Veteranclaims’s Blog

January 13, 2022

Single Judge Application; Manning v. Principi, 16 Vet.App. 534, 541 (2002) (explaining that “a later [Board] decision’s delayed subsuming of an RO decision occurs only where the Board decided the same issue that the RO decided and where the RO decision and [Board] review were based on the same factual basis”(citing Brown v. West, 203 F.3d 1378, 1381-82 (Fed. Cir. 2000));

Filed under: Uncategorized — Tags: — veteranclaims @ 10:26 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5785
JAMES L. NICHOLS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, James L. Nichols, through counsel, appeals a July 21,
2020, Board of Veterans’ Appeals (Board) decision that denied an effective date earlier than
September 29, 2014, for a total disability rating based on individual unemployability (TDIU).1
Record (R.) at 5-25. Mr. Nichols does not challenge the Board’s denials of (1) service connection
for a wrist disability; (2) disability ratings higher than 10% each for left and right knee instability;
(3) disability ratings higher than 40% each for left and right knee limitation of extension; and (4)
disability ratings higher than 10% before February 7, 2020, for left and right knee degenerative
joint disease (DJD) with limitation of flexion. See Appellant’s Brief (Br.) at 1-25. Therefore, the
Court deems those issues abandoned and will dismiss the appeal as to those issues. See Pederson
v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to
38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of
“relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 The Board also granted TDIU effective from September 29, 2014, and granted 30% disability ratings for
the appellant’s left and right knee DJD from February 7, 2020. The Board’s determinations are favorable to the
appellant and the Court will not disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).
2
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the part of the
Board’s July 21, 2020, decision that denied an effective date earlier than September 29, 2014, for
TDIU, and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
Mr. Nichols served on active duty in the U.S. Army from May 1973 to February 1980. R.
at 2337, 2510. In June 2009, he filed claims for compensation and pension for bilateral shoulder
and knee disabilities and coronary artery disease. R. at 2655-70. In March 2010, a VA regional
office (RO) granted non-service-connected pension, finding that Mr. Nichols was unable to secure
and follow a substantially gainful occupation as a result of coronary artery disease, hypertension,
diabetes, bilateral shoulder DJD, and bilateral knee arthralgia. R. at 2237-41. The RO denied
service connection for bilateral shoulder and knee disabilities and coronary artery disease. Id. Mr.
Nichols filed a Notice of Disagreement (NOD) with the denials of service connection in October

  1. R. at 2315. In a December 2010 Statement of the Case (SOC), the RO continued the denials.
    R. at 2272-96. In February 2011, Mr. Nichols appealed to the Board, requesting a hearing at a local
    VA office. R. at 2267. In a July 2011 Supplemental SOC, the RO continued to deny the claims. R.
    at 2210-20. In a November 2012 rating decision, the RO granted service connection for bilateral
    shoulder DJD with a 20% disability rating for each shoulder, effective from August 3, 2009, and
    granted service connection for bilateral knee DJD with a 10% disability rating for each knee
    effective from August 3, 2009. R. at 1965-73. In an October 2013 rating decision, the RO granted
    service connection for bilateral knee instability, with a 10% disability rating for each knee effective
    from August 3, 2009. R. at 1852-54.
    In September 2014, Mr. Nichols submitted a VA Form 21-4138, stating that “I am applying
    for an increase in my current ratings for: 1. Bilateral shoulder [condition] and 2. Bilateral knees. I
    am also applying for compensation for service-connected left wrist condition. Please review my
    records from the Dallas VAMC.” R. at 1808. In a December 2014 rating decision, the RO granted
    service connection for a right knee surgical scar with a 0% evaluation effective from September
    29, 2014, and the RO denied service connection for a left wrist condition. R. at 1702-07. The RO
    also continued 20% disability ratings for Mr. Nichols’s bilateral shoulder DJD, 10% disability
    ratings for bilateral knee DJD, and 10% ratings for bilateral knee instability. Id. In March 2015,
    Mr. Nichols disagreed with the ratings assigned for his knee conditions. R. at 1680-81. In a
    3
    December 2017 SOC, the RO continued the ratings for Mr. Nichols’s knee conditions. R. at 1568-
  2. Mr. Nichols appealed to the Board. R. at 1566. In August 2018, the RO again continued the
    ratings for Mr. Nichols’s knee conditions. R. at 1331-40.
