Payne v. Wilkie

Frederick L. Payne, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 17-3439

United States Court of Appeals For Veterans Claims

August 9, 2019

Argued January 25, 2019

On Appeal from the Board of Veterans' Appeals

Ethan F. Maron, of Washington, D.C., for the appellant.

Sarah Catherine Blackadar, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Kenneth A. Walsh Deputy Chief Counsel, were on the brief, all of Washington D.C., for the appellee.

Before DAVIS, Chief Judge, and BARTLEY and MEREDITH, Judges.

MEREDITH, JUDGE:

The appellant, Frederick L. Payne, through counsel appeals a September 26, 2017, decision by the Board of Veterans' Appeals (Board) that denied entitlement to initial disability ratings in excess of 50% and 40% for hand arm vibration syndrome, right (major) and left (minor) carpal tunnel syndrome, respectively (collectively, upper extremity disabilities). Record (R.) at 1-39. The Board also determined that no action was necessary^[1] with respect to entitlement to the following benefits because the appellant did not file formal "new claims" pursuant to 38 C.F.R. § 3.155 (2017):^[2] (1) entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 4, 2005; (2) disability compensation for erectile dysfunction (ED) as secondary to the appellant's service-connected disabilities; and (3) special monthly compensation based on the loss of use of a creative organ (SMC(k)). R. at 5-6, 37.^[3]

This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was submitted to a panel of the Court, with oral argument, to address two issues of first impression. See Frankel v. Derwinski, 1 Vet.App. 23 25-26 (1990). First, whether section 1114(k) of title 38 U.S. Code, limits potential entitlement to SMC(k) to veterans with certain service-connected disabilities or precludes 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. Second, whether VA's 2014 amendment to § 3.155 requires that a veteran file a formal claim for entitlement to SMC(k) as an ancillary benefit to a service-connected disability for the issue to be within the Board's jurisdiction.^[4] Further, to assist the Court in the resolution of these matters, the Court directed the parties to file supplemental briefs, which they did on September 27, 2018. For the following reasons, the Court will reverse the portions of the Board's decision that determined that it lacked jurisdiction over the matters of entitlement to SMC(k) and TDIU prior to March 4, 2005, and remand the matters for further proceedings consistent with this decision. The Court will affirm the portion of the Board's decision that denied entitlement to increased initial disability ratings for the upper extremity disabilities.

I. BACKGROUND

The appellant served on active duty in the U.S. Air Force from February 1980 to July 1992. R. at 16699. Upon discharge, he filed disability compensation claims for bilateral carpal tunnel syndrome. R. at 16692-95. In April 1993, a VA regional office (RO) granted entitlement to disability compensation and awarded 10% disability ratings for each hand, effective July 14, 1992, R. at 16650-55; and, in July 1993, the appellant disagreed with the assigned disability ratings, R. at 16642. In August 1993, the RO issued a Statement of the Case (SOC) that denied entitlement to higher disability ratings. R. at 16633-41. Although the appellant did not perfect an appeal to the Board, the record reflects that his 1993 appeal did not become finally denied because the August 1993 SOC was not mailed to the appellant's correct address. R. at 5212.

After a lengthy procedural history, in August 2004, the RO issued an SOC increasing the disability rating for carpal tunnel syndrome of the right hand to 30%, effective July 14, 1992, and to 50%, effective February 26, 2003; and of the left hand to 20%, effective July 14, 1992, and to 40%, effective February 26, 2003. R. at 15556-77. The appellant perfected his appeal in September 2004. R. at 15382-532.

In March 2005, while his appeal was pending, he filed a request for TDIU, alleging that he was unable to secure or follow substantially gainful employment as a result of his upper extremity disabilities. R. at 15201-02, 15212-14. The RO granted his request in an April 2005 rating decision and assigned an effective date of March 4, 2005. R. at 15188-93. The appellant did not appeal the April 2005 rating decision. However, he continued to pursue appeals as to the appropriate evaluations for his service-connected upper extremity disabilities.

