Summary of the Case
Mr. Harper served honorably in the United States Navy from September 1970 to July 1972. He initially applied for service-connected compensation for PTSD in August of 2008. In December of that year, the Regional Office granted service connection for that condition with an initial disability rating of 30 percent. In July of 2012, Mr. Harper’s rating was increased to 50 percent, which he then appealed all the way to the Court of Appeals for Veterans Claims (CAVC). In February of 2013, the Court granted a joint motion for partial remand in which the parties agreed that the Board provided inadequate reasons and bases when it denied an increased rating for Mr. Harper’s PTSD. Ultimately, the Regional Office granted a 70 percent disability rating in December of 2015. During this appeals process, Mr. Harper also applied for TDIU, which was awarded in May of 2016 and assigned a February 2016 effective date. He continued to appeal for a disability rating in excess of 50 percent before December 2015 for his service-connected PTSD and entitlement to TDIU prior to February 2016, but was denied by the Board.
Board denies Veteran’s claims regarding PTSD and TDIU
In July of 2016, the Board issued a decision denying Mr. Harper a disability rating in excess of 50 percent prior to December 2015 for his PTSD. The Board decision also determined that the issue of entitlement to 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 decision that granted TDIU. Overall, the Board found that it lacked jurisdiction over TDIU prior to February of 2016.
CCK presents oral argument at Court
CCK successfully appealed to the CAVC the Board decision that denied Mr. Harper a disability rating in excess of 50 percent prior to December 2015 for his PTSD and determined that it did not have jurisdiction over TDIU prior to February 2016. In May of 2018, CCK delivered an oral argument before the Court in Washington, D.C. In regards to Mr. Harper’s increased rating claim for PTSD, CCK argued that the Board failed to rectify the reasons-or-bases errors identified in the February 2013 JMPR granted by the Court. Specifically, the Board 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.
In response to the Board’s finding that it lacked jurisdiction over TDIU prior to February of 2016, CCK asserted that the Board erred in concluding that this issue was not on appeal. CCK argued that the issue of entitlement became part and parcel of Mr. Harper’s appeal for a higher initial disability rating for PTSD in February 2014 when he explicitly raised the issue while his appeal was pending. Although entitlement to TDIU after the period of February 2016 became moot as a result of the Regional Office’s decision, the issue of entitlement to TDIU prior to that date remained on appeal.
Court agrees with CCK’s arguments
CCK argued, and the Court agreed, that although the Board acknowledged that Mr. Harper experienced hallucinations, it failed to address this evidence in its analysis. The Board also failed to adequately address the Veteran’s level of occupational impairment associated with his PTSD. Additionally, the Court agreed that the Board erred in determining that it did not have jurisdiction over the issue of entitlement to TDIU before February of 2016. The Court held that Mr. Harper did not need to appeal the May 2016 Regional Office decision because the issue of entitlement to TDIU became part and parcel of the underlying PTSD claim and the Regional Office’s grant of TDIU served only as a partial grant of his request for TDIU. Therefore, because TDIU was part and parcel of Mr. Harper’s underlying PTSD claim, the Board had jurisdiction to that issue. The Court ruled that the issue of TDIU was not bifurcated from his PTSD claim.
Accordingly, the Court reversed the portion of the Board’s decision that found that it lacked jurisdiction over the issue of entitlement to TDIU. Additionally, the Court remanded the portion of the Board’s decision that denied an initial disability rating in excess of 50 percent for PTSD prior to December 2015.
Bailiff: All rise. Oyez! Oyez! Oyez! The United States Court of Appeal for Veterans Claims is now in session. The honorable Robert M. Davis is presiding. All of the business before this court draw near and you shall be heard. God bless the United States and this honorable court. Please be seated.
