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.

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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.

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