Harper v. Wilkie, 30 Vet.App. 356 (Dec. 6, 2018)
HELD: Entitlement to TDIU is “part and parcel of the underlying … claim” and a “grant of TDIU did not bifurcate the appeal but rather served as a partial grant.” Once the issue of a higher rating is in appellate status and the claimant is “not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU remain[s] on appeal” and the Board has jurisdiction over it.
SUMMARY: The veteran was granted service connection for PTSD, rated 50%. 30 Vet.App. at 357. He appealed for a higher rating and submitted a TDIU application during the pendency of that appeal. Id. at 358. The RO denied TDIU, and Mr. Harper did not appeal that decision. Id.
In December 2015, the RO granted a 70% rating, but no higher. Id. Mr. Harper submitted another application for TDIU in February 2016. Id. The RO then granted TDIU effective February 2016. Id. The veteran appealed to the Board for a higher rating prior to December 2015, and the Board declined to address the effective date for TDIU because he had not appealed the decision that granted TDIU. Id.
This is appeal was sent to a panel for the Court to address whether the RO’s grant of TDIU bifurcated that issue from the appeal for a higher rating, thus requiring the veteran to file a new Notice of Disagreement to appeal the effective date for TDIU.
The Court held that Mr. Harper did not have to appeal the TDIU decision while the appeal for a higher rating for PTSD was pending “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 359. The Court stated that “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.” Id. The Court stated that the “appeal for a higher disability rating was sufficient, when coupled with evidence of unemployability, to raise the issue of entitlement to TDIU for the entire appeal period” because “the issue of entitlement to TDIU … became part and parcel of the appeal for a higher initial disability rating for PTSD, and … the RO’s grant of TDIU did not bifurcate the appeal but rather served as a partial grant.” Id. at 361. The Court further explained:
Mr. Harper’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 for the period prior to February 2016 remained on appeal, and the Board had jurisdiction to consider that matter.
Id. at 362. The Court reversed the Board’s decision and directed the Board to consider entitlement to TDIU prior to February 2016.
The Court also found that the Board failed to adequately explain its rejection of evidence that it mentioned in its recitation of the facts, but did not address in the analysis portion of the decision. The Court also found that the Board overlooked potentially relevant evidence of occupational impairment, and remanded for the Board to correct its reasons-or-bases errors that had been noted in a prior remand.