Judge Davis: Good Morning. I’m Chief Judge Davis. To my right is Judge Meredith. To my left is Judge Toth. We are here today in the matter of Harper against Wilkie, docket number 16-3519, and Bass against Wilkie docket number 16-3679. To consider the issue of whether the Board erred in finding that it lacked the jurisdiction over the issue of total rating based on individual unemployability, TDIU, because the appellant did not appeal the RO decision that addressed TDIU. The court issued a ‘be prepared to discuss order’ in April 2018 in order to assist the court in resolution of this matter and we advise counsel to be prepared to discuss in addition to the issues that were briefed, the effect if any of the M-21 manual, adjudication and procedures manual, incorporated TDIU denial into a pending appeal. Would counsel for both parties, please note your appearance for the record?
April: Good morning, your honors, April Donahower of the law firm Chisholm Chisholm & Kilpatrick for Mr. Bass and Mr. Harper. With me at counsel table is Barbara Cook also at the firm.
Judge Davis: Welcome.
Joshua: Good morning. Joshua Wilensky for the Secretary. With me at the counsel’s table is Ken Walsh.
Judge Davis: Welcome. Good morning. Are both parties ready to proceed?
April: Yes, your honor.
Judge Davis: Okay.
Joshua: Yes, your honor.
Judge Davis: And each party will have 30 minutes to present your respective arguments. Counsel for the appellant, do you wish to reserve any time for rebuttal?
April: Yes, your honor. 10 minutes please.
Judge Davis: Good, so noted. Ms. Donahower you may proceed. I’m assuming both parties received our ruling on the JMR motions.
April: Yes, your honor.
Judge Davis: I believe. Right. Yes?
Joshua: Yes, your honor.
Judge Davis: Okay.
April: Good morning, your honors, and may it please the court. Once a veteran files an NOD with his assigned disability rating and seeks entitlement to TDIU, the Board must address TDIU. There are two exceptions, either a rating decision grants the full benefits sought on appeal or the veteran withdraws the appeal. Neither of those happened in either veterans’ case here. The appeal of the initial rating of Mr. Harper’s TTSD remained on appeal including prior to February 2016 just as the appeal of Mr. Bass’s rating for his lumbar spine disability remained on appeal. As the Secretary has conceded in the pending joint motion for partial remand, Mr. Bass did not need to disagree with the RO’s denial of TDIU to place that issue in appellant status. It already was.
Judge Davis: Why was it in appellant status?
April: Because Mr. Bass filed a Notice of Disagreement with the rating of his low back disability and subsequently sought entitlement to TDIU. Per Rice, TDIU became part and parcel of the appeal of the increased rating.
Judge Davis: Okay.
April: As the joint motion states, TDIU is presently on appeal as part of the underlying claim for an increased rating. The fact that the joint motion does not even mention the RO’s denial of TDIU, acknowledges that it had no impact on the appellate status of TDIU in Mr. Bass’s case. Indeed, both the fast letter and the M-21 provision that the court referred to, provide that the RO’s denial of TDIU after an NOD has filed is what places the issue of TDIU as part of the pending appeal of the disability rating.
Judge Davis: Does it matter if it’s denied or granted?
April: It does not because the issue that is on appeal is the veteran’s underlying disability rating. Excuse me. TDIU is part and parcel of that underlying issue. Because of that, the RO’s limited award of TDIU during Mr. Harper’s pending appeal, does not lead to a different result than on Mr. Bass’s case. By the Secretary’s own definition in the M21, the RO’s award from– of TDIU from February 2016 was a partial grant of the benefit sought on appeal which was a higher disability rating. The RO’s grant was effectively a staged rating and it didn’t obligate Mr. Harper to disagree with that decision or the effective date of the award. As the Secretary acknowledges in the M-21, granting a higher rating for a portion of the appeal period leads the appeal unsatisfied. It does not create a new downstream effective date issue. TDIU is part and parcel of the rating component of the veteran’s claim. The Board had to decide all issues that pertain to the rating component that was on appeal including whether TDIU is warranted.
Judge Davis: Ms. Donahower, are you– these cases were consolidated, your motion submitted was to deconsolidate and look at the JMR grant – the approved JMR for Bass. Why not the same for Harper?
April: I’m sorry, could you rephrase the question?
