UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-6125
WAYNE CALHOUN , APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided January 9, 2024)
Megan M. Ellis, then of San Diego, California, currently of West Warwick, Rhode Island,
was on the brief for the appellant.
Catherine C. Mitrano, General Counsel; Mary Ann Flynn, Chief Counsel; Carolyn F.
Washington, Deputy Chief Counsel; and Carrie E. Ferrando, all of Washington, D.C., were on
the brief for the appellee.
Before BARTLEY, Chief Judge, and PIETSCH and TOTH, Judges.
BARTLEY, Chief Judge: Veteran Wayne Calhoun appeals through counsel the portion of
a September 10, 2021, Board of Veterans' Appeals (Board) decision that d enied entitlement to an
effective date before January 1, 2016, for the award of a total disability evaluation based on
individual unemployability (TDIU) due to service-connected disabilities. Record (R.) at 5-15.
This appeal is timely, and the Court has jurisdiction to review the Board decision pursuant to
38 U.S.C. §§ 7252(a) and 7266(a).
In February 2023, the Court directed the parties to file supplemental briefs addressing
whether Mr. Calhoun's appeal, which stems from a supplemental claim filed within one year of an
earlier Board decision and under the provisions of the Veterans Appeals Improvement and
Modernization Act of 2017 (AMA), was a prohibited freestanding earlier effective date claim.
This matter was subsequently referred to a panel of the Court to address the AMA issue.
As discussed below, the regulatory structure of the AMA expressly provides that an issue
remains active—that is, a decision on the issue remains pending and does not become final,
including for effective date purposes—when a claimant files a supplemental claim within one year
of an adverse Board decision. Consequently, the Board had statutory authority to consider the
TDIU effective date issue in its September 2021 decision and the Court has authority to review the
merits of the Board's determination that an earlier TDIU effective date was not warranted. And
because the Court holds that the Board did not provide adequate reasons or bases for that
determination, it will set aside the September 2021 Board decision and remand the matter for
readjudication consistent with this decision. The remainder of the appeal will be dismissed.
I. THE BOARD HAS STATUTORY AUTHORITY OVER CONTINUOUSLY PURSUED
EFFECTIVE DATE APPEALS
A. Facts Specific to Determining Board Authority
The agency of original jurisdiction (AOJ) first adjudicated entitlement to TDIU in a
February 2021 rating decision, assigning an effective date of January 8, 2020. R. at 362 -69. In
March 2021, Mr. Calhoun filed a Notice of Disagreement (NOD) on VA Form 10182, seeking
direct review by the Board of the TDIU effective date, among other issues. R. at 282.
Also in March 2021, the AOJ found that there was clear and unmistakable error (CUE) in
the assignment of the TDIU effective date and revised that portion of the decision to reflect a
January 1, 2016, effective date. R. at 254-61. That same month, Mr. Calhoun filed a VA Form
10182 NOD with the effective date assigned in that decision, as well. R. at 229.
In an April 2021 decision, the Board, among other things, denied entitlement to an effective
date before January 1, 2016, for TDIU. R. at 181-200. The following month, in May 2021, Mr.
Calhoun filed a supplemental claim disagreeing with the Board's April 2021 TDIU effective date
decision. R. at 143-44. He did not, at that time, appeal the matter to the Court. Later that month,
the AOJ issued a decision denying an earlier effective date for TDIU based on Mr. Calhoun's
supplemental claim. R. at 98-101. That same month, Mr. Calhoun filed an AMA NOD with the
May 2021 rating decision, electing the evidence submission option. R. at 50.
In the September 2021 decision on appeal, the Board readjudicated the issue of entitlement
to TDIU before January 1, 2016. R. at 10-15. And by addressing the matter of entitlement to an
earlier TDIU effective date on the merits, the Board implicitly found that it had authority to
consider that issue—that is, that it was not improperly adjudicating a prohibited freestanding
effective date claim. Whether the Board erred in doing so is the question requiring a precedential
decision from the Court.
2
B. Analysis
As noted above, on February 7, 2023, the Court requested that the parties provide
supplemental briefing discussing whether Mr. Calhoun's May 2021 supplemental claim, filed
under the AMA system, constituted a freestanding earlier effective date claim. The Court took
this action because it is well established that the Board lacks the authority to review such a claim,
which occurs when a claimant files a claim seeking an earlier effective date after the decision
assigning that effective date has become final (and is not pursuing one of the exceptions to finality).
