Frank A. Harper v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3519
FRANK A. HARPER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued May 3, 2018 Decided December 6, 2018)
April Donahower and Barbara J. Cook, with whom Megan M. Ellis, was on the brief, all
of Providence, Rhode Island, for the appellant.
Joshua L. Wolinsky, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn,
Chief Counsel; and Kenneth A. Walsh, Deputy Chief Counsel, were on the brief, all of Washington,
D.C., for the appellee.
Before DAVIS, Chief Judge, and MEREDITH and TOTH, Judges.
DAVIS, Chief Judge: U.S. Navy veteran Frank A. Harper appeals through counsel a
July 20, 2016, Board of Veterans' Appeals decision. That decision, in relevant part, determined
that the issue of entitlement to a total disability rating based on individual unemployability (TDIU)
was not part of the underlying appeal for a higher initial disability rating for PTSD because Mr.
Harper did not appeal the regional office's (RO's) decision that granted TDIU. This case was
referred to panel to address whether an RO's grant of TDIU bifurcates an appeal, which in turn,
would require the veteran to file a new Notice of Disagreement (NOD) to challenge the effective
date assigned to the award of TDIU. Because the Board improperly determined that it did not have
jurisdiction over TDIU prior to February 2016, the Court will reverse that portion of the decision.
The Court will set aside and remand that portion of the Board's decision that denied an initial
disability rating in excess of 50% for PTSD prior to December 17, 2015, for proceedings consistent
with this decision.
I. BACKGROUND
Mr. Harper served on active duty in the U.S. Navy from September 1970 to July 1972.
Supplemental (Supp.) Record (R.) at 1341. In August 2008, Mr. Harper filed a claim for service
connection for PTSD, Supp. R. at 1037, and in December 2008, the RO granted that claim and
assigned a 30% disability rating, Supp. R. at 973-82. Mr. Harper timely disagreed with the assigned
rating and ultimately appealed this decision. Supp. R. at 938-40 (June 2009 VA Form 9), 943-59
(Statement of the Case), and 964 (NOD). In July 2012, the Board increased the disability rating
for service-connected PTSD to 50%. Supp. R. at 832-45.
In February 2013, the Court granted a joint motion for partial remand (JMPR) in which the
parties agreed that the Board provided inadequate reasons or bases when it denied a disability
rating in excess of 50% for service-connected PTSD. Supp. R. at 814-25. Specifically, the parties
stated that the Board failed to discuss evidence of psychosis, including hallucinations, Supp. R. at
820, and only "provided minimal discussion with regard to any occupational impairment that [Mr.
Harper] may experience as the result of his PTSD," Supp. R. at 822. Subsequently, in a July 2013
decision, the Board remanded the matter for additional development. Supp. R. at 608-17.
In February 2014, Mr. Harper requested TDIU, asserting that he is unable to secure or
follow a substantially gainful occupation in part because of his PTSD. Supp. R. at 599-600. In an
August 2014 decision, the RO denied TDIU. Supp. R. at 349-54.
In December 2015, the RO awarded Mr. Harper a 70% disability rating for service-
connected PTSD, effective December 2015, noting that the award represented a partial grant of
the benefits sought on appeal. Supp. R. at 75-87. In February 2016, Mr. Harper submitted a second
request for TDIU, asserting that he is "qualified to apply for [TDIU] because [he has] one disability
currently rated at 70%." Supp. R. at 70-72. In May 2016, the RO awarded TDIU and assigned an
effective date of February 11, 2016. Supp. R. at 38-41.
