Roberson v. Principi

Decision Date29 May 2001
Parties(Fed. Cir. 2001) HOWARD F. ROBERSON, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee. 00-7009 DECIDED:
CourtU.S. Court of Appeals — Federal Circuit

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 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 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." Roberson v. West, No. 97-1971, slip op. at 6.

On July 7, 1997, the Board determined that the 1984 rating decision, establishing service connection for PTSD and a seventy percent disability rating, did not contain CUE because Roberson had failed to allege TDIU, and even if he had alleged TDIU, he was not eligible for TDIU because he was capable of maintaining substantially gainful employment. The Court of Appeals for Veterans Claims affirmed the Board's decision that Roberson had failed to allege TDIU, and that he was not eligible for TDIU. Roberson timely appealed the Court of Appeals for Veterans Claims' dismissal to this court. We have jurisdiction under 38 U.S.C. § 7292 (1994).

DISCUSSION

Our jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. We have jurisdiction "to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c) (1994). Unless there is a constitutional issue presented, however, we may not review factual determinations or the application of law to a particular set of facts. Id. § 7292(d)(2).

38 C.F.R. § 3.155(a)

Roberson alleges that the Court of Appeals for Veterans Claims misinterpreted 38 C.F.R. § 3.155(a), governing informal claims, which states in pertinent part:

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.

38 C.F.R. § 3.155(a) (1994) (emphasis added).

The Court of Appeals for Veterans Claims held that even if the VA had a duty to develop all possible claims that are reasonably raised from a liberal reading of the record, Roberson was required under section 3.155(a) to specifically request entitlement to the benefit sought in this case TDIU. The Court of Appeals for Veterans Claims determined that because Roberson did not make a specific request for TDIU, the VA was not obligated to adjudicate such a claim.

Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA's requirement that TDIU be specifically requested "loses sight of the Congressional mandate that the VA is to 'fully and sympathetically develop the...

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