    In an April 2019 order, the Board remanded Mr. Nichols’s claims to obtain new
    examinations. R. at 1104-08. In May 2019, Mr. Nichols submitted a TDIU application based on
    his shoulder and knee conditions. R. at 1079-81. His attorney attached a cover letter noting that
    his request for TDIU “is included as part of the pending increased rating claims.” R. at 1087. In an
    August 2019 rating decision, the RO granted 40% disability ratings for limitation of extension of
    the left knee and right knee, continued 10% ratings for DJD for each knee and 10% ratings for
    instability for each knee, and denied TDIU. R. at 378-82.
    In October 2019, Mr. Nichols requested higher-level review of the TDIU denial, opting in
    to VA’s modernized appeals system. R. at 314-15. In a January 2020 rating decision, the RO
    granted TDIU based on Mr. Nichols’s bilateral shoulder DJD and bilateral knee DJD with
    instability, effective from August 9, 2017, the date the Agency received his intent to file an
    increased-rating claim for his bilateral shoulder DJD. R. at 269. In February 2020, Mr. Nichols
    acknowledged that the RO had granted TDIU effective from August 2017, but he requested that
    the Board adjudicate his eligibility for TDIU as part of his appeals for increased ratings for bilateral
    knee disabilities, bilateral shoulder disabilities, and service connection for a left wrist disability
    and thoracolumbar spine condition that he asserted had been pending “since at least September
    2014.” R. at 140-41.
    In the July 2020 decision on appeal, the Board, citing Rice v. Shinseki, 22 Vet.App. 447
    (2009), took jurisdiction of a claim for TDIU before August 9, 2017. R. at 9. The Board noted that
    before August 9, 2017, Mr. Nichols was service connected for bilateral shoulder DJD and bilateral
    knee disabilities, and that his combined disability rating for those conditions was 60%. R. at 22.
    The Board found that August 2012 examinations showed that Mr. Nichols’s bilateral knee
    disabilities and bilateral shoulder disabilities affected his ability to work, noting that Mr. Nichols
    had been unemployed since 2008 and previously worked as a shop manager. R. at 23. The Board
    also noted that in a November 2014 examination, Mr. Nichols’s shoulder disabilities affected his
    ability to perform any occupational task, and that he had been awarded Social Security disability
    benefits as a result of his bilateral knee and shoulder disabilities. Id. The Board discussed Mr.
    Nichols’s report that he was laid off in 2008 and tried to return to work later that year, but his
    4
    shoulder and knee disabilities made it difficult to perform manual work, and shoulder and knee
    pain and pain medications diminished his concentration in sedentary work. R. at 24. The Board
    granted TDIU effective from September 29, 2014, the date VA received his increased-rating claims
    for his bilateral knee and shoulder disabilities. R. at 25.
    On appeal, Mr. Nichols argues that the Board should have construed his September 2014
    increased-rating claim also as an NOD with the RO’s October 2013 rating decision for his knee
    instability. Appellant’s Br. at 14-18. Therefore, Mr. Nichols argues that he contested his initial
    disability ratings and the Board should have considered whether he was entitled to TDIU from his
    original 2009 compensation claim. Id. at 21-23. He also argues that the Board erred in failing to
    discuss his 2009 award of non-service-connected pension benefits, which was based in part on his
    shoulder and knee disabilities, for which, he asserts, he continually pursued benefits since 2009.
    Id. at 18-20. Finally, he argues that the Board inadequately explained how it applied Rice to his
    increased-rating claims for bilateral knee and shoulder disabilities but did not address the RO’s
    failure in November 2012 and October 2013 rating decisions to grant TDIU in its initial grant of
    service connection for those disabilities. Id. at 24.
    The Secretary argues that the Board properly based the effective date for TDIU on the
    September 2014 increased-rating claims, and the Secretary urges the Court to decline to consider
    Mr. Nichols’s argument that his September 2014 submission was also an NOD contesting the RO’s
    October 2013 rating decision because Mr. Nichols did not make this argument before the Board.
