Bryce v. McDonough

B
Case: 20-1178   Document: 41     Page: 1   Filed: 07/07/2021




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                 EDWARD L. BRYCE,
                  Claimant-Appellant

                            v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                       2020-1178
                 ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-2783, Judge Coral Wong Pi-
 etsch.
                 ______________________

                  Decided: July 7, 2021
                 ______________________

    KENNETH M. CARPENTER, Law Offices of Carpenter
 Chartered, Topeka, KS, for claimant-appellant.

     JOHN MCADAMS, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent-appellee. Also represented by
 JEFFREY B. CLARK, MARTIN F. HOCKEY, JR., ROBERT
 EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, DEREK
Case: 20-1178     Document: 41     Page: 2    Filed: 07/07/2021




 2                                       BRYCE   v.MCDONOUGH



 SCADDEN, Office of General Counsel, United States Depart-
 ment of Veterans Affairs, Washington, DC.
                  ______________________

     Before DYK, CLEVENGER, and PROST *, Circuit Judges.
 PROST, Circuit Judge.
     Edward L. Bryce appeals a decision of the U.S. Court
 of Appeals for Veterans Claims (“Veterans Court”) affirm-
 ing a Board of Veterans’ Appeals (“Board”) decision deny-
 ing him an earlier effective date for his total disability
 based on individual unemployability (“TDIU”). We affirm.
                         BACKGROUND
     Mr. Bryce served on active duty in the U.S. Marine
 Corps from April 1961 to January 1965. In 1971, he filed a
 formal claim for compensation for back pain resulting from
 an injury he sustained while on active duty. The Depart-
 ment of Veterans Affairs (“VA”) granted him service con-
 nection for chronic low back strain associated with scoliosis
 and assigned him a 20% disability rating effective
 March 17, 1971.
     On November 18, 1976, Mr. Bryce filed a claim for an
 increased rating for his service-connected back disability
 and sought reevaluation of his back. Mr. Bryce’s claim also
 stated that he had been unable to work since reinjuring his
 back in February 1973 and that he “ha[d] other evidence to
 support [his] case.” J.A. 29–31. On December 3, 1976, the
 VA mailed Mr. Bryce a letter stating that “[r]eevaluation
 of your service-connected disability will be considered as
 soon as additional medical evidence is submitted in support
 of your claim.” J.A. 32. Mr. Bryce did not submit addi-
 tional evidence or otherwise respond.



      * Circuit Judge Sharon Prost vacated the position of
 Chief Judge on May 21, 2021.
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 BRYCE   v. MCDONOUGH                                       3



      More than twenty years later, in May 1997, Mr. Bryce
 submitted a claim for an increase in his back-disability rat-
 ing. The VA denied this claim in December 1997, continu-
 ing his 20% rating. In September 2001, Mr. Bryce
 submitted another claim for an increase in his back-disa-
 bility rating. The VA increased his back-disability rating
 from 20% to 40% with an effective date of September 13,
 2001.
     On May 12, 2006, Mr. Bryce filed another claim for an
 increase in his back-disability rating. In October 2006, alt-
 hough the VA continued Mr. Bryce’s 40% back-disability
 rating, it granted a 30% disability rating for a mood disor-
 der, a 10% disability rating for peripheral neuropathy in
 the right lower extremity, and a 10% disability rating for
 peripheral neuropathy in the left lower extremity. As a re-
 sult, Mr. Bryce’s combined disability rating was 70%. 1
      In November 2006, Mr. Bryce filed a claim for TDIU,
 citing his back disability as preventing him from securing
 or following any substantially gainful occupation. The VA
 denied the claim. Mr. Bryce filed a notice of disagreement
 with that decision and, in November 2010, he was granted
 TDIU with an effective date of May 12, 2006—the date he
 met so-called schedular requirements for TDIU (i.e., mul-
 tiple disabilities with a combined rating of 70% or more, at
 least one of which is rated 40% or more). See 38 C.F.R.
 § 4.16(a). Mr. Bryce did not file a notice of disagreement
 with that November 2010 decision, and it therefore became
 final. See 38 U.S.C. § 7105(c).
     On November 7, 2012, Mr. Bryce (through counsel)
 sent the VA a letter styled as a “formal demand for the



     1   Disability ratings are not additive and are calcu-
 lated using the VA’s combined ratings table. 38 C.F.R.
 § 4.25. Therefore, Mr. Bryce’s combined rating is less than
 the sum of his individual disability ratings.
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 4                                        BRYCE   v.MCDONOUGH