Rudd v. Nicholson, 20 Vet.App. 296, 299 (2006). If the matter before the Court today involves a
freestanding earlier effective date claim, the Board lacked authority to adjudicate the matter, and
the proper remedy is for the Court to vacate the Board decision and dismiss the appeal seeking an
earlier TDIU effective date. See id. at 300. The Court will set the stage by reviewing some of the
differences between the legacy appeal system and the AMA, particularly as regards the concept of
finality and a claimant's options following a Board decision.
Appeals under the legacy system traversed along a single pathway. Legacy claimants
unsatisfied with an initial decision from the AOJ had a year to file an NOD, which triggered VA's
obligation to produce a Statement of the Case (SOC). 38 U.S.C. § 7105 (a), (b)(1) (2001).
Following issuance of the SOC, claimants generally had 60 days to file a Substantive Appeal,
triggering certification to and review by the Board. 38 U.S.C. § 7105(d)(3) (2001); see also
38 C.F.R. § 20.302(b) (2018) ("[A] Substantive Appeal must be filed within 60 days from the date
that the [AOJ] mails the [SOC] to the appellant, or within the remainder of the 1 -year period from
the date of mailing of the notification of the determination being appealed, whichever period ends
later."). And, following an unfavorable Board decision, claimants generally had 120 days to file
a Notice of Appeal (NOA) with the Court. 38 U.S.C. § 7266.1 Finality was achieved under the
legacy system when the time allotted for the next action in the appeal chain expired without action
by the claimant or a claimant had exhausted their options for review by a higher tribunal. Once a
decision became final, there was no opportunity for readjudication by the AOJ unless a claimant
sought to reopen the claim or to invoke one of the relatively narrow exceptions to finality.
But under the legacy system, claimants may not seek to reopen final effective date
determinations. Therefore, once an effective date decision became final in the legacy system, that
1
And, of course, claimants could further appeal an unfavorable decision from this Court to the U.S. Court of
Appeals for the Federal Circuit.
3
decision was not subject to readjudication absent an assertion of clear and unmistakable error, an
order from the Chairman granting reconsideration of a Board decision, or the Board's sua sponte
correction of obvious error. See Rudd, 20 Vet.App. at 299-300; DiCarlo v. Nicholson, 20 Vet.App.
52, 56 (2006).
This was so because, according to the version of the statute then in effect, unless otherwise
provided
the effective date of an award based on an original claim, a claim reopened after
final adjudication, or a claim for increase, of compensation, dep endency and
indemnity compensation, or pension, shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of application therefor.
38 U.S.C. § 5110(a) (2012). Therefore, an effective date claim reopened after a final adjudication
could, under the version of section 5110(a) then in effect, have an effective date no earlier than the
date of the claim to reopen, which eliminates from the slate of possibilities the award of an effective
date earlier than that awarded in the initial (now final) decision. Rudd, 20 Vet.App. at 299. For
example, if a final decision from 2000 assigned an effective date in 1999, and a claimant filed a
claim to reopen the initial effective date decision in 2005, under the legacy version of section
5110(a), the earliest possible effective date would be the date VA received the claim to reopen in
2005, several years later than the effective date already assigned. Accordingly, "freestanding"
claims for an earlier effective date under the legacy system are prohibited because the only way
for them to result in the actual award of an earlier effective date would be to compromise the rule
of finality. Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005).
Applying the process to a hypothetical legacy claimant, if that claimant was dissatisfied
with an effective date assigned by the AOJ, he or she could file an NOD. If they were dissatisfied
with the outcome of the subsequently issued SOC, they could file a Substantive Appeal. And if
the resulting Board decision was not fully favorable, their sole option for further review within the
ordinary decision review process was to file an NOA seeking review by the Court. If they did not
elect to file an NOA, or if the Court's (or any higher tribunal's) review was not favorable, the Board
decision became final on that issue and the effective date matter was not subject to readjudication
unless the claimant pursued one of the exceptions to finality, such as CUE or reconsideration. Any
subsequent claim seeking an earlier effective date was considered a prohibited freestanding
effective date claim not subject to further adjudication. See Rudd, 20 Vet.App. at 299.
4
The AMA system transformed the single appeal pathway of the legacy system into an array
of three procedural lanes from which claimants may choose. Mil.-Veterans Advoc. v. Sec'y of
Veterans Affs., 7 F.4th 1110, 1119 (Fed. Cir. 2021) (citing 38 U.S.C. § 5104C(a)(1)). Within one
year after the AOJ issues a decision, claimants may file one of the following: (1) a request for
higher-level review of that decision; (2) a supplemental claim; or (3) an NOD to directly appeal
to the Board. See 38 U.S.C. §§ 5104C(a)(1)(A)-(C), 5104B, 5108, 7105; Mil.-Veterans Advoc., 7
F.4th at 1117, 1119. And while "claimants may use only one lane at a time," Mil.-Veterans Advoc.,
7 F.4th at 1119 (citing 38 U.S.C. § 5104C(a)(2)(A)), "nothing can prohibit [a] claimant from
pursuing each administrative review option in succession," id. at 1134 (citing 38 U.S.C. §
5104C(a)(2)(B)).