    Secretary’s Br. at 8-12. Alternatively, the Secretary argues that Mr. Nichols’s September 2014
    increased-rating claims could not have been an NOD with the October 2013 rating decision, and
    there is no other way that TDIU could have been pending earlier than September 2014, and
    therefore any Board error is not prejudicial. Id. at 12-15. The Secretary asserts that because Mr.
    Nichols did not file an NOD with the RO’s November 2012 or October 2013 decisions, Mr.
    Nichols’s remaining arguments are moot because the Board did not have jurisdiction to consider
    whether the RO failed in adjudicating TDIU in the November 2012 or October 2013
    determinations. Id. at 15-17.
    5
    II. ANALYSIS
    TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful
    occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (2021); see Hatlestad v.
    Brown, 5 Vet.App. 524, 529 (1993) (“[T]he central inquiry in determining whether a veteran is
    entitled to a TDIU rating is whether the veteran’s service-connected disabilities alone are of
    sufficient severity to produce unemployability.”). When such unemployability is shown and the
    veteran meets certain numeric evaluation requirements, the Board may award TDIU in the first
    instance. 38 C.F.R. § 4.16(a).
    Where a claimant seeks a higher disability rating and evidence of unemployability is of
    record, VA must consider entitlement to a TDIU. Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir.
    2009) (holding that VA must consider TDIU as part of the issue of the proper disability rating
    whenever there is “cogent evidence of unemployability, regardless of whether [the claimant] states
    specifically that he is seeking TDIU benefits”). TDIU may also arise in the adjudication of an
    initial disability rating. Rice v. Shinseki, 22 Vet.App. 447, 453 (2009) (holding that “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”). In Harper v. Wilkie, the Court held that, if a claimant files an NOD seeking a higher
    evaluation for a service-connected disability and, during the processing of that appeal, files a
    request for TDIU based on the same disability, the request for TDIU becomes part and parcel of
    the appeal that was the subject of the NOD unless and until the claimant is either granted TDIU
    for the entire period on appeal or the claimant withdraws the appeal. 30 Vet.App. 356, 361 (2018).
    The Court made clear that, in those circumstances, an award of TDIU does not bifurcate the appeal
    or create a jurisdictionally separate matter for which a separate NOD must be filed. Id. at 361-62.
    The Board’s determination of the proper effective date for disability compensation,
    including TDIU, is a finding of fact that the Court reviews under the “clearly erroneous” standard
    of review. See Evans v. West, 12 Vet.App. 396, 401 (1999); Hanson v. Brown, 9 Vet.App. 29, 32
    (1996); see also 38 U.S.C. § 7261(a)(4). “‘A factual finding is ‘clearly erroneous’ when although
    there is evidence to support it, the reviewing court on the entire evidence is left with the definite
    and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94
    (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
    6
    The Board must provide a statement of the reasons or bases for its determination, adequate
    to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate
    review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert
    v. Derwinski, 1 Vet.App. 49, 52 (1990). To comply with this requirement, the Board must analyze
    the credibility and probative value of the evidence, account for the evidence it finds persuasive or
    unpersuasive, and provide the reasons for rejecting any material evidence favorable to the
    claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
    1996) (table).
    Though the Secretary urges the Court not to consider Mr. Nichols’s arguments about his
    September 2014 submission because he did not raise them before the Agency, the Court need only
    consider them to the extent they are entwined with his other reasons-or-bases arguments. Mr.
    Nichols argues that the Board inadequately explained how it found that a TDIU claim “attached to
    the underlying disability claim streams” for his bilateral knee and shoulder disabilities. Appellant’s
    Br. at 24. He argues that if his September 2014 submission was an NOD or if the RO failed to
    adjudicate TDIU with its initial adjudication of his claims in November 2012 and October 2013,
    the issue of entitlement to TDIU as early as August 2009 remained open. Id. at 15, 21.
    The Court agrees that the Board’s failure to explain how Rice applied in the context of an
    effective date earlier than August 9, 2017, for TDIU prevents effective judicial review of Mr.