After several Board decisions and appeals to the Court, in July 2013, the RO increased the initial disability ratings for right and left carpal tunnel syndrome to 50% and 40%, respectively, both effective July 14, 1992. R. at 2966-74. The Board remanded the matters for further development in February 2015. R. at 1932-51. A March 2015 VA treatment note reflects that the clinician advised the appellant "on doing aquatic exercises since he is not able to do heavy exercise given multiple surgeries to his upper extremities." R. at 285. The clinician noted that the appellant has "low testosterone likely due to low [sex-hormone-binding globulin levels] from obesity," his "main symptom[] is [ED] which is likely due to uncontrolled [type 2 diabetes]," and "[t]estosterone will not help with improving ED." Id. A May 2015 VA examination report further reflects that he had been impotent and "unable to obtain a penile erection since May 2014." R. at 564.

In October 2015, the Board denied initial disability ratings in excess of 50% and 40%, respectively, for right and left hand arm vibration syndrome on schedular and extraschedular bases and found that the issue of entitlement to TDIU prior to March 4, 2005, had not been raised by the record because the appellant did not appeal the effective date assigned in the April 2005 rating decision that granted TDIU. R. at 728-57. On appeal, the Court vacated the Board's decision and remanded the matters for readjudication pursuant to the terms of the parties' May 2016 joint motion for remand (JMR). R. at 714-25.

The appellant's counsel, in September 2016, submitted written argument to the Board, asserting that the appellant was entitled to TDIU from July 14, 1992, to March 3, 2005, and to separate disability ratings for the upper extremities under diagnostic codes (DCs) for the lower extremities because his bilateral arm pain inhibited his ability to ambulate, thereby resulting in functional loss of his lower extremities. R. at 117-25; see R. at 122-25 (vocational expert's opinion submitted in support of TDIU argument). He also argued that SMC(k) for loss of use of a creative organ was warranted as an ancillary benefit to the upper extremity claims and proffered the following:

A May 2015 VA examination report related that the [appellant] had been impotent and unable to obtain a penile erection since May 2014. . . . [The appellant's] weight gain has been exacerbated by his service-connected upper extremity conditions. The VA treatment record shows that the [appellant] is morbidly obese, and a March 2007 VA primary care note observed that obesity had contributed to hypertension and [a] history of transient ischemic attack. The [appellant] is presently service-connected for cardiovascular disease, rated at [100%]. In short, it is at least as likely as not that [the appellant's] service-connected upper extremity disorders have materially contributed to conditions, such as obesity and cardiovascular disease, associated with [ED].

R. at 120.

In a December 2016 decision, the Board remanded the matters of entitlement to initial disability ratings in excess of 50% and 40% for the upper extremity disabilities for compliance with the May 2016 JMR, and referred to the RO "new claims for an effective date earlier than March 4, 2005[, ] for the award of TDIU, [disability compensation] for [ED] as secondary to the [appellant's] service-connected disabilities, and entitlement to [SMC(k)]" for appropriate action, to include forwarding to the appellant and his representative the VA standardized form for filing claims. R. at 619-20 (citing 38 C.F.R. § 3.155(b)(1)(ii) (2015)). Later that month, the RO mailed the VA standardized forms to the appellant and his counsel, R. at 182-84, but the appellant did not return the forms. The RO subsequently issued a Supplemental SOC denying initial disability ratings in excess of 50% and 40% for the upper extremity disabilities. R. at 170-79. In April 2017, the appellant's counsel submitted written argument to the Board, referencing the arguments raised in her September 2016 brief and adding that, "contrary to his most recent VA examination, [the appellant was] experiencing muscle wasting in the right hand" and that a more contemporaneous medical examination was warranted. R. at 114-15.

On September 26, 2017, the Board denied higher initial disability ratings for the appellant's upper extremity disabilities and determined that the issues of entitlement to SMC(k) and TDIU prior to March 4, 2005, were not before it. R. at 1-39. This appeal followed.

II. ANALYSIS

A. The Board's Jurisdiction to Adjudicate Entitlement to SMC(k)

"It is well settled that the Court has jurisdiction to determine whether the Board had jurisdiction to take the action it takes in a decision," Young v. Shinseki, 25 Vet.App. 201, 203 (2012) (en banc order), and "the Court exercises de novo review over Board determinations that are critical to its jurisdiction," Evans v Shinseki, 25...