Judge Davis: Cases are consolidated–
Judge Davis: Joint motion came in to– for leave to deconsolidate and to approve JMR.
Judge Davis: For Bass.
Judge Davis: Why not also for Harper?
April: The Secretary offered a joint motion for remand in Mr. Bass’s case and it satisfied the issues that Mr. Bass was appealing. We believe that the same result is warranted in Mr. Harper’s case but the Secretary has not agreed with that. It was the best option for the client to accept the offer there.
Judge Davis: Can you identify any significant difference?
April: No, your honor.
Judge Davis: On the issues that play in both cases?
April: No, your honor. We think that the RO’s partial grant of TDIU in Mr. Harper’s case doesn’t have any different effect than the denial of TDIU in Mr. Bass’s case did.
Judge Toth: So, and that’s a– as you said a global position that the denial of TDIU and maybe a partial grant where there’s still room in the effective date. Those are the exact same effect going forward?
April: Yes, your honor because the decision on appeal in both cases was the RO’s denial of an increased rating. The initial rating in Mr. Harper’s case, an increased rating in Mr. Bass’s case and each veteran sought TDIU while those appeals were pending and therefore TDIU became part of the appeal and so the Board had jurisdiction over the increased rating claim including that issue and it had to address all issues pertaining to the increased rating.
Judge Toth: I want to ask you, you mentioned earlier, there’s two exceptions. I’m just trying to wrap my head around, there’s a lot of moving parts, stuff’s moving between different levels. Really, you said that obviously if a veteran gets everything’s granted, it’s moving and there’s nothing left to appeal or if they voluntarily withdraw but a lot of situations, it’s the Board sending something back to the RO for an exam or some type of further development. Right? I mean that might be in a sense a proper bifurcation because it’s pending some type of action at the RO level. That’s a different issue than there’s nothing left for a RO to do right?
April: As your honor’s question suggested in such a case, it’s the Board identifying and separating an issue. That didn’t happen here. The RO acted on the matter of TDIU and that didn’t take it out of the Board’s jurisdiction.
Judge Toth. So if I need a proper bifurcation it would be where the Board recognizes some issue, sends it to the RO for some specific action and such actions not yet been completed. There’s still waiting on something.
April: Exactly. And in these cases the Board could’ve identified the issue of TDIU and for example, remanded it for further development but it did have jurisdiction to do that. Notwithstanding what the RO had done.
Judge Davis: Ms. Donahower procedurally in Bass, where was the claim when the RO decided the TDIU?
April: Mr. — I’m sorry.
Judge Davis: I just want to add had it been referred back to the Board? Where was it?
April: Mr. Bass had perfected his appeal and he asserted entitlement to the TDIU. I believe both in the Notice of Disagreement and in his substantive appeal and in subsequent correspondence after the substantive appeal and the RO’s decision came after that.
Judge Davis: The RO’s decision on TDIU?
Judge Davis: Okay, so when the RO decided to increase the rating to 70%, the TDIU decision came after that and you’re position is that the– Mr. Bass had perfected the appeal to the Board before then. Is that– Do I understand you correctly?
April: I believe sir, your honor, but you said 70% which is not– in Mr. Bass’s case he had a 20%–
Judge Davis: I am—actually you’re right. I’m looking at the Harper facts—
April: I’m sorry.
Judge Davis: That’s my problem. But with respect to the increased rating and really focusing on the TDIU decision. When was that decision made?
April: In Mr. Bass’s case?
Judge Davis: In Mr. Bass’s case.
April: In Mr. Bass’s case, there was a February 2015 rating decision.
Judge Davis: So, Mr. Bass’s appeal to the Board was perfected before the RO decided the TDIU?
April: 2 years prior, your honor.
Judge Davis: Okay.
Judge Meredith: You mentioned that in Mr. Harper’s case, it was in 2014 that he first raised specifically the issue of TIU, that the case of that on appeal since 2008 when he filed his NOD. Does it matter at all– at what point during the appeal process TDIU is first raised? Could it be at any point in time after the NOD and before there’s finality or there’s some point in which it’s too late? To try to marry it up with the increased rating claim or in this case an initial higher rating?