    Nichols’s arguments. At first reading, it appears the Board may have intended to find that Mr.
    Nichols’s September 29, 2014, submission raised entitlement to TDIU under Rice. R. at 25. Yet
    the Board never stated that TDIU was part and parcel of Mr. Nichols’s September 29, 2014, claims.
    The RO had already granted TDIU as part of Mr. Nichols’s increased-rating claims for shoulder
    and knee disabilities, finding that they had been pending since August 9, 2017. R. at 269. And the
    Board explained that it was taking jurisdiction over the issue of an earlier effective date for TDIU,
    thereby possibly subsuming any RO decision that failed to adjudicate TDIU. See Manning v. Principi, 16 Vet.App. 534, 541 (2002) (explaining that “a later [Board] decision’s delayed subsuming of an RO decision occurs only where the Board decided the same issue that the RO decided and where the RO decision and [Board] review were based on the same factual basis”(citing Brown v. West, 203 F.3d 1378, 1381-82 (Fed. Cir. 2000)). The Board’s lack of explanation
    of which claims encompassed TDIU frustrates the Court’s review of Mr. Nichols’s argument that
    7
    a TDIU request remained open from August 2009. See Allday, 7 Vet.App. at 527; see also Gilbert,
    1 Vet.App. at 56-57.
    The Court must consider whether the Board’s error was prejudicial. 38 U.S.C. § 7261(b)(2);
    see also Shinseki v. Sanders, 556 U.S. 396, 407-10 (2009). The Secretary argues that even if the
    RO erred in failing to adjudicate TDIU as part of Mr. Nichols’s initial compensation claims, the
    Board did not have jurisdiction to address that error because Mr. Nichols did not file an NOD with
    the November 2012 or October 2013 rating decisions. Secretary’s Br. at 16-17. The Court disagrees
    and finds the error prejudicial. First, the Secretary’s argument is premised on a finding that Mr.
    Nichols’s September 2014 submission was not an NOD, a finding based on an analysis the Board
    did not perform, and an issue that, if it was reasonably raised, is an open issue. See Tadlock v.
    McDonough, 5 F.4th 1327, 1336 (Fed. Cir. 2021) (holding that the Court’s statutory duty to
    consider prejudicial error “does not give it the right to make de novo findings of fact or otherwise
    resolve matters that are open to debate”). Second, even if Mr. Nichols had not filed an NOD with
    the November 2012 or October 2013 rating decisions, that would not prevent the Board from
    referring an unadjudicated claim to the RO if the Board found it was warranted. See Godfrey v.
    Brown, 7 Vet.App. 398, 419 (1995).
    Accordingly, the Court will remand the matter for the Board to explain how it took
    jurisdiction over a claim for TDIU before August 9, 2017, including which claim TDIU was “part
    and parcel” of, and to address whether a TDIU request remained pending earlier than
    September 29, 2014. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate
    “where the Board has incorrectly applied the law, failed to provide an adequate statement of
    reasons or bases for its determinations, or where the record is otherwise inadequate”).
    Because the claim is being remanded, the Court need not, at this time, address Mr. Nichols’s
    other arguments. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that
    “[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before
    the Board at the readjudication, and, of course, before this Court in an appeal, should the Board
    rule against him”). On remand, the Board must proceed expeditiously, in accordance with
    38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims
    remanded by the Court).
    8
    III. CONCLUSION
    After considering the foregoing analysis and the parties’ briefs, and after reviewing the
    record, the Court VACATES the part of the Board’s July 21, 2020, decision denying an effective
    date earlier than September 29, 2014, for TDIU and REMANDS the matter for further proceedings
    consistent with this decision. The Court DISMISSES the appeal of the part of the Board’s July 21,
    2020, decision that denied service connection for a wrist disability, disability ratings higher than
    10% for left and right knee instability, disability ratings higher than 40% for left and right knee
    limitation of extension, and disability ratings higher than 10% before February 7, 2020, for left
    and right knee DJD with limitation of flexion.
    DATED: January 11, 2022
    Copies to:
    Jonathan W. Greene, Esq.
    VA General Counsel (027)

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