Effective Date for a bifurcated issue?

Locklear: What is the Effective Date if VA Never Makes a Decision?

Edison B. Locklear v. Eric K. Shinseki, Opinion Number 09-2675, decided February 11, 2011 involves determination of an effective date when the BVA had previously remanded for a determination of TDIU but such determination was never made.

The veteran was seeking service connection for a mental disability and was ultimately granted service connection and a 100% rating after having to reopening his claim numerous times. Here, the BVA had previously remanded for a determination of TDIU because a statement of the case had never been issued for that issue. Numerous claims denied a higher rating for schizophrenia without ever addressing the issue of TDIU.

The veteran appealed alleging the VA had never made a determination on the issue and the Court remanded.

The VA argued that the issue of TDIU was implicitly denied and noted the ability to work is part of the mental health rating criteria. The court acknowledged that generally “The award of a disability rating less than 100% generally provides notice as to how the Secretary has rated a claimant’s condition and serves as a final decision, if unappealed, with regard to entitlement to any higher disability rating associated with the underlying disability, including TDIU.” Id. at *6. However, the Court said “This general rule, however, is not for application when the Secretary explicitly separates the adjudication of one disability rating or benefit from another. This is because, upon seeing a claim broken out for separate adjudication, a reasonable person would expect to see a specific decision on the part that was separated, or at lest some specific indication that the separated part was adjudicated.” Id. at *6. The Court found the veteran never had notice that the TDIU claim was implicitly denied.

The Court noted the rating schedule for mental disabilities takes into account occupational functioning, however, “the criteria for entitlement to TDIU benefits differs from schedular rating entitlement … and the Board should evaluate entitlement to TDIU in the first instance.” Id. at *9.

While the case has limited application to situations where TDIU was bifurcated it could apply to other issues that were bifurcated and reiterates that the theory of an implicitly denied claim has limitations and can successfully attacked.

Decided by CJ Kasold, and Judges Hagel and Moorman.