Pederson: The impact of abandonment on CUE and a discussion of TDIU

Pederson v. McDonald, Opinion Number 13-1853, decided February 13, 2015 concerns two issues: the impact of an abandoned issue and TDIU.

The impact of an abandoned issue has previously been addressed by the Court in Cacciola v. Gibson, 27 Vet. App. 45 (2014).  The court has previously determined that when an issue is abandoned and not decided on its merits, it is subject to a collateral attack based on CUE at a later time.  Pederson appears to have been meant to clarify Cacciola.  The Court stated when a notice of appeal from a Board decision places all issues finally decided by the Board before the Court notwithstanding whether the NOA itself or the subsequent briefs narrow the issues on appeal.  The Court notes that generally abandoned issues are not decided on the merits, but that the Court nonetheless has the authority to decide abandoned issues on the merits.  The practical impact is a Court decision must be examined during a subsequent CUE challenge to determine not simply whether the issue was abandoned, but whether the issue was reviewed by the Court on its merits. 

Judges Lance and Hagel would have more severely restricted CUE challenges noting an obligation to raise all arguments to avoid piecemeal litigation.

Pederson also concerned a claim for TDIU.  The veteran argued the Board gave inadequate reasons and bases for considering his occupational and education experience in determining whether his service connected disabilities precluded substantial gainful employment.  The Court agrees that educational and occupational history must be considered by the Board, but found the reasons and bases were sufficient.  The Court seems to take a narrow view on whether the veteran could actually perform sedentary work and not whether such a job actually exists.  This point was severely attacked by Judge Schoelen’s dissent.  Schoelen noted that being physically able to perform a task does not mean that a veteran is educationally or vocationally qualified to perform such employment.  Judge Greenberg also dissented in reference to TDIU feeling the Board deferred to the medical examiner rather than making their own determination.  Judge Pietsch also found the Board did not provide adequate reasons and bases related to TDIU but found no prejudice.

This was an en banc decision with multiple concurring and dissenting opinions.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://thomasandrewslaw.com/