April: I don’t believe so your honor. Any time before the Board makes a decision on the appeal of the underlying rating if the veteran raises TDIU, the Board needs to address it.
Judge Meredith: So in your case, in Mr. Harper’s case, is there anything significance to the fact that the Board had already remanded the appeal prior to him raising the issue of TDIU?
April: No, you honor because it retained jurisdiction over the matter during the remand so–
Judge Meredith: In your view, was it proper for the RO to have acted on Mr. Harper’s claim in 2016?
April: Absolutely, your honor. The RO is free to act on the claim in the veteran as it sees fit while the appeal is pending. The issue is that it doesn’t take it out of the Board’s jurisdiction unless it fully grants what the veteran is seeking on appeal. Mr. Harper said that he became unable to work in December 2013 and when the RO granted TDIU and assign an effective date later than that, it still left the earlier period unfulfilled.
Judge Meredith: Do you know if he got appellate rights with that May 2016 RO decision Mr. Harper?
April: May I have one moment?
Judge Meredith: Sure. I don’t believe it’s in the record. And my question is could he have appealed that or was it your position that it should have just automatically gone to the Board?
April: Our position is that it should have gone to the Board because it was simply a partial grant of what he was seeking on appeal so he did not need to appeal that separately.
Judge Meredith: And your position is there’s no obligation on the part of Mr. Harper to anyway explicitly tell VA that he wanted to marry up the TDIU with the higher initial rating, that they automatically joined, became part and parcel.
April: Yes, your honor and by statute and also as recognized in the M-21 unless the veteran tells VA conversely that he has satisfied. So the burden is not on the veteran to continue appealing. The burden is to show that he said that he was satisfied with what he got and there’s no indication that he was so that issue remained on appeal.
Judge Toth: I want to sort of follow up on what Judge Meredith’s – I may be now misunderstanding your argument which is– is it that the Board effectively has no authority to bifurcate or that’s sort of one argument and that’s what I would understand if the argument is even if– say Mr. Bass had for the first time raised TDIU a month before the Board decision. The ultimate that they would have– that they could not bifurcate that issue. Is that your position or meaning that issue would be ineffectively properly bifurcated, the RO would adjudicate it, and then it could be separately appeal. Did you see what I was saying? Vice– I mean– I can draw a distinction between where Board is effectively claiming to bifurcate something when what they’re really doing is just simply not reviewing something that’s already been reviewed by an RO. But it seems to me your position is a little bit further than that and saying the Board would kind of have to pump the breaks, not do anything until this claim were worked up and then it would– have to address it along with all the other claims. Am I misunderstanding that or?
April: I’ll see if I can clarify, your honor.
Judge Toth: Sure.
April: What the Board did hear was not bifurcation. The Board decided that it didn’t have jurisdiction to address TDIU and essentially treated what the RO had done as a bifurcation but the RO could not bifurcate because the Board already had jurisdiction over the pending appeal of the disability rating which included TDIU. So, the Board is perfectly free to bifurcate, the Board could’ve said here– we’ll decide the increased rating claim but will remand TDIU for further development for example. That we, we don’t argue that that’s not a bifurcation or the Board couldn’t have done. I’m not sure that–
Judge Toth: That clarifies it. Thank you.
Judge Davis: But the opposite is not true. That is the RO could not then make a decision on the TDIU unless the Board had remanded it for that purpose while the Board maintained jurisdiction.
April: We’re not– your honor, the RO in Mr. Harper’s case was free to give him a partial grant of TDIU and that’s consistent with the RO’s ability to provide partial grants of what’s on appeal. It’s consistent with VA’s practice of staged ratings, which acknowledges that during a long appeal period. The disability may fluctuate. It’s in the veteran’s interest to try to precisely account for that but unless one of those decisions fully grants the benefit that he’s seeking, the Board in its decision on the pending appeal has to address all issues. The federal circuit said exactly this in Palmatier. In Palmatier the veteran didn’t have to disagree with the effective date of the RO’s word of TDIU for part of the period on appeal as in Mr. Harper’s case because that award was simply a partial grant of the rating already on appeal. The Federal Circuit acknowledged that a partial grant is not equivalent to a legal bifurcation of TDIU from the underlying increased rating appeal.
