Andrews v. McDonald , 646 F. App'x 1001 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDWARD R. ANDREWS, JR.,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7035
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2586, Chief Judge Bruce E.
Kasold.
______________________
Decided: May 10, 2016
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent-appellee. Also represented
by ERIC PETER BRUSKIN, BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; Y. KEN LEE,
RACHAEL BRANT, BRYAN THOMPSON, Office of General
2 ANDREWS v. MCDONALD
Counsel, United States Department of Veterans Affairs,
Washington, DC.
______________________
Before NEWMAN, MOORE, and STOLL, Circuit Judges.
MOORE, Circuit Judge.
Edward R. Andrews, Jr. appeals from the decision of
the Court of Appeals for Veterans Claims (“Veterans
Court”) affirming the Board of Veterans’ Appeals’
(“Board”) finding that there was no clear and unmistaka-
ble error (“CUE”) in an initial disability rating decision
made in 1983. We vacate and remand to the Veterans
Court for a second time with the identical instruction we
provided last time: “The Veterans Court should remand
the case to the Board for a determination as to whether
the record in 1983 established TDIU.” Andrews v.
Shinseki, 552 F. App’x 985 (Fed. Cir. 2014) (per curiam)
(“Andrews III”).
BACKGROUND
This case, having been to our court four times now,
has a long and tortured history, which we shall not repeat
here. 1 The Department of Veterans Affairs (“VA”)
acknowledges that Mr. Andrews is a Vietnam War veter-
an, who was almost continually involved in combat during
his service. In March 1983, Mr. Andrews filed a pro se
motion to reopen his 1981 claim for benefits for service-
connected mental disabilities, which the VA’s regional
office (“RO”) had previously denied. Mr. Andrews submit-
ted a third party medical report stating that he “perhaps
more than any other of our referred veterans, typifies,
1 See Andrews v. West, 25 F. App’x 997 (Fed. Cir.
2001) (per curiam) (“Andrews I”); Andrews v. Nicholson,
421 F.3d 1278, 1284 (Fed. Cir. 2005) (“Andrews II”);
Andrews III.
ANDREWS v. MCDONALD 3
indeed epitomizes, the Vietnam combat-related post-
traumatic stress syndrome.” Joint Appendix at 14 (“Croft
Medical Opinion”), Andrews III, No. 13-7065, ECF No. 26.
The report documented that he was “prone to violence . . .
self-medicates . . . has a strong desire to achieve, to help,
to take in others, and yet his self-destructive behaviors
alienate him . . . and render him unemployed if not un-
employable.” Id. In June 1983, Mr. Andrews underwent
a psychiatric examination by the VA and reported that he
had been unemployed for the past four years, and felt that
“his emotional symptoms prevent him from presently
seeking or maintaining gainful employment.” J.A. 61. 2
In July 1983, the RO assigned Mr. Andrews a 10%
disability rating for service-connected post-traumatic
stress disorder (“PTSD”). Joint Appendix at 18–20 (“1983
Rating Decision”), Andrews III, No. 13-7065, ECF No. 26.
The 1983 Rating Decision characterized Mr. Andrews’
claim only as one for “service connection for post traumat-
ic stress disorder,” and did not mention a TDIU claim.
Id.; see 38 C.F.R. § 4.16(b) (Total disability ratings for
compensation based on unemployability of the individual).
Less than one year later, still acting pro se, Mr. Andrews
sought an increased disability rating in September 1984.
Joint Appendix at 75, Andrews III, No. 13-7065, ECF
No. 26. A December 1984 psychiatric examination report,
conducted by the VA, noted that Mr. Andrews “is a Viet
Nam veteran who saw considerable activity while in Viet
Nam.” Id. at 76–77. It discusses specific instances of
personal combat, screams, blood shed, as well as his
continuing nightmares, hostility, and aggression. Id.Like the 1983 Rating Decision, the resulting rating deci-
sion in January 1985 stated that it was an “[e]valuation of
2 J.A. refers to the parties’ Joint Appendix in the
instant appeal. Andrews v. McDonald, No. 15-7035, ECF
No. 29.
4 ANDREWS v. MCDONALD
service connected post traumatic stress disorder” and did
not mention a TDIU claim. Id. at 78–79 (“1985 Rating
Decision”). Directly thereafter, it found that Mr. Andrews
“had 40 jobs since Viet Nam,” “ha[d] been unable to work
at all for the last four years,” and “continue[d] to have
difficulty controlling his emotions.” Id. It concluded that
Mr. Andrews suffered from “severe[] and chronic” PTSD
and increased his disability rating to 30%. Id.In 1991, Mr. Andrews, now represented by counsel,
filed a request for an increased rating of 100%. In the
ensuing rating decision in 1993, the VA awarded a 70%
disability rating for “service connected post traumatic
stress disorder,” again finding Mr. Andrews’ PTSD to be
chronic and severe. Id. at 86–89 (“1993 Rating Decision”).
