Case: 20-1178 Document: 41 Page: 1 Filed: 07/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDWARD L. BRYCE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1178
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2783, Judge Coral Wong Pi-
etsch.
______________________
Decided: July 7, 2021
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, for claimant-appellant.
JOHN MCADAMS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, MARTIN F. HOCKEY, JR., ROBERT
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK
Case: 20-1178 Document: 41 Page: 2 Filed: 07/07/2021
2 BRYCE v.MCDONOUGH
SCADDEN, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Before DYK, CLEVENGER, and PROST *, Circuit Judges.
PROST, Circuit Judge.
Edward L. Bryce appeals a decision of the U.S. Court
of Appeals for Veterans Claims (“Veterans Court”) affirm-
ing a Board of Veterans’ Appeals (“Board”) decision deny-
ing him an earlier effective date for his total disability
based on individual unemployability (“TDIU”). We affirm.
BACKGROUND
Mr. Bryce served on active duty in the U.S. Marine
Corps from April 1961 to January 1965. In 1971, he filed a
formal claim for compensation for back pain resulting from
an injury he sustained while on active duty. The Depart-
ment of Veterans Affairs (“VA”) granted him service con-
nection for chronic low back strain associated with scoliosis
and assigned him a 20% disability rating effective
March 17, 1971.
On November 18, 1976, Mr. Bryce filed a claim for an
increased rating for his service-connected back disability
and sought reevaluation of his back. Mr. Bryce’s claim also
stated that he had been unable to work since reinjuring his
back in February 1973 and that he “ha[d] other evidence to
support [his] case.” J.A. 29–31. On December 3, 1976, the
VA mailed Mr. Bryce a letter stating that “[r]eevaluation
of your service-connected disability will be considered as
soon as additional medical evidence is submitted in support
of your claim.” J.A. 32. Mr. Bryce did not submit addi-
tional evidence or otherwise respond.
* Circuit Judge Sharon Prost vacated the position of
Chief Judge on May 21, 2021.
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BRYCE v. MCDONOUGH 3
More than twenty years later, in May 1997, Mr. Bryce
submitted a claim for an increase in his back-disability rat-
ing. The VA denied this claim in December 1997, continu-
ing his 20% rating. In September 2001, Mr. Bryce
submitted another claim for an increase in his back-disa-
bility rating. The VA increased his back-disability rating
from 20% to 40% with an effective date of September 13,
2001.
On May 12, 2006, Mr. Bryce filed another claim for an
increase in his back-disability rating. In October 2006, alt-
hough the VA continued Mr. Bryce’s 40% back-disability
rating, it granted a 30% disability rating for a mood disor-
der, a 10% disability rating for peripheral neuropathy in
the right lower extremity, and a 10% disability rating for
peripheral neuropathy in the left lower extremity. As a re-
sult, Mr. Bryce’s combined disability rating was 70%. 1
In November 2006, Mr. Bryce filed a claim for TDIU,
citing his back disability as preventing him from securing
or following any substantially gainful occupation. The VA
denied the claim. Mr. Bryce filed a notice of disagreement
with that decision and, in November 2010, he was granted
TDIU with an effective date of May 12, 2006—the date he
met so-called schedular requirements for TDIU (i.e., mul-
tiple disabilities with a combined rating of 70% or more, at
least one of which is rated 40% or more). See 38 C.F.R.
§ 4.16(a). Mr. Bryce did not file a notice of disagreement
with that November 2010 decision, and it therefore became
final. See 38 U.S.C. § 7105(c).
On November 7, 2012, Mr. Bryce (through counsel)
sent the VA a letter styled as a “formal demand for the
1 Disability ratings are not additive and are calcu-
lated using the VA’s combined ratings table. 38 C.F.R.
§ 4.25. Therefore, Mr. Bryce’s combined rating is less than
the sum of his individual disability ratings.
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4 BRYCE v.MCDONOUGH
adjudication of [a] pending informal claim for an extra-
schedular [TDIU] rating submitted by Mr. Bryce on No-
vember 18, 1976.” J.A. 85. The letter stated that, on that
date, Mr. Bryce “in writing communicated to the VA his be-
lief in his entitlement to an extra-schedular [TDIU] rating”
by “specifically indicat[ing] that he had been unable to
work a job” since February 1973. J.A. 85. In Mr. Bryce’s
view, this informal claim remained pending, and he there-
fore “demand[ed] that the VA adjudicate” it. J.A. 85. On
October 10, 2013, the VA denied Mr. Bryce an earlier effec-
tive date for his TDIU.
