Harper: What Happens When TDIU Is Decided While the Underlying Claim is on Appeal to the Board

Harper v. Wilkie, Case Number 16-3519, decided December 6, 2018 considers what happens when TDIU was granted by the RO while waiting on an appeal to the Board on the underlying PTSD rating.  The veteran disagreed with the effective date but the Board stated it did not have jurisdiction as to the effective date because the veteran had not filed a separate NOD as to that issue.

The veteran argued “that the Board erred in concluding that the issue of entitlement to TDIU prior to February 2016 was not on appeal. Specifically, Mr. Harper asserts that, pursuant to Rice v. Shinseki, 22 Vet.App. 447 (2009), the issue of entitlement to TDIU

became "part and parcel" of his appeal for a higher initial disability rating for PTSD

in February 2014 when he explicitly raised the issue while his appeal was pending. Id. at 15. He asserts that, although "entitlement to TDIU for the period after February 2016 became moot as a result of the RO's decision, the issue of entitlement to TDIU prior to that date remained on appeal.”  Id. at *3. 

The Secretary countered by arguing the veteran did not appeal the May 2016 RO decision granting TDIU which also set the effective date for the TDIU award and thus the Board and Court lacked jurisdiction to consider the effective date.  Id. at *3. 

The Court held: “the Board erred in determining that it did not have jurisdiction over the issue of entitlement to TDIU before February 2016. Contrary to the Secretary's assertion, Mr. Harper did not need to appeal the May 2016 RO decision because the issue of entitlement to TDIU became part and parcel of the underlying PTSD claim and the RO's grant of TDIU served only as a partial grant of his request for TDIU.”  Id. at *4. 

The Court principally relied on Rice v. Shinseki, 22 Vet.App. 447 (2009) an dan unpublished decision by the Federal Circuit— Palmatier v. McDonald, 626 F. App'x 991, 994 (Fed. Cir. 2015)— in its analysis. It explained because of Rice, once Mr. Harper’s PTSD claim was in appellate status by virtue of the December 2008 NOD, the issue of TDIU became part of the underlying PTSD claim when he filed an application for TDIU in February 2014.  Thus, the Board had jurisdiction to consider the issue of the effective date.  The Court explained the grant of TDIU by the RO as only a partial grant of benefits.

The Court also dealt with a  reasons and bases argument regarding the scheduler PTSD rating and found as to at least one issue that simply listing as evidence without addressing it in its analysis does not satisfy the duty to provide an adequate reasons or bases.  Id. at *8 (“The Board cannot satisfy its duty to provide adequate reasons or bases by merely listing evidence and then reaching a conclusion.”)

This is a helpful decision to veterans as it is not unusual for TDIU to be granted at one stage while an appeal to the Board already exists.  It reinforces the notion that “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or . . . as part of a claim for increased compensation.”  Id. at *4 (quoting Rice).  The case also reminds us that the VA is forever finding effective dates that are harmful to veterans and often the only way to fight them is to go to the Court.

The decision was written by Chief Judge Davis and joined in by Judges Meredith and Toth.  This itself is instructive as these are by no means the most pro-veteran judges on the Court, the fact these judges ruled so forcefully suggests the Court is concerned about the VA’s treatment of TDIU claims.

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