Though the 1993 Rating Decision was silent with regard
to a TDIU claim, it noted, “You [Mr. Andrews] reported
that when you have worked it has been primarily doing
yard work for brief periods of time and that you have not
worked at all the past year.” Id. at 88. In a letter dated
December 8, 1993, Mr. Andrews’ attorney expressly called
Mr. Andrews’ history of unemployability to the attention
of the VA. In its 1994 Rating Decision, the VA awarded
Mr. Andrews a 100% disability rating for his unemploya-
bility, effective as of 1991. Id. at 21–23 (“1994 Rating
Decision”). For more than two decades, Mr. Andrews has
been contesting the VA’s failure to award him a TDIU
rating in its 1983 Rating Decision. The VA awarded
Mr. Andrews a 100% disability rating for unemployability
as of 1991, and thus the only issue is whether that total
disability rating should have an effective date of February
17, 1983.
DISCUSSION
We review legal determinations of the Veterans Court
de novo. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.
Cir. 1991). We “have power . . . , if the decision of the
[Veterans Court] is not in accordance with law, to modify
ANDREWS v. MCDONALD 5
or reverse the decision . . . or to remand the matter, as
appropriate.” 38 U.S.C. § 7292(e)(1). On appeal is
Mr. Andrews’ request for revision of the 1983 Rating
Decision based on clear and unmistakable error (“CUE”).
J.A. 28–35. Mr. Andrews argues that he raised a TDIU
claim in 1983 that went unadjudicated by the VA until its
1994 Rating Decision, which granted TDIU with an
effective date of 1991. As the Veterans Court correctly
observed, there are a number of ways for a veteran to
appeal the failure of the VA to adjudicate a claim includ-
ing “an appeal of an effective date decision [which] is the
proper method to obtain direct review of an assertion as to
when a claim was first raised.” Evans v. McDonald, 27
Vet. App. 180, 185 n.3 (2014) (en banc) (citations omitted).
Also, the “[s]ecretary’s failure to adjudicate a reasonably
raised claim can be the basis of the CUE motion.” Id. See
also Andrews II, 421 F.3d at 1281 (“[W]e clearly held in
Roberson that the VA’s failure to consider a TDIU claim
in this manner is properly challenged through a CUE
motion.”). In this case, Mr. Andrews filed a CUE motion,
alleging that the VA failed to adjudicate his implicit claim
for TDIU, which Mr. Andrews made pro se in 1983. As a
result, he seeks “an effective date of February 17, 1983,
for an award of disability compensation at the total rate
based on unemployability.” J.A. 35.
Throughout the earlier proceedings in this case, the
government (including the VA and the Board) argued that
the VA did not err in failing to adjudicate Mr. Andrews’
implicit TDIU claim because his 1983 filing did not raise
an implicit TDIU claim. See, e.g., J.A. 61–62 (“Even if the
Board accepts (which it does not) that the evidence of
record at the time of the July 1983 rating decision should
have been interpreted as an implicit claim for TDIU. . .”);
Andrews v. Shinseki, No. 11-2586, 2012 WL 6186154, at
*1 (Vet. App. Dec. 12, 2012) (“In a 2006 rating decision
and a 2007 Statement of the Case (SOC), the RO found
that Mr. Andrews’s claim had not been referred for TDIU
6 ANDREWS v. MCDONALD
consideration in 1983 because there was no record evi-
dence at that time that Mr. Andrews was unemployed
solely as a result of service-connected disabilities.”),
vacated, 552 F. App’x 985 (Fed. Cir. 2014). Prior to our
decision in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir.
2001), the government consistently argued that there was
no informal claim for TDIU if the Veteran “did not com-
municate in writing a request for a determination of
entitlement or a belief in entitlement to a TDIU rating.”
Brief for Respondent-Appellee at 17, Roberson v. Principi,
251 F.3d 1378 (Fed. Cir. 2001). In Roberson, the govern-
ment argued that “before the VA can adjudicate a claim
for benefits – even an informal claim for benefits – the
claimant must submit a written statement identifying the
benefit and expressing his intent to seek it.” Id. at 20.