Mr. Bryce appealed to the Board. The Board found that
Mr. Bryce’s November 1976 informal TDIU claim was
abandoned because he failed to respond to the VA’s Decem-
ber 1976 follow-up letter. The Board also determined that
Mr. Bryce was not otherwise entitled to an earlier effective
date for his TDIU. It reasoned that because Mr. Bryce did
not appeal the November 2010 decision—which granted
TDIU with an effective date of May 12, 2006—that deci-
sion, along with its effective-date determination, became fi-
nal. And, because Mr. Bryce did not allege any clear and
unmistakable error in that decision, there was no basis to
upset the finality of that effective-date determination.
Mr. Bryce appealed to the Veterans Court. The Veter-
ans Court assumed for argument’s sake that Mr. Bryce’s
November 1976 informal TDIU claim was not abandoned
but nonetheless determined that the claim was no longer
pending. Applying precedent from both the Veterans Court
and this court, it concluded that “Mr. Bryce’s pending and
unadjudicated claim for TDIU benefits was extinguished
when [the] VA adjudicated TDIU in November 2010.”
Bryce v. Wilkie, No. 17-2783,
2019 WL 2509025, at *3 (Vet.
App. June 18, 2019). “Because [the November 2010] deci-
sion adjudicated TDIU, it terminated any prior pending
claim for TDIU benefits.”
Id. (first citing Williams v. Peake,
521 F.3d 1348, 1351 (Fed. Cir. 2008); and then citing In-
gram v. Nicholson,
21 Vet. App. 232, 243 (2007)). And
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BRYCE v. MCDONOUGH 5
because Mr. Bryce did not appeal the November 2010 deci-
sion, that decision became final. Accordingly, absent some
exception to finality (which Mr. Bryce did not supply),
there was no basis for assigning an earlier effective date
for his TDIU. See
id. at *3–4.
After the Veterans Court denied Mr. Bryce’s motion for
reconsideration, he timely appealed to this court.
DISCUSSION
We have limited jurisdiction to review decisions of the
Veterans Court. Except to the extent that an appeal pre-
sents a constitutional issue, we may not review “a chal-
lenge to a factual determination” or “a challenge to a law
or regulation as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2). We may, however, decide “all rele-
vant questions of law,” id. § 7292(d)(1), and we have exclu-
sive 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 deci-
sion,” id. § 7292(c). We review the Veterans Court’s legal
determinations de novo. Beraud v. McDonald,
766 F.3d
1402, 1405 (Fed. Cir. 2014).
The VA regulation governing TDIU states:
(a) Total disability ratings for compensation may
be assigned, where the schedular rating is less
than total, when the disabled person is, in the judg-
ment of the rating agency, unable to secure or fol-
low a substantially gainful occupation as a result of
service-connected disabilities: Provided that, if
there is only one such disability, this disability
shall be ratable at 60 percent or more, and that, if
there are two or more disabilities, there shall be at
least one disability ratable at 40 percent or more,
and sufficient additional disability to bring the
combined rating to 70 percent or more. . . .
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6 BRYCE v.MCDONOUGH
(b) It is the established policy of the [VA] that all
veterans who are unable to secure and follow a sub-
stantially gainful occupation by reason of service-
connected disabilities shall be rated totally disa-
bled. Therefore, rating boards should submit to the
Director, Compensation Service, for extra-schedu-
lar consideration all cases of veterans who are un-
employable by reason of service-connected
disabilities, but who fail to meet the percentage
standards set forth in [subsection] (a) of this sec-
tion. The rating board will include a full statement
as to the veteran’s service-connected disabilities,
employment history, educational and vocational at-
tainment and all other factors having a bearing on
the issue.
38 C.F.R. § 4.16. As reflected above, subsections (a) and (b)
each provide a path to TDIU. Subsection (a)—referred to
as governing “schedular” TDIU—conditions TDIU on a
claimant’s having certain disability ratings. Subsec-
tion (b)—referred to as governing “extra-schedular”
TDIU—allows for TDIU under certain circumstances even
if the claimant does not have the disability ratings speci-
fied in subsection (a).
