a schedular rating of 100%, and the Secretary’s current regulation permits a [total disability rating based on individual unemployability] based on a single disability to satisfy the statutory requirement of a total rating.” (quoting 38 U.S.C. § 1114(s))); And VA has had a long-standing policy of considering SMC where it may apply, even if not explicitly raised. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:20 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-8323
MONA R. DAVIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
LAURER, Judge: Mona R. Davis, the surviving spouse of United States Navy veteran
Robert L. Davis, appeals, through counsel, a July 31, 2019, Board of Veterans’ Appeals (Board)
decision denying a rating above 20% for right leg varicose veins, denying compensable ratings for
status post bilateral hernia repair, and failing to consider entitlement to a total disability rating
based on individual unemployability (TDIU) based solely on his service-connected migraine
headaches.1
The parties agree that the Court should remand the claims for increased ratings for right
leg varicose veins and status post bilateral hernia repair because the Board failed to consider
expressly raised arguments. The Court will remand accordingly.
The parties disagree about whether the Board should have discussed TDIU based solely on
appellant’s service-connected migraines. Because the record raised the TDIU issue in connection
1 The Board also denied increased schedular ratings for status post fracture, left thumb, tinea pedis of the
fourth and fifth toes, and migraine headaches. Because appellant does not challenge these parts of the Board decision,
the Court dismisses the appeal on that matter. Appella nt’s Brief (Br.) a t 1; see Pederson v. McDonald, 27 Vet.App.
276, 281-85 (2015) (en banc) (finding that the Court may decline to review an issue appellant has abandoned on
appeal). The Board remanded entitlement to an increased rating for PTSD, and because the TDIU issue was
inextricably intertwined with the rating for PTSD, the Board also remanded the TDIU issue. The Court lacks
jurisdiction to review these remanded matters. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden
v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
2
with his increased rating claim for migraines, and because appellant showed unemployability
based only on that condition, the Court will remand for the Board to determine whether he is
entitled to TDIU based solely on his migraine headaches.
I. ANALYSIS
A. Right Leg Varicose Veins and Status Post Bilateral Hernia Repair
The Board must provide adequate reasons or bases that enable a claimant to understand the
precise basis for its decision and facilitate this Court’s review. 2 To satisfy this requirement, the
Board must account for evidence it finds persuasive or unpersuasive, analyze the credibility and
probative value of relevant evidence, and provide reasons for rejecting any evidence favorable to
appellant.3 As pertinent here, under Robinson, the Board must address all issues reasonably raised
by either the claimant or the evidence.4 The Board did not provide adequate reasons or bases
because it failed to discuss appellant’s expressly raised arguments. So the Court will remand.5
Appellant argued entitlement to extraschedular consideration for the veteran’s right leg
varicose veins.6 She also said that the veteran should be awarded a separate rating for left leg
varicose veins because varicose veins in both legs showed a progression of his right leg varicose
vein disorder. 7 On the bilateral hernia repair claims, appellant requested a separate rating for
painful scars.8 The Secretary concedes that the Board failed to consider these expressly raised
arguments and that the Court should remand. 9 Because the Board failed to address these
arguments, the Court accepts the Secretary’s concessions and will thus remand. 10
2 Allday v. Brown, 7 Vet.App. 517, 527 (1995); Mitchem v. Brown, 9 Vet.App. 138, 140 (1996) (emphasizing
that “[t]he need for a statement of reasons or bases is pa rticularly a cute” where related to disability ra tings for mental
disorders).
3 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
4 Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355
(Fed. Cir. 2009).
