251 F.3d 1378 (Fed. Cir. 2001), 00-7009, Roberson v. Principi

Docket Nº00-7009
Citation251 F.3d 1378
Party NameHOWARD F. ROBERSON, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
Case DateMay 29, 2001
CourtUnited States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1378

251 F.3d 1378 (Fed. Cir. 2001)

HOWARD F. ROBERSON, Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

00-7009

United States Court of Appeals, Federal Circuit

May 29, 2001

Appealed from: United States Court of Appeals for Veterans Claims Judge Donald L. Ivers

Page 1379

[Copyrighted Material Omitted]

Page 1380

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director; and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief were Donald E. Zeglin, Acting Assistant General Counsel; and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before GAJARSA, LINN, and DYK, Circuit Judges.

DECISION

LINN, Circuit Judge.

Howard F. Roberson appeals from the decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans Appeals' ("Board") decision that a 1984 rating decision did not involve clear and unmistakable error ("CUE"). See Roberson v. West, No. 97-1971 (Vet. App. July 27, 1999). We hold that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based upon individual unemployability ("TDIU"). We further hold that proving inability to maintain "substantially gainful occupation" for entitlement to TDIU does not require proving 100 percent unemployability. Because the Court of Appeals for Veterans Claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU, we reverse and remand.

BACKGROUND

Roberson served on active duty in the U.S. Marine Corps from May 26, 1967 until February 10, 1971. His service and medical records are negative for any psychiatric condition. In a 1975 rating decision, the regional office ("RO") awarded service connection to Roberson for scars, and denied service connection for chronic low back pain with spondylolysis and high frequency hearing impairment.

In 1982, Roberson submitted an application for benefits for psychiatric problems, which he attributed to his service in Vietnam. In his application, Roberson noted that he had not worked in almost a year. He also included a statement from his wife describing his behavior and his inability to remain employed. One year later, in 1983, Roberson was admitted to a Veteran's Administration ("VA") hospital to receive treatment to "get his life together again." Roberson was diagnosed with alcohol dependence and post-traumatic stress disorder ("PTSD"). Subsequently, a VA examination indicated that Roberson had been unemployed for two years. The examiner diagnosed Roberson with chronic PTSD, substance abuse in remission, and recurrent-type

Page 1381

major depression. Included in the same VA examination, a social work services examiner reported that Roberson had held several construction jobs between 1972 and 1978, lasting for periods ranging from two weeks to seven months.

In a 1984 rating decision, the RO awarded service connection for PTSD and assigned a seventy percent disability rating, effective September 20, 1982, the date on which Roberson submitted his application for VA benefits for psychiatric problems. The RO's rating decision noted that Roberson had a history of substance abuse, and had "been unemployed for 101/2 years primarily because of what was described as poor concentration." Roberson was also awarded service connection for Tinnitus, evaluated at ten percent disabling, effective November 30, 1982, and his ten percent disability rating for scars was reduced to zero.

Independent of the VA's actions, in 1987 the Social Security Administration ("SSA") concluded that Roberson met the disability insured status requirements of the Social Security Act, because he had "not engaged in substantially gainful activity" between October 1981 and June 1984.

In March of 1989, 38 C.F.R. § 4.16 was amended to add subsection (c), stating: "in cases in which the only compensable service-connected disability is a mental disorder assigned a seventy percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation . . . the mental disorder shall be assigned a 100 percent evaluation under the appropriate diagnostic code." This amendment was brought to the RO's attention by Roberson's counsel, who requested consideration of a 100 percent disability rating to be effective as of September 1982.

In response, on October 2, 1990, the Board increased Roberson's disability rating for PTSD to 100 percent. However, this rating decision was effective March 1987 rather than September 1982. The Board based its decision on the following: (1) a September 1987 vocational rehabilitation Board finding that Roberson "was not feasible for training;" (2) VA medical records; (3) a September 1988 social work survey; (4) private medical records; (5) testimony from Roberson and his wife in a 1989 RO hearing; (6) testimony from Roberson and his wife at a 1990 traveling Board hearing; and (7) evidence presented during the traveling Board hearing including evidence of receipt of Social Security benefits.

