John Omar Williams Appellant v. Douglas A. CollinsJohn Omar Williams Appellant v. Douglas A. Collins
ALLEN, Chief Judge, filed the opinion of the Court. TOTH, Judge, filed a concurring opinion. JAQUITH, Judge, filed a concurring opinion.
Appellant John Omar Williams served the Nation honorably in the U.S. Army and the National Guard from June 1969 to June 1973, July 1989 to August 1995, and April 2004 to April 2005.1 In this appeal, which is timely and over which the Court has jurisdiction,2 he contests a February 5, 2024, Board of Veterans’ Appeal (Board) decision.3 The issue before the Court is whether the Board erred by not addressing if the record reasonably raised appellant‘s entitlement to a total disability rating based on individual unemployability (TDIU).
While the TDIU question is the ultimate issue before the Court, to answer that question this appeal calls on us to wrestle with how the Federal Circuit‘s recent decisions concerning the limits on the Court‘s power to make factual determinations affect our authority to determine whether the record reasonably raises an issue. As we will explain, we hold that while nothing in the Federal Circuit‘s recent caselaw concerning factfinding undermines the Court‘s authority to assess whether the record reasonably raises an issue, the factfinding caselaw affects how the Court makes that determination. In this case, because we are limited in what factfinding we can do in the
Before proceeding, we note that we held oral argument in this matter on March 26, 2026, at Albany Law School, in Albany, New York, as part of the Court‘s outreach program. The Court thanks the students, staff, and faculty at Albany Law School for their hospitality.
I. BACKGROUND
In November 2007, appellant sought service connection for prostate cancer and PTSD.4 In October 2008, a regional office (RO) denied service connection for PTSD but granted service connection for prostate cancer.5 In February 2009, appellant filed a claim for depression secondary to his prostate cancer.6 In March 2009, the RO granted service connection for major depressive disorder, also diagnosed as adjustment disorder, and assigned a 30% rating, effective February 11, 2009.7
In January 2010, appellant sought an increased rating for his adjustment disorder.8 In March 2010, he underwent a VA psychiatric examination.9 Eventually, in May 2010, the RO increased the rating of appellant‘s adjustment disorder to 50%; notably, the same decision denied entitlement to TDIU.10
In April 2018, appellant‘s primary care physician noted that appellant “is not working currently and is still looking to move to Germany to teach.”11 In August 2018, appellant filed another increased rating claim for his adjustment disorder.12 Then, in October 2018, a VA psychiatric examiner noted that appellant was currently working 3 hours per day as a lunchroom monitor.13 The examiner opined that appellant faced “[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or
At a December 2018 VA psychiatric exam, the examiner noted that appellant worked as a substitute teacher for 2 years before resigning in May 2018; the reason for his resignation was unspecified.17 When asked about his occupational history, appellant stated: “You do not understand. I have a college degree[,] and I still can‘t get a job. Even if you do the right thing things still go bad . . . I did what I was supposed to do[,] and they didn‘t even hire me. I couldn‘t get a job with an art degree. No one will hire me as an artist! They still wouldn‘t let me teach, someone always bumped me out.”18 Also, a December 2018 neurology exam indicated that appellant worked as a substitute teacher from 2013 to May 2017 but was not currently working at the time of the exam.19
Notes
In a June 2020 rating decision, the RO continued the 50% rating for adjustment disorder.20 In July 2020, appellant filed a Notice of Disagreement.21 In the February 2024 Board decision on appeal, the Board determined that appellant should be rated for adjustment disorder at 70%, but not 100%, categorized as “occupational and social impairment with deficiencies in most areas.”22 In doing so, the Board analyzed the extent of appellant‘s depression symptoms, concluding that his adjustment disorder included “an inability to establish and maintain effective relationships and suicidal ideations.”23 The Board did not explicitly address either appellant‘s work history or his testimony from the December 2018 exam.24 The Board also did not discuss entitlement to TDIU at all.
