Tyrues: The Aftermath of Henderson or Timely Appeal of a Bifurcated Claim

Larry G. Tyrues v. Eric K. Shinseki, Opinion Number 04-584, decided August 23, 2012 involves a case in the line of Henderson (stating the 120 days to file the NOA is not jurisdictional but procedural).  This was a full panel decision (but without the new judges Bartley or Pietsch).

The veteran here had a claim for a lung disorder.  A1998 Board decision remanded a portion of the claim under a theory of Persian Gulf Syndrome but denied based on a direct theory of service connection.  The veteran allowed the remand to play out without immediately appealing the direct basis denial.  The Board, CAVC, and Federal Circuit all found the Board decision was final and the veteran did not file his NOA within 120 days.  However, the Supreme Court vacated and remanded in light of Henderson (stating the 120 days NOA time is procedural rather than jurisdictional).

The Federal Circuit remanded for consideration whether the non-jurisdictional nature of the 120 day NOA requirement should lead to a different result. 

The CAVC noted while the 120 day is not jurisdictional, it is still an important procedural rule.  It then recognized equitable tolling but found the veteran here did not argue for equitable tolling.  Instead, the veteran argued the VA incorrectly split his single claim for service connection of a lung disorder into two claims based on differing theories of etiology.  The Court rejected this argument saying “a veteran’s claims may be treated as separable on appeal” and stating the law permits “adjudication of issues as they become ripe”.  Id. at *3. 

Judges Lance and Schoelen signed an impassioned dissent which rejected the notion of splitting a single claim especially in claims involving pro se veterans.  Specifically, “it is entirely possible for a claimant to diligently contest his or her claim only to discover that he or she has forfeited part of it because it was not obvious to a lay person that a Board decision must be appealed immediately when part of a claim has been remanded for further consideration.”  Id. at *4.  The dissent notes this is not a situation where one claim is denied and another remanded but about the finality of a single claim that the Board bifurcates based on different theories.  Id.  They also noted “all theories of entitlement to benefits for a particular condition are part of the same claim”.  Id. at *5. 

The decision highlights an increasing occurrence where the VA bifurcates a claim based on the theory of liability.  While a lay person might see a remand as a victory, it could be the creation of a procedural trap that leads the layperson to allow his time to appeal to pass by.