Five years after Roberson's disability was increased to 100 percent, in a letter dated September 29, 1995, Roberson's counsel alleged CUE in the 1984 rating decision, based on the RO's failure to apply 38 C.F.R. § 3.340(a)(1). This regulation states:

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

Roberson's counsel asserted that, based on Roberson's unemployability and inability to concentrate, Roberson was entitled to a 100 percent disability rating under section 3.340 in the 1984 rating decision. In a February 28, 1996 response, the RO informed Roberson that he had not submitted a valid CUE claim. Roberson submitted

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a notice of disagreement and subsequently perfected his appeal.

In a letter to the Board dated March 1997, Roberson additionally alleged that, based upon the record before the RO in its 1984 decision, the RO "clearly and erroneously failed to follow the controlling regulations regarding total disability based upon individual unemployability [TDIU]." He stated that, because the record disclosed that Roberson had been unemployed for ten and a half years, he was entitled to TDIU. The Court of Appeals for Veterans Claims, however, noted that this statement regarding ten and a half years of unemployment was contradicted by a 1987 VA medical report stating that Roberson had been employed as a structural steel worker within that ten and a half year period. The court also found that "there was sufficient evidence of record at the time of the RO's January 1984 decision to reasonably conclude that the veteran was not 100% unemployable."...

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253 practice notes
  • Evans v. McDonald, 120214 USCAVC, 11-2917
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • December 2, 2014
    ...based on CUE. See Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed. Cir. 2005) ("[W]hen the VA violates Roberson [v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), ] by failing to construe the veteran's pleadings to raise a claim, such claim is not considered unadjudicated but the error is in......
  • Cogburn v. Shinseki, 121310 USCAVC, 08-1561
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • December 13, 2010
    ...determine all potential claims reasonably raised by the evidence, applying all relevant laws and regulations." Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The requirement that VA sympathetically read a veteran's pleadings was qualified further in that the Federal Circui......
  • Richardson v. Nicholson, 051706 uscavc, 03-2100
    • United States
    • May 17, 2006
    ...that the requirement under the holding of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for VA to "'fully and sympathetically develop the veteran's claim,' and the consequences of VA's failure to do so, i.e.,......
  • Robinson v. Peake, 012908 USCAVC, 04-1690
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • January 29, 2008
    ...application for benefits – sympathetically. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) ("Roberson [v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)] requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran's filings." (qu......
  • Request a trial to view additional results
252 cases
  • Evans v. McDonald, 120214 USCAVC, 11-2917
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • December 2, 2014
    ...based on CUE. See Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed. Cir. 2005) ("[W]hen the VA violates Roberson [v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), ] by failing to construe the veteran's pleadings to raise a claim, such claim is not considered unadjudicated but the error is in......
  • Cogburn v. Shinseki, 121310 USCAVC, 08-1561
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • December 13, 2010
    ...determine all potential claims reasonably raised by the evidence, applying all relevant laws and regulations." Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The requirement that VA sympathetically read a veteran's pleadings was qualified further in that the Federal Circui......
  • Richardson v. Nicholson, 051706 uscavc, 03-2100
    • United States
    • May 17, 2006
    ...that the requirement under the holding of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for VA to "'fully and sympathetically develop the veteran's claim,' and the consequences of VA's failure to do so, i.e.,......
  • Robinson v. Peake, 012908 USCAVC, 04-1690
    • United States
    • Federal Cases Court of Appeals for Veteran Claims
    • January 29, 2008
    ...application for benefits – sympathetically. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) ("Roberson [v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)] requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran's filings." (qu......
  • Request a trial to view additional results
1 provisions
  • Standard Claims and Appeals Forms
    • United States
    • Federal Register September 25, 2014
    • September 25, 2014
    ...deciding it on the merits.'' H.R. Rep. No. 100-963 at 13 (1988); reprinted in 1988 U.S.C.C.A.N. 5782, 5794-95; see Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Norris v. West, 12 Vet. App. 413, 420 (1999). Consistent with these policies, VA employs the practice of identifying......