vet. app. no. 19-1540 in the united states court of
TRANSCRIPT
Vet. App. No. 19-1540 _______________________________________________________________ _______________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS _______________________________________
MARION P. HARRIS,
Appellant,
v.
ROBERT L. WILKIE, Secretary of Veterans Affairs,
Appellee. _______________________________________
ON APPEAL FROM THE
BOARD OF VETERANS’ APPEALS _______________________________________
BRIEF OF APPELLEE
SECRETARY OF VETERANS AFFAIRS _______________________________________
WILLIAM A. HUDSON, JR.
Acting General Counsel MARY ANN FLYNN Chief Counsel JAMES B. COWDEN Deputy Chief Counsel RYAN D. HARRISON Appellate Attorney Office of General Counsel (027K) U.S. Department of Veterans Affairs 810 Vermont Avenue, NW Washington, DC 20420 (202) 632-8331 Attorneys for Appellee
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TABLE OF CONTENTS I. ISSUE PRESENTED ...................................................................................... 2
II. STATEMENT OF THE CASE ......................................................................... 2
A. Nature of the Case .................................................................................... 2
B. Statement of Facts .................................................................................... 3
III. SUMMARY OF THE ARGUMENT .................................................................. 8
IV. ARGUMENT ................................................................................................... 9
A. The Secretary concedes that vacatur and remand are warranted for the issue of entitlement to an effective date prior to February 20, 2011, for the grant of SMC(k) because the Board provided an inadequate statement of reasons or bases when it failed to discuss significant evidence of record concerning the nature of the September 2004 claim. ............................... 9
B. Appellant has abandoned all issues not argued in his brief. .................. 18
V. CONCLUSION .............................................................................................. 18
3
TABLE OF AUTHORITIES
Cases Akles v. Derwinski, 1 Vet. App. 118 (1991) ....................................................... 13 Allday v. Brown, 7 Vet. App. 517 (1995) .............................................................. 9 Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014) ...................................... 14 Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) ............................................ 14 Breeden v. Principi, 17 Vet. App. 475 (2004) ....................................................... 3 Caluza v. Brown, 7 Vet. App. 498 (1995) ............................ 10, 13, 15, 16, 17, 18 Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013) ................................. 11, 17 Gilbert v. Derwinski, 1 Vet. App. 49 (1990) ........................... 9, 13, 15, 16, 17, 18 Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000) ....................................... 11, 17 Jarrell v. Nicholson, 20 Vet. App. 326 (2006) .................................................... 11 Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017) ............................ 13, 14 Massie v. Shinseki, 25 Vet. App. 123 (2011) .................................................... 15 Norvell v. Peake, 22 Vet. App. 194 (2008) ........................................................ 18 Payne v. Wilkie, 31 Vet. App. 373 (2019) .................................................... 14-15 Pieczenik v. Dyax Corp., 265 F.3d 1329 (Fed. Cir. 2001) ................................. 18 Robinson v. Peake, 21 Vet. App. 545 (2008) .................................................... 15 Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005) ..................................... 14
Statutes 38 U.S.C. § 7104(d)(1) (2018) .............................................................................. 9 38 U.S.C. § 7261(c) (2018) ......................................................................... 11, 17
Other 38 C.F.R. § 4.16(b) ............................................................................................... 3
RECORD CITATIONS
R. at 3-12 (November 2018 Board Decision) ............................................... passim
R. at 559-60 (November 2014 Form 9) ..................................................................7
R. at 591-605 (September 2014 SOC) ...................................................................7
R. at 606-20 (September 2014 SOC) .....................................................................7
R. at 705 (January 2013 NOD)...............................................................................7
R. at 720-29 (October 2012 Rating Decision) ........................................................7
R. at 792-804 (May 2012 Rating Decision) ............................................................7
R. at 1393-1404 (April 2011 VA Examination) .......................................................6
R. at 1738-52 (March 2011 Board Decision) ................................................... 6, 16
R. at 1761-75 (February 25, 2011, Board Hearing) .......................................... 5, 6
R. at 1828 (May 2009 NOD) ...................................................................................5