April: If there are no further questions —
Judge Davis: No, there’s one. What would you have this court do?
April: We would have the court set aside the Board’s legal determination that it didn’t have jurisdiction over the issue of TDIU as part of the pending appeal and to remand for the Board to consider that issue.
Judge Davis: Okay. Thank you.
April: Thank you your honors.
Joshua: Good morning and may it please the court. The question affirmed that July 20th 2016 Board decision because of Notice of Disagreement, the issue of TDIU and more specifically the effective date for TDIU was not before the Board. That’s specific to Mr. Harper’s appeal. The court should affirm for three reasons: effective dates are separate appealable elements that require separate disagreement, bifurcation is an administrative tool afforded to the Secretary unless properly executed in Mr. Harper’s case and because the Board’s decision lacks an order granting or denying relief, there was no final Board decision on the issue of TDIU or the effective date for TDIU.
Judge Toth: How– Counsel, How do you reconcile that argument with Rice?
Joshua: So, the Secretary reads Rice for having two main premises. The first global premise is that, TDIU is not a separate claim in itself and that it’s a particular type of method in receiving the highest rating possible or a particular type of increased rating claim. The second more specific holding was that in the facts of Rice that because the Notice of Disagreement included an allegation of unemployability, that rendered the assertion of unemployability to be part and parcel with the underlying claim. Here, most notably is that Rice dealt with a Board decision that denied an entitlement of earlier effective date for TDIU. Mr. Rice placed that specific issue into appellate status and —
Judge Toth: So– I mean, isn’t it anytime it’s reasonably raised. They have to discuss TDIU.
Joshua: So, certainly the Board was– certainly TDIU is part of a increased rating claim and it requires consideration and specifically, I think there’s a difference in entitlement to TDIU and the effective date for TDIU. And earlier, Chief Judge Davis, you asked what is the main difference between Harper and Bass, the Secretary boldly states its effective dates. There is a difference between the entitlement to the TDIU and the effective date for which TDIU begins and —
Judge Toth: Now part of that is– right– if it’s increased rating claim you get the pump for the year back not just when you first declared unemployability, right?
Joshua: Potentially. Yes, I mean the facts in Mr. Harper’s case are distinct but yes, the court in Rice certainly– surely the rules accordingly.
Judge Toth: But how does it make different? How was it a different– I mean fundamentally different from the underlying claim which is the basis.
Joshua: So, the Secretary views the severity element or the compensation level as a singular element in this case and that’s why in Mr. Harper’s case after the grant of count of the TDIU that represents the maximum schedular evaluation possible and that’s distinct from Mr. Bass’s case where the underlying claim still at the Board was for compensation and because there was a denial for TDIU which represents the maximum schedular that those– the denial of TDIU still represents the denial of the possibility for a higher rating for the veteran.
Judge Toth: So, is the Secretary conceding here in Bass that what happened there with the denial?
Joshua: That– Yes.
Judge Toth: Or should’ve been —
Joshua: Yes, your honor that’s– sorry excuse me. Yes, your honor. In so much that’s also been stated in the joint motion for partial remand and that Board, at minimum, had jurisdiction over TDIU.
Judge Meredith: You started by saying that there was proper bifurcation. Were you talking about Harper or Bass? In either case, what’s the authority for decision at the RO could bifurcate something that was already on appeal? As oppose to the Board.
Joshua: Yes, your honor. The specific claim about bifurcation being properly executed is for Mr. Harper’s case. In that, also with as to the authority for bifurcation, this court in Locklear stated that bifurcation is within the Secretary’s discretion and so in the case of Mr. Harper, by bifurcating the assertion of TDIU in a separate rating decision, It actually lends itself to be favorable to the veteran in that there was a grant of TDIU a closer in time manner than having to wait for the appeal to make its way to the Board or to have been separately wait for a perfection of timeliness as to like to start turn on to specifically to reiterate just in that it was more favorable for the veteran to receive an earlier decision especially given the fact that it was a grant.