In the decision on appeal, the Board denied a disability rating in excess of 50% before
December 2015 for service-connected PTSD, Supp. R. at 8-12, and concluded that the issue of
entitlement to TDIU was not part of the underlying appeal because Mr. Harper did not appeal the
May 2016 RO decision that awarded TDIU effective February 11, 2016, Supp. R. at 14-15. The
Board also denied entitlement to a disability rating in excess of 70% for PTSD beginning
December 17, 2015. Supp. R. at 12-14. Mr. Harper does not challenge that portion of the Board
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decision and therefore, this issue is deemed abandoned and that portion of the appeal will be
dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
II. PARTIES' ARGUMENTS REGARDING TDIU
Mr. Harper argues that the Board erred in concluding that the issue of entitlement to TDIU
prior to February 2016 was not on appeal. Appellant's Brief (Br.) at 14. Specifically, Mr. Harper
asserts that, pursuant to Rice v. Shinseki, 22 Vet.App. 447 (2009), the issue of entitlement to TDIU
became "part and parcel" of his appeal for a higher initial disability rating for PTSD1 in February
2014 when he explicitly raised the issue while his appeal was pending. Id. at 15. He asserts that,
although "entitlement to TDIU for the period after February 2016 became moot as a result of the
RO's decision, the issue of entitlement to TDIU prior to that date remained on appeal." Id.
In response, the Secretary argues that, because Mr. Harper did not appeal the May 2016
rating decision, that decision was not before the Board as part of the appeal for a higher initial
disability rating for PTSD and the Court lacks jurisdiction to consider Mr. Harper's request for an
earlier effective date for TDIU. Secretary's Br. at 17-18. The Secretary asserts that "Rice, no doubt
raises the issue of TDIU, however, the Court's decision in Rice does not dictate that the Board sua
sponte determine an earlier effective date for TDIU." Id. at 18.
Mr. Harper responds that the Secretary mischaracterizes the issue on appeal as a request
for an earlier effective date, rather than an attempt to obtain an appropriate disability rating for the
disability on appeal—PTSD. Appellant's Reply Br. at 10. He asserts that "[t]he Secretary's
argument is based on his assumption that the RO's grant of TDIU from February 2016 forward
served to bifurcate the issue of entitlement to TDIU from [his appeal for a higher initial disability]
rating for PTSD"; however, once the issue of entitlement to TDIU became part of the appeal, only
he could unilaterally eliminate that issue, and because he did not do so, the issue of entitlement
before February 2016 remained in appellate status. Id. at 11.
1
In their briefs, both parties refer to the issue on appeal as a "claim for an increased rating for PTSD." This
characterization is incorrect, because the issue on appeal is the proper initial disability rating assigned for Mr. Harper's
PTSD. See R. at 3. There is, however, no functional difference in this case between the two characterizations: the issue
is whether Mr. Harper is entitled to a higher rating for his PTSD.
3
III. ANALYSIS
A. The Board had jurisdiction over the issue of entitlement to TDIU prior to February
2016, because the issue of TDIU became part and parcel of the underlying PTSD claim
and the RO's grant of TDIU did not bifurcate the appeal.
Whether the Board has jurisdiction over a matter, including whether an issue is properly
bifurcated, is a question of law that this Court reviews de novo. See Evans v. Shinseki, 25 Vet.App.
7, 10 (2011) (Court exercises de novo review over Board determinations that are critical to its
jurisdiction); see also Palmatier v. McDonald, 626 F. App'x 991, 994 (Fed. Cir. 2015) ("[W]hether
the [veteran's] claims were properly bifurcated . . . is a question of law."). As explained below, the
Court holds that the Board erred in determining that it did not have jurisdiction over the issue of
entitlement to TDIU before February 2016. Contrary to the Secretary's assertion, Mr. Harper did
not need to appeal the May 2016 RO decision because the issue of entitlement to TDIU became
part and parcel of the underlying PTSD claim and the RO's grant of TDIU served only as a partial
grant of his request for TDIU. See Rice, 22 Vet.App. at 453-54; Palmatier, 626 F. App'x at 994-95.
1. Rice v. Shinseki
Under Rice, the issue of entitlement to TDIU prior to February 2016 remained part and
parcel of Mr. Harper's underlying PTSD claim and was properly before the Board for adjudication.
In Rice, the Court held:
[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, either as part of the initial
adjudication of a claim or . . . as part of a claim for increased compensation.
