       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

             NORMAN E. STURDIVANT,
                Claimant-Appellant,
                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2011-7001
              __________________________

    Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 08-1762, Chief Judge Wil-
liam P. Greene, Jr.
              ___________________________

                Decided: May 16, 2012
             ___________________________

   KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.

    DOMENIQUE KIRCHNER, Senior Trial Counsel, Civil
Division, United States Department of Justice, of Wash-
ington, DC, argued for respondent-appellee. On the brief
were TONY WEST, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, MARTIN F. HOCKEY, JR. and ALLISON
STURDIVANT   v. DVA                                       2


KIDD-MILLER, Senior Trial Counsel. Of counsel on the
brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-
eral Counsel, and Y. KEN LEE, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
              __________________________

Before RADER, Chief Judge, WALLACH, Circuit Judge, and
                FOGEL, District Judge 1
RADER, Chief Judge.
     The U.S. Court of Appeals for Veterans Claims (“Vet-
erans Court”) held that the Board of Veterans’ Appeals
(Board) had not erred in declining to consider Norman E.
Sturdivant’s entitlement to a total disability based on
individual unemployability. See Sturdivant v. Shinseki,
No. 08-1762, 2010 WL 2595179 (Vet. App. June 29, 2010).
Mr. Sturdivant, whose claim was based solely on his
chemical burn scars, had an express TDIU claim pending
at the Department of Veterans Affairs (“VA”) regional
office (“RO”). Because Mr. Sturdivant’s TDIU claim was
not before the Board and therefore not ripe for review,
this court affirms.
                             I.
    Mr. Sturdivant served on active duty from February
1958 to January 1961. Before 2000, Mr. Sturdivant had a
service connection for an ulcer condition, tinnitus, hearing
loss, and a scar on his finger, which together resulted in a
forty percent disability rating. In August 2000, Mr.
Sturdivant filed a claim for benefits under 38 U.S.C.
§ 1151, which provides compensation for certain disabili-
ties resulting from negligent VA medical treatment. The


   1    The Honorable Jeremy Fogel, District Judge,
United States District Court for the Northern District of
California, sitting by designation.
3                                         STURDIVANT   v. DVA


RO granted Mr. Sturdivant a ten percent disability rating
for chemical burn scars that resulted from improper
instructions for use of prescription cream for a skin condi-
tion. Mr. Sturdivant appealed the decision to the Board,
seeking a higher disability rating. In November 2003, the
Board remanded the chemical burn rating to the RO.
    While Mr. Sturdivant’s chemical burn rating was on
appeal to the Board, he filed, with the assistance of coun-
sel, a claim for increased ratings for each of his other
service-connected disabilities as well as an express claim
for TDIU in accordance with 38 C.F.R. § 4.16 (the “2003
TDIU claim”). In June 2004, the RO maintained Mr.
Sturdivant’s ratings for all of his service-connected dis-
abilities. The RO also denied the 2003 TDIU claim be-
cause the record showed that Mr. Sturdivant was capable
of a substantially gainful occupation in spite of his service
connected disabilities. Further, Mr. Sturdivant’s com-
bined forty percent disability rating did not meet the
minimum schedular requirements for TDIU set forth in
38 C.F.R. § 4.16.
    Mr. Sturdivant appealed the ratings and TDIU deci-
sions to the Board. While that appeal was pending, the
RO reconsidered Mr. Sturdivant’s chemical burn ratings
as a result of the Board’s November 2003 remand. In
February 2005, the RO increased Mr. Sturdivant’s ten
percent rating for chemical burn scars to separate ratings
of ten percent each for the right and left upper and lower
extremities, abdomen, and buttocks.
    In March 2006, the Board remanded the 2003 TDIU
claim and Mr. Sturdivant’s claims for higher ratings for
an ulcer condition and hearing loss to the RO for further
development (the “2006 Board Remand”). In the same
decision, the Board denied Mr. Sturdivant’s claim for a
higher rating for his chemical burn scars. Mr. Sturdivant
STURDIVANT   v. DVA                                      4