Because no such statement was made, the government
argued that “even assuming that the medical reports in
Mr. Roberson’s file establish a well-grounded claim for
TDIU, the VA could not have breached its duty to assist . .
. because Mr. Roberson did not file a TDIU claim.” Id. at
22. We recognized that the Court of Appeals for Veterans
Claims had held that to qualify as an informal claim,
“Roberson was required under section 3.155(a) to specifi-
cally request entitlement to the benefit sought – in this
case TDIU [and that] because Roberson did not make a
specific request for TDIU, the VA was not obligated to
adjudicate such a claim.” Roberson, 251 F.3d at 1382. We
reversed, making it clear that the government’s view that
there was no informal claim to be adjudicated unless the
veteran had alleged a specific entitlement in writing, was
incorrect:
The government argues that, because Roberson
never specifically requested TDIU in his original
claim, he cannot be considered to have filed a
TDIU claim despite his submission of evidence re-
garding his unemployability. We disagree.
ANDREWS v. MCDONALD 7
Once a veteran submits evidence of a medical dis-
ability and makes a claim for the highest rating
possible, and additionally submits evidence of un-
employability, the “identify the benefit sought”
requirement of 38 C.F.R. § 3.155(a) is met and the
VA must consider TDIU.
Roberson, 251 F.3d at 1384. The government’s pre-
Roberson position, that absent a specific written request
for TDIU, there was no informal claim for TDIU to be
adjudicated, is consistent with the position it took with
regard to Mr. Andrews’ TDIU claim: “[T]he VA Regional
Office had no reason to consider an extra-schedular
entitlement to unemployability [in 1983].” Joint Appen-
dix at 112 (VA’s 3/30/2007 Statement of the Case), An-
drews III, No. 13-7065, ECF No. 26. The government
maintained this position throughout most of the 35 years
of adjudication over this claim. See, e.g., Andrews, 2012
WL 6186154, at *1 (“[Mr. Andrews’ 1983] claim for bene-
fits for PTSD and evidence of employability did not consti-
tute an implicit claim for TDIU.”).
In the last appeal, we put to rest any lingering doubt
about whether Mr. Andrews’ 1983 filing raised an implicit
claim for TDIU that required VA’s adjudication. Andrews
III (“We hold that, as a matter of law, Mr. Andrews raised
a TDIU claim in his 1983 filing to the VA.”). And we
remanded to the Veterans Court with instructions that it
remand to the Board for adjudication of this TDIU claim.
The Veterans Court, however, refused to follow our man-
date in Andrews III. On remand, the Veterans Court
concluded that there was no jurisdiction over whether the
1983 RO committed CUE in not awarding TDIU, and thus
the court refused to follow our mandate. Andrews v.
Shinseki, No. 11-2586, 2014 WL 2000348 (Vet. App. May
16, 2014). The Veterans Court held that Mr. Andrews’
CUE claim was “that the 1983 rating decision failed to
consider TDIU,” not that “the 1983 rating decision com-
mitted CUE in not awarding TDIU.” Id. at *2. The
8 ANDREWS v. MCDONALD
Veterans Court refused to follow our remand order con-
cluding that we had no jurisdiction to order remand
because the remand was based upon a CUE assertion
which had not been made by Mr. Andrews. Id. at *4. We
do not agree with the Veterans Court’s assessment of
jurisdiction.
Mr. Andrews’ CUE claim is quite straight-forward:
“The failure of the VA July 28, 1983, rating decision to
consider Mr. Andrews’ entitlement to an initial rating in
the form of an extra-schedular rating based upon the
evidence of record . . . .” J.A. 35. Mr. Andrews has con-
sistently argued that clear and unmistakable error lies in
the VA’s failure to recognize and adjudicate his 1983
implicit claim for TDIU. See, e.g., J.A. 35 (Aug. 26, 2005,
Request for Revision of the July 28, 1983, Rating Deci-
sion); J.A. 10 (Jun. 5, 2014, Motion for Single Judge
Reconsideration, or In the Alternative Referral for a Panel
Decision). We agreed with Mr. Andrews, which is why in
Andrews III, we ordered the Veterans Court to remand to
the Board for Mr. Andrews’ TDIU claim to be adjudicated.
Andrews III (“The Veterans Court should remand the case
to the Board for a determination as to whether the record
in 1983 established TDIU.”).
On appeal, the government expresses confusion over
our Andrews III decision: “It is likewise unclear from this
Court’s opinion in Andrews III whether this Court reject-
ed, as a legal matter, the notion that an implicitly raised
claim for TDIU could also be implicitly denied . . . .”