22 Vet.App. at 453-54. The Court further explained that, "[w]hen entitlement to TDIU is raised
during the adjudicatory process of the underlying disability or during the administrative appeal of
the initial rating assigned for that disability, it is part of the claim for benefits for the underlying
disability." Id. at 454 (emphasis added). Here, once Mr. Harper's PTSD claim was in appellate
status by virtue of the December 2008 NOD, Supp. R. at 964, the issue of TDIU became part of
the underlying PTSD claim when he filed an application for TDIU in February 2014, Supp. R. at
599-600.
2. Palmatier v. McDonald
Because the issue of entitlement to TDIU was part and parcel of Mr. Harper's underlying
PTSD claim, the Board had jurisdiction to consider that issue. To the extent that the Secretary
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argues that the RO's grant of TDIU from February 2016 bifurcated the TDIU issue from Mr.
Harper's PTSD claim, the Court disagrees because the RO's grant of TDIU served only as a partial
grant.
Mr. Harper equates his case with Palmatier, a nonprecedential decision of the U.S. Court
of Appeals for the Federal Circuit. Although this is a nonprecedential decision, the Court relies on
it for its persuasive value because the facts and issue are like those of the case here. In Palmatier,
the veteran filed a claim for entitlement to service connection for a low back disability in June
2002 and then, in March 2003, while his initial claim was pending, requested TDIU based on lower
back pain. Palmatier, 626 F. App'x at 993. The next month, the RO denied his claim for a low
back disability, and the veteran appealed that decision to the Board. Id. While his appeal was
pending, the RO denied the veteran's request for TDIU, and the veteran did not appeal that
decision. Id. The Board then, in September 2008, granted service connection for a low back
disability, and in October 2008, the RO assigned a noncompensable disability rating, which the
veteran contested. Id. In December 2009, the veteran filed a second request for TDIU, and in May
2010, the RO awarded a 40% disability rating for his low back disability, effective April 21, 2010,
and a 10% disability rating for the period from June 2002 to April 2010. Id. The veteran appealed
the May 2010 RO decision, disagreeing with the 40% rating from April 2010 and noting that, in
February 1992, he had retired from his job due to back problems. Id. In April 2011, the RO awarded
TDIU with an effective date of December 2009, the date of the veteran's second TDIU application.
Id. The veteran did not appeal this decision. In June 2012, the Board concluded that the issue of
TDIU was moot because the veteran had not appealed the RO's April 2011 decision. Id. at 994.
This Court affirmed the Board's decision. Id. In reversing this Court, the Federal Circuit concluded
that the issue of entitlement to TDIU was not bifurcated from the veteran's low back disability
claim. Id. The Federal Circuit explained that the veteran's requests for TDIU in March 2003 and
December 2009 were "part and parcel" of his initial June 2002 filing, and that the veteran did not
bifurcate his appeal at any time. Id. at 994-95. Additionally, the Federal Circuit concluded that the
RO's grant of TDIU in April 2011 "did not serve to bifurcate the appeal, but instead served simply
to partially grant [the veteran's] request for TDIU." Id. at 995.
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Similarly, here, the issue of entitlement to TDIU was not bifurcated from Mr. Harper's
PTSD claim.2 As explained above, once Mr. Harper's PTSD claim was in appellate status by virtue
of the December 2008 NOD, the issue of TDIU became part and parcel of that claim when he filed
an application for TDIU in February 2014. Thus, the issue of entitlement to TDIU was also in
appellate status, and because Mr. Harper did not withdraw the issue of TDIU from his pending
appeal, he did not bifurcate his appeal. See 38 C.F.R. § 20.204(a) (2014) ("Only an appellant, or
an appellant's authorized representative, may withdraw an appeal."). And, as in Palmatier, here
the RO's grant of TDIU in May 2016 "did not serve to bifurcate the appeal, but instead served
simply to partially grant [Mr. Harper's] request for TDIU." Palmatier, 626 F. App'x at 995.