5 Tucker v. West, 11 Vet.App. 369, 374 (1998).
6 Record (R.) at 23, 1906-15.
7 Id.
8 R. at 23; 1923-33.
9 Secreta ry’s Brief (Br.) at 5-6.
10 Robinson, 21 Vet.App. at 552-56.
3
B. TDIU Based Solely on Migraine Headaches
The Board found that the veteran was not entitled to a higher rating for migraine headaches
because his 50% rating was the highest schedular rating under the applicable diagnostic code
(DC).11 Appellant does not dispute this finding and instead argues that the Board needed to discuss
TDIU as part of its adjudication of the claim for an increased rating for migraine headaches.12 She
contends that the evidence raised the issue that the veteran’s migraine headaches alone caused
unemployability. For this argument, appellant relies on a December 2015 VA examiner’s finding
that the “[f]requency of his [service-connected] incapacitation from his headaches . . . preclude[d]
. . . working in either sedentary or physically active employment capacity as he has daily periods
of incapacitation from his headaches.”13
“[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the
record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate
rating for a disability or disabilities.”14 VA must consider TDIU as part of the issue of a proper
disability rating whenever there is “cogent evidence of unemployability, regardless of whether [the
claimant] states specifically that he [or she] is seeking TDIU benefits.”15 When a veteran seeks
TDIU based on a single condition, the adjudicator should regard the request for TDIU as part of a
claim for an increased disability rating.16
The Secretary does not dispute that the record implicated TDIU based solely on
migraines.17 Instead, he states that the Board’s decision is sound because the Board remanded
TDIU along with his increased rating claim for PTSD for consideration of TDIU “due to both [the
veteran’s] migraines and [posttraumatic stress disorder (PTSD)].”18 The Secretary alleges that it
thus would have been “prejudicial” for the Board to adjudicate TDIU based solely on migraines.19
11 R. at 11; 38 C.F.R. § 4.124a, DC 8100 (2021).
12 Appella nt’s Br. a t 5-7; see Rice v. Shinseki, 22 Vet.App. 447, 453 (2009) (holding that entitlement to TDIU
is not a separate claim when it arises as part of a claim for benefits for specific conditions).
13 R. at 310.
14 Rice, 22 Vet.App. at 453.
15 Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009).
16 Rice, 22 Vet.App. at 453.
17 See Secretary’s Br. a t 6-7.
18 Secreta ry’s Br. a t 6-7.
19 Secreta ry’s Br. a t 7.
4
He notes that the VA regional office (RO) later granted TDIU based on multiple conditions, and
that appellant could appeal that decision and pursue that avenue for special monthly compensation
(SMC) under 38 U.S.C. § 1114(s).20
But the Secretary overlooks that, to comply with its duty to maximize benefits,21 the Board
needed to consider TDIU based solely on the veteran’s migraine headaches.22 And it must assess
whether any combination of service-connected disabilities established eligibility to more benefits
through SMC, including whether a single service-connected disability rendered the veteran
unemployable, to include on an extraschedular basis under 38 C.F.R. § 4.16(b).23 This appeal is
not a “circuitous attempt to seek an award for the downstream issue ,” as the Secretary contends,
but instead an attempt to maximize benefits and is part of the Board’s duty to address all issues
raised by the record.24 The Board cannot avoid adjudicating an issue before it, here the proper rating, simply because it may also arise in a different claim.25 As appellant notes, the Board’s failure to address entitlement to TDIU based solely on the veteran’s migraine headaches was prejudicial because that entitlement may lead to eligibility for SMC under 38 U.S.C. § 1114(s).26
And VA has had a long-standing policy of considering SMC where it may apply, even if not explicitly raised.27
The record raised unemployability based solely on migraine headaches, and the
Board should have considered TDIU along with the increased rating claim.28 Thus, the Court will
20 Id. at 7. On April 19, 2021, the Secretary filed a notice pursuant to Solze v. Shinseki, 26 Vet.App. 299, 301
(2013) (Solze Notice), informing the Court that on December 16, 2019, the RO issued a decision granting TDIU based
on a ppella nt’s multiple service-connected disabilities of PTSD and migraine headaches.
21 See 38 C.F.R. § 3.103(a) (2021); AB v. Brown, 6 Vet.App. 35, 38 (1993) (generally presuming that veterans
will “be seeking the maximum benefit a llowed by la w a nd regulation”); Tatum v. Shinseki, 23 Vet.App. 152, 157
(2009).
22 Robinson, 21 Vet.App. at 552-56.
23 38 C.F.R. § 4.16 (2021); 38 U.S.C. § 1114(s); Buie v. Shinseki, 24 Vet.App. 242, 250-51 (2010).
24 Robinson, 21 Vet.App. at 552-56; Buie, 24 Vet.App. at 250-51.
25 See Rice, 22 Vet.App. at 450-54 (clarifying that TDIU is not a “claim” but an entitlement to a total disability
rating when certain qualifications are met).
26 See Bradley v. Peake, 22 Vet.App. 280, 293 (2008) (“[S]ection 1114(s) does not limit ‘a service-connected
disability rated as total’ to only a schedular rating of 100%, and the Secretary’s current regulation permits a [total
disability rating based on individual unemployability] based on a single disability to satisfy the statutory requirement
of a total rating.” (quoting 38 U.S.C. § 1114(s))).
27 See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991).
28 R. at 310; Rice, 22 Vet.App. at 453; Buie, 24 Vet.App. at 250-51.
5
remand for the Board to consider entitlement to TDIU based on a single disability and the issue of
entitlement to SMC.