II. ANALYSIS
A. The Parties’ Arguments and Course of Proceedings
On appeal, appellant originally argued that the Board erred by failing to provide an adequate statement of reasons or bases because it did not address whether the record reasonably raised whether he was entitled to TDIU.25 The Secretary defended the Board‘s omission of an
On August 8, 2025, a single Judge issued a memorandum decision that affirmed the Board‘s decision, concluding that the Board did not err when it failed to discuss TDIU because the record did not reasonably raise that issue.27 Appellant then filed a motion for reconsideration and/or panel review under Rule 35 of the Court‘s Rules of Practice and Procedure.28 In his Rule 35 motion, appellant argued that the Court had inappropriately weighed facts in the first instance when it determined that the record did not raise the issue of entitlement to TDIU and that remand was the appropriate outcome in this matter for the Board to make that assessment in the first instance.29
The single Judge denied reconsideration, and a panel was appointed to consider this case.30 On November 7, 2025, the panel issued a supplemental briefing order.31 In response, appellant changed his position, arguing that the Board, through its silence, had made an implicit determination that the record did not raise entitlement to TDIU.32 The Secretary‘s supplemental brief was less clear about how he saw what the Board did, but he continued to defend the Board‘s decision.33 However, at oral argument both parties agreed that they believed that the Board made an implicit factual determination that the record did not raise entitlement to TDIU.34 Despite this agreement, the parties disagreed about the import of that supposed implicit determination.
Given the parties’ arguments and the course of proceedings, there are essentially two substantive questions before us: (1) Does the Board‘s silence implicitly mean that the Board determined that the record did not raise entitlement to TDIU? And (2) if the Board‘s silence was not an implicit determination on that question, can the Court in the first instance determine that TDIU was reasonably raised by the record? As we will explain below, as to the first question, and despite the parties’ agreement to the contrary, we conclude that the Board did not make any determination about entitlement to TDIU through its silence. We don‘t say that the Board could never make such an implicit determination. Rather, it just did not do so here. With respect to the
B. The Legal Landscape
“VA compensates veterans for their service-connected disabilities through its rating schedule, which is designed to reflect the average impairment in earning capacity that a veteran with a certain type of disability would experience.”35 But VA also recognizes that there are situations in which a veteran is not 100% disabled as a result of service-connected disabilities but, nonetheless, is unemployable.36 This individualized employability assessment for TDIU is set forth in
A claimant is “generally . . . presumed to be seeking the maximum benefit allowed by law and regulation.”38 Thus, “the Secretary is required to maximize benefits” and “‘render a decision [that] grants every benefit that can be supported in law.‘”39 The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record.40 The Court has jurisdiction to review whether the Board erred in failing to consider such theories.41 We have held that the Board should address TDIU where there is evidence of unemployability and the veteran is not receiving the maximum rating.42 As we have explained, TDIU is not a separate claim “but rather involves an attempt to obtain an appropriate rating for a disability or disabilities.”43 While entitlement to TDIU can be part of an initial claim or a claim seeking an increased rating,44 the Board is only required to address entitlement to TDIU if the record “presents cogent evidence of unemployability.”45
C. The Board‘s silence about TDIU was not an implicit determination about anything.
We first must address whether the parties are correct that the Board‘s silence amounts to an implicit determination that the record did not reasonably raise entitlement to TDIU. This is an important question. If the Board implicitly ruled that the record did not raise the issue of entitlement to TDIU, it would have made a factual finding. And in that case, two points follow. First, we would review that determination for clear error.50 And second, the Board would have to support its implicit determination with an adequate statement of reasons or bases.51
We are not writing on a blank slate in terms of implicit factual determinations. So, we start off with a general principle. The Court has recognized that the Board can make implicit factual determinations in certain circumstances. We see no principled reason why the Board could not implicitly determine that the record did not reasonably raise entitlement to TDIU. So, we conclude that the Court‘s caselaw concerning implicit determinations informs the question before us.
At the same time, however, we think there is no basis to conclude that the Board‘s silence about whether the record reasonably raised the issue of entitlement to TDIU always means that it implicitly ruled on that issue. Instead, there must be something in the decision that indicates that the Board intended its silence to reflect a considered assessment about whether the record reasonably raised entitlement to TDIU.