Judge Meredith: Are you suggesting note that if something– if TDIU was already part and parcel of the increased rating, the RO couldn’t take it, bifurcate it, and bring it out of the appellant status. It would still remain in the appellant status?
Joshua: The underlying– just to clarify, the underlying entitlement of TDIU or?
Judge Meredith: If the appellant is correct and that TDIU was part and parcel of the increased rating claim. Could anything the RO does take that back out of appellant status?
Joshua: To the entitlement, I do not believe so. However, upon a grant of entitlement to the TDIU that creates bifurcation to the next element of effective dates and that’s certainly the case and the major distinction between Mr. Harper and Mr. Bass here and so, the– specifically in granting, VA has now bifurcated the next potential appealable element of effective date for TDIU.
Judge Davis: But there’s a difference in– not the denial. Is that your position?
Joshua: Yes, your honor.
Judge Davis: And you’re amplifying that just a bit? Could you explain that–
Judge Davis: Why is that such a bright line difference?
Joshua: This specific– in trying to obtain the maximum benefits available, the Secretary reads the compensation level which TDIU represents and in increased rating which is the same– means it’s the same element and so a grant of TDIU represents a full grant of benefits for that element of severity in which case then any disagreement with the effective date must be specifically disagreed with him must be specified in order to be placed into appellate status for any potential review of a unfavorable effective date which was granted by the rating decision.
Judge Davis: Okay. But– so about the denial, why wouldn’t you have similar concerns with the denial?
Joshua: So in the denial, by maintaining TDIU in appellate status it gives credence to the notion that a veteran’s seeking a higher rating and with the underlying increased rating claim simultaneous with the denial and so it’s the Secretary in a way stating that in a veteran seeking the highest rating possible, TDIU is part of that analysis. When it is granted, it is a separate analysis as to the potential appealable element of effective date.
Judge Davis: Right.
Judge Toth: And so, if I’m sort of formulating– in how this works, when rubber hits the road on this then would be the Board would now have to do on its own. It felt that certain disposition when that wouldn’t have to do in its own. It automatically in effective date analysis on any partial grant. It would– you could just wait and see if there’s a challenge to it later and then you could handle it that point. Is that —
Joshua: I would go to far as to say under this court’s ruling in Urban, it would be improper for the Board to have reviewed the effective date after the Notice of Disagreement.
Judge Toth: Why?
Joshua: Because I think the notion of downstream elements and– or that in the theory of the fact that effective date is a separate, disagreeable element and absent disagreement that the effective date is not in appellant status and for the Board to have reviewed in Mr. Harper’s case, the effective date —
Judge Toth: But I mean, I mean the RO makes the ruling and that ruling includes an effective date? Is that right?
Joshua: Yes, your honor.
Judge Toth: So why would it not be in appellate status? Why would it not be before the Board and the Board when all the info would need to review this? Does it lack jurisdiction or is it– I’m not quite tracking your argument.
Joshua: So the Board lacks jurisdiction to the effective date because the effective date has not been placed into appellant status in that there has been no specific notice of disagreement to the effective date and it– the center of its position treats effective date as a separate disagreeable element to which a veteran must voice disagreement with. To Judge Meredith’s question earlier, asking about did the veteran receive appellate rights, with leave, your honor, the record does indicate that appellant rights were given to Mr. Harper after the grant of TDIU.
Judge Meredith: In 2016?
Joshua: Yes, your honor.
Judge Meredith: Can I ask you about the decision that came before that in December 2015 in the Harper case?
Joshua: Yes, your honor.
Judge Meredith: The partial grant of 70% and the record of page 87 in the Harper case, at the bottom it says, “Individual unemployability denied.” Is that any– What’s the significance of that phrase in that document in December 2015 and does that suggest that at that point TDIU should have gone back to the Board.