R. at 1911-12 (January 2008 VA Form 9) ..............................................................5
R. at 1918-31 (November 2007 SOC) ....................................................................5
R. at 1941 (Letter from Dr. R, dated February 17, 2006) .......................................5
R. at 1942 (August 2006 Notice of Disagreement) ................................................5
R. at 1957-64 (January 2006 Rating Decision) ............................................... 4, 11
R. at 1965-67 (November 2005 VA Examination) ..................................................4
R. at 1968 (October 2005 Request for C&P Examination) .............................. 4, 10
R. at 1976-78 (October 2005 VA Examination) ......................................................4
R. at 2072-79 (November 2004 VA Letter) ..................................................... 4, 10
R. at 2083-85 (VA Email Correspondence) .................................................... 3, 10
R. at 2212-13 (September 2004 Claim) .......................................................... 3, 10
R. at 2434-35 (July 1977 Rating Decision) ..................................................... 3, 10
R. at 2579 (DD214) ................................................................................................3
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IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
MARION P. HARRIS, ) ) Appellant, ) ) v. ) Vet. App. No. 19-1540 ) ROBERT L. WILKIE, ) Secretary of Veterans Affairs, ) ) Appellee. )
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS
BRIEF OF THE APPELLEE SECRETARY OF VETERANS AFFAIRS
I. ISSUE PRESENTED
Whether the U.S. Court of Appeals for Veterans Claims (Court) should remand the November 9, 2018, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to an effective date prior to February 25, 2011, for the award of special monthly compensation based upon loss of use of a creative organ (SMC(k)).
II. STATEMENT OF THE CASE
A. Nature of the Case
Appellant, Marion P. Harris, appeals, through counsel, the November 9,
2018, Board decision that denied entitlement to an effective date prior to February
25, 2011, for the award of SMC(k). [Record Before the Agency (R.) at 3-12]; see
[Appellant’s Brief (App. Brf.)].
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The Board remanded Appellant’s claim for entitlement to an effective date
prior to February 24, 2011, for a total disability rating based upon individual
unemployability (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b) and
is therefore outside the Court’s jurisdiction. See Breeden v. Principi, 17 Vet.App.
475, 477-78 (2004).
B. Statement of Facts
Appellant served on active duty in the U.S. Navy from January 1973 to
October 1976. [R. at 2579].
In July 1977, the VA regional office (RO) granted Appellant service
connection for apophysitis of the lumbar spine, which stemmed from a back injury
sustained while lifting heavy weights during service and resulted in ongoing back
pain. [R. at 2434-35]. The rating decision assigned a noncompensable rating for
the condition under diagnostic code (DC) 5099-5003, effective October 16, 1976.
Id.
Appellant submitted a claim for entitlement to compensation for
degenerative back disease and for entitlement to a TDIU on September 24, 2004.
[R. at 2212-13]. At the time, VA was unable to locate Appellant’s claims file. See
[R. at 2085] (email dated October 15, 2004, requesting Appellant’s claims file); [R.
at 2084] (email dated October 19, 2004, “[w]e have conducted several searches
of our facility and were unable to locate the record you have requested. We have
“FLAGGED” our filing system to show your interest in the event the folder is found
in the future”); [R. at 2083] (email dated October 20, 2004, noting “[c]laims folder
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for [Appellant] is a no record at RMC. Please establish Rebuilt Folder”). A
November 2004 VA letter to Appellant acknowledged the confusion, stating, “[y]our
record could not be located…[w]e do show in the computer that you have
previously filed a claim and are service connected for…a bone condition-general
at 0%. We can not determine if the bone condition, general, was related to a back
injury or another part of the body.” [R. at 2072 (2072-79)]. Additionally, an October
2005 RO request for a C&P examination noted, “[Appellant’s] original C-file is lost.
Computer records show C for “bone condition-general” zero percent, which may
well be the back, but we don’t know.” [R. at 1968]. Thereafter, Appellant was
afforded a VA examination for his back in October 2005, [R. at 1976-78], and a VA
examination for his peripheral nerves in November 2005. [R. at 1965-67].
In a January 2006 rating decision, the RO denied Appellant’s claim for TDIU,
but granted entitlement to service connection for degenerative joint disease of the
lumbar spine (claimed as back condition), rated at 10% from September 24, 2004,
and service connection for polyradiculopathy to the right and left lower extremities
secondary to the degenerative joint disease of the lumbar spine, rated at 20% from
the same effective date as the primary condition. [R. at 1957 (1957-64)]. Under
the “subject to compensation” portion of the rating decision, the RO also listed a
general bone condition (unspecified), assigned a noncompensable rating from
October 16, 1976. Id.