Two illustrations from the Court‘s caselaw are helpful in terms of assessing what the Board‘s silence means. One situation in which the Court has recognized implicit factfinding is Miller v. Wilkie.52 There the Court held that “[w]hen the Board has made its decision without finding that the veteran is not competent to report symptoms and nothing suggests that the Board
Miller represents a situation in which the nature of the decision itself points towards an implicit factual finding. In other words, in Miller it would have made no sense for the Board to do what it did if it had not found the veteran credible. If we were writing on a blank slate, we might conclude that entitlement to TDIU would qualify under a Miller-like analysis when the Board was also rating a mental disorder as it did here. After all, a large part of the criteria for evaluating a mental disorder deals with occupational impairment.54 But we aren‘t writing on a clean slate. The Board does not have to address TDIU in every case, even those connected to evaluating a mental disorder. Rather, as we noted above, the Board is only required to consider entitlement to TDIU when the record “presents cogent evidence of unemployability.”55
The Court has also held that in certain circumstances we can assume the Board made an implicit finding because of the specific context provided in a Board decision. A prime example concerns an implicit finding that a medical opinion was adequate even when the Board did not explicitly provide that determination.56 In those cases, there were textual cues pointing to both the fact that the Board had made the determination, as well as the grounds for the determination.57 In cases such as Walleman v. McDonough and Mitchell v. Shinseki, the Board discussed the opinion at issue and its discussion allowed the Court to understand why the Board considered the opinion appropriate for adjudication purposes. There is nothing in the Board‘s decision on appeal that is akin to the situations in which the Court has determined that the Board implicitly determined that a medical opinion was adequate.58 In other words, there is no indication that the Board thought about TDIU at all.
And this brings us to a practical problem if we were to accept the parties’ positions that silence about TDIU equates to an implicit factual determination that the record did not raise the entitlement to that benefit. If we assume that silence in this context means that the Board considered whether the record raised TDIU and determined that it did not, the Court‘s clear error review would be difficult (if not impossible) to perform because there would be only silence to review. It might also lead to the conclusion that in all (or at least most) situations in which we consider whether the record reasonably raised entitlement to TDIU there would be a reasons-or-bases problem. As the Court recently stated, the reasons-or-bases requirement
naturally focuses on whether the Board has rendered all the necessary findings on material issues of fact and law and whether its analysis of such findings is intelligible to the claimant and the Court alike. If the Court needs to guess what the Board‘s reasoning might
be as to a material issue of fact or law, the Board has violated its duty to provide adequate reasons [or] bases.59
If the parties were correct about the meaning of the Board‘s silence, there would be nothing for the Court to do but guess about the Board‘s reasoning. That can‘t be right.
To be clear, a Board decision could include an implicit finding about whether the record reasonably raised entitlement to TDIU. But the Board decision would need the textual to exist when the Board makes an implicit adequacy determination concerning a medical opinion. As we‘ve said, there are no such cues in the decision before us.
In sum, we conclude that the Board‘s silence here means what silence usually does: nothing. So, we are unable to engage in clear error review because the Board made no finding for us to review. We must transition to a different path to resolve the appeal.
D. The Court‘s Ability to Determine, in the First Instance, if the Record Reasonably Raised Entitlement to TDIU
This leads us to the second issue—the one we thought was originally presented. Specifically, we consider the scope of the Court‘s authority to review the record to determine whether TDIU was reasonably raised such that the Board was required to discuss that issue. And more to the point, we do so in light of recent Federal Circuit precedent concerning the prohibition on factfinding in the first instance at the Court.60
We begin with an important recognition. There is no question that the Court has the authority to review the record to determine whether there is an issue the Board was required to address.61 This is a well-established legal principle. There is no indication that anything in recent Federal Circuit caselaw concerning factfinding undermines that well-established precedent. The question we address here is how the Court can balance our authority to review the record while remaining faithful to the limits on our ability to weigh evidence in the first instance.
1. Recent Federal Circuit Decisions
We begin our exploration of this question by considering the Federal Circuit‘s recent decisions in Tadlock and Stinson and, in particular, how the principle those decisions recognized applies when the Court considers whether the record reasonably raised an issue. We note that in both cases, the Federal Circuit addressed the Court‘s obligation to “take due account of the rule of prejudicial error.”62 So, our task is to discern how a rule articulated in the prejudicial error context applies more generally.
While the issue before the Federal Circuit in Tadlock and Stinson was this Court‘s assessment of prejudice, each decision used broad language concerning the limits on this Court‘s authority related to factfinding. In Stinson, the Federal Circuit provided a categorical prohibition: “The Veterans Court has no statutory authority to make factual findings in the first instance. The Veterans Court also has no statutory authority to weigh evidence in the first instance.”65 Meanwhile in Tadlock, the Federal Circuit provided a more focused limitation:
When questions of fact are open to debate, veterans are entitled to present whatever evidence and arguments they have to the agency charged with administering veterans’ benefits and possessed with the expertise to render informed judgments and to have that evidence and those arguments considered by that agency in the first instance.66
So, it is our job to balance the holdings in both these cases to appropriately exercise our authority here.