Mr. Bryce argues that the Veterans Court legally erred
in concluding that the VA’s 2010 final adjudication of his
November 2006 TDIU claim terminated his pending No-
vember 1976 informal TDIU claim. 2 According to
Mr. Bryce, his November 1976 informal claim was made
under § 4.16(b) because at that time he had not met the
“schedular” requirements of § 4.16(a). And he maintains
2 Like the Veterans Court, we assume for argu-
ment’s sake that Mr. Bryce’s November 1976 informal
TDIU claim remained pending, even though the Board
found it was abandoned. See Bryce,
2019 WL 2509025,
at *3.
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BRYCE v. MCDONOUGH 7
that the two subsections of § 4.16 provide for two separate
types of claims, such that the 2010 TDIU grant on the
“schedular” basis of subsection (a) did not terminate his
claim for entitlement on the “extra-schedular” basis of sub-
section (b).
We agree with the Veterans Court, however, that the
VA’s 2010 final adjudication of Mr. Bryce’s November 2006
TDIU claim terminated his pending November 1976 infor-
mal TDIU claim. The Veterans Court reached this result
by relying on Williams v. Peake,
521 F.3d 1348 (Fed. Cir.
2008). In Williams, we held that “a subsequent final adju-
dication of a claim which is identical to a pending claim
that had not been finally adjudicated terminates the pend-
ing status of the earlier claim.”
Id. at 1351. “The later
disposition, denying the claim on its merits, also decides
that the earlier identical claim must fail.” 3
Id. This im-
plicit-denial rule “reflects an appropriate balance between
the interest in finality and the need to provide notice to
veterans when their claims have been decided.” Adams v.
Shinseki,
568 F.3d 956, 963 (Fed. Cir. 2009).
The circumstances here fit within the implicit-denial
rule articulated in Williams. A claim for TDIU is a claim
for a 100% disability rating due to unemployability. See
Comer v. Peake,
552 F.3d 1362, 1366–67 (Fed. Cir. 2009);
Rice v. Shinseki,
22 Vet. App. 447, 451–53 (2009) (observ-
ing that the benefit sought is “a disability rating of 100%”
and that an assertion of entitlement to TDIU based on an
existing service-connected disability “is best analyzed as a
3 Although Williams involved termination of an ear-
lier pending claim by a subsequent denial of a sufficiently
related claim, a subsequent grant (such as that here) can
have the same effect. See Deshotel v. Nicholson,
457 F.3d
1258, 1261 (Fed. Cir. 2006) (referencing “favorabl[e] or un-
favorabl[e]” decisions); see also Jones v. Shinseki,
619 F.3d
1368, 1372 (Fed. Cir. 2010).
Case: 20-1178 Document: 41 Page: 8 Filed: 07/07/2021
8 BRYCE v.MCDONOUGH
claim for an increased disability rating based on unemploy-
ability”). Mr. Bryce concedes that what is sought under
§ 4.16(a) and (b) is the same—namely, a 100% disability
rating due to unemployability. See Reply Br. 9. When the
VA finally adjudicated Mr. Bryce’s November 2006 TDIU
claim in 2010, granting him TDIU effective May 12, 2006,
it implicitly denied Mr. Bryce’s earlier, pending claim for
that same benefit. See, e.g., Charles v. Shinseki,
587 F.3d
1318, 1323 (Fed. Cir. 2009) (“[W]hen the substance of a
later-filed claim is addressed in [a VA regional office
(“RO”)] decision, the claimant can infer that the earlier-
filed claim based on the same disability has also been ad-
judicated.”).
Resisting this conclusion, Mr. Bryce relies heavily on
the different adjudicators involved as between § 4.16(a)
and (b). In particular, Mr. Bryce argues that § 4.16(a)
and (b) provide for “separate and distinct TDIU claim[s]”
because, unlike § 4.16(a), in which an RO might award
TDIU in the first instance, under § 4.16(b) the Director,
Compensation Service adjudicates the claim. But even if
we assumed that this difference mattered for implicit-de-
nial purposes here, Mr. Bryce glosses over the fact that un-
der § 4.16(b) the RO decides whether a claim warrants
referral to the Director in the first place. See Thun v.
Shinseki,
572 F.3d 1366, 1370 (Fed. Cir. 2009). We see no
reason why the VA’s providing two paths to the same TDIU
benefit—both running through an RO—should produce a
different result under Williams here, or why the later ad-
judication of TDIU would fail to give sufficient notice that
Mr. Bryce’s earlier, pending claim for that same benefit
was denied.
CONCLUSION
We have considered the parties’ remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
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BRYCE v. MCDONOUGH 9
COSTS
No costs.