 adjudication of [a] pending informal claim for an extra-
 schedular [TDIU] rating submitted by Mr. Bryce on No-
 vember 18, 1976.” J.A. 85. The letter stated that, on that
 date, Mr. Bryce “in writing communicated to the VA his be-
 lief in his entitlement to an extra-schedular [TDIU] rating”
 by “specifically indicat[ing] that he had been unable to
 work a job” since February 1973. J.A. 85. In Mr. Bryce’s
 view, this informal claim remained pending, and he there-
 fore “demand[ed] that the VA adjudicate” it. J.A. 85. On
 October 10, 2013, the VA denied Mr. Bryce an earlier effec-
 tive date for his TDIU.
     Mr. Bryce appealed to the Board. The Board found that
 Mr. Bryce’s November 1976 informal TDIU claim was
 abandoned because he failed to respond to the VA’s Decem-
 ber 1976 follow-up letter. The Board also determined that
 Mr. Bryce was not otherwise entitled to an earlier effective
 date for his TDIU. It reasoned that because Mr. Bryce did
 not appeal the November 2010 decision—which granted
 TDIU with an effective date of May 12, 2006—that deci-
 sion, along with its effective-date determination, became fi-
 nal. And, because Mr. Bryce did not allege any clear and
 unmistakable error in that decision, there was no basis to
 upset the finality of that effective-date determination.
     Mr. Bryce appealed to the Veterans Court. The Veter-
 ans Court assumed for argument’s sake that Mr. Bryce’s
 November 1976 informal TDIU claim was not abandoned
 but nonetheless determined that the claim was no longer
 pending. Applying precedent from both the Veterans Court
 and this court, it concluded that “Mr. Bryce’s pending and
 unadjudicated claim for TDIU benefits was extinguished
 when [the] VA adjudicated TDIU in November 2010.”
 Bryce v. Wilkie, No. 17-2783, 

2019 WL 2509025

, at *3 (Vet.
 App. June 18, 2019). “Because [the November 2010] deci-
 sion adjudicated TDIU, it terminated any prior pending
 claim for TDIU benefits.” 

Id.

 (first citing Williams v. Peake,
 

521 F.3d 1348

, 1351 (Fed. Cir. 2008); and then citing In-
 gram v. Nicholson, 

21 Vet. App. 232

, 243 (2007)). And
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 BRYCE   v. MCDONOUGH                                       5



 because Mr. Bryce did not appeal the November 2010 deci-
 sion, that decision became final. Accordingly, absent some
 exception to finality (which Mr. Bryce did not supply),
 there was no basis for assigning an earlier effective date
 for his TDIU. See 

id. at *3

–4.
     After the Veterans Court denied Mr. Bryce’s motion for
 reconsideration, he timely appealed to this court.
                        DISCUSSION
     We have limited jurisdiction to review decisions of the
 Veterans Court. Except to the extent that an appeal pre-
 sents a constitutional issue, we may not review “a chal-
 lenge to a factual determination” or “a challenge to a law
 or regulation as applied to the facts of a particular case.”
 38 U.S.C. § 7292(d)(2). We may, however, decide “all rele-
 vant questions of law,” id. § 7292(d)(1), and we have exclu-
 sive jurisdiction “to review and decide any challenge to the
 validity of any statute or regulation or any interpretation
 thereof . . . and to interpret constitutional and statutory
 provisions, to the extent presented and necessary to a deci-
 sion,” id. § 7292(c). We review the Veterans Court’s legal
 determinations de novo. Beraud v. McDonald, 

766 F.3d
1402

, 1405 (Fed. Cir. 2014).
    The VA regulation governing TDIU states:
    (a) Total disability ratings for compensation may
    be assigned, where the schedular rating is less
    than total, when the disabled person is, in the judg-
    ment of the rating agency, unable to secure or fol-
    low a substantially gainful occupation as a result of
    service-connected disabilities: Provided that, if
    there is only one such disability, this disability
    shall be ratable at 60 percent or more, and that, if
    there are two or more disabilities, there shall be at
    least one disability ratable at 40 percent or more,
    and sufficient additional disability to bring the
    combined rating to 70 percent or more. . . .
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 6                                       BRYCE   v.MCDONOUGH



     (b) It is the established policy of the [VA] that all
     veterans who are unable to secure and follow a sub-
     stantially gainful occupation by reason of service-
     connected disabilities shall be rated totally disa-
     bled. Therefore, rating boards should submit to the
     Director, Compensation Service, for extra-schedu-
     lar consideration all cases of veterans who are un-
     employable by reason of service-connected
     disabilities, but who fail to meet the percentage
     standards set forth in [subsection] (a) of this sec-
     tion. The rating board will include a full statement
     as to the veteran’s service-connected disabilities,
     employment history, educational and vocational at-
     tainment and all other factors having a bearing on
     the issue.
 38 C.F.R. § 4.16. As reflected above, subsections (a) and (b)
 each provide a path to TDIU. Subsection (a)—referred to
 as governing “schedular” TDIU—conditions TDIU on a
 claimant’s having certain disability ratings. Subsec-
 tion (b)—referred to as governing “extra-schedular”
 TDIU—allows for TDIU under certain circumstances even
 if the claimant does not have the disability ratings speci-
 fied in subsection (a).
     Mr. Bryce argues that the Veterans Court legally erred
 in concluding that the VA’s 2010 final adjudication of his
 November 2006 TDIU claim terminated his pending No-
 vember 1976 informal TDIU claim. 2          According to
 Mr. Bryce, his November 1976 informal claim was made
 under § 4.16(b) because at that time he had not met the
 “schedular” requirements of § 4.16(a). And he maintains