Stinson acknowledged that this Court “may appropriately assess whether the record contains sufficient evidence, as a matter of law, to support a particular argument.”67 As far as it goes, this acknowledgement is important with respect to the issue we address today—whether the record required the Board to address entitlement to TDIU. However, the Federal Circuit also instructed that: “What the Veterans Court cannot do, however, is find facts or weigh evidence in the first instance when entertaining a newly raised issue, as it did in this case.”68 So, we are back to the question at hand because we are left with broad rules without consideration of how those rules apply beyond assessing prejudicial error.
An additional point concerns the rationale Stinson provides for its rule, one that goes beyond harmless error analysis. Specifically, the Federal Circuit highlights that inappropriate factfinding or weighing of evidence deprives veterans of their rights to present issues to the agency
To recap, it is not clear how far the “open to debate” language from Tadlock extends beyond the prejudicial error analysis. Does it apply in the same way to the situation we face now when assessing whether the record raises an issue? Does it apply in the same way to our assessment about reversal of a finding is appropriate? We just don‘t know for sure. Nor is it clear the degree of evidence that is necessary for an issue to be considered “open to debate.” So that leaves us without a clear sense of what we are allowed to do, if anything, to clarify this issue.
This brings us to another Federal Circuit decision: Golden v. Collins, a case in which the Federal Circuit rejected an appellant‘s argument that this Court made inappropriate factual findings under Tadlock and Stinson.70 Golden is potentially significant for two reasons. First, it did not concern harmless error analysis.71 That is at least some indication that the Tadlock/Stinson analysis is not confined to the prejudicial error analysis. After all, if the Tadlock/Stinson analysis was limited to prejudicial error, that would have been a straightforward way to address the issue in Golden.
Second, the Federal Circuit appeared to recognize that this Court‘s review of the existing record to make some sort of assessment was within our authority. The Federal Circuit stated: “The Veterans Court is not precluded from ‘synthesizing,’ ‘analyzing,’ and ‘paraphrasing’ the Board‘s decision, as these actions do not constitute independent fact[]finding.”72 In rejecting appellant‘s assertion that the Court had transgressed the prohibition on factfinding, the Court said: “Here, the Veterans Court simply acknowledged that the record reflected the 2011 examiner was the only examiner who linked Mr. Golden‘s hearing loss and tinnitus.”73 This sentence at least suggests that reviewing the record may pose different questions than engaging in prejudicial error analysis. Of course, the Federal Circuit followed up that sentence by noting that appellant “does not dispute this fact,” perhaps suggesting that the court was applying the beyond debate notion from Tadlock and Stinson.74 The bottom line is that Golden is helpful but does not resolve the issue we face in this appeal.
We pause to highlight an additional case at the Federal Circuit: Yurk v. Collins. During the oral argument in Yurk, the Federal Circuit panel hearing the case appeared to recognize the difficulty of reflexively adopting a broad interpretation of “open to debate” when assessing whether the record reasonably raised an issue.75 We had hoped that the argument would lead to a
The reality is that we are in a position in which the law is evolving and uncertain. The downside of that reality is that we are largely incapable of resolving the present uncertainty because we are dealing with decisions of the Federal Circuit that we are bound to do our best to carry out and can‘t change. The upside is that we trust the Federal Circuit will resolve the uncertainty as it continues to develop the doctrine in this area. But for today, we take the law as it is, or at least as how we best interpret it.
2. An Attempted Synthesis
So, what are we to do with the specific question before us? Merely for purposes of articulating an approach to the question about how the Court should address whether an issue was reasonably raised by the record in the first instance given the limitations on factfinding, we will use the metaphor of a spectrum. On one end, there are situations in which the Court can definitively say that the Board did not err in failing to address an issue without any risk of inappropriately weighing evidence. In that regard, even appellant agrees that “[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.”77 How far this end of the spectrum goes without running into evidence weighing issues is uncertain. At the other end of the spectrum are cases in which the evidence is so overwhelming that the Board should have discussed the issue that there can be no debate that the Board erred. Again, we can‘t say for sure how broad this part of the spectrum is, but we are confident that it exists.