In addition to providing additional post-decision review options, the AMA introduced
statutory language referencing a "continuously pursued" claim. And in accordance with that
concept, section 5110 was revised to allow for an effective date as early as the initial application
for benefits whenever the claimant continuously pursues a claim by filing, either alone or in
succession,
(A) A request for higher-level review under section 5104B of this title on or before
the date that is one year after the date on which the agency of original jurisdiction
issues a decision.
(B) A supplemental claim under section 5108 of this title on or before the date that
is one year after the date on which the agency of original jurisdiction issues a
decision.
(C) A notice of disagreement on or before the date that is one year after the date on
which the agency of original jurisdiction issues a decision.
(D) A supplemental claim under section 5108 of this title on or before the date that
is one year after the date on which the Board of Veterans' Appeals issues a decision.
(E) A supplemental claim under section 5108 of this title on or before the date that
is one year after the date on which the Court of Appeals for Veterans Claims issues
a decision.
38 U.S.C. § 5110(a)(2). In other words, the finality of an AMA benefits determination is
forestalled when a claim is continuously pursued—that is, whenever the claimant elects one of the
three review lanes within 1 year after an AOJ decision or files a supplemental claim within 1 year
after a decision by the Board or the Court. Accordingly, an AMA decision does not become final
until the 1-year period after a decision by the AOJ, the Board, or the Court has expired without an
action in accordance with section 5110(a)(2) by the claimant.
5
Returning to our hypothetical claimant, under the AMA system if that claimant is
dissatisfied with the benefits effective date assigned by the AOJ and continuously pursues the
claim until receiving an unfavorable Board (or Court) decision, the claimant has the option not
available to legacy claimants of filing a supplemental claim within 1 year of that Board (or Court)
decision and potentially securing an effective date as early as the date of the filing of the initial
claim.
As noted above, the Court requested supplemental briefing from the parties because it has
not previously addressed the interplay between Rudd and Leonard and the "continuously pursued"
AMA statutory language. This is relevant in Mr. Calhoun's case because he does not appeal
directly from the first April 2021 Board decision denying an earlier TDIU effective date but from
a September 2021 Board decision that issued after he filed a timely supplemental claim in May
2021. Thus, while his claim has been continuously pursued as provided for in section
5510(a)(2)(D), the question before the Court is whether the April 2021 Board decision, as the
first—and unappealed—Board decision to address the TDIU effective date, is considered final for
the purpose of applying Rudd and Leonard, as it would have been under the legacy system when
claimants were not permitted to file supplemental claims following Board decisions. If the April
2021 Board decision is final with respect to the TDIU effective date, Mr. Calhoun's May 2021
supplemental claim would be a prohibited freestanding earlier effective date claim that the Board
should have dismissed in its September 2021 decision.
In their supplemental briefs, the parties agree that, under the AMA, a continuously pursued
claim—including one seeking an earlier effective date—is not final and does not implicate Rudd,
Leonard, or related caselaw. Mr. Calhoun notes that he has continuously pursued, in accordance
with the AMA, his appeal seeking an earlier effective date for TDIU since it was initially awarded.
Appellant's Supplemental Br. at 3-4.2 And, he reasons, because the AMA permits the continuous
pursuit of issues denied by the Board, his May 2021 supplemental claim seeking an earlier TDIU
effective date is not a freestanding earlier effective date claim. Id. at 4.
The Secretary concurs that Mr. Calhoun's May 2021 supplemental claim "does not
constitute a freestanding earlier effective date claim, as it was part of his continuous pursuit of the
issue" as permitted under the AMA, which "distinguishes this particular c ase from Leonard and
2
Mr. Calhoun filed an amended supplemental brief to correct a formatting error. All citations are to the
amended supplemental brief.
6
Rudd." Secretary's Supplemental Br. at 1. The Secretary notes that, under the AMA, supplemental
claims serve two functions: as part of the continuous pursuit of a claim when filed within 1 year
of a qualifying prior adjudication and, when filed outside that 1-year period, as something similar
to a request to reopen a prior final decision under the legacy system. Id. at 2. And while the
second function might implicate Rudd and Leonard, the first does not. Id. at 2-3.