II. CONCLUSION
The Court VACATES those portions of the July 31, 2019, Board decision denying
increased ratings for right leg varicose veins, status post bilateral hernia repair, and migraines, and
REMANDS the matters for readjudication consistent with the above.
DATED: October 5, 2021
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-8323
MONA R. DAVIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LAURER, Judge: Mona R. Davis, the surviving spouse of United States Navy veteran
Robert L. Davis, appeals, through counsel, a July 31, 2019, Board of Veterans’ Appeals (Board)
decision denying a rating above 20% for right leg varicose veins, denying compensable ratings for
status post bilateral hernia repair, and failing to consider entitlement to a total disability rating
based on individual unemployability (TDIU) based solely on his service-connected migraine
headaches.1
The parties agree that the Court should remand the claims for increased ratings for right
leg varicose veins and status post bilateral hernia repair because the Board failed to consider
expressly raised arguments. The Court will remand accordingly.
The parties disagree about whether the Board should have discussed TDIU based solely on
appellant’s service-connected migraines. Because the record raised the TDIU issue in connection
1 The Board also denied increased schedular ratings for status post fracture, left thumb, tinea pedis of the
fourth and fifth toes, and migraine headaches. Because appellant does not challenge these parts of the Board decision,
the Court dismisses the appeal on that matter. Appella nt’s Brief (Br.) a t 1; see Pederson v. McDonald, 27 Vet.App.
276, 281-85 (2015) (en banc) (finding that the Court may decline to review an issue appellant has abandoned on
appeal). The Board remanded entitlement to an increased rating for PTSD, and because the TDIU issue was
inextricably intertwined with the rating for PTSD, the Board also remanded the TDIU issue. The Court lacks
jurisdiction to review these remanded matters. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden
v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
2
with his increased rating claim for migraines, and because appellant showed unemployability
based only on that condition, the Court will remand for the Board to determine whether he is
entitled to TDIU based solely on his migraine headaches.
I. ANALYSIS
A. Right Leg Varicose Veins and Status Post Bilateral Hernia Repair
The Board must provide adequate reasons or bases that enable a claimant to understand the
precise basis for its decision and facilitate this Court’s review. 2 To satisfy this requirement, the
Board must account for evidence it finds persuasive or unpersuasive, analyze the credibility and
probative value of relevant evidence, and provide reasons for rejecting any evidence favorable to
appellant.3 As pertinent here, under Robinson, the Board must address all issues reasonably raised
by either the claimant or the evidence.4 The Board did not provide adequate reasons or bases
because it failed to discuss appellant’s expressly raised arguments. So the Court will remand.5
Appellant argued entitlement to extraschedular consideration for the veteran’s right leg
varicose veins.6 She also said that the veteran should be awarded a separate rating for left leg
varicose veins because varicose veins in both legs showed a progression of his right leg varicose
vein disorder. 7 On the bilateral hernia repair claims, appellant requested a separate rating for
painful scars.8 The Secretary concedes that the Board failed to consider these expressly raised
arguments and that the Court should remand. 9 Because the Board failed to address these
arguments, the Court accepts the Secretary’s concessions and will thus remand. 10
2 Allday v. Brown, 7 Vet.App. 517, 527 (1995); Mitchem v. Brown, 9 Vet.App. 138, 140 (1996) (emphasizing
that “[t]he need for a statement of reasons or bases is pa rticularly a cute” where related to disability ra tings for mental
disorders).
3 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
4 Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355
(Fed. Cir. 2009).
5 Tucker v. West, 11 Vet.App. 369, 374 (1998).
6 Record (R.) at 23, 1906-15.
7 Id.
8 R. at 23; 1923-33.
9 Secreta ry’s Brief (Br.) at 5-6.
10 Robinson, 21 Vet.App. at 552-56.
3
B. TDIU Based Solely on Migraine Headaches
The Board found that the veteran was not entitled to a higher rating for migraine headaches
because his 50% rating was the highest schedular rating under the applicable diagnostic code
(DC).11 Appellant does not dispute this finding and instead argues that the Board needed to discuss
TDIU as part of its adjudication of the claim for an increased rating for migraine headaches.12 She
contends that the evidence raised the issue that the veteran’s migraine headaches alone caused
unemployability. For this argument, appellant relies on a December 2015 VA examiner’s finding
that the “[f]requency of his [service-connected] incapacitation from his headaches . . . preclude[d]
. . . working in either sedentary or physically active employment capacity as he has daily periods
of incapacitation from his headaches.”13
“[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the
record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate
rating for a disability or disabilities.”14 VA must consider TDIU as part of the issue of a proper
disability rating whenever there is “cogent evidence of unemployability, regardless of whether [the
claimant] states specifically that he [or she] is seeking TDIU benefits.”15 When a veteran seeks
TDIU based on a single condition, the adjudicator should regard the request for TDIU as part of a
claim for an increased disability rating.16
The Secretary does not dispute that the record implicated TDIU based solely on
migraines.17 Instead, he states that the Board’s decision is sound because the Board remanded
TDIU along with his increased rating claim for PTSD for consideration of TDIU “due to both [the
veteran’s] migraines and [posttraumatic stress disorder (PTSD)].”18 The Secretary alleges that it
thus would have been “prejudicial” for the Board to adjudicate TDIU based solely on migraines.19