By definition, the spectrum analogy precludes a binary approach in which the two ends of the spectrum represent the full scope of the Court‘s choices—the record reasonably raised the issue or it did not.78 That binary approach seems to track how the Court approached the issue historically; but if the Federal Circuit‘s factfinding decisions have done anything, they have converted the binary into a spectrum.79
3. Limited Remand
In Skaar v. Wilkie, the Court ordered a limited remand so the Board could address an argument appellant had expressly raised below but that the Board had ignored.80 While not laying out an exhaustive test for determining when to use a limited remand, the Court stressed that the issue at the heart of the remand did not require vacating the Board decision.81 The same is true here, although for a different reason. As we will explain in the next section, we can‘t tell if there is an error in the Board‘s failure to address entitlement to TDIU without potentially committing an error ourselves by overstepping our factfinding limitations. In addition, the Skaar Court stressed that it was dealing with a unique circumstance because the Court was faced with a class action motion that potentially required action from the Board on the neglected issue.82 We face a similar situation, at least conceptually. How the Court‘s role in reviewing whether an issue is reasonably raised by the record interacts with the Federal Circuit‘s recent decisions concerning the limitation on the Court‘s factfinding authority is also a unique and developing area of the law.
When confronted with the question of whether the Board erred by failing to discuss whether the record reasonably raised an issue, we are faced with the danger of overstepping our limitations on factfinding. We, therefore, conclude that retaining jurisdiction and issuing a limited remand for the Board to address whether the record was sufficient to require a discussion is the appropriate option for the Court in this case. And we may, in our discretion, use this tool instead of reflexively issuing a reasons-or-bases remand.
We stress again that the Court is operating in a period in which we are uncertain about the contours of the doctrine the Federal Circuit has discussed in Tadlock, Stinson, and Golden. We make this point again not to be critical but rather to highlight that a limited remand to address cases like the one before us may be a tool that will not be needed often in the future. But the mere fact that a tool in a toolbox will not be needed tomorrow doesn‘t mean it isn‘t important today.
4. Application
Here, appellant points to several examples of evidence that he was unemployable due to his service-connected adjustment disorder, evidence he maintains required the Board to discuss entitlement to TDIU. Appellant cites the April and December 2018 VA medical exams, both of which indicated that he was not currently working.83 He further emphasizes his 2018 testimony:
“I have a college degree[,] and I still can‘t get a job. Even if you do the right thing[,] things still go bad.”84
Appellant also cites his adjustment disorder symptoms—irritability, fair to poor insight, bouts of passive suicidal ideation, difficulty in establishing and maintaining effective work relationships, and so on—that formed the basis for his 70% adjustment disorder rating.85 Appellant contends that the Board failed to address his work history or his testimony at all, as well as whether his symptoms would impact his ability to secure and maintain substantially gainful employment.86
For his part, the Secretary concedes that appellant was unemployed but argues there is no evidence to suggest appellant‘s unemployment was due to his adjustment disorder. The Secretary argues there is no explanation for why appellant resigned from his substitute teacher job or was not currently working.87 Further, the March 2010 exam indicates appellant was “pursuing his educational goals without significant interference from his mental health disorder.”88 The Secretary also emphasizes the second half of appellant‘s statement from his 2018 Board hearing:
I have a college degree[,] and I still can‘t get a job. Even if you do the right thing[,] things still go bad. . . . I did what I was supposed to do[,] and they didn‘t even hire me. I couldn‘t get a job with an art degree. No one will hire me as an artist!89
The Secretary contends that nothing about this statement suggests a relationship to appellant‘s adjustment disorder and argues that appellant‘s “lay hypothesizing” cannot be considered evidence.90 And the Secretary argues the symptoms appellant points to have already been captured in the 70% adjustment disorder rating, which presumes “occupational and social impairment in most areas, such as work.”91
So, it appears that there is potentially sufficient evidence in the record that the Board could determine that TDIU was reasonably raised here. However, the issue is the Board itself did not weigh this evidence. And it is necessary for the Board to do so in the first instance.92 To return to our earlier analogy, we conclude that this situation falls somewhere in the middle of the spectrum such that we are uncertain whether the Federal Circuit‘s decisions about factfinding would prevent us from assessing the evidence in a meaningful way. At the same time, we see no need for a full remand given that there is only a narrow issue on which we need the Board to weigh in.