The Court agrees with the parties. Under the legacy system, Rudd and Leonard barred
freestanding earlier effective date claims because they were impermissible attempts to overcome
the finality of a prior decision. Leonard, 405 F.3d at 1337 (holding that allowing freestanding
earlier effective date claims would "vitiate the rule of finality"); Rudd, 20 Vet.App. at 300 (same);
see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (holding that, because Congress
explicitly provided certain exceptions to the rule of finality, it did not intend to allow other
exceptions). But as discussed above, the revised version of section 5110 under the AMA in cludes
the concept of the continuously pursued claim; expressly provides that claims are continuously
pursued when a supplemental claim is filed within 1 year of a Board or Court decision; and directs
that, when a claim is continuously pursued, the effective date of an award may be as early as the
date the claim was initially filed. 38 U.S.C. § 5110(a)(1), (2)(D). 3 Thus, continuously pursued
AMA claims are, as the term suggests, continuously pursued—that is, they have not yet become
final. And it logically follows that claimants who continuously pursue an earlier effective date are
not seeking to overcome or vitiate the finality of a prior decision because there is not yet a final
decision; Rudd and Leonard are simply not for consideration. 4
As for Mr. Calhoun, the parties agree, and the record indicates, that following the initial
February 2021 AOJ decision granting TDIU and assigning a January 8, 2020, effective date and
the March 2021 AOJ decision revising the TDIU effective date to January 1, 2016, based on CUE,
R. at 254-61, 362-69, Mr. Calhoun filed timely NODs with the assigned effective dates, R. at 229,
282; the Board issued an unfavorable decision in April 2021, R. at 189-200; and Mr. Calhoun filed
3
This was intentional, to accommodate both the AMA goal of streamlining the appeals system and more
quickly resolving appeals by eliminating 38 C.F.R. § 3.156(b) and closing the record after an initial decision issues,
while still permitting claimants to submit new and relevant evidence for consideration by filing a supplemental claim.
See 84 Fed. Reg. 138, 142-144 (2019) (final rule) (addressing comments regarding the elimination of § 3.156(b) for
AMA claims).
4
Whether Rudd and Leonard apply in the AMA system when a supplemental claim is filed more than 1 year
after the last prior adjudication, which the Secretary asserts is analogous to a legacy system claim to reopen, Secretary's
Supplemental Br. at 2, is beyond the scope of this decision.
7
a supplemental claim in May 2021, R. at 143-44. Because Mr. Calhoun sought further review
within 1 year of each adjudication, under the AMA his May 2021 supplemental claim following
the April 2021 Board decision was part of his continuously pursued appeal of the TDIU effective
date and not a freestanding earlier effective date claim. Accordingly, the Board did not err in
implicitly finding that it had authority to consider the merits of the effective date appeal and the
Court may likewise consider the merits of that appeal, which we do below. See 38 U.S.C.
§ 7261(a)(3)(C) (requiring the Court to set aside Board decisions issued in excess of statutory
jurisdiction, authority, or limitations, or in violation of a statutory right).
II. TDIU EFFECTIVE DATE
A. Merits Facts
Mr. Calhoun served on active duty with the U.S. Air Force from October 1965 to February
1969. R. at 3144. In August 2008, he was diagnosed with bronchioloalveolar adenocarcinoma in
the left lung. R. at 3014-17.
In January 2011, Mr. Calhoun filed a claim for service connection for lung cancer, R. at
3002-11, and he underwent a VA examination in August 2011, R. at 2947-51. The VA examiner
documented the veteran's report that he had a little breathing difficulty during exertion, R. at 2948,
but opined that pulmonary function testing (PFT) was normal and that there was "no objective
evidence of active disease," R. at 2950. In a September 2011 rating decision, the AOJ granted
service connection for the residuals of Mr. Calhoun's lung cancer—characterized as left lung,
status-post resection with residual scar—and assigned a 0% evaluation. R. at 2940-42.
In May 2012, Mr. Calhoun contacted VA by phone and requested that his claim be
reopened. R. at 2929. He underwent a VA examination in July 2012 , R. at 2897-913, and the
examiner documented the veteran's report that he "experiences a shortness of breath at rest and
with any exertion," but opined that there was "no objective evidence of active lung cancer." R. at
2899. The examiner further indicated that there were no residual conditions or complications
resulting from lung cancer or treatment, R. at 2909, that a mild restrictive defect seen on PFT was
likely related to obesity, R. at 2911, and that the lung disease would not affect Mr. Calhoun's ability
to work. R. at 2912.