Appellant submitted a Statement in Support of Claim in August 2006
(hereinafter August 2006 Notice of Disagreement (NOD)), stating “I disagree with
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your decision to not grant me IU.” [R. at 1942]. This August 2006 NOD is the only
NOD of record pertaining to the January 2006 rating decision. Along with his NOD,
Appellant also submitted a letter from Dr. R, dated February 17, 2006, which noted
that Appellant “is a patient” at his pain management facility, reported Appellant’s
ongoing pain, and provided a list of current medications back to 2004. [R. at 1941].
In November 2007, the RO issued a Statement of the Case (SOC)
continuing the denial of entitlement to TDIU. [R. at 1921 (1918-31)]. Notably, the
SOC solely addressed the issue of TDIU and did not also infer a claim for increased
compensation for Appellant’s back condition from his August 2006 NOD. In his
January 2008 substantive appeal to the Board, Appellant requested a Board
hearing and registered his disagreement with the denial of TDIU, reporting that he
was unable to perform even sedentary employment due to his pain that he
experienced daily. [R. at 1911 (1911-12)]. Absent from Appellant’s Form 9 is any
indication that he believed the SOC should have also considered a claim for
increased compensation for his back condition.
The RO issued a Supplemental Statement of the Case in April 2009, again
adjudicating, and denying, exclusively the issue of entitlement to TDIU. [1832
(1829-37)]. In May 2009, Appellant submitted a Statement in Support of Claim
(hereinafter May 2009 NOD) in which he continued his appeal of the denial of
TDIU. [R. at 1828].
On February 25, 2011, Appellant testified at a hearing before the Board. [R.
at 1761-75]. The presiding Veterans Law Judge (VLJ) identified the issue on
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appeal as entitlement to TDIU. [R. at 1762]. In the course of the hearing, Appellant
also testified as to other ongoing problems, such as pain in his legs and lower
back, erectile dysfunction (ED), a bowel condition, and depression. [R. at 1761-
75]. The following month, the Board remanded the issue of entitlement to TDIU
for further development. [R. at 1738-52]. In its March 2011 decision, the Board
noted that during the hearing, Appellant had “effectively raised new claims for
higher ratings for his service-connected low back and peripheral nerves disorders
and for service connection for an acquired psychiatric disorder.” [R. at 1741]. The
Board found that such claims were inextricably intertwined with the TDIU claim and
must be considered together with that claim. Id. Thus, the Board remanded the
TDIU claim and requested VA examinations to assess the severity of his service-
connected low back and peripheral nerve disorders, to include “his recent reports
of…related neurological symptoms of erectile dysfunction and bowel and bladder
abnormalities” and “depression secondary to his service-connected low back
disorder.” [R. at 1751].
During an April 2011 VA examination, Appellant reported a history of ED
with onset approximately 5-6 years ago and the examiner diagnosed Appellant
with ED. [R. at 1396, 1404 (1393-1404)]. The RO issued a rating decision in May
2012 granting entitlement to service connection for ED as secondary to the
service-connected back condition and granted entitlement to SMC(k) based on
loss of use of a creative organ, both effective from February 25, 2011. [R. at 792-
7
804]. Appellant was also granted entitlement to TDIU effective February 25, 2011,
in an October 2012 rating decision. [R. at 720-29].
Appellant submitted an NOD appealing the effective date for TDIU and
SMC(k) in January 2013. [R. at 705]. In September 2014, the RO issued an SOC
granting an earlier effective date of February 24, 2011, for TDIU, [R. at 619 (606-
20)], and an SOC denying entitlement to an effective date prior to February 25,
2011, for the grant of SMC(k). [R. at 604 (591-605)]. As to the effective date for
SMC(k), the RO stated that service connection for ED was granted effective
February 25, 2011, and that the grant of SMC(k) “related to your [ED]” “was
therefore granted effective the same date.” [R.at 605]. The RO also noted that
“[a] review of [his] claims file failed to show that [Appellant] raised the issue of [ED]
prior to the BVA hearing on February 25, 2011.” Id. Appellant submitted a
substantive appeal to the Board in November 2014 disputing the effective dates
for the grant of SMC(k) and TDIU. [R. at 559-60].