Upon consideration of the foregoing, it is
ORDERED that the case is REMANDED to the Board solely for the Board to provide a supplemental statement of reasons or bases within 30 days that addresses whether the record at the time of the February 5, 2024, Board decision reasonably raised the issue of entitlement to TDIU such that the Board must address the issue on the merits. It is further
ORDERED that the Court will retain jurisdiction over this matter. It is further
ORDERED that, regardless of the outcome of the Board‘s determination on remand, the Board shall not take any further action beyond the response required by this order unless and until the Court relinquishes jurisdiction over the matter. It is further
ORDERED that the Secretary will file the Board‘s supplemental statement with the Court within 3 days after the statement is issued. It is further
ORDERED that parties each submit a supplemental brief, not to exceed 10 pages, concerning the effect, if any, of the Board‘s supplemental statement on the issues raised in this appeal, within 10 days after the Secretary files the supplemental statement. And it is further
ORDERED that the Court will not entertain any motion for an extension of time with respect to the timeframes set forth in this order, absent compelling circumstances.
DATED: July 27, 2026
PER CURIAM.
TOTH, Judge, concurring: Given the lack of clarity as to the Court‘s authority to assess administrative error where the Board is alleged to have failed to consider whether the evidence raises a claim, I join the majority in viewing a limited remand as appropriate here. Absent clear guidance as to whether Stinson v. McDonough, 92 F.4th 1355 (Fed. Cir. 2024), delimits this Court‘s actual jurisdiction to assess administrative error or whether it merely effectuates a governing rule about how the Federal Circuit reviews the factual assessments of this Court, the best course is to exercise our authority to retain jurisdiction over the appeal but remand these sorts of questions to the Board on a limited basis to address whether an issue or claim was reasonably raised by the record.
In Stinson, the Federal Circuit, as it has elsewhere, asserted that this Court lacked statutory authority to “weigh evidence in the first instance.” Id. at 1363. The question that immediately follows is what to do in the sizeable segment of appeals where the allegation of error itself is that the Board failed to consider some piece of evidence. As best I can tell, there are two ways to read Stinson. The first, which can be deemed the “jurisdictional” reading, takes Stinson at face value as a limitation on the Court‘s jurisdiction insofar as it forms an absolute impediment to the Court‘s consideration of evidence that hasn‘t first been discussed by the Board, where such evidence can
The difficulty with this reading is that it places a significant segment of our appeals beyond our jurisdiction. This is because, as the Supreme Court points out, jurisdiction is “a term generally reserved to describe the classes of cases a court may entertain (subject[ ]matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction).” Fort Bend C‘nty v. Davis, 587 U.S. 541, 543 (2019). Appellate review simply cannot be performed without “weighing evidence” against whatever standard of review governs the question; even the most facile engagement with the evidence of record necessarily entails some form of interpretation that allows for dispositive rulings on appeal. See, e.g., Golden v. Collins, 161 F.4th 1346, 1352 (Fed. Cir. 2025). Because engagement with evidence is unavoidable, reading Stinson as establishing a jurisdictional rule necessarily places off limits the significant segment of cases (including this one) that require engagement with evidence not discussed by the Board.
The second way of reading Stinson is as a standard of review by which the Federal Circuit reviews factual assessments of this Court. This reading interprets Stinson (and Tadlock) as employing older, more figurative notions of jurisdiction where a tribunal violates its jurisdictional mandate whenever it exceeds the ambit of a governing rule. The “standard of review” reading leaves intact the Court‘s authority to hear the full range of appeals but merely establishes that the Federal Circuit will vacate those rulings that resolve matters against appellants where it regards the evidence as “open to debate.”
There are good reasons to infer that the Federal Circuit intends the standard of review reading over the jurisdictional reading. For starters, the jurisdictional reading would seem markedly out of step with the last three decades of Supreme Court precedent, which only reads adjudicatory constraints as jurisdictional when they derive from a clear statement from Congress. Kontrick v. Ryan, 540 U.S. 443, 444 (2004). Reading Tadlock as setting down a jurisdictional rule would seem to place that decision into irresolvable conflict with the Supreme Court‘s precedent in Shinseki v. Sanders, 556 U.S. 396 (2009). Specifically, a Court cannot be required under section 7261 to conduct a plenary review of the evidentiary record and make a case-specific determination, as Sanders establishes, and jurisdictionally barred under the exact same statutory provision from doing so, as Tadlock suggests. Beyond being mutually exclusive, these readings represent opposite views about this Court‘s jurisdiction under section 7261.
Finally, and most relevant here, reading Stinson as a standard of review makes sense because nothing in the decision sets out a legal rule that governs how this Court assesses administrative error. All the language setting out a burden in Stinson and Tadlock is directed at this Court, rather than VA. Nothing in Stinson purports a rule that VA commits administrative error unless it resolves every fact in an evidentiary record that could be deemed open to debate; nor can any language in Stinson be read as imposing a burden of persuasion on VA to show that administrative error can be inferred unless the Agency can show that the salient facts are not open to debate—a proposition the Supreme Court expressly repudiated in Sanders.