In an August 2012 rating decision, the AOJ continued the 0% evaluation for Mr. Calhoun's
left lung condition, R. at 2891-93, and Mr. Calhoun filed a timely NOD, R. at 2874-75. In October
8
2014, Mr. Calhoun filed a claim seeking service connection for prostate cancer and obstructive
sleep apnea (OSA). R. at 2806. In a February 2015 rating decision, the AOJ granted service
connection for prostate cancer, assigning a 100% evaluation; a related surgical scar, assigning a
0% evaluation; and erectile dysfunction, assigning a 0% evaluation. R. at 2726 -33. The AOJ
granted special monthly compensation (SMC) based on loss of use of a creative organ, denied
service connection for OSA, and assigned October 29, 2014, as the effective date for all grants.
Id. Thus, at that time, Mr. Calhoun had a cumulative 100% evaluation based on a single disability
with no other compensable disabilities. R. at 2733. However, beginning January 1, 2016, Mr.
Calhoun's prostate cancer evaluation was reduced to 40%; he appealed that decision. See R. at
2186. Meanwhile, in September 2016, the AOJ issued an SOC continuing the 0% evaluation
assigned for Mr. Calhoun's left lung condition. R. at 2546-73. In October 2016, Mr. Calhoun filed
his Substantive Appeal. R. at 2530.
In December 2018, the Board issued a decision denying compensable evaluations for Mr.
Calhoun's left lung condition, associated surgical scar, and erectile dysfunction; a higher level of
SMC for loss of use of a creative organ; an effective date after January 1, 2016, for the reduction
from 100% to 40% for prostate cancer; and an evaluation in excess of 40% for prostate cancer
from January 1, 2016, to April 12, 2018. R. at 2176-93. The Board remanded the matter of service
connection for OSA. Id.
In June 2019, Mr. Calhoun submitted a claim for service connection for aphonia as
secondary to his service-connected left lung condition. R. at 2010-14. In an accompanying
statement, he asserted that he acquired vocal cord paralysis after treatment for his left lung
condition and that he can no long speak above a whisper. R. at 2002. In July 2019, Mr. Calhoun
underwent a VA examination, R. at 1857-66, and was diagnosed with dysphonia, left vocal fold
paresis, R. at 1859, chronic laryngitis, R. at 1860, and incomplete organic aphonia, R. at 1861. In
January 2020, Mr. Calhoun filed a formal application for TDIU, asserting that he had been too
disabled to work since March 2013. R. at 1738-40. In a May 2020 rating decision, the AOJ granted
service connection for OSA and assigned a 50% evaluation, effective October 29, 2014. R. at 759-
61.5
5
Although it is not clear from the portion of the May 2020 rating decision included in the record, the grant
of service connection for OSA subsumed the previous grant of service connection for left lung, status post resection,
and the combined disability was evaluated at 50% from October 29, 2014. See R. at 358-59.
9
In one of several February 2021 rating decisions, the AOJ granted service connection for
incomplete aphonia with vocal cord damage, assigning a 10% evaluation from June 7, 2019, and
a 60% evaluation from February 16, 2021. R. at 306 -10. In a separate February 2021 rating
decision, the AOJ granted entitlement to TDIU (and dependents' educational assistance (DEA) as
a related benefit) from January 8, 2020. R. at 362-69. In March 2021, the AOJ found CUE in the
prior effective dates assigned for TDIU and DEA, assigning instead a January 1, 2016, effective
date for both. R. at 254-61. Thus, at that point, Mr. Calhoun had a 100% schedular rating from
October 29, 2014, to January 1, 2016, and an award of TDIU from that point. See R. at 261.
In March 2021, Mr. Calhoun filed an AMA NOD on VA Form 10182, seeking direct
review by the Board of several issues, including the TDIU effective date of January 2020 as
determined in the February 2021 rating decision. R. at 282. That same month, he filed a separate
AMA NOD from the March 2021 rating decision assigning an TDIU effective date in January
2016. R. at 229. In an April 2021 decision, the Board denied, as relevant here, an effective date
before January 1, 2016, for TDIU, but granted an earlier effective date of January 5, 2011, for
service connection for aphonia and entitlement to SMC at the housebound rate as of June 7, 2019.
R. at 181-200.
In May 2021, Mr. Calhoun filed a supplemental claim on VA Form 20 -0995 disagreeing
with the portions of the April 2021 Board decision regarding the TDIU and SMC effective dates.