Resp’t-Appellee Br. 23. To clarify, we did not, and do not,
adopt the sweeping rule suggested by the government’s
statement. An implicitly raised claim can be implicitly
denied by government action. However, implicit denial,
as a legal matter, requires knowledge of the claim, adjudi-
cation of the claim, and notice to the veteran of the adju-
dication of the claim. The government cannot, as a legal
matter, argue that there was no claim in need of adjudica-
tion, but if there had been, then it was implicitly denied.
ANDREWS v. MCDONALD 9
Failure to adjudicate cannot be shielded by claims of
implicit denial. As we explained in Adams v. Shinseki,
568 F.3d 956 (Fed. Cir. 2009), one of the first cases to
consider the concept of implicit denial, whether a claim
was implicitly denied by a VA decision comes down to
whether that decision “provided sufficient information for
a reasonable claimant to know that he would not be
awarded benefits for his asserted disability.” 568 F.3d at
963. “The implicit denial rule is, at bottom, a notice
provision.” Id. at 965. The statute, 38 U.S.C. § 5104,
requires:
(a) In the case of a decision by the Secretary un-
der section 511 of this title affecting the provision
of benefits to a claimant, the Secretary shall, on a
timely basis, provide to the claimant (and to the
claimant’s representative) notice of such decision.
The notice shall include an explanation of the pro-
cedure for obtaining review of the decision.
(b) In any case where the Secretary denies a bene-
fit sought, the notice required by subsection (a)
shall also include (1) a statement of the reasons
for the decision, and (2) a summary of the evi-
dence considered by the Secretary.
Thus, the statute requires that if the Secretary denies a
benefit sought, there must be notice including a state-
ment of the reasons for the decision and a summary of the
evidence considered by the Secretary. Id. In Adams, we
explained: “The ‘implicit denial’ rule provides that, in
certain circumstances, a claim for benefits will be deemed
to have been denied, and thus finally adjudicated, even if
the [VA] did not expressly address that claim in its deci-
sion.” 568 F.3d at 961. The implicit denial rule applies
“to cases in which the [VA’s] decision is clear but not
expressed, [and] it reflects an appropriate balance be-
tween the interest in finality and the need to provide
notice to veterans when their claims have been decided.”
10 ANDREWS v. MCDONALD
Id. at 963. As the Veterans Court explained in its deci-
sion in Ingram v. Nicholson, 21 Vet. App. 232 (2007), a
claim is deemed denied when the regional office decision
“discusses a claim in terms sufficient to put the claimant
on notice that it was being considered and rejected, then
it constitutes a denial of that claim even if the formal
adjudicative language does not ‘specifically’ deny that
claim.” 21 Vet. App. at 255. The decision has to provide
some notice to the veteran that his claim was adjudicated
and denied. There are no magic words required and each
case will depend upon the facts presented. In Adams, we
noted that while the decision at issue only addressed
Mr. Adams’ formal claim, “the decision alluded to the
underlying claims in a manner that put Mr. Adams on
notice that his informal claim . . . was also denied.”
Adams, 568 F.3d at 963. And while the Board’s decision
in Adams never expressly addressed Mr. Adams’ informal
claim for bacterial endocarditis, the Board found that the
record did not establish “active rheumatic fever or other
active cardiac pathology.” Id. The Veterans Court in
Adams held that in those circumstances, the Board’s
decision “reasonably informed the appellant that a claim
for any heart condition, including endocarditis, was de-
nied.” Id. (emphasis added). Similarly in Deshotel v.
Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the regional
office noted when it granted service connection for a head
injury that there was no evidence of a psychiatric symp-
tomology. Adams, 568 F.3d at 963. There was no similar
statement by the RO or Board in their decisions which
indicated that Mr. Andrews’ employability had been
considered. Implicit denial simply cannot be stretched to
include a circumstance when the adjudicator believed that
there was no claim in need of adjudication or no evidence
in the decision gave notice to the veteran that the adjudi-
cator was considering and adjudicating the claim.
Implicit denial requires adjudication. It does not
shield the government from failure to adjudicate. And
ANDREWS v. MCDONALD 11
Mr. Andrews has established that the agency clearly and
unmistakably erred in failing to recognize and failing to
adjudicate his 1983 TDIU claim. There is no discussion of
Mr. Andrews’ claim for TDIU in the ratings decisions in
1983 or 1985. 1983 Rating Decision; 1985 Rating Deci-
sion. And in fact, these decisions expressly acknowledge
the extensiveness of the Veteran’s unemployability due to
his PTSD. 1983 Rating Decision (“The report of the VA
examination conducted 6/14/83 states the veteran has
been unemployed for approximately four years.”); 1985
Rating Decision (“Outpatient treatment reports show . . .
