291 F.3d 795 (Fed. Cir. 2002), 00-7122, Bernklau v. Principi

Docket Nº:00-7122
Citation:291 F.3d 795
Party Name:Bernklau v. Principi
Case Date:May 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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291 F.3d 795 (Fed. Cir. 2002)

Arthur BERNKLAU, Claimant-Appellant,

v.

Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent Appellee.

No. 00-7122.

United States Court of Appeals, Federal Circuit

May 20, 2002

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[Copyrighted Material Omitted]

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Robert V. Chisholm, Chisholm Chisholm & Kilpatrick, of Providence, Rhode Island, argued for claimant-appellant.

Virginia G. Farrier, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were David M. Cohen, Director, and Donald E. Kinner, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel, and Michelle Doses Bernstein, Attorney, Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, GAJARSA, and DYK, Circuit Judges.

DYK, Circuit Judge.

Arthur Bernklau ("appellant") seeks review of the final decision of the United States Court of Appeals for Veterans Claims that: (1) declined to exercise jurisdiction over arguments that appellant was entitled to an earlier effective date for a service-connected disability rating ("disability claim"), and (2) affirmed a February 12, 1987, effective date for the award of a total disability rating based upon individual unemployability ("TDIU claim"). Bernklau v. West, No. 98-1215 (Vet.App. Feb. 28, 2000). 1 We affirm.

BACKGROUND

This appeal involves two separate claims by the appellant for disability benefits for an injury incurred during his military service ("service-connected injury"). We will discuss each claim in turn.

The Disability Claim

Mr. Bernklau served on active duty in the United States armed forces from July 1954 to June 1955, when he was honorably discharged. Following his discharge, the Department of Veterans Affairs ("agency")

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determined that he was entitled to a disability rating due to a service-connected lower back injury. Mr. Bernklau's disability rating was initially set at zero percent in 1955, was increased to ten percent in 1956, and was the subject of a series of appeals and remands over the next thirty years. In an August 8, 1989, decision ("1989 Board decision"), the Board of Veterans' Appeals ("Board") increased the appellant's disability rating to a level of seventy percent, retroactive to November 3, 1983. So far as the record reveals, Mr. Bernklau did not appeal this decision at that time, and one of the issues in this case concerns the finality of this 1989 Board decision.

Though Mr. Bernklau did not appeal the 1989 Board decision, he later sought (in unrelated proceedings before the Regional Office and the Board) to obtain an earlier effective date for his disability rating. Ultimately the agency's Regional Office denied the claim for an earlier effective date for his disability rating. On review, the Board of Veterans' Appeals affirmed the Regional Office's decision. In denying Mr. Bernklau's claim for an earlier effective date, the Board reasoned in pertinent part that "[t]he veteran did not appeal the [1989 Board decision], and that decision is final." In re Bernklau, No. 95-00-053, slip op. at 11 (Bd.Vet.App. Mar. 18, 1998) (citing 38 U.S.C. § 7104).

The Board recognized that "a claim which was previously adjudicated," (i.e., a final claim) may be reopened if "new and material evidence is presented" by the veteran. Id. And Mr. Bernklau provided the Board with documents to support his claim for an earlier effective date. Id. at 16. But the Board concluded that "[t]he contentions raised in these numerous submissions are, however, duplicative of the arguments raised and considered before the Board in August 1989." Id. at 16-17. Thus, it ruled that "the additional evidence received since the August 1989 decision is not new and material and does not provide the required evidentiary basis to reopen the [appellant's] claim for an earlier effective date for the 70[%] rating for the back disability." Id. at 19.

Mr. Bernklau appealed to the Court of Appeals for Veterans Claims. On that appeal, he argued that "the effective date issue was not before the Board at the time of the August 1989 decision; that the Board erred in addressing that issue in the first instance; and that this error rendered the decision nonfinal." Bernklau v. West, No. 98-1215, slip op. at 2 (Vet.App. Feb. 28, 2000) ("Bernklau "). In other words, Mr. Bernklau argued that because the 1989 Board decision was non-final, the submission of "new and material evidence" was not required for readjudication of his claim.