appealed the Board’s decision on his rating for chemical
burn scars to the Veterans Court. That appeal resulted in
remand of the chemical burn rating decision to the RO for
further development. In 2007, the RO increased Mr.
Sturdivant’s disability ratings for his chemical burn scars
on the right and left upper extremities to twenty percent
each. As a result, Mr. Sturdivant’s combined rating for
his chemical burns was sixty percent, and his combined
rating for all his service-connected disabilities was sev-
enty percent. Thus, for the first time, Mr. Sturdivant met
the schedular requirement for consideration of TDIU
under 38 U.S.C. § 4.16(a).
     In a decision dated May 23, 2008, the Board denied
higher ratings for Mr. Sturdivant’s chemical burn scars,
but did not address TDIU. On appeal, the Veterans Court
affirmed, holding in relevant part that the issue of enti-
tlement to TDIU was not before the Board in its May 23,
2008 decision. Sturdivant, 2010 WL 2595178, at *1. Mr.
Sturdivant now appeals to this court.
    While this appeal was pending, the RO issued a Sup-
plemental Statement of the Case dated July 18, 2011
adjudicating the claims that remained pending as a result
of the 2006 Board Remand. Upon consideration of all of
Mr. Sturdivant’s disabilities, the RO denied a rating of
TDIU. Specifically, the RO found the “evidence of record
does not support a conclusion [that Mr. Sturdivant is]
unemployable solely due to service connected disabilities.”
That determination is now on appeal to the Board.
                            II.
    This court sets aside any interpretation of a regula-
tion or statute by the Veterans Court that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 38 U.S.C. § 7292(d)(1)(A) (2006).
The Federal Circuit has “jurisdiction under 38 U.S.C. §
5                                         STURDIVANT   v. DVA


7292 to determine whether the Court of Appeals for
Veterans Claims misinterpreted our rulings in earlier
decisions on an issue of law.” Moody v. Principi, 360 F.3d
1306, 1310 (Fed. Cir. 2004). Absent a constitutional
issue, however, this court may not review a factual de-
termination or an application of law to fact. Id. §
7292(d)(2). Claims of legal error in the decision of the
Veterans Court are reviewed without deference. See
Meeks v. West, 216 F.3d 1363, 1366 (Fed. Cir. 2000).
                            III.
    The VA regulations governing TDIU provide:
    Total disability ratings for compensation may be
    assigned, where the [veteran’s] schedular rating is
    less than total, when the disabled person is . . .
    unable to secure or follow a substantially gainful
    occupation as a result of service-connected dis-
    abilities: Provided That, if there is only one such
    disability, this disability shall be ratable at 60
    percent or more, and that, if there are two or more
    disabilities, there shall be at least one disability
    ratable at 40 percent or more, and . . . the com-
    bined rating [shall be] 70 percent or more.”
38 C.F.R. § 4.16(a). An injury to different parts of body
but having the same etiology is “considered as one disabil-
ity” for purposes of meeting the schedular ratings re-
quirements. Id. Additionally, the VA has discretion to
award TDIU even if the veteran does not meet the sched-
ular requirements in § 4.16(a) if unique facts make it
appropriate to do so. See § 4.16(b). To receive a TDIU
award, the veteran must show that his inability to main-
tain substantially gainful employment is caused by his
service-connected disabilities. See § 4.16(a).
STURDIVANT   v. DVA                                         6


     The VA and the Board must “consider whether a
TDIU award is warranted whenever a pro se claimant
seeks a higher disability rating and submits cogent evi-
dence of unemployability, regardless of whether he states
specifically that he is seeking TDIU benefits.” Comer v.
Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009). This re-
quirement is part of the VA’s duty “to fully and sympa-
thetically develop a veteran's claim to its optimum before
deciding it on the merits.” Roberson v. Principi, 251 F.3d
1378, 1384 (Fed. Cir. 2001) (quotation and citation omit-
ted). This case asks whether this court’s holdings in
Roberson and Comer require the VA to consider an im-
plied TDIU claim based on one disability when the vet-
eran already has a pending TDIU claim that encompasses
all of his service-connected disabilities.
    The agency of original jurisdiction, in most cases the
RO, initially decides a claim for disability benefits, includ-
ing a claim for a higher disability rating or TDIU. See
Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327
F.3d 1339, 1342 (Fed. Cir. 2003). A claimant may appeal
an adverse decision to the Secretary of Veterans Affairs.
38 U.S.C. § 7104(a). “[T]he Board acts on behalf of the
Secretary in making the ultimate decision on claims and
provides ‘one review on appeal to the Secretary,’” as
required by statute. Disabled Am. Veterans, 327 F.3d at
1347 (quoting 38 U.S.C. § 7104(a)). The Board may not
address an issue until the agency of original jurisdiction
makes an initial determination of the claim, because
doing so would deprive the veteran of the statutory right
to “one review on appeal to the Secretary.” See id. Thus,
when the RO has not made a final decision on a veteran’s
TDIU claims—whether express or implied—those claims
are not ripe for adjudication by the Board. See Roberson,
251 F.3d at 1383 (discussing Norris v. West, 12 Vet. App.
413, 422 (1999)).
7                                         STURDIVANT   v. DVA