The Board issued the decision on appeal in November 2018, denying
entitlement to an effective date prior to February 25, 2011, for the grant of SMC(k)
and remanding the earlier effective date claim for TDIU for extraschedular
consideration. [R. at 4]. As to the denial of an earlier effective date for SMC(k),
the Board found that “[p]rior to February 25, 2011, there is no communication that
could be construed as an informal claim for either service connection for ED or an
increased rating for the lumbar spine disability.” [R. at 7]. The Board also found
that the “January 2006 rating decision awarded service connection for a lumbar
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spine disability is final,” reasoning that Appellant neither appealed this rating
decision nor submitted new and material evidence with respect to the claim within
one year of the January 2006 rating decision. [R. at 7-8].
This appeal followed.
III. SUMMARY OF THE ARGUMENT
Remand is warranted for the Board to address the overlooked evidence of
record that calls into question the Board’s finding that the January 2006 rating
decision awarded Appellant service connection for his back condition and that the
decision is final. Remand on this initial basis is the most appropriate remedy
because the Board will be required to engage in factfinding in the first instance in
order to properly address this evidence and discern the nature of the September
2004 claim. Moreover, the nature of the September 2004 claim colors the proper
legal analysis for downstream considerations and thus Appellant’s arguments
stemming from the nature of this claim are premature. Since the September 2004
claim is central to properly adjudicating whether Appellant is entitled to an earlier
effective date for the grant of SMC(k), meaningful judicial review of the Board’s
decision is frustrated. Therefore, the Court should remand the decision on appeal
for the Board to consider the overlooked evidence of record in the first instance
and provide an adequate statement of reasons or bases as to the nature of the
September 2004 claim.
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IV. ARGUMENT
A. The Secretary concedes that vacatur and remand are warranted for the issue of entitlement to an effective date prior to February 20, 2011, for the grant of SMC(k) because the Board provided an inadequate statement of reasons or bases when it failed to discuss significant evidence of record concerning the nature of the September 2004 claim.
The Court should remand Appellant’s claim of entitlement to an effective
date prior to February 25, 2011, for the grant of SMC(k) because the Board erred
when it failed to support its decision with an adequate statement of reasons or
bases, thereby frustrating judicial review. The Secretary concedes that the Board
failed to provide an adequate statement of reasons or bases for its denial of an
earlier effective date for the grant of SMC(k), which was predicated, in part, on its
finding that the January 2006 rating decision granted service connection for a
lumbar spine disability and that the decision is final, as it failed to address
significant evidence of record. [R. at 7].
A Board decision must be supported by a statement of reasons or bases
that adequately explains the basis of the Board’s material findings of fact and
conclusions of law sufficient to enable the claimant to understand the basis of the
Board’s decision and facilitate judicial review by the Court. Allday v. Brown, 7
Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1
Vet.App. 49, 56-57 (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 its
10
rejection of 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).
In the decision on appeal, the Board denied entitlement to an earlier effective
date for the grant of SMC(k), reasoning that “[p]rior to February 25, 2011, there is
no communication that could be construed as an informal claim for either service
connection for ED or an increased rating for the lumbar spine disability.” [R. at 7].
In support of this conclusion, the Board specifically noted that the January 2006
rating decision “awarded service connection for a lumbar spine disability” and
made the factual finding that the January 2006 rating decision is final. Id. The
Secretary and Appellant agree that the Board failed to support this preliminary
finding with an adequate statement of reasons or bases by overlooking evidence
of record which strongly suggests that the January 2006 rating decision
mischaracterized the nature of Appellant’s September 2004 claim. [App. Brf. at
10-12]. Specifically, the Board overlooked records that not only indicate that the
RO lost Appellant’s claims file, [R. at 2083-85], but also highlight VA’s internal
confusion as to whether his September 2004 claim for “compensation for
degenerative back disease,” [R. at 2212], was related to the 1977 grant of service
connection for apophysitis of the lumbar spine, subsequently characterized as a
general bone condition. [R. at 2072]; [R. at 1968]; [R. at 2435]. The Secretary
observes that these overlooked records appear to shed light on the apparent
inconsistency between the 1977 rating decision and the 2006 rating decision as
they pertain to Appellant’s back condition. Compare [R. at 2435] (1977 rating
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decision granting service connection for apophysitis of the lumbar spine, evaluated
at 0% under DC 5099-5003 from October 16, 1976); and [R. at 1957] (2006 rating
decision noting service connection for a general bone condition (unspecified),
evaluated at 0% under DC 5099-5003 from October 16, 1976).