R. at 143-44. Later that month, the AOJ issued a decision implementing an earlier
SMC/housebound effective date of October 29, 2014, as directed by the Board, and denying an
earlier effective date for TDIU based on Mr. Calhoun's supplemental claim. R. at 98-101. In that
decision, the RO stated that Mr. Calhoun had been assigned a 60% evaluation for aphonia from
January 5, 2011. R. at 99. And given that he had, from October 29, 2014, a 100% evaluation
based solely on his prostate condition, and a separate 60% evaluation for aphonia, the RO found
that he was statutorily entitled to SMC at the housebound rate from October 29, 2014. Id. That
same month, Mr. Calhoun filed an AMA NOD with the TDIU effective date, electing the evidence
submission option. R. at 50.
In June 2021, Mr. Calhoun submitted a private vocational assessment, R. at 33-42, wherein
the evaluator opined that Mr. Calhoun had been unemployable due to service-connected aphonia
since at least March 2013, R. at 39, and that the most relevant records for her assessment dated
from June 29, 2015, through July 8, 2019. R. at 34-35. Based on a May 2021 telephone interview,
10
she documented Mr. Calhoun's reported symptoms and functional limitations as impaired verbal
communication abilities and, as a result, impaired efficiency and performance. R. at 35. She
acknowledged Mr. Calhoun's bachelor's degree and "solid skilled work history in technical
writing," R. at 39, but opined that his "impaired ability to communicate effectively with others
through speech precludes even sedentary work as all work involves at least occasional contact and
communication with supervisors and co-workers," R. at 38.
In the September 2021 decision on appeal, the Board noted that Mr. Calhoun was working
full time until March 2013, when he left his multi-decade employment as a Northrup Grumman
technical writer; therefore, the applicable review period began March 1, 2013. R. at 10. The Board
acknowledged that, from October 29, 2014, to December 31, 2015, Mr. Calhoun had a temporary
100% evaluation for prostate cancer and that, under Buie v. Shinseki, 24 Vet.App. 242, 254 (2011),
a TDIU issue is not necessarily moot simply because a veteran has a 100% schedular ev aluation
because TDIU based on a separate disability may confer entitlement to SMC at the housebound
rate. R. at 14-15. But in Mr. Calhoun's case, the Board found, he had already been granted SMC
at the housebound rate from October 29, 2014, because of h is separate 60% aphonia evaluation;
therefore, the Board found moot any consideration of TDIU from October 29, 2014, to December
31, 2015. R. at 15. Finally, the Board determined that since Mr. Calhoun had been granted TDIU
from January 1, 2016, id., the question at issue was whether Mr. Calhoun was entitled to TDIU
from March 1, 2013, to October 29, 2014. See R. at 5.
As for TDIU entitlement during that time period, the Board considered the July 2012 VA
examiner's report, including the veteran's report of shortness of breath and the examiner's opinion
that the left lung condition would not impact Mr. Calhoun's ability to work. R. at 11. The Board
also considered private treatment records documenting an October 2012 fall and use of a CPAP
machine in December 2013. R. at 11. The Board noted that the vocational consultant limited her
assessment to the effect of aphonia on Mr. Calhoun's employment, id., and indicated specifically
that her review was based on records from and after June 2015, outside the period on appeal. R.
at 13. And, the Board noted, Mr. Calhoun was able to continue working from January 5, 2011,
until March 2013, during which time he was evaluated at 60% for his aphonia. R. at 13. And, the
Board found, VA and private medical records documenting minimal functional impairment do not
support the vocational consultant's opinion. Id. Consequently, the Board afforded little probative
weight to the vocational consultant's opinion. Id.
11
In addressing the matter of entitlement to an earlier TDIU effective date on the merits, the
Board implicitly found that it had authority to consider that issue. Ultimately, the Board found
that the evidence did not support a finding of entitlement to TDIU before January 1, 2016, and
denied the claim. This appeal followed.
B. The Parties' Merits Arguments
As a preliminary matter, the parties do not dispute the Board's findings that the appeal
period is from March 1, 2013, to October 29, 2014, and that Buie is not for consideration. See R.
at 5, 10, 14-15. Accordingly, any argument with respect to those findings is waived, and the appeal
as to those matters will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015)
(en banc) (declining to review the merits of an issue not argued and dismissing that portion of the
appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same).