However, at oral argument, the Secretary maintained that whether TDIU remains part and
parcel of the underlying appeal depends on whether the RO grants or denies TDIU. Oral Argument
at 26:46-27:48, 28:56-29:35. He acknowledged that the RO cannot remove a matter from appellate
status; therefore, he conceded that had the RO in May 2016 denied TDIU, the Board would have
had jurisdiction over the issue. Id. at 26:46-27:24. Despite the Federal Circuit's reasoning in
Palmatier, the Secretary argued that a different result is warranted when, as here, the RO grants
entitlement to TDIU. Id. at 27:25-27:48. The Secretary asserted that, because Mr. Harper received
the maximum rating, the effective date for the award is a downstream issue, which required Mr.
Harper to file a separate NOD to initiate an appeal to the Board. Id. at 28:10-50. This argument is
not persuasive in light of Palmatier and its reliance on precedent. See Palmatier, 626 F. App'x at
995.
As the Federal Circuit explained, it "made clear" in precedential decisions that "VA must
consider whether a TDIU award is warranted whenever a veteran submits evidence of a medical
disability and makes a claim for the highest rating possible, and additionally submits evidence of
unemployability." Id. (quoting Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (internal
quotation marks omitted)); see Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this regard,
the Court finds Comer instructive. In Comer, the veteran was awarded TDIU effective May 2004,
during the pendency of his appeal for a higher disability rating and an effective date earlier than
February 1999 for PTSD. 552 F.3d at 1365-66. Although the veteran did not file an NOD as to the
2
The Secretary has conceded that, when an RO denies entitlement to TDIU, the issue of entitlement to TDIU
remains part of the underlying claim and cannot be bifurcated by the RO. See Oral Argument at 25:15-30, 26:46-27:24,
Harper v. Wilkie, U.S. Vet. App. No. 16-3519 (oral argument held May 3, 2018),
http://www.uscourts.cavc.gov/oral_arguments_audio.php.
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effective date assigned for TDIU, the Federal Circuit held that the veteran's appeal "was sufficient,
when coupled with the evidence showing his unemployability, to raise the issue of his entitlement
to an earlier effective date for his TDIU award." Id. at 1367.
Here too, Mr. Harper was awarded TDIU during his pending appeal for a higher disability
rating for PTSD, rated 50% disabling from December 2007. The Court concludes that, like the
appeal at issue in Comer, Mr. Harper's appeal for a higher disability rating was sufficient, when
coupled with evidence of unemployability, to raise the issue of entitlement to TDIU for the entire
appeal period. In other words, the issue of entitlement to TDIU prior to February 2016 became
part and parcel of the appeal for a higher initial disability rating for PTSD, and, pursuant to the
reasoning in Palmatier, which the Court adopts, the RO's grant of TDIU did not bifurcate the
appeal but rather served as a partial grant.
The Secretary also relied on Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997);
Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997); and Urban v. Principi, 18 Vet.App.
143, 145-46 (2004) (per curiam order), to support his position that the effective date for the award
of TDIU is a downstream element. See Apr. 26, 2018, Notice of Supplemental Authorities. But his
reliance on these authorities is misplaced. Both Barrera and Grantham addressed the need to file
an NOD with respect to elements of an application for benefits that were not previously
adjudicated. For example, in Grantham, the Federal Circuit explained that an NOD placing the
denial of service connection into appellate status does not place the disability evaluation on appeal
because that issue had not been initially adjudicated. See Grantham, 114 F.3d at 1158; see also
Barrera, 122 F.3d at 1032. And Mr. Urban's request for TDIU was freestanding, meaning that it
was not raised in the context of any other pending claim. See Urban, 18 Vet.App. at 145-46. Here,
however, Mr. Harper's NOD placed the issue of the appropriate disability evaluation into appellate
status and, therefore, because he was not awarded the highest rating possible, including TDIU, for
the entire appeal period, the issue of entitlement to TDIU for the period prior to February 2016
remained on appeal, and the Board had jurisdiction to consider that matter. The Court will therefore
reverse the Board's determination to the contrary and remand the issue of entitlement to TDIU
prior to February 2016.
B. The Board's statement of reasons or bases is inadequate.
With respect to his schedular rating for PTSD, Mr. Harper argues that the Board failed to
rectify the reasons-or-bases errors identified in the February 2013 JMPR granted by this Court.