11 R. at 11; 38 C.F.R. § 4.124a, DC 8100 (2021).
12 Appella nt’s Br. a t 5-7; see Rice v. Shinseki, 22 Vet.App. 447, 453 (2009) (holding that entitlement to TDIU
is not a separate claim when it arises as part of a claim for benefits for specific conditions).
13 R. at 310.
14 Rice, 22 Vet.App. at 453.
15 Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009).
16 Rice, 22 Vet.App. at 453.
17 See Secretary’s Br. a t 6-7.
18 Secreta ry’s Br. a t 6-7.
19 Secreta ry’s Br. a t 7.
4
He notes that the VA regional office (RO) later granted TDIU based on multiple conditions, and
that appellant could appeal that decision and pursue that avenue for special monthly compensation
(SMC) under 38 U.S.C. § 1114(s).20
But the Secretary overlooks that, to comply with its duty to maximize benefits,21 the Board
needed to consider TDIU based solely on the veteran’s migraine headaches.22 And it must assess
whether any combination of service-connected disabilities established eligibility to more benefits
through SMC, including whether a single service-connected disability rendered the veteran
unemployable, to include on an extraschedular basis under 38 C.F.R. § 4.16(b).23 This appeal is
not a “circuitous attempt to seek an award for the downstream issue ,” as the Secretary contends,
but instead an attempt to maximize benefits and is part of the Board’s duty to address all issues
raised by the record.24 The Board cannot avoid adjudicating an issue before it, here the proper
rating, simply because it may also arise in a different claim.25 As appellant notes, the Board’s
failure to address entitlement to TDIU based solely on the veteran’s migraine headaches was
prejudicial because that entitlement may lead to eligibility for SMC under 38 U.S.C. § 1114(s).26
And VA has had a long-standing policy of considering SMC where it may apply, even if not
explicitly raised.27 The record raised unemployability based solely on migraine headaches, and the
Board should have considered TDIU along with the increased rating claim.28 Thus, the Court will
20 Id. at 7. On April 19, 2021, the Secretary filed a notice pursuant to Solze v. Shinseki, 26 Vet.App. 299, 301
(2013) (Solze Notice), informing the Court that on December 16, 2019, the RO issued a decision granting TDIU based
on a ppella nt’s multiple service-connected disabilities of PTSD and migraine headaches.
21 See 38 C.F.R. § 3.103(a) (2021); AB v. Brown, 6 Vet.App. 35, 38 (1993) (generally presuming that veterans
will “be seeking the maximum benefit a llowed by la w a nd regulation”); Tatum v. Shinseki, 23 Vet.App. 152, 157
(2009).
22 Robinson, 21 Vet.App. at 552-56.
23 38 C.F.R. § 4.16 (2021); 38 U.S.C. § 1114(s); Buie v. Shinseki, 24 Vet.App. 242, 250-51 (2010).
24 Robinson, 21 Vet.App. at 552-56; Buie, 24 Vet.App. at 250-51.
25 See Rice, 22 Vet.App. at 450-54 (clarifying that TDIU is not a “claim” but an entitlement to a total disability
rating when certain qualifications are met).
26 See Bradley v. Peake, 22 Vet.App. 280, 293 (2008) (“[S]ection 1114(s) does not limit ‘a service-connected
disability rated as total’ to only a schedular rating of 100%, and the Secretary’s current regulation permits a [total
disability rating based on individual unemployability] based on a single disability to satisfy the statutory requirement
of a total rating.” (quoting 38 U.S.C. § 1114(s))).
27 See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991).
28 R. at 310; Rice, 22 Vet.App. at 453; Buie, 24 Vet.App. at 250-51.
5
remand for the Board to consider entitlement to TDIU based on a single disability and the issue of
entitlement to SMC.
II. CONCLUSION
The Court VACATES those portions of the July 31, 2019, Board decision denying
increased ratings for right leg varicose veins, status post bilateral hernia repair, and migraines, and
REMANDS the matters for readjudication consistent with the above.
DATED: October 5, 2021
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)

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