Mr. Calhoun argues, among other things, that the Board provided inadequate reasons or
bases for denying him an earlier TDIU effective date. Appellant's Br. at 5-12. He alleges that the
Board stated that his functional capacity was limited without conducting a more specific
assessment of his limitations—such as shortness of breath even at rest—and the occupations for
which he is qualified, per Ray v. Wilkie, 31 Vet.App. 58, 73 (2019). Id. at 7-9. And he alleges that
the Board improperly discounted the private vocational opinion for relying on post-appeal period
medical records because the timing of those records does not necessarily "render them irrelevant
or undermine the vocational opinion." Id. at 9. He further alleges that the Board should not have
relied on the July 2012 VA examiner's opinion that his disability would not impact employment
to discount the private vocation opinion because he was not service connected for aphonia in July
2012 and, therefore, the VA examiner did not contemplate the effects of that condition on
employability. Id. at 10-11.
The Secretary asserts that the functional limitation analysis described in Ray "is only
necessary if the evidence of record raises its potential applicability." Secretary's Br. at 6. Here,
he asserts, the evidence of shortness of breath at rest was from a February 2021 VA examination
and, therefore, lacked relevance to the current appeal period. Id. The Secretary also contends that
the Board's determination that the private vocational opinion was entitled to minimal probative
value was "within the Board's purview and does not lack adequate explanation." Id. at 8-9. And,
the Secretary asserts, the Board properly relied on the July 2012 VA examiner's opinion because
Mr. Calhoun's lay statements "are generally not competent to establish facts [that] require
12
specialized medical knowledge or expertise" and it is ultimately the Board's responsibility to
determine employability. Id. at 9.
In reply, Mr. Calhoun reiterates that the Board should have considered his specific
functional impairment, such as shortness of breath, hoarseness, and difficulty communicating, and
that evidence from outside the appeal period is not inherently irrelevant, particula rly to the extent
that it addresses the functional impact of symptoms that he reported occurred during the appeal
period. Reply Br. at 2-3. And, he notes, he is competent to report on observable symptoms and
their impact because they are "within the scope of his personal experience." Id. at 3.
C. Merits Analysis
The Court agrees with Mr. Calhoun that the Board's reasons or bases are inadequate.
Board determinations of the proper effective date for disability compensation, and whether
TDIU is warranted, are findings of fact that the Court reviews under the "clearly erroneous"
standard of review. See Bowling v. Principi, 15 Vet.App. 1, 6 (2001); Evans v. West, 12 Vet.App.
396, 401 (1999); Hanson v. Brown, 9 Vet.App. 29, 32 (1996); see also 38 U.S.C. § 7261(a)(4). "A
factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its findings on any material issue of fact and law with adequate
reasons or bases. 38 U.S.C. § 7104(d)(1); Pederson, 27 Vet.App. at 286. To comply with this
requirement, the Board must analyze the credibility and probative value of evidence, account for
evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). It must also discuss all provisions of law and regulation that
are made "potentially applicable through the assertions and issues raised in the record." Schafrath
v. Derwinski, 1 Vet.App. 589, 592 (1991); see Robinson v. Peake, 21 Vet.App. 545, 552 (2008)
(requiring the Board to address all issues explicitly raised by the claimant or reasonably raised by
the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009).
As to the probative value assigned to the July 2012 VA examiner's opinion and the May
2021 private vocational assessment, the Board found that the private assessment opining that Mr.
Calhoun has been unemployable since March 2013 has "little probative weight" because , among
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other things, it was contradicted by the July 2012 VA examiner's opinion that Mr. Calhoun's left
lung condition did not impact employability and because the private evaluator considered post-
appeal-period medical records. R. at 13. But the Board found, and the parties do not contest, that
the current appeal period began in March 2013. See R. at 5. And it is not clear from the Board's
analysis why it relied on VA medical evidence from before the appeal period—when Mr. Calhoun
was still employed and presumably less functionally impaired —but discounted the private
assessment because it cited medical evidence from after the appeal period. Said another way, both
examples date or cite evidence from outside the appeal period, and the Board failed to explain why
one is entitled to probative value and the other is not.
Furthermore, Mr. Calhoun is correct that the July 2012 VA examiner did not consider his
aphonia. Indeed, the record indicates that although his first of-record diagnosis of aphonia was
July 2019, R. at 1861, he is service connected for that condition effective January 5, 2011, R. at
181-200. The July 2012 VA examiner diagnosed residuals of left lung cancer with no objective
evidence of active disease, noted lay reports of shortness of breath, R. at 2899, and concluded that
the diagnosed respiratory condition did not impact Mr. Calhoun's ability to work , R. at 2912. But
the examiner did not discuss aphonia or its functional impacts, which is significant because VA
has determined that at the time of that examination Mr. Calhoun had aphonia warranting a 60%
evaluation. Thus, it is not clear to the Court, based on the Board's analysis, why it relied on the
July 2012 VA examination report, which did not address the impact of a significantly disabling
condition, as a better indicator of Mr. Calhoun's employability than the private vocational
assessment.