This evidence, overlooked by the Board, presents a threshold question that
is central to the proper adjudication of Appellant’s claim: whether Appellant’s
September 2004 claim should have been construed as a claim for increased
compensation for the 1977 service-connected condition rather than as an original
claim for service connection, as characterized by the RO in the January 2006 rating
decision. It is precisely for this question – which necessarily requires factfinding in
the first instance – that remand is warranted in this case. See Deloach v. Shinseki,
704 F.3d 1370, 1380 (Fed. Cir. 2013) (recognizing that 38 U.S.C. § 7261(c)
prohibits this “Court from making factual findings in the first instance”); Hensley v.
West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are
not appropriate fora for initial fact finding”); see also 38 U.S.C. § 7261(c). Indeed,
a finding that the September 2004 claim constituted a claim for increased
compensation for the 1977 grant of service connection for apophysitis of the
lumbar spine, rather than an original claim for service connection, would
fundamentally alter the appropriate legal analysis for determining whether
Appellant is entitled to an earlier effective date for the grant of SMC(k).1
1 The Secretary also notes that it is unclear whether Board could have revised the RO’s award of service connection for Appellant’s back condition in the January
12
The need for Board to adequately address this threshold matter is further
underscored by the fact that the vast majority of Appellant’s reasons or bases
arguments on appeal are either premised on the assumption that the September
2004 is indeed a claim for increased compensation or otherwise focused on
recharacterizing the September 2004 claim as pending by attacking the finality of
the January 2006 rating decision. Unless and until the Board addresses this
overlooked evidence in the first instance and provides an adequate statement of
reasons or bases as to whether the September 2004 claim constituted a claim for
increased compensation, those arguments are premature. Nevertheless, the
Board’s failure to address this evidence of record, contemplate the potential impact
of these records on the nature of the 2004 claim and the status of the January
2006 rating decision, and ultimately square the implications of such findings with
Appellant’s claim for an earlier effective date for the grant of SMC(k) fundamentally
2006 rating decision on its own initiative. Specifically, the grant of entitlement to SMC(k) is due to the grant of service connection for ED, which is secondary to Appellant’s back condition. Yet neither the effective date for the grant of ED nor the issue of Appellant’s back condition were directly on appeal before the Board – Appellant placed only the issues of entitlement to an earlier effective date for the grant of TDIU and SMC(k) directly within the Board’s jurisdiction. Given that Appellant did not directly appeal the January 2006 rating decision as it relates to his back condition, see infra [Secretary’s Brief at 15-16], it is unclear how the Board could have revised a grant of service connection in a prior rating decision to instead reflect a claim for increased compensation absent an allegation of clear and unmistakable error (CUE) made to the RO in the first instance. See Jarrell v. Nicholson, 20 Vet.App. 326, 333 (2008) (en banc) (recognizing that “requests for revision of an RO decision based on CUE must first be submitted to and adjudicated by the RO before the Board can attain jurisdiction over the request). Therefore, the Secretary reiterates his position that the most appropriate remedy here is for the Board to make such preliminary findings in the first instance.
13
frustrates meaningful judicial review of the Board’s decision. Caluza, 7 Vet.App.
at 506. Accordingly, the Secretary concedes that the Board’s statement of reasons
or bases is inadequate and submits that remand and vacatur of the Board’s
decision to consider the overlooked evidence of record and address the proper
nature of the September 2004 claim is the most appropriate remedy. See Gilbert,
1 Vet.App. at 56-57.
To the extent Appellant advances reasons or bases arguments premised on
the finality of the January 2006 rating decision being vitiated based on the asserted
submission of new and material evidence, the Secretary submits that these
arguments are premature because they are derivative of a determination as to the
nature of the September 2004 claim in the first instance. See [App. Brf. at 13-17];
compare Akles v. Derwinski, 1 Vet. App. 118, 120-21 (1991); and Manzanares v.
