Lois Harris v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LOIS HARRIS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1827
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-6359, Judge Michael P. Allen.
______________________
Decided: December 27, 2024
______________________
KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
MATTHEW JUDE CARHART, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN,
PATRICIA M. MCCARTHY; JONATHAN KRISCH, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 23-1827 Document: 32 Page: 1 Filed: 12/27/2024

-- 1 of 6 --

HARRIS v. MCDONOUGH 2
______________________
Before DYK, CHEN, and CUNNINGHAM, Circuit Judges.
CHEN, Circuit Judge.
Lois Harris appeals from the decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court), which affirmed the denial of an earlier effective
date for total disability based on individual
unemployability (TDIU) awarded to Mrs. Harris’s now-
deceased husband, Max Harris. Harris v. McDonough, No.
21-6359, 2023 WL 355056 (Vet. App. Jan. 23, 2023)
(Decision). Because Mrs. Harris forfeited her arguments,
we affirm.
BACKGROUND
Mr. Harris served honorably in the United States Air
Force from March 1961 through April 1970. On April 22,
2013, Mr. Harris filed with the United States Department
of Veterans Affairs (VA) a claim for an increased rating for
his already service-connected knee disability. Dissatisfied
with the VA regional office’s (RO) decision on that claim,
Mr. Harris appealed to the Board of Veterans’ Appeals
(Board) in July 2016. While that appeal was pending,
Mr. Harris obtained counsel to represent him in his pursuit
of increased compensation. On April 16, 2018, Mr. Harris’s
counsel submitted an application for TDIU on VA Form 21-
8940, along with a cover letter asserting that Mr. Harris’s
“pursuit of TDIU is not a new claim rather it is part and
parcel of the pending appeal pursuant to Rice v. Shinseki,
22 Vet. App. 447 (2009).” J.A. 104–07 (cleaned up). The
application asserted that Mr. Harris was unemployable in
part due to his service-connected knee disability.
In October 2018, the Board remanded to the RO the
issue of entitlement to TDIU. The RO granted Mr. Harris
entitlement to TDIU, effective April 16, 2018—the date
that Mr. Harris submitted his TDIU application. Although
Case: 23-1827 Document: 32 Page: 2 Filed: 12/27/2024

-- 2 of 6 --

HARRIS v. MCDONOUGH 3
Mr. Harris continued to argue that his request for TDIU
was submitted not as a new claim but rather as part of his
then-pending claim for increased compensation and should
be treated as having been filed in 2013, the Board
nevertheless denied him an earlier effective date for TDIU.
The Board applied 38 C.F.R. § 3.400(o), which provides that
the effective date for an award of increased compensation
is the later of the “date of receipt of claim or date
entitlement arose,” save for an exception under
§ 3.400(o)(2) not relevant to this appeal. Notwithstanding
that Mr. Harris had not filed his application for TDIU until
April 16, 2018, the Board evaluated whether the record
before the VA contained “cogent evidence of
unemployability” before that date, such that an earlier date
of receipt of claim for TDIU could be inferred. J.A. 174–79.
Finding that no such evidence had been filed, and that the
exception provided by § 3.400(o)(2) was inapplicable, the
Board maintained Mr. Harris’s April 16, 2018 effective date
for TDIU. See id.
Mr. Harris appealed to the Veterans Court and,
following his passing, Mrs. Harris was substituted as the
appellant. Represented by new counsel, Mrs. Harris
abandoned the argument previously made that the request
for TDIU was filed as part and parcel of Mr. Harris’s
pending claim for increased compensation. She instead
argued to the Veterans Court that “the Board failed to
explain why [the] evidence was not cogent evidence of
unemployability sufficient to raise the question of TDIU.”
J.A. 195–96; see also id. at 190–97. Taking up the only
issue presented to it, the Veterans Court affirmed because
the Board “adequately explained why it concluded that the
evidence did not satisfy the ‘cogent evidence of
unemployability’ standard” and its factual findings were
“not clearly wrong.” Decision, 2023 WL 355056, at *1–2.
Mrs. Harris appeals. We have jurisdiction under 38
U.S.C. § 7292.
Case: 23-1827 Document: 32 Page: 3 Filed: 12/27/2024