Joshua: So– your honor, there was a rating decision that was not part of the record of proceedings and not side to by their party. There was– at August of 2014, a denial of TDIU and that December 2015 rating decision on record at 87, evidences that prior IU denial, as a notation, as the bottom of the rating decision would have effective dates for certain periods that IU denial is a notation that there was a previous adjudication for that specific issue.
Judge Meredith: There’s nothing in this document that indicates it wasn’t a current denial.
Joshua: So, the– specific to the December 2015 rating decision?
Judge Meredith: Correct.
Joshua: Correct. In TDIU was not adjudicated in that rating decision and moreover TDIU and the appellant’s underlying claim for PTSD was actually never adjudicated in the same instance at any point in this appeal which speaks to the bifurcation of those two elements just generally. For the underlying increased rating claim, there was a rating decision, a Board decision, a joint motion for remand, a Board remand, another rating decision on PTSD and then the Board decision has now an issue whereas with TDIU there was two separate rating decisions and never the two were actually ever adjudicated at the same time. Given credence to the fact that VA does have the ability and it did properly bifurcate the issues on appeal to this court.
Judge Davis: Does it– Does the Board or does anybody notify the veteran in the case that they– so they get the partial grant and then the effective date that if the veteran wants to challenge the effective date, this is how they have to do to, file an NOD and run it up the chain.
Joshua: Yes. So as the Recreate 2016 rating decision, the appellant rights were given and with the appellant rights, your honor, the VA’s, the VA has a standard notice of disagreement form, the VA form 21-0958 and with that, it very specifically has a box– a check box which allows for what could be disagree with and specific to Mr. Harper’s case, there was a specific check box in the Standardized notice of disagreement that includes the option to appeal the effective date and so– thus the Secretary has tried to make the process of appealing effective dates even after a grant of TDIU as simplistic as possible in that it specifically itemized as a potential appealable element.
Judge Toth: And the idea would be that the veteran would understand the possibility of listing — that he can argue for earlier effective date—and that that effective date wasn’t part of the ruling and then check the box and send it in.
Joshua: Absolutely, your honor. In fact, also to that point, we affirm the Secretary’s argument about bifurcation. There was a particular period in time where could have concurrent adjudications of the effective date for TDIU while in potentially affirming or endorsing appellants’ view and that the Board had to review the effective date, we would’ve had situation where– while simultaneous with appealing to this court and the energy to the effective date in that May 2016 rating decision could’ve come in. In which case, taking appellant’s position we would have a RO requiring– a RO masticating action being forced to do something after receiving a notice of disagreement while in also this court potentially having review on the same issue and that certainly would be inconsistent and potentially have a lot of unpredictability with– it just shows to show you that the bifurcation makes just common sense or makes logical sense in how the appeal stream should act.
If there are no further questions your honors. Thank you. On a personal level, thank you — Undersign thanks the court for rescheduling of the oral argument. Really appreciate it. The court should affirm Mr. Harper’s appeal. Thank you very much.
April: Your honors, the Secretary has agreed that the regional office cannot take jurisdiction away from the Board of Veterans’ appeals. The ratings for Mr. Harper’s and Mr. Bass’s disabilities were on appeal to the Board. What the RO did regarding TDIU did not take the rating element of these claims out of appelate status and TDIU was part of the rating element. We agree that the regional office can grant the veteran benefits during the pendency of the appeal so that the veteran gets a favorable decision sooner but that does not put the ownness on the veteran to file a second NOD on the rating element of his disability claim and TDIU was part of that element. The issue was not the effective date here. The issue was the veteran’s rating.
And I would just conclude by saying that the grant of the TDIU was not a full grant of the benefit that Mr. Harper sought on appeal because it left the earlier period during which he specifically said he was unable to work unresolved. Because it was unresolved that remained part of his pending appeal to the Board. If there are no further questions your honors. Thank you.
Judge Davis: Thank you, all. The case is submitted for consideration. The court will now come down and greet counsel.
Bailiff: All rise.