JAQUITH, Judge, concurring: I join my esteemed colleagues in concluding that a limited remand is an appropriate resolution under the specific facts and circumstances of this case.93 I also concur with the majority‘s conclusion that nothing in recent Federal Circuit precedent undermines the Court‘s authority to assess whether the record reasonably raises an issue. I further agree that there is nothing the Court can glean from the Board‘s silence; we are left to speculate about why the Board failed to address the veteran‘s potential entitlement to TDIU.94 Although both the majority opinion and the other concurrence are well written, I believe a few points warrant additional discussion.
First, I see Stinson not so much as tying our hands but as reminding us of the limits of our reach. The Federal Circuit acknowledged and affirmed what our Court has understood our role and obligation to be, holding that, “The Veteran‘s Court . . . may appropriately assess whether the record contains sufficient evidence, as a matter of law, to support a particular argument.”95 Our Court‘s responsibility to determine whether the Board clearly erred in making a finding of fact, or in failing to do so, is quite different from finding facts in the first instance.96 By statute, the Court shall hold unlawful and set aside or reverse clearly erroneous Board findings of material fact adverse to claimants,97 but in no event subject the Board‘s findings of fact to trial de novo.98
A. A Golden Rule?
Moreover, Golden99 seems to reinforce and augment Stinson by illustrating how our Court can properly assess whether an unaddressed issue was reasonably raised. Golden detailed that it is not impermissible factfinding for the Court to analyze, characterize, explain, paraphrase, and
The Federal Circuit has traced VA‘s obligation—and our judicial responsibility to ensure its fulfillment—to the Congressional mandate that VA “‘fully and sympathetically develop the veteran‘s claim to its optimum before deciding it on the merits,‘” meaning that “VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of [how] the claim[s are] specifically labeled.”105 VA‘s obligation is not limited to its regional offices; Board proceedings are also nonadversarial and pro-claimant, so the Board also must read claims and pleadings sympathetically.106 From the outset, the RO and the Board are obligated to read a claimant‘s filings in a liberal manner, including the question of what issues were raised, whether or not the claimant is represented by counsel.107 And the Federal Circuit has noted with approval that “the Veterans Court, upon exercising jurisdiction in such circumstances, has repeatedly held . . . that the Board commits error in not deciding [issues that were reasonably raised before it].”108 After all, “Congress created the Veterans Court for [the] express purpose . . . ‘of ensuring that veterans were treated fairly by the government and to see that all veterans entitled to benefits received them.‘”109 Fulfilling that purpose requires adhering to “the ‘user friendly’ system Congress intended,”110 the veteran being afforded an opportunity to present evidence to the VA factfinder, the Board satisfying the veteran‘s right to “one review on appeal to the Secretary,”111
It is not clear whether the perceived tension between Stinson, Tadlock, and our “reasonably raised” caselaw is a labeling problem or one with the level of our Court‘s engagement with the evidence. From the time of its origin, our Court has declared, in accordance with regulations based on statutes, that the Board “must review all issues which are reasonably raised from a liberal reading of the appellant‘s substantive appeal,”116 and that this liberal reading extends to “issues raised in all documents or oral testimony submitted prior to the [Board] decision.”117 In Roberson, the Federal Circuit applied these principles in the context of TDIU, holding that:
Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, . . . VA must consider TDIU because . . . VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU.118
The Federal Circuit continues to apply the Roberson description of VA‘s obligation to determine and address all potential claims raised by the evidence.119 Our Court has indicated that whether an issue is reasonably raised by the record is a factual question positively answered if there is some supporting evidence.120 However, the Federal Circuit has held that “[a]n allegation that the Board failed to comply with its obligation to read filings liberally may, of course, be raised for the first time on appeal to the Veterans Court,” which also reviews the record to determine whether it contains evidentiary support for a theory of recovery the Board was obligated to
“[I]f the Board fails to consider an issue reasonably raised in the record, then the Board commits error requiring remand.”125 “Reversal is warranted when the only permissible view of the evidence contradicts the Board‘s decision, and the Board ‘has performed the necessary fact[]finding and explicitly weighed the evidence.‘”126 Our Court has the authority to remand cases to the Board “if the record ‘does not support the agency action, if the agency has not considered all relevant factors, or if [our] Court simply cannot evaluate the challenged agency action on the basis of the record before it.‘”127
There is one possible hiccup. In Comer, the Federal Circuit restated and applied its holding in Roberson that VA‘s obligation “‘to determine all potential claims raised by the evidence‘” means that “VA must consider whether a TDIU award is warranted whenever ‘a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability.‘”128 But when it described the Roberson test again in the next paragraph, it added a word—cogent—saying: “Simply put, under Roberson, a claim to TDIU benefits . . . is implicitly raised whenever a pro se veteran, who presents cogent evidence of
B. The AMA133 Express Brings Express Denial
Next, although I completely agree that the Board‘s silence did not amount to an implicit determination that the record did not reasonably raise entitlement to TDIU,134 I am skeptical that implicit denial of a reasonably raised TDIU claim remains tenable. In Hamill v. Collins, the Federal Circuit flatly held that “under the AMA, a veteran‘s claims can no longer be implicitly denied.”135 While Hamill focused on VA‘s heightened statutory obligation to follow Congress‘s clear directive to identify the issues adjudicated in its initial decision,136 and section 5104 does not apply to the Board,137 the Federal Circuit‘s holding was without limitation.