Shulkin, 863 F.3d 1374, 1379 (Fed. Cir. 2017). As argued above, the Board must
engage in factfinding to discern the appropriate nature of the September 2004
claim before any subsequent determinations can be made about the potential
implications the September 2004 claim may have on the status of the January
2006 rating decision.
Appellant’s references to Bond and Beraud are similarly premature prior to
this initial determination. See [App. Brf. at 13-17]. Specifically, the nature of the
September 2004 claim colors the proper analysis under both Bond and Beraud
given that central to the issue in both cases was the submission of additional
evidence involving a single disability and its impact on a prior claim for that same
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disability. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (holding
that a claim for increased rating must be treated as potentially “new and material”
evidence in support of a pending claim for the same condition, if that evidence
satisfies the standard for new and material evidence under 38 C.F.R. § 3.156(b))
(emphasis added); Beraud v. McDonald, 766 F.3d 1402, 1404 (Fed. Cir. 2014)
(where additional evidence involving a claim for a single disability is submitted
within the appeal period, the claim for that disability remains pending until VA
provides a responsive determination as to whether the evidence is new and
material); see generally Voracek v. Nicholson, 421 F.3d 1299, 1305 (Fed. Cir.
2005) (noting that to qualify as "material" evidence under 38 C.F.R. § 3.156, the
evidence must "by itself or when considered with previous evidence of record,
relate[] to an unestablished fact necessary to substantiate [the] original claim")
(emphasis added). Until the Board addresses the nature of the September 2004
claim, it is further unclear whether the facts here – where the grant of SMC(k) is
due to the grant of service connection for ED, secondary to the lumbar spine
disability – fall within the ambit of Bond and Beraud since neither case dealt with
secondary service connection, much less suggested that ancillary benefits granted
as due to a grant of secondary service connection is part of a primary benefits
claim. See Bond, 659 F.3d at 1367; Beraud, 766 F.3d at 1404; see generally
Manzanares, 863 F.3d at 1379; cf. Payne v. Wilkie, 31 Vet.App. 373, 384-85
(2019) (finding that the Board erred in not addressing entitlement to SMC(k) where
appellant explicitly raised a multi-link causal chain between the service-connected
15
disability and the loss of use, but declining to consider whether the Board is
required to infer a multi-link theory of entitlement to SMC(k) absent an explicitly
raised theory) (emphasis added). Thus, Appellant’s new and material evidence
arguments further emphasize the need for the Board to engage in factfinding in the
first instance and to discern the nature of the September 2004 claim in light of the
overlooked evidence of record. It is precisely for this reason that remand is
warranted in this case. See Gilbert, 1 Vet.App. at 56-57; Caluza, 7 Vet.App. at
506.
Next, Appellant attempts to utilize the August 2006 NOD as a vehicle to
attack the finality of the January 2006 rating decision by asserting that the Board
failed to adequately consider whether his NOD appealed both the denial of
entitlement to TDIU as well as the lumbar spine disability evaluation. See [App.
Brf. at 18-19]. As an initial matter, the Secretary observes that this specific
argument was not raised prior to Appellant’s opening brief and thus the Board did
not have an opportunity to address this new contention. See Massie v. Shinseki,
25 Vet.App. 123, 126 (2011) (the Court may decline to consider arguments raised
for the first time on appeal on the ground that an appellant did not exhaust his
administrative remedies prior to appealing to the Court); Robinson v. Mansfield, 21
Vet. App. 545, 552-53 (2008) (the Board is not required "to assume the impossible
task of inventing and rejecting every conceivable argument in order to produce a
valid decision."), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.
2009). Notably, Appellant did not disagree with or object to the RO’s sole
16
consideration of the issue of entitlement to TDIU in either the November 2007 SOC
or the April 2009 SSOC or at any time prior to his opening brief. Indeed, Appellant
did not raise any claim for an increased rating for his lumbar spine disability until
February 25, 2011, when the issue was inferred from his testimony at the Board
hearing. [R. at 1744].
