Payne: Informal Claims for SMC(k), Bifurcation of a TDIU Claim, and More

Payne v. Wilkie, Case Number 17-3439, decided August 9, 2019 affirmed and remanded in part a Board decision that discussed several issues.  It remanded as related to whether a formal claim had to be filed for a SMC(k) and whether a claim for TDIU was before the Board.

SMC(k) Claim

The Board stated it did not have jurisdiction over entitlement to SMC(k)(erectile dysfunction) arguing both a requirement to file a formal claim and that a multi-link causal chain (as found here) prevented entitlement to SMC(k).  The Court disagreed and explained:

In sum, the Court holds that the plain text of section 1114(k) does not limit potential entitlement to SMC(k) to veterans with certain service-connected disabilities or preclude a theory of entitlement based on a multi-link causal chain between the service-connected disability and the anatomical loss or loss of use of one or more creative organs; and that ends the matter. See Procopio v. Wilkie, 913 F.3d 1371, 1375 (Fed. Cir. 2019).  Accordingly, the Court is not persuaded by the Secretary's argument that the appellant's expressly raised theory of causation—that the upper extremity disabilities "materially contributed to his development of conditions, such as obesity and [service-connected] cardiovascular disease, associated with [ED]"—was, essentially, too tenuous for the issue of entitlement to SMC(k) to be before the Board as a potentially ancillary benefit to the upper extremity claims on appeal.

Id. at *10.

The Court also considered whether a post-2014 version of 38 CFR Section 3.155, which required all claims for VA benefits be filed on a standardized form thus ending the practice of allowing informal claims for benefits, applied to this set of facts.  The Court concluded:

In sum, because the plain text of § 3.155(d)(2) does not require that a claimant file a formal claim to assert entitlement to SMC(k) and, as previously discussed, the plain text of section 1114 does not preclude the appellant's causal theory of entitlement to SMC(k) as a potentially ancillary benefit to his service-connected upper extremity claims, the Board erred when it declined to adjudicate the explicitly raised issue of entitlement to SMC(k).

Id. at *12.

TDIU Effective Date

The VA had granted TDIU with an effective date of March 2005, which was the date of an application for TDIU.  The Secretary maintained the issue was not before the Board because the VA bifurcated the issue in an April 2005 decision which was not appealed.  The Court noted: “the Court in Rice explained that ‘a request for TDIU . . . is not a separate claim’ and that, ‘[w]hen entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.’”  Id. at *14.  The Court also turned to Harper v. Wilkie,30 Vet. App. 356, 359 (2018), which discusses bifurcation.  The Court explained:

The Secretary's argument—that the April 2005 RO decision served to bifurcate the issue of TDIU from the appellant's claim for benefits for the upper extremity disabilities, thereby removing it from appellate status and requiring the appellant to file an NOD as to that decision—is controlled by the Court's recent decision in Harper.  In Harper, the Court held that, where the issue of TDIU was part and parcel of the appellant's appeal for a higher initial disability rating for his underlying mental condition, the award of TDIU for a portion of the appeal period "'did not serve to bifurcate the appeal, but instead served simply to partially grant [Mr. Harper's] request for TDIU.'" 30 Vet.App. at 360-61 (quoting Palmatier v. McDonald, 626 F. App'x 991, 995 (Fed. Cir. 2015)). The Court reasoned that the appellant's "NOD placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to the effective date of the partial grant] remained on appeal." Id. at 362. Similarly, in this case, the RO's award of TDIU effective from March 2005 served as a partial grant of benefits and did not bifurcate the issue of TDIU from the appeal of the initial disability rating for the upper extremity disabilities. Thus, consistent with Harper, here, the Board had jurisdiction to consider the issue of TDIU prior to March 2005, which remained in appellate status.

Id. at *14.

The Court noted the VA had tried to argue that Harper concerned a partial grant of TDIU occuring after the Board adjudicated the underlying claims whereas here the partial grant of TDIU occurred before the Board adjudicated the first appeal of the underlying claims.  But, the Court found the distinction did not make a meaningful difference.

Other Issues

The veteran also argued the Board erred in not ordering a new examination in light of muscle wasting.  The Court acknowledged that the duty to assist might require a new examination but that such a duty is triggered when the appellant comes forward with some evidence that there has been a material change in the disability since the last examination.  Id. at *16.  It noted neither a bald assertion of change or the mere passage of time is sufficient.  Id.  The Court denied the error and seemed to rely substantially on the fact that the currently assigned rating contemplated muscle atrophy.

The veteran also attempted an argument that problems in this legs might justify a higher arm rating that was rejected by the Court and the Court also rejected the reasons and bases argument related to extraschedular consideration based on a Thun step two analysis (or lack of argument as to Thun, step two).

Some important takeaways from this case:  First, an a multi-link causal connection is possible if properly argued and supported.  Second, amended Section 3.155 does not require a formal claim for ancillary benefits.  Third, TDIU is an inferred claim and as such likely to survive a bifurcation argument by the VA.

The decision was by Judge Meredith and joined in by Chief Judge Davis and Judge Bartley.

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