[t]he veteran has flashbacks from Viet Nam. Report 10-3-
84 relates that the veteran rages and fears hurting some-
one. The veteran has blackouts and has hurt people and
has mood swings. [H]e relates having had 40 jobs since
Viet Nam. Recently when he tore up a van, he was
screaming in Vietnamese. . . . Cited VA examination,
again relates that the veteran has been unable to work at
all for the last four years.”). 3 There is nothing in those
3 On the 1983 Rating Decision, box number 14, em-
ployability, the RO checked the box for “employable or not
an issue.” Since there was absolutely no evidence that
Mr. Andrews was employable at that time, and in fact he
had been unemployed for the preceding four years and
undergoing extensive treatment for what the VA found to
be “chronic” PTSD from his combat related service, the
record can only support the conclusion that the RO
checked the box because it determined that employability
was “not an issue.” This is consistent with Board findings
and government arguments made throughout these
proceedings that no TDIU claim was implicitly raised by
Mr. Andrews in 1983, thus employability was “not an
issue.” In fact, the government has not argued that
Mr. Andrews was employable in 1983 or that the record
could support a finding that he was employable. Moreo-
12 ANDREWS v. MCDONALD
decisions which could have conveyed to Mr. Andrews that
the government acknowledged, much less had adjudicat-
ed, his TDIU claim. And this is not surprising given that
it was the government’s position that there was no TDIU
claim filed that required any adjudication. The govern-
ment argues that the VA’s award of a 10% rating for
PTSD in 1983 and a 30% rating for PTSD in 1985 neces-
sarily means a denial of any greater rating. To the extent
that the government is arguing that a decision awarding
a particular percentage for a particular disability neces-
sarily provides the veteran with the required notice that
all other benefits sought are deemed denied, we cannot
adopt such a sweeping rule. To have implicitly denied a
claim, the government must have recognized and adjudi-
cated the claim and provided notice to the veteran of the
adjudication. If, as here, the government did not recog-
nize a claim, it cannot have implicitly denied the claim.
We note that in Williams v. Peake, 521 F.3d 1348(Fed. Cir. 2008), we held that “subsequent final adjudica-
tion of a claim which is identical to a pending claim that
had not been finally adjudicated terminates the pending
status of the earlier claim.” 521 F.3d at 1351. As we
explained, “the later disposition, denying the claim on its
merits, also decides that the earlier identical claim must
fail.” Id. The later decision gives notice of refusal to
grant an earlier effective date for the same claim. Id. In
this case, however, when the VA did finally adjudicate
Mr. Andrews’ TDIU claim, it determined that he was
entitled to a 100% disability rating for unemployability.
1994 Rating Decision, Joint Appendix at 21–23, Andrews
III, No. 13-7065, ECF No. 26. Thus, in this case, the VA’s
later determination of entitlement cannot save its earlier
failure to adjudicate. We note here again as we did in the
ver, in the 1985 Rating Decision, box 14 was left com-
pletely blank.
ANDREWS v. MCDONALD 13
last remand order that the 1994 Rating Decision granting
Mr. Andrews 100% disability for TDIU effective from
1991 explains that he had not worked for the previous
year and worked only twenty hours per week at his self-
employed lawn service for the four years preceding that
date. 1994 Rating Decision. The 1983 Rating Decision
discussed a medical opinion that Mr. Andrews’ PTSD
rendered him “unemployed if not unemployable.” 1983
Rating Decision (citing Croft Medical Opinion). The VA’s
June 1983 medical report also noted that “[his] work
history since leaving the service has been quite sporadic,
and he has been unemployed for the past four years.”
Joint Appendix at 16, Andrews III, No. 13-7065, ECF
No. 26. The 1985 Rating Decision notes the same. The
evidence of record is not in dispute.
CONCLUSION
Mr. Andrews raised a TDIU claim in his 1983 filing
and as we held in Andrews III, that claim was not adjudi-
cated by the government. Mr. Andrews has thus estab-
lished his CUE claim. Consequently, this case must be
remanded to the Veterans Court, which is ordered to
remand the case to the Board for adjudication of this
unresolved claim for TDIU.
VACATED AND REMANDED WITH
INSTRUCTIONS
COSTS
Costs to Mr. Andrews.