Parker v. Brown

KRAMER, Judge,

dissenting:

I would hold that the appellant’s claims for a total disability rating based on individual unemployability (TDIU) and an increased rating for a back condition are “inextricably intertwined,” and that his claim for payment or reimbursement of unauthorized medical expenses is well grounded.

I. INCREASED RATING (BACK INJURY)

Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), stands for the general proposition that the Court will not review Board of Veterans’ Appeals (BVA) decisions in piecemeal fashion where such review might result in a meaningless waste of judicial resources. *120Thus, where pending administrative action on a claim might have a “significant impact” on the Court’s review of a BVA decision on another claim, the Court will not provide separate review of that BVA decision. Id.

As a consequence of the BVA decision on review, a claim for TDIU is pending at the administrative level, while a claim for an increased rating of a condition which constitutes an integral part of the TDIU claim is on appeal to the Court. As I stated in my concurring opinion in Holland v. Brown, 6 Vet.App. 443, 449 (1994):

[BJoth a schedular rating and a TDIU rating are based on the extent to which a disability negatively impacts upon employ-ability. See 38 C.F.R. § 4.1 (1993) (sche-dular “ratings represent ... the average impairment in earning capacity”); 38 C.F.R. §§ 4.15, 4.16 (1993) (TDIU ratings represent the inability “to follow a substantially gainful occupation”). A TDIU rating which is premised upon a condition which is also the subject of a rating in terms of percentage of disability is inextricably intertwined with the percentage rating. The evidence used to support both ratings must overlap, at least in part, because the inquiry is the same: what is the degree of disability?

Thus, I agree with the Secretary that the issue of an increased rating for the appellant’s back injury is inextricably intertwined with the issue of a TDIU rating, and that review by the Court of the increased rating claim is, therefore, premature.

To the extent the majority relies on Holland for its result, I would point out that Holland conflicts with Harris in that it attempts to limit Harris only to those situations where a future administrative action on one claim will “necessarily” affect' Court review on another claim. The majority in Holland specifically determined that such a construct only occurs where the Court is reviewing TDIU and the claim before the administrative body is one for an increased rating, but not conversely, as is the ease here. Cf. Vettese v. Brown, 7 Vet.App. 31 (1994).

The fallacy of such a proposition is twofold. First, it fails to recognize that when the claims are in a juxtaposed situation (increased rating before the Court and TDIU below), evidence pertaining to TDIU before the administrative body might have a significant impact as to the proper rating of the underlying condition. Second, even if we impose a one-way street where Harris applies only to a situation where the claim for an increased rating is below and TDIU here, an administrative decision as to the rating increase may not “necessarily” affect the Court’s review of TDIU in that if the rating increase were to be denied, such a denial would not affect that Court’s review of TDIU, regardless of whether the review occurred before or after such denial.

Finally, to add more confusion on the question of whether two claims are “inextricably intertwined,” the majority changes the Holland test, which focused only on the impact that the pending administrative action would have on the Court’s decision, by focusing only on the impact that the issue before the Court would have on the pending administrative action:

In this case, the question is whether in deciding the TDIU claim, the RO would have to reexamine the merits of the denied claim for an increased disability rating which is pending on appeal before this Court. Obviously it would not. Therefore, the claims are easily extricable.... The subjective factors that are the core of a TDIU claim can be adjudicated without necessarily reexamining or reopening the underlying objective disability rating.

Ante at 119.

II. PAYMENT OR REIMBURSEMENT OF UNAUTHORIZED MEDICAL EXPENSES

As the majority stated, this is a case of first impression as to what constitutes a well-grounded claim for payment or reimbursement of medical expenses under 38 U.S.C. § 1728(a), which is quoted in the majority opinion, ante at 119-20.

The appellant has the burden of submitting evidence sufficient to justify a belief that a claim is well grounded. 38 U.S.C. § 5107(a). “A well grounded claim is a plausible claim, one which is meritorious on its *121own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [38 U.S.C. § 5107(a)].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Whether a claim is well grounded is a question of law subject to de novo review by the Court. See King v. Brown, 5 Vet.App. 19 (1993).

Under the statutory structure of section 1728(a), certain clearly stated preliminary threshold requirements must be established prior to the consideration of the cumulative elements enunciated in subparagraphs (1) through (3). These threshold requirements are as follows. First, the claimant must be a veteran. Second, the veteran must be entitled to hospital care or medical services under Chapter 17 of Title 38 of the United States Code. Third, the veteran must have received such care or services from sources other than VA. Fourth, such care or services must have been rendered for payment. Once the four threshold requirements have been satisfied, each of the three elements enunciated in subparagraphs (1) through (3) must also be satisfied in order for an appellant to be entitled to reimbursement of medical expenses under section 1728(a).

Turning to this case, it is undisputed that the appellant is a veteran, that he received medical treatment from someone other than VA, and that such treatment was rendered for payment. Therefore, the first, third, and fourth threshold requirements have been satisfied. As to whether the appellant is entitled to hospital care or medical services under Chapter 17 (the second threshold requirement), 38 U.S.C. § 1710(a)(1)(A) provides that “the Secretary shall furnish hospital care ... which the Secretary determines is needed ... to any veteran for a service-connected disability.” Further, section 1712(a)(1)(A) provides that “the Secretary shall furnish on an ambulatory or outpatient basis such medical services as the Secretary determines are needed ... to any veteran for a service-connected disability.” As the Secretary has not disputed that the appellant sought needed treatment for a service-connected disability, I would conclude that the second threshold requirement has been satisfied. Thus, all four threshold requirements have been satisfied.

If, after these threshold requirements have been met, the appellant still must submit evidence of a medical emergency (subpara-graph (1)) in order for his claim to be well grounded under 38 U.S.C. § 1728(a) (as the majority would require), then, because sub-paragraphs (1), (2), and (3) are cumulative, he would also have to submit evidence of each of the other two elements enumerated in subparagraphs (2) and (3) in order for the claim to be well grounded. However, requiring a claimant to submit evidence with respect to all four threshold requirements and all three of the elements enumerated in sub-paragraphs (1) through (3) is almost tantamount to requiring the appellant to establish entitlement to reimbursement under section 1728(a), far too great a prerequisite for submitting a well-grounded claim. See Murphy, supra (a well-grounded claim need not be conclusive, only plausible); White v. Derwinski, 1 Vet.App. 519, 521 (1991) (the threshold as to whether a claim is well grounded is “rather low”).

Recently, in Robinette v. Brown, — Vet. App. -, -, No. 93-985, slip op. at 10, 1994 WL 495078 (Sept. 12, 1994), the Court stated that “as our ... jurisprudence ... makes clear, to be well grounded a claim need not be supported by evidence sufficient for the claim to be granted. Rather, the law establishes only a preliminary threshold of plausibility with enough of an evidentiary basis to show that the claim is capable of substantiation.” (Boldface italics in the original.) Because there is not only plausible evidence as to the preliminary threshold requirements of 38 U.S.C. § 1728(a), but indeed such preliminary threshold requirements have been satisfied, I would hold that the appellant’s claim is well grounded and that the BVA erred when it concluded that the appellant’s claim was not well grounded.