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Specifically, he asserts that the Board again failed to discuss evidence of psychosis, including
hallucinations, and provide more than a minimal discussion of the occupational impairment he
experienced because of his PTSD. Appellant's Br. at 10-11; Appellant's Reply Br. at 5. The
Secretary argues that the Board substantially complied with the February 2013 JMPR because it
reviewed and discussed the evidence of hallucinations and psychosis and provided an adequate
statement of reasons or bases for why a 70% disability rating was not warranted. Secretary's Br. at
14-15. The Secretary, however, does not dispute Mr. Harper's argument that the Board did not
sufficiently discuss his occupational impairment. Id. at 7-19.
"[A] remand by this Court or the Board confers on the veteran or other claimant, as a matter
of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet.App. 268, 271
(1998); see Forcier v. Nicholson, 19 Vet.App. 414, 425 (2006) (when parties enter into a joint
motion for remand, the Secretary and the Board have a duty pursuant to Stegall to ensure
compliance with the terms of the joint motion). Although the Secretary is required to comply with
remand orders, it is substantial compliance, not strict compliance, that is required. See Dyment v.
West, 13 Vet.App. 141, 146-47 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed.
Cir. 2002); Evans v. West, 12 Vet.App. 22, 31 (1998).
Additionally, the Board is required to support its determinations with a written statement
of reasons or bases that is understandable by the claimant and facilitates review by this Court. See
38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). The statement of reasons
or bases must explain the Board's reasons for discounting favorable evidence, Thompson v. Gober,
14 Vet.App. 187, 188 (2000) (per curiam order), discuss all issues raised by the claimant or the
evidence of record, Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff'd sub nom. Robinson v.
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), and discuss all provisions of law and regulation where
they are made "potentially applicable through the assertions and issues raised in the record,"
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
The Court agrees with Mr. Harper. Although the Board acknowledged in its recitation of
the evidence that Mr. Harper experienced hallucinations, see Supp. R. at 8, it failed to address this
evidence in its analysis, see Supp. R. at 10-12. The Board cannot satisfy its duty to provide
adequate reasons or bases by merely listing evidence and then reaching a conclusion. See Dennis
v. Nicholson, 21 Vet.App. 18, 22 (2007) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))
8
("The Court has long held that merely listing evidence before stating a conclusion does not
constitute an adequate statement of reasons or bases.").
Similarly, the Board also failed to adequately discuss any occupational impairment that
Mr. Harper may experience because of his PTSD. See Supp. R. at 822. The Board merely noted
that Mr. Harper has a good relationship with his manager, Supp. R. at 11, and that his Global
Assessment of Functioning scores did not "signif[y] an inability to work," Supp. R. at 12. The
Board's minimal discussion regarding Mr. Harper's occupational impairment overlooks potentially
favorable evidence, see, e.g., Supp. R. at 989, and frustrates judicial review. See Thompson,
14 Vet.App. at 188; Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996) (table). Given these deficiencies, the Court agrees with the appellant that the
Board's decision contains the same reasons-or-bases errors that the parties had identified in the
February 2013 JMPR. See Appellant's Br. at 10-11. Accordingly, a remand is required. See
Forcier, 19 Vet.App. at 425; Stegall, 11 Vet.App. at 271.
Given the disposition of this matter, the Court will not address Mr. Harper's other
arguments. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) ("[I]f the proper
remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would
result in a remedy no broader than a remand."). On remand, Mr. Harper is free to submit additional
evidence and argument, and the Board is required to consider any such relevant evidence and
argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to the benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board must
proceed expeditiously, in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
On consideration of the foregoing, the Court REVERSES the portion of the July 20, 2016,
Board decision that found that it lacked jurisdiction over the issue of entitlement to TDIU, SETS
ASIDE that portion of the Board's decision that denied an initial disability rating in excess of 50%
for PTSD prior to December 17, 2015, and REMANDS the matter for proceedings consistent with
this decision. The appeal is DISMISSED as to the issue of entitlement to a disability rating in
excess of 70% for PTSD from December 17, 2015.
9