Comer v. Peake

• Decision Date: 16 January 2009
• Docket Number: No. 2008-7013.,2008-7013.
• Citation: 552 F.3d 1362
• Parties: Leroy COMER, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

552 F.3d 1362

Leroy COMER, Claimant-Appellant, v. James B. PEAKE, M.D., Secretary of Veterans Affairs, Respondent-Appellee.

No. 2008-7013.

United States Court of Appeals, Federal Circuit.

January 16, 2009.

Edward R. Reines, Weil, Gotshal & Manges LLP, of Redwood Shores, California, argued for claimant-appellant. With him on the brief was Dion D. Messer, of Austin, Texas.

Martin F. Hockey, Jr., Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC argued for respondent-appellee. With him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, Todd M. Hughes, Jr., Deputy Director, and David F. D'Alessandris, Attorney. Of counsel on the brief were Michael J. Timininski, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, Office of the General Counsel, Department of Veterans Affairs, of Washington, DC.

Before MAYER, LOURIE, and GAJARSA, Circuit Judges.

MAYER, Circuit Judge.

Leroy Comer appeals the judgment of the United States Court of Appeals for Veterans Claims which held that he had not properly raised the issue of whether he was entitled to an earlier effective date for total disability based on individual unemployability ("TDIU") benefits. See Comer v. Nicholoson, No. 05-1462, 2007 WL 2034306, 2007 U.S.App. Vet. Claims LEXIS 1083 (Vet.App. July 6, 2007) ("2007 Veterans Court Decision"). Because we conclude that the court misinterpreted Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001), when it held that the duty to sympathetically and fully construe a pro se veteran's filings did not apply to an appeal submitted to the Board of Veterans' Appeals following a rating determination, we reverse and remand.

BACKGROUND

From 1967 to 1970, Comer served on active duty in the United States Army. From 1968 to 1969, he served in Vietnam, where his duties included guarding an ammunition depot that was, he asserts, "under mortar attack almost every night."

On December 29, 1988, Comer, acting pro se, filed a claim for disability benefits with the Waco, Texas, Regional Office ("RO") of the Department of Veterans Affairs ("VA"). He claimed entitlement to service connection for post-traumatic stress disorder ("PTSD"), asserting that he suffered from nightmares, depression and headaches. Although he was rated as 30 percent disabled due to PTSD, the RO declined to award him disability benefits, concluding that the evidence did not establish that his PTSD was connected to his Vietnam service.

On February 26, 1999, Comer asked that his original claim for service connection for PTSD be reopened. His request to reopen was denied by the RO, but on appeal the board reversed after determining that new evidence had been submitted that was "so significant that it must be considered in order to fairly decide the merits of the claim." In re Comer, No. 00-23550, slip op. at 4 (B.V.A. Aug. 16, 2001) ("2001 Board Decision"). In remanding the reopened claim to the RO, the board noted that Comer had been diagnosed with PTSD and that "it generally appears that the diagnosis of PTSD is related to service." Id. at 5.

On remand, the RO granted Comer service connection for his previously rated 30 percent PTSD disability. The disability rating was effective as of February 26, 1999, the date he filed the motion to reopen his claim. In March 2003, Comer submitted a notice of disagreement, requesting that he be assigned a disability rating higher than 30 percent and that his benefits be made retroactive to his original 1988 PTSD claim. In response, the RO increased the disability rating to 50 percent, but did not change the effective date for his benefits.

In June 2003, Comer filed an appeal with the board. He sought benefits retroactive to his original 1988 PTSD claim and an increased disability rating. He filed pro se, although a representative from the Disabled American Veterans ("DAV") organization submitted a statement on his behalf.

While his appeal was pending, the VA, on May 5, 2004, gave Comer a classification and pension ("C & P") exam. The examining physician diagnosed him with PTSD and noted that, since his last C & P exam, he had had "no stable job." The physician further observed that Comer reported having "nightmares and flashbacks about the war once weekly" and that these nightmares increased when he was under stress. Following the C & P exam, the RO assigned Comer an increased disability rating of 70 percent and, based on his demonstrated employment problems, granted him TDIU benefits. Both the 70 percent disability rating and the TDIU award were effective as of May 5, 2004, the date of the C & P exam.