-- 3 of 6 --

HARRIS v. MCDONOUGH 4
DISCUSSION
Mrs. Harris argues that the Veterans Court
erroneously required cogent evidence of unemployability to
demonstrate an implicit date of claim for TDIU earlier than
the date on which Mr. Harris filed his formal TDIU
application. Instead, she says, the Veterans Court should
have determined whether the express request for TDIU
made in 2018 was raised as part and parcel of Mr. Harris’s
pending claim for a higher rating and should be treated as
having been filed in 2013. See, e.g., Appellant’s Br. 11–12.
Mrs. Harris did not argue to the Veterans Court that
Mr. Harris’s request for TDIU was raised as part and
parcel of his already pending claim, and the Veterans Court
did not pass on that issue. The general rule is that we do
not consider issues not decided by or raised to the Veterans
Court. Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir.
2002) (en banc), superseded on other grounds by statute,
Veterans Benefits Act of 2002, Pub. L. No. 107-330,
§ 402(a), 116 Stat. 2820, 2832; see, e.g., Boggs v. West, 188
F.3d 1335, 1337–38 (Fed. Cir. 1999) (affirming because
appellant did not raise before the Veterans Court the only
issue appealed to us). The government argues that we
should affirm on that basis. See Appellee’s Br. 14–17.
Mrs. Harris does not dispute that she did not raise this
issue to the Veterans Court, and her reply brief presents no
argument explaining why we should nonetheless consider
it in the first instance. See Appellant’s Reply Br. 2–5.1 At
oral argument, Mrs. Harris offered two reasons why we
should consider the issue raised by her appeal. Oral Arg.
1 Mrs. Harris misunderstands the government as
arguing that we lack jurisdiction to hear her appeal. The
government did not challenge jurisdiction; it argued that
we should not consider Mrs. Harris’s arguments on
forfeiture grounds. See, e.g., Appellee’s Br. 10, 14.
Case: 23-1827 Document: 32 Page: 4 Filed: 12/27/2024

-- 4 of 6 --

HARRIS v. MCDONOUGH 5
at 5:32–40 (available at
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=23
-1827_12022024.mp3). Arguments raised for the first time
during oral argument, like those not raised to the tribunal
under review, are forfeited. See, e.g., SEKRI, Inc. v. United
States, 34 F.4th 1063, 1071 n.9 (Fed. Cir. 2022).
Regardless, these arguments are not persuasive.
First, Mrs. Harris pointed out that the argument she
presented to us, but not to the Veterans Court, was made
to the Board. Oral Arg. at 5:40–6:23. But she cites no
authority—and we are aware of none—supporting that an
argument presented to the Board and abandoned in favor
of another presented to the Veterans Court preserves the
former for review in this court. We decline to so hold.
Second, Mrs. Harris argued that the issue was not forfeited
because the Veterans Court is always required to apply the
correct law, and she contends it did not do so. Oral Arg. at
6:23–7:14. Without addressing the merits of whether a
request for TDIU filed during the pendency of an increased
rating claim may relate back to the date of that claim, we
note that Mrs. Harris not only abandoned that argument
before the Veterans Court, but also acquiesced in the
cogent evidence of unemployability standard used by the
Board. “We have held that an appellant who ‘urged upon
the Veterans Court’ a position forfeits any argument on
appeal that the Veterans Court ‘committed reversible error’
when the court applied that position.” Kennedy v.
McDonough, 33 F.4th 1339, 1342 (Fed. Cir. 2022) (citation
omitted); see also Forshey, 284 F.3d at 1358. By arguing
only whether the record before the VA contained cogent
evidence of unemployability, Mrs. Harris urged upon the
Veterans Court the position that such evidence was
required in order for Mr. Harris to receive an earlier
effective date for TDIU, and she therefore forfeited her
argument to the contrary now presented to us. See, e.g.,
Kennedy, 33 F.4th at 1342–43.
Case: 23-1827 Document: 32 Page: 5 Filed: 12/27/2024

-- 5 of 6 --

HARRIS v. MCDONOUGH 6
We see no reason to excuse Mrs. Harris’s forfeiture and
consider her arguments in the first instance. Accordingly,
we affirm the decision of the Veterans Court.
AFFIRMED
COSTS
No costs.
Case: 23-1827 Document: 32 Page: 6 Filed: 12/27/2024

-- 6 of 6 --