Randy L. Pederson v. Robert A. McDonald
2015 U.S. Vet. App. LEXIS 180
| Vet. App. | 2015Background
- Randy L. Pederson is a veteran with service-connected chondromalacia of both knees (rated 20% each), a high school education, and past manual-labor jobs (grocery store, USPS custodian); he later obtained USPS disability retirement and became unemployed.
- He applied for an increased knee-rating and for TDIU; VA and the Board denied increased ratings and TDIU; Pederson appealed to the Court of Appeals for Veterans Claims.
- In his opening brief, Pederson (through counsel) limited his challenge to the Board’s denial of TDIU and expressly abandoned the increased-rating issues.
- The Secretary argued the abandoned rating issues should be treated as conceded; the Court certified a question en banc about the effect of abandonment after Cacciola v. Gibson.
- The Court held it retains jurisdiction over all issues in a Board decision once a Notice of Appeal is filed, but will generally decline to decide issues an appellant expressly abandons; it dismissed the appeal as to the increased-rating claims and affirmed the Board’s denial of TDIU.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of appellant's express abandonment of increased-rating issues | Pederson: abandonment waives court review of those issues and requires dismissal, not affirmance | Secretary: Court retains jurisdiction; abandonment is not jurisdictional and Court may affirm or dismiss as appropriate | Court: Jurisdiction remains over all Board-decided issues once NOA filed; abandonment does not strip jurisdiction, but Court may prudentially decline to review — here it dismissed the abandoned rating issues. |
| Whether Court may treat abandonment as concession of no error and affirm on merits | Pederson: Court lacks authority to affirm abandoned issues; dismissal is required | Secretary: Court may affirm where abandonment is a deliberate waiver (concession); may dismiss inadvertent forfeitures | Court: Court has authority to decide merits of abandoned issues but will usually decline; may affirm in appropriate cases; here declined to review. |
| Adequacy of Board reasoning re: denial of TDIU (including extraschedular referral) — education/work history | Pederson: Board failed adequately to consider that his limited education and manual-work history preclude sedentary, substantially gainful employment | Secretary: Board considered education/work history and medical evidence showing ability to perform sedentary work; no referral warranted | Court: Affirmed Board; Board adequately found knee disabilities do not alone produce unemployability and that sedentary work remains possible; appellant showed no prejudice from any analytic gaps. |
| Whether Board improperly relied on non-service-connected conditions or medical opinions on ultimate issue | Pederson: Board improperly considered non-service-connected conditions and relied on medical opinions about ultimate unemployability | Secretary: Board properly considered all evidence and found service-connected disabilities alone insufficient | Court: Board’s consideration of all medical evidence was acceptable; to the extent parsing service- vs non-service-connected causation could be clearer, any error was harmless here. |
Key Cases Cited
- Cacciola v. Gibson, 27 Vet.App. 45 (clarifies abandonment principle and that abandonment does not necessarily mean issue was decided on the merits)
- Fagre v. Peake, 22 Vet.App. 188 (NOA places Board decision on appeal)
- Johnson v. Brown, 7 Vet.App. 95 (Court may review Board errors sua sponte)
- Hatlestad v. Brown, 5 Vet.App. 524 (service-connected disabilities must alone cause unemployability)
- Rice v. Shinseki, 22 Vet.App. 447 (TDIU is individualized inquiry)
- Roberson v. Principi, 251 F.3d 1378 (TDIU does not require 100% schedular)
- Allday v. Brown, 7 Vet.App. 517 (reasons-or-bases requirement)
- Gilbert v. Derwinski, 1 Vet.App. 49 (reasons-or-bases standard)
- Andre v. Principi, 301 F.3d 1354 (discretion to decline to address issues not raised)
- Carbino v. West, 168 F.3d 32 (court discretion to decline consideration of late issues)