Nevertheless, to the extent Appellant attempts to question the finality of the
January 2006 rating decision by reframing the August 2006 NOD and, by
extension, recharacterizing his September 2004 claim as pending, this argument
as to the adequacy of the Boards statement of reasons or bases again is premature
because it implicates the nature of the September 2004 claim. The Secretary
reiterates that until the Board addresses the nature of the September 2004 claim,
the proper legal analysis for determining whether Appellant is entitled to an earlier
effective date for entitlement to SMC(k) cannot be discerned. Moreover, a
determination as to the nature of the September 2004 claim necessarily requires
factfinding in the first instance, and thus the Board is best suited to address this
threshold matter on remand. Accordingly, this Court should remand the case for
that initial determination before entertaining arguments that are inherently
derivative of the nature of the September 2004 claim. See Gilbert, 1 Vet.App. at
56-57; Caluza, 7 Vet.App. at 506.
With respect to Appellant’s next argument that “[p]rior to the January 2006
rating decision, the issue of entitlement to SMC(k) was raised as part and parcel
of the September 2004 claim for increased compensation,” the Secretary again
17
submits that Appellant’s assertion of reasons or bases deficiencies on this matter
are premature. [App. Brf. at 20]. Implicit in the phrasing of Appellant’s argument
here is a finding of fact that the Board did not make in the decision on appeal –
that the September 2004 indeed constitutes a claim for increase rather than an
original grant of service connection. Indeed, Appellant’s characterization of this
issue is premised on Appellant’s own weighing of the evidence that the Board did
not address. To find that the September 2004 claim constituted a claim for
increased compensation, the Court would be required to make factual
determinations in the first instance regarding the evidence the Board failed to
address, which it may not do. See Deloach, 704 F.3d at 1380; Hensley, 212 F.3d
at 1263; see also 38 U.S.C. § 7261(c).
Appellant similarly assumes this underlying fact in his secondary reasons or
bases argument on this matter: specifically, that the Board failed to address
whether the January 2006 rating decision expressly or implicitly denied entitlement
to SMC(k). [App. Brf. at 21-24]. As outlined above, the Secretary concedes that
the Board’s statement of reasons or bases as to the nature of the September 2004
claim is inadequate and remand is appropriate for the Board to address the
evidence of record pertaining to that claim. Until the Board addresses this
threshold issue and determines whether a claim for increased compensation
existed at the time of the January 2006 rating decision, arguments of entitlement
to SMC(k) derivative of a claim for increased compensation are premature. See
Gilbert, 1 Vet.App. at 56-57; Caluza, 7 Vet.App. at 506.
18
Finally, as to Appellant’s remaining reasons or bases arguments which
assume, in the alternative, the finality of the January 2006 rating decision, the
Secretary again posits that the Board must address the threshold issue in this case
before addressing these downstream issues. Specifically, the proper analysis for
determining whether entitlement to SMC(k) was factually ascertainable within one
year prior to February 25, 2011, or whether an informal claim for entitlement to
SMC(k) was submitted between January 2006 and February 2011, may well turn
on the outcome of the Board’s findings as to the nature of the September 2004
claim on remand. Therefore, the Secretary submits that remand for the Board to
address this threshold matter is the most appropriate remedy available. See
Gilbert, 1 Vet.App. at 56-57; Caluza, 7 Vet.App. at 506.
B. Appellant has abandoned all issues not argued in his brief.
Any other arguments or issues not raised by Appellant in his opening brief
should be deemed abandoned. See Pieczenik v. Dyax Corp., 265 F.3d 1329,
1332-33 (Fed. Cir. 2001); Norvell v. Peake, 22 Vet.App. 194, 201 (2008).
V. CONCLUSION
WHEREFORE, in light of the foregoing reasons, the Court should vacate
and remand the November 9, 2018, Board decision that denied entitlement to an
effective date prior to February 25, 2011, for the grant of SMC(k).
19
Respectfully submitted,
WILLIAM A. HUDSON, JR. Acting General Counsel
MARY ANN FLYNN Chief Counsel
/s/ James B. Cowden JAMES B. COWDEN Deputy Chief Counsel
/s/ Ryan D. Harrison RYAN D. HARRISON Appellate Attorney Office of General Counsel (027K) U.S. Department of Veterans Affairs 810 Vermont Avenue, NW Washington, DC 20420 (202) 632-8331
Attorneys for Appellee, Secretary of Veterans Affairs