Treating the Secretary‘s failure to sympathetically read and adjudicate a reasonably raised claim as a pending claim benefits veterans because it protects their appellate rights and works no hardship on the Secretary in that it requires only that each claim be specifically addressed. If a veteran is aware of a particular benefit and makes an unambiguous claim for it, the Secretary‘s duty to sympathetically read [the veteran‘s] submissions is irrelevant. That duty primarily helps those veterans who have not clearly articulated that they are seeking a particular benefit. It is illogical to expect such veterans to immediately recognize when the Secretary has failed to adjudicate a reasonably raised claim because it is ignorance of the intricacies of potential claims that makes the duty necessary. Hence, if the law equates a VA failure to adjudicate a reasonably raised claim to a sub silentio denial of the claim, then it is unlikely that the veteran would have sufficient notice of the disposition of his claim to assert error on direct appeal.149
This is just such a case. As the majority concludes, the Board‘s silence about TDIU was not an implicit determination about anything150—providing no notice regarding whether or not TDIU was even considered.
In January 2010, the veteran said he had been “medically discharged from the Army National Guard as unemployable,” and his disability compensation had been reduced, so he “was unable to support [himself] and keep [his] home.”151 In March 2010, the veteran told a VA psychologist that his depression symptoms had “increased in both frequency and severity,” and the psychologist diagnosed him as suffering from major depressive disorder, moderate to severe, related to his service-connected medical conditions.152 The veteran said he felt discriminated against and forced out of the military when he was medically retired—1 year and one rank short of his plan—and said that he had begun school full time through a VA retraining program.153 The psychologist noted that as a student, the veteran‘s mental health condition was not interfering with
In October 2018, the veteran was again diagnosed with major depressive disorder with symptoms for the past several years, then including “chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, [and] suicidal ideation.”157 The veteran told a VA psychologist that he has a master‘s degree in art, and that degree only enabled him to work “3 hours a day as an educational aid (lunchroom monitor).”158 The psychologist concluded that the veteran‘s mental health disability included “[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.”159 In December 2018, he told another psychologist that he was unemployed and could not get a job, even though he had a college degree.160
The Board‘s specific factual findings included that “the probative evidence under review is at least in relative equipoise in establishing the [v]eteran‘s adjustment disorder with depressed mood more nearly approximates occupational and social impairment with deficiencies in most areas,” entitling him to a 70% rating for his adjustment disorder with depressed mood.161 That numeric rating is significant, because TDIU may be awarded based on a single service-connected disability rated at 60% or more that renders a veteran unable to secure or follow a substantially gainful occupation.162 The 70% rating the Board awarded includes occupational impairment with work deficiencies and difficulty in adapting to stressful circumstances in a worklike setting, as well as impairment in attributes generally thought to be important in the workplace and disruptive symptoms that interfere with routine activities.163 Yet the Board failed to note that the veteran was unemployed, said he couldn‘t get a job, or that the last time he was employed, his master‘s degree only enabled him to get a part-time job as a lunch monitor. And the Board did not address employability at all.164
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Rebecca Pierce, Esq.
VA General Counsel (027)
entitlement, . . . and the Board should evaluate entitlement to TDIU in the first instance.” Locklear v. Shinseki, 24 Vet.App. 311, 317-18 (2011).