NOTE: This order is nonprecedential.

United States Court of Appeals
for the Federal Circuit

CURTIS E. GRIFFIN,
Claimant-Appellant,

V.

ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2012-7001

Appea1 from the United States Court of Appeals for
Veterans Claims in 10-2076, Judge Robert N. Davis.

Before BRYSON, MOORE, and O’MALLEY, Circuit Juclges.
O’MALLEY, Circuit Judge.
0 R D E R

While on active duty from November 1956 to Novem-
ber 1958, Curtis E. Griffin was exposed to asbestos, and
was subsequently diagnosed with chronic obstructive
pulmonary disease (COPD). A Department of Veterans
Affairs (DVA) Regional Office granted Mr. Griffm service-
connected disability status and rated his COPD condition
at 30% disabling.

GRIFFIN V. SHINSEKI 2

In July 2004, Mr. Griffin sought to increase his dis-
ability rating. After one of several respiratory examina-
tions, the DVA medical examiner noted that Mr. Griffin
reported that he could only walk across the room before
experiencing shortness of breath.‘ The examiner further
noted that Mr. Griffin was "severely disabled," and that
"he is close to requiring home oxygen."

During both private and DVA respiratory examina-
tions, however, pulmonary functioning tests failed to
establish the criteria necessary to meet a higher disability
rating under the applicable DVA diagnostic schedule.
Based primarily on those test results, the Board of Veter-
ans’ Appeals denied Mr. Griffin’s increased rating claim.

The Board also noted that "the Veteran has not
claimed, or produced any evidence, that the disability has
caused marked interference with employment," and "no
medical professional has indicated that the disability has
contributed to an inability to work." Mr. Griffin appealed
the Board’s decision to the Veterans Court, which af-
firmed. Like the Board, the Veterans Court concluded
that Mr. Griffin’s "evidence as to his disability is insuffi-
cient to suggest an issue of unemployability."

This appeal followed.

5 As a general matter, we have held that the Board is
required to address all issues reasonably raised on appeal,
even if the issue might not be directly raised in the vet-
eran’s appellate filings when read in isolation. Robinson
1). Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Comer
v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). That
obligation, which includes reading an informal claim from
a veteran’s filings, is contingent on there being sufficient
evidence in the record to reasonably support a theory of
entitlement to benefits. See Robinson, 557 F.3d at 1361.
Accordingly, in Comer we explained that a claim for TDIU
benefits is implicitly raised whenever a veteran seeking to

3 GRIFFIN V. SHINSEKI

obtain a higher disability rating presents "cogent" or
"persuasive" evidence of unemployability. C0mer, 552
F.3d at 1367-68.

Mr. Griffin appears to argue for a more relaxed stan-
dard, characterizing the proper test as being closer to
“some" evidence of unemployability even though that is
not the term this court has regularly used to describe the
evidence necessary to raise an implicit claim for TDIU
benefits. See Comer, 552 F.3d at 1367-68 ("cogent evi-
dence"); see also Riuera v. Shinseki, 654 F.3d 1377, 1380
(Fed. Cir. 2011) (describing Comer as requiring the record
to contain "persuasive and pervasive" evidence of unem-
ployability).

While it is true that this court in Jackson v. Shinseki,
587 F.3d 1106, 1111 (Fed. Cir. 2009) stated, "[t]ogether,
Comer and Roberson make clear that a claim for TDIU
can be implicitly raised only where the veteran proffers
some evidence of unemployability," Jackson did not
suggest that it was departing from Comer. In fact, Jack-
son reiterated the use of cogent evidence to describe what
was needed before an implicit claim for TDIU was rea-
sonably raised. See id. ("[T]his court [in Comer] went on
to explain that [a claim for TDIU benefits] could only be
implicitly raised where ‘a pro se veteran, who presents
cogent evidence of unemployability, seeks to obtain a
higher disability rating."’ (citation omitted).

In any event, even if a meaningful distinction could be
made between requiring "some" evidence of unemployabil-
ity and "cogent" evidence of unemployability, it would
make no difference here. The Board found that Mr.
Griffin had not produced "any evidence" that his disability
markedly interfered with employment, and "no medical
professional has indicated that the disability has contrib-
uted to an inability to work." In light of those findings,
the Veterans Court concluded that while the evidence

GRIFFIN V. SHINSEKI 4

demonstrated a negative effect on occupational activity it
did not “suggest an issue of unemployability."

While Mr. Griffin contends that the evidence says
otherwise and that the standard was improperly applied
in this case, Congress did not initially delegate those
determinations to us, and that makes all the difference.
Our jurisdictional statute does not allow us to review

challenges to factual determinations or the application of
law to fact. 38 U.S.C. § 7292(d)(2).

Mr. Griffin contends that the Veterans Court’s conclu-
sion is out of step with the normal progression of first
pleading and then proving a claim. ln doing so, however,
Mr. Griffin overlooks the fact that the obligation to de-
termine whether entitlement to TDIU benefits is rea-
sonably raised is not a replacement for a veteran filing a
formal application for compensation benefits. See 38
C.F.R. § 20.202; Robinson, 557 F.3d at 1361-62. Nor does
the Veterans Court’s application of Comer here render the
Secretary’s duty-to-assist requirements superfluous. Had
Mr. Griffin filed an application for TDIU benefits or had
the record contained sufficient evidence of unemployabil-
ity, the Secretary would have been obligated to make
reasonable efforts to assist him in developing the record.
See 38 U.S.C. § 5103A. Since neither of those events
occurred here, Mr. Griffin’s arguments in this regard are
without merit.

l Because the outcome here is clear, we dispose of the
case without oral argument. See generally Joshua v.
Unitecl States, 17 F.3d 378, 380 (Fed. Cir. 1994).

Accordingly,
IT Is ORDERED THAT:
(1) The judgment of the Veterans Court is affirmed.

(2) Each side shall bear its own costs.

5 GRIFFIN V. SHINSEKI

FoR THE CoURT

SEP 20 Zmz /s/ Jan Horbaly
Date J an Horbaly
Clerk
U'&THE FEDERAL C¥RCU|TFGR
cc: Mark R. Lippman, Esq. 3 p
Elizabeth M. Hosford, Esq. E 20 2012

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