He also argued that the 1989 Board decision was not final because the Board had never responded to two communications. First, he characterized an April 30, 1956, letter from his representative to the Regional Office as a Notice of Disagreement ("NOD") with an October 1955 Regional Office decision to assign appellant a zero-percent rating for his service-connected disability. 2 The agency's failure to issue a Statement of the Case to him in response to that alleged NOD (as required by 38 U.S.C. § 7105(d)(1)), appellant argued, rendered the 1989 Board decision non-final. Second, Mr. Bernklau pointed to a January 31, 1980, letter to the Regional Office in which he complained that the agency had "overlooked [his] service connected

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disability" when evaluating his eligibility for benefits for a heart attack suffered in May 1979. That 1980 letter, Mr. Bernklau argued, was an informal claim for an earlier effective date for his disability rating.

The Court of Appeals for Veterans Claims held that it lacked jurisdiction over Mr. Bernklau's appeal regarding an earlier effective date for his disability claim. Regarding the appellant's argument that the 1989 Board decision was not final, the court noted that the appellant "did not reasonably raise that argument to the Board [of Veterans' Appeals], even though he had been notified on several occasions prior to the decision on appeal that the August 1989 [Board] decision was considered final." Bernklau, slip op. at 3. Pointing to our decision in Maggitt v. West, 202 F.3d 1370 (Fed.Cir. 2000) (discussed below), the court accordingly held in pertinent part that:

[T]he Court, in its discretion, will decline to exercise its jurisdiction over this argument (which was presented for the first time on appeal), because the appellant has failed to demonstrate that there are significant reasons for remanding the matter to the [Board of Veterans' Appeals] for its consideration of this argument in the first instance.

Bernklau, slip op. at 3. And the court further concluded that it lacked jurisdiction over appellant's argument that the allegedly pending claims provided a proper basis for an earlier effective date, as "the appellant did not raise to the Board ... any argument regarding such pending claims." Id. at 4. In short, the court declined to exercise jurisdiction over Mr. Bernklau's arguments because he had not exhausted his administrative remedies by first raising those arguments before the Board of Veterans' Appeals.

Notwithstanding its conclusion that it lacked jurisdiction, however, the court stated that "it does not appear that the [Board of Veterans' Appeals] erred in 1989 in addressing the effective date issue," and further concluded that "even if the appellant could demonstrate that the Board (in August 1989) erred and that such an error rendered the August 1989 Board decision nonfinal, it appears that the appellant would not be entitled to an earlier effective date." Id. at 4. In other words, the court appeared to rule on the factual merits of appellant's claims for an earlier effective date for his disability rating.

On his appeal to the Court of Appeals for Veterans Claims, Mr. Bernklau separately argued that he was entitled to a total disability rating based upon individual unemployability ("TDIU"). It is to that claim that we now turn.

The TDIU Claim

In March 1989, Mr. Bernklau filed a separate claim for TDIU disability benefits arising from his service-connected lower back injury. TDIU benefits are separate from injury-specific disability benefits, and may be awarded "when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities...." 38 C.F.R. § 4.16(a) (1989). To qualify for TDIU benefits where (as here), the veteran suffers from a single service-connected disability, that disability must "be ratable at 60 percent or more...." Id. Once the veteran obtains that disability rating (or, of course, a higher rating), he is eligible for TDIU benefits. Thus, in the 1989 Board decision that increased his disability rating to seventy percent, the Board also accordingly instructed the agency's Regional Office to adjudicate this TDIU claim.

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The Regional Office denied the claim on September 5, 1989, prompting another series of appeals and remands, including an appeal to this court. See Bernklau v. Derwinski, No. 92-7038, 1992 WL 276388 (Fed.Cir. Oct.9, 1992) (unpublished disposition) (holding in pertinent part that this court lacked jurisdiction to hear the appeal). On September 3, 1993, the Board granted the appellant's TDIU claim, and ultimately assigned a February 1987 effective date for the resulting TDIU rating. In re Bernklau, No. 95-00-053, slip op. at 31 (Bd.Vet.App. Mar. 18, 1998).

Mr. Bernklau appealed this effective date to the Court of Appeals for Veterans Claims. On that appeal, he claimed entitlement to an earlier effective date for his TDIU rating based on his January 31, 1980, letter to the Regional Office (regarding his May 1979 heart attack), which he characterized as an unadjudicated informal claim for TDIU. In the alternative, he argued that his subsequent, separate informal TDIU claim (made during an unrelated Board appeal in 1985) warranted an earlier effective date. Ber...

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