    Mr. Sturdivant argues that he has two separate TDIU
claims: 1) the 2003 TDIU claim based on all of his service-
connected disabilities, and 2) an implied TDIU claim
based solely on his chemical burn scars that the VA
should have recognized and adjudicated when his schedu-
lar rating for that disability reached the sixty percent
threshold set by 38 C.F.R. § 4.16(a). According to Mr.
Sturdivant, his implied TDIU claim—if granted—is
entitled to an effective date in August 2000, correspond-
ing to the effective date of his original claim for benefits
based on his chemical burn disability. Mr. Sturdivant
believes that the VA would accord a later effective date to
any TDIU benefits awarded based on his express 2003
TDIU claim.
    Government counsel assured this court at oral argu-
ment that, if Mr. Sturdivant proves he is entitled to TDIU
benefits on appeal of the RO’s Supplemental Statement of
the Case dated July 18, 2011, he can also obtain the
August 2000 effective date he seeks by showing he is
entitled to TDIU benefits based solely on his chemical
burn disability. 2 This policy would be consistent with the
VA’s policy to maximize the benefits accorded a veteran.
See 38 C.F.R. § 3.103(a) (2010) (“it is the obligation of VA
to assist a claimant in developing the facts pertinent to
the claim and to render a decision which grants every
benefit that can be supported in law”); see also Buie v.

    2   Oral    Argument     at    18:40, available     at
http://www.cafc.uscourts.gov/oral-argument-
recordings/2011-7001/all (The Court: “All of that [the
claim for TDIU based solely on chemical burn scars] is
embedded in the 2011 appeal? Government Counsel:
“That’s correct.” The Court: “He can get full relief if he
prevails on the 2011 appeal?” Government Counsel: “He
can get all he is entitled to in the 2011 appeal.” The
Court: “All the way back to the date he wants, which is
2000, approximately?” Government Counsel: “Yes.”)
STURDIVANT   v. DVA                                        8


Shinseki, 24 Vet. App. 242, 250 (2011). In evaluating a
TDIU claim for a veteran with multiple disabilities, the
VA should identify the earliest effective date for TDIU to
which the veteran is entitled consistent with the disabil-
ity(ies) that render him or her unable to secure or follow a
substantially gainful occupation.
    Roberson and Comer do not require the VA to make a
final decision on TDIU each time its quantitative ratings
decision on a veteran’s disability(ies) reaches the schedu-
lar threshold of 38 C.F.R. § 4.16(a), provided that the
veteran has a TDIU claim pending adjudication. This
court has previously “recognized that the unique statutory
process of adjudication through which veterans seek
benefits may necessarily require that the different issues
or claims of a case be resolved at different times, both by
the agency of original jurisdiction and on appeal.” Elkins
v. Gober, 229 F.3d 1369, 1375 (Fed. Cir. 2000). This
flexible system benefits veterans by permitting adjudica-
tion of issues as they become ripe while allowing the VA
time to appropriately develop other issues or claims.
    Here, interests of judicial economy strongly favor the
VA considering Mr. Sturdivant’s claims for TDIU in a
single decision. It would be needlessly duplicative for the
RO, Board, and—if necessary—the Veterans Court and
this court to determine whether Mr. Sturdivant is entitled
to TDIU benefits based solely on his chemical burn scars
and then separately determine whether he is entitled to
TDIU based on his combined disabilities under his 2003
TDIU claim. If Mr. Sturdivant qualifies for TDIU based
solely on his chemical burns, he would not receive any
further benefit by qualifying for TDIU based on additional
disabilities. And, if Mr. Sturdivant does not qualify for
TDIU when all of his disabilities are considered, it is clear
he would not qualify for TDIU based on chemical burns
alone.
9                                      STURDIVANT   v. DVA


    In sum, because Mr. Sturdivant had a claim for TDIU
pending at the RO, that issue was not yet ripe for review
by the Board when it considered Mr. Sturdivant’s appeal
of the rating for his chemical burn disability. Because
this court affirms the holding of the Veterans Court on
the basis that the TDIU claim was not before the Board,
this court offers no opinion on the Veterans Court’s de-
termination that Mr. Sturdivant had not submitted
cogent evidence of unemployability due solely to his
chemical burn scars. See Sturdivant, 2010 WL 2595178,
at *4.
   For the reasons set forth above, the judgment of the
Veterans Court is
                      AFFIRMED
No costs.