     2   Like the Veterans Court, we assume for argu-
 ment’s sake that Mr. Bryce’s November 1976 informal
 TDIU claim remained pending, even though the Board
 found it was abandoned. See Bryce, 

2019 WL 2509025

,
 at *3.
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 BRYCE   v. MCDONOUGH                                       7



 that the two subsections of § 4.16 provide for two separate
 types of claims, such that the 2010 TDIU grant on the
 “schedular” basis of subsection (a) did not terminate his
 claim for entitlement on the “extra-schedular” basis of sub-
 section (b).
     We agree with the Veterans Court, however, that the
 VA’s 2010 final adjudication of Mr. Bryce’s November 2006
 TDIU claim terminated his pending November 1976 infor-
 mal TDIU claim. The Veterans Court reached this result
 by relying on Williams v. Peake, 

521 F.3d 1348

 (Fed. Cir.
 2008). In Williams, we held that “a subsequent final adju-
 dication of a claim which is identical to a pending claim
 that had not been finally adjudicated terminates the pend-
 ing status of the earlier claim.” 

Id. at 1351

. “The later
 disposition, denying the claim on its merits, also decides
 that the earlier identical claim must fail.” 3 

Id.

 This im-
 plicit-denial rule “reflects an appropriate balance between
 the interest in finality and the need to provide notice to
 veterans when their claims have been decided.” Adams v.
 Shinseki, 

568 F.3d 956

, 963 (Fed. Cir. 2009).
     The circumstances here fit within the implicit-denial
 rule articulated in Williams. A claim for TDIU is a claim
 for a 100% disability rating due to unemployability. See
 Comer v. Peake, 

552 F.3d 1362

, 1366–67 (Fed. Cir. 2009);
 Rice v. Shinseki, 

22 Vet. App. 447

, 451–53 (2009) (observ-
 ing that the benefit sought is “a disability rating of 100%”
 and that an assertion of entitlement to TDIU based on an
 existing service-connected disability “is best analyzed as a


     3   Although Williams involved termination of an ear-
 lier pending claim by a subsequent denial of a sufficiently
 related claim, a subsequent grant (such as that here) can
 have the same effect. See Deshotel v. Nicholson, 

457 F.3d
1258

, 1261 (Fed. Cir. 2006) (referencing “favorabl[e] or un-
 favorabl[e]” decisions); see also Jones v. Shinseki, 

619 F.3d
1368

, 1372 (Fed. Cir. 2010).
Case: 20-1178    Document: 41     Page: 8    Filed: 07/07/2021




 8                                      BRYCE   v.MCDONOUGH



 claim for an increased disability rating based on unemploy-
 ability”). Mr. Bryce concedes that what is sought under
 § 4.16(a) and (b) is the same—namely, a 100% disability
 rating due to unemployability. See Reply Br. 9. When the
 VA finally adjudicated Mr. Bryce’s November 2006 TDIU
 claim in 2010, granting him TDIU effective May 12, 2006,
 it implicitly denied Mr. Bryce’s earlier, pending claim for
 that same benefit. See, e.g., Charles v. Shinseki, 

587 F.3d
1318

, 1323 (Fed. Cir. 2009) (“[W]hen the substance of a
 later-filed claim is addressed in [a VA regional office
 (“RO”)] decision, the claimant can infer that the earlier-
 filed claim based on the same disability has also been ad-
 judicated.”).
     Resisting this conclusion, Mr. Bryce relies heavily on
 the different adjudicators involved as between § 4.16(a)
 and (b). In particular, Mr. Bryce argues that § 4.16(a)
 and (b) provide for “separate and distinct TDIU claim[s]”
 because, unlike § 4.16(a), in which an RO might award
 TDIU in the first instance, under § 4.16(b) the Director,
 Compensation Service adjudicates the claim. But even if
 we assumed that this difference mattered for implicit-de-
 nial purposes here, Mr. Bryce glosses over the fact that un-
 der § 4.16(b) the RO decides whether a claim warrants
 referral to the Director in the first place. See Thun v.
 Shinseki, 

572 F.3d 1366

, 1370 (Fed. Cir. 2009). We see no
 reason why the VA’s providing two paths to the same TDIU
 benefit—both running through an RO—should produce a
 different result under Williams here, or why the later ad-
 judication of TDIU would fail to give sufficient notice that
 Mr. Bryce’s earlier, pending claim for that same benefit
 was denied.
                        CONCLUSION
      We have considered the parties’ remaining arguments
 but find them unpersuasive. For the foregoing reasons, we
 affirm.
                        AFFIRMED
Case: 20-1178    Document: 41    Page: 9   Filed: 07/07/2021




 BRYCE   v. MCDONOUGH                                    9



                         COSTS
 No costs.

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