Subsequently, on February 16, 2005, the board denied Comer's request for an increased rating for the period from February 26, 1999, to May 5, 2004. It also denied his request for disability benefits prior to 1999. The board stated that it could not award benefits retroactive to Comer's initial claim for benefits because he had "not specifically alleged clear and unmistakable error" in the earlier rating decision. In re Comer, No. 03-17742, slip op. at 23 (B.V.A. Feb. 16, 2005) ("2005 Board Decision").

Comer, now represented by counsel, appealed to the Veterans Court. The court held that it had no jurisdiction to consider the issue of whether Comer should have been granted TDIU benefits prior to May 5, 2004, because he had not specifically raised that issue in his notice of disagreement with the board decision. See 2007 Veterans Court Decision, 2007 WL 2034306 at 2-3. The court also rejected his argument that the VA had failed to comply with its notice obligations under 38 U.S.C. § 5103(a), concluding that the VA had provided Comer with notice of "what evidence [the] VA [was] responsible for obtaining and what [Comer] could do to assist in the process." 2007 Veterans Court Decision, 2007 WL 2034306 at 5(citations and internal quotation marks omitted).

Comer timely appealed both issues to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION

This court has authority to review decisions of the Veterans Court regarding 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); Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed.Cir.2007). We review the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed.Cir.2002); Howard v. Gober, 220 F.3d 1341, 1343 (Fed.Cir.2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran's claim, we treat the application of law to undisputed fact as a question of law." Conley v. Peake, 543 F.3d 1301, 1304 (Fed.Cir.2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed.Cir.2008).

I.

Comer first argues that the Veterans Court misconstrued Roberson, 251 F.3d at 1380-84, when it held that it had no jurisdiction to consider the issue of whether he was entitled to an earlier effective date for TDIU benefits because he had not explicitly raised that issue before the board. In his view, Roberson requires the board to consider whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits. We agree.

In Roberson, a veteran, who had had significant employment difficulties, filed a pro se claim seeking disability benefits, but did not specify that he was seeking a TDIU award. 251 F.3d at 1380. The RO awarded him a 70 percent disability rating for PTSD, but did not consider whether he also might be entitled to a TDIU award, which would entitle him to a 100 percent disability rating. See 38 C.F.R. § 4.16 ("Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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."). Roberson later sought to reopen his claim, asserting that the RO decision contained clear and unmistakable error ("CUE") because the RO had failed to consider his entitlement to TDIU benefits. The Veterans Court rejected this argument, concluding that he had no right to TDIU benefits because he had not specifically requested them in his initial claim.

On appeal, this court reversed. We concluded that although Roberson had not specifically requested TDIU benefits, the VA was required to consider his entitlement to such benefits because the record contained clear evidence of his unemployability. Roberson, 251 F.3d at 1384. We explained that "regardless of whether [a] claim is specifically labeled as a claim for TDIU," the VA is obligated to "determine all potential claims raised by the evidence." Id. Accordingly, the VA must consider whether a TDIU award is warranted whenever "a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability." Id.

A similar analysis applies here. Like Roberson, Comer, acting pro se, sought an increased disability rating.¹ Like Roberson, Comer presented persuasive evidence of his unemployability: he has not been employed on a full-time basis since 1975 and the Veterans Court did not dispute that there was "extensive record evidence of [Comer's] employment difficulties." 2007 Veterans Court Decision, 2007 WL 2034306 at 2-3. Thus, as in Roberson, the VA should have considered Comer's entitlement to TDIU benefits. Although he did not explicitly assert the right to a TDIU award for the period from February 26, 1999, to May 5, 2004, his pro se appeal, which sought an earlier effective date and a higher disability rating for PTSD benefits was...