Ultimately, the Board rejected the private vocational assessment at least in part because it
relied on evidence from outside the appeal period yet itself relied on different evidence from
outside the appeal period—that on its face did not consider the full scope of Mr. Calhoun's
disability—to deny an earlier TDIU effective date. And it did so without explaining why;
accordingly, judicial review is frustrated. And when judicial review is frustrated, the Board's
reasons or bases are inadequate, Pederson, 27 Vet.App. at 286, and remand is warranted, Tucker
v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the
Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases
for its determinations, or where the record is otherwise inadequate").
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Turning to Mr. Calhoun's Ray argument, when determining whether a veteran can secure
and follow a substantially gainful occupation, the Board is to use the framework provided by this
Court in Ray. In Ray, the Court interpreted being "unable to secure and follow substantially gainful
employment" to include both economic and noneconomic factors. 31 Vet.App. at 73. The Court
did not create a checklist of factors that must be considered by the Board; rather, it instructed that
discussion of a particular factor is necessary if it is raised by the evidence. Id.
Here, the Board discussed Mr. Calhoun's prior work experience and education, the July
2012 VA examination report, private treatment records from October 2012 and December 2013,
the May 2021 private vocational assessment, including Mr. Calhoun's lay reports of functional
impairment relayed during the private assessment, and the fact that eventually he was granted a
60% evaluation for aphonia beginning at a time when he was still employed. R. at 10-13. In its
substantive analysis, which consists of two paragraphs, the Board discounted the private
assessment in the first paragraph and concluded that the evidence does not support an earlier TDIU
effective date in the second, finding that, although Mr. Calhoun "was limited in his functional
capacity[, the evidence] does not show that his service-connected conditions prevented him from
obtaining or maintaining substantially gainful employment." R. at 13. The Board also appeared
to discount the 60% evaluation for aphonia as irrelevant because "the [v]eteran continued to work
until March 2013." Id. The Board did not elaborate on what it found his functional capacity limits
to be.
The Secretary asserts that this brief analysis is all that is required here because no evidence
of record raises the potentially applicability of any Ray factors. Secretary's Br. at 5-6. But the
Court cannot evaluate the Board's analysis as to the proper TDIU effective date—to include
whether discussion of any Ray factors was necessary—when it is not clear what the Board found
Mr. Calhoun's impairment to be. For example, it appears that the Board gave significant weight
to the July 2012 VA examination report prepared before Mr. Calhoun was diagnosed with aphonia
and while he was still employed, before the period on appeal; 6 discounted the relevance of Mr.
Calhoun's 60% aphonia evaluation because he was employed during a portion of the time he was
granted that evaluation; and discounted the private vocational assessment entirely, to include Mr.
Calhoun's lay reports of observable symptoms. R. at 13. It is not apparent what the Board found
6
And, of course, the Court has already determined that the Board provided inadequate reasons or bases for
its reliance on the July 2012 VA medical examination report.
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Mr. Calhoun's functional capacity to be, other than "limited" but not "prevent[ing] him from
obtaining or maintaining substantially gainful employment." Id. And without that finding from
the Board, there is nothing for the Court to review on the matter. Again, judicial review is
frustrated, and remand is warranted. See Pederson, 27 Vet.App. at 286; Tucker, 11 Vet.App. at
374.
III. MOTION FOR ORAL ARGUMENT
As a final matter, on September 12, 2023, Mr. Calhoun filed a motion for leave to file out
of time a motion for oral argument and included a copy of his proposed motion for oral argument.
The Court will grant the September 12, 2023, motion for leave to file out of time a motion for oral
argument and direct that the motion be filed as of that date. However, after reviewing the motion,
and having determined that remand is warranted, the Court is not convinced that oral argument
would materially assist in the disposition of this appeal and will deny the motion. See Janssen v.
Principi, 15 Vet.App. 370, 379 (2001) (per curiam); Mason v. Brown, 8 Vet.App. 44, 59 (1995).
IV. CONCLUSION
Upon consideration of the foregoing, Mr. Calhoun's September 12, 2023, motion for leave
to file a motion for oral argument out of time is granted; the motion for oral argument is considered
filed as of September 12, 2023; and the motion for oral argument is denied. The portion of the
September 10, 2021, Board decision denying entitlement to an eff ective date before January 1,
2016, for the award of TDIU is SET ASIDE, and the matter is REMANDED for further
development, if necessary, and readjudication consistent with this decision. The balance of the
appeal is DISMISSED.
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