NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

KARL A. JORGENSEN,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2013-7034

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 11-1892, Judge Lawrence B. 

Hagel.

______________________ 

Decided: October 11, 2013 

______________________ 

PERRY A. PIRSCH, Berry Law Firm, P.C., of Lincoln, 

Nebraska, for claimant-appellant. 

JANE C. DEMPSEY, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent-appellee. 

With him on the brief were STUART F. DELERY, Acting 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant Director. Of counsel 
2 JORGENSEN v. SHINSEKI

on the brief were DAVID J. BARRANS, Deputy Assistant 

General Counsel and MEGHAN ALPHONSO, Attorney, 

United States Department of Veterans Affairs, of Washington, DC. 

______________________ 

Before REYNA, MAYER, and TARANTO, Circuit Judges.

PER CURIAM

Karl A. Jorgensen (“Jorgensen”) appeals the decision 

of the United States Court of Appeals for Veterans Claims

(“Veterans Court”) finding that he had not properly raised 

a request for a total disability based upon individual 

unemployment (“TDIU”) rating. Because a request for a 

TDIU rating was not expressly raised by Jorgensen nor 

reasonably raised by the record, we affirm the Veterans 

Court. 

BACKGROUND

Jorgensen served on active duty in the United States 

Army from October 1965 until June 1968. After his 

release, Jorgenson received disability benefits for a number of disabilities, including diabetes mellitus (“diabetes”). 

Currently, Jorgensen has a combined disability rating of 

70 percent. 

In October 2006, Jorgensen sought disability benefits 

for post-traumatic stress disorder (“PTSD”) and related 

fibromyalgia. In June 2007, the U.S. Department of 

Veteran’s Affairs (“VA”) regional office denied service 

connection for both conditions. Jorgensen appealed to the 

Board of Veteran’s Appeals (“Board”) and, in an April 

2009 decision, the Board agreed with the regional office 

that neither condition was service connected. Nonetheless, the Board remanded to the regional office with 

directions to reconsider Jorgensen’s service connected 

diabetes. In July 2009, the regional office increased 

Jorgensen’s disability rating for diabetes from 20 to 40 
JORGENSEN v. SHINSEKI 3

percent and also increased his combined disability rating 

from 40 to 70 percent. The regional office also found that 

Jorgensen was not entitled to a TDIU rating. 

In response to the regional office’s decision, Jorgensen’s counsel sent a letter to the VA stating that Jorgensen was “satisfied” with the disability rating the VA 

awarded for his diabetes condition and that, as a result, 

he wished “to withdraw [his] appeal for diabetes.” The 

letter also stated, with respect to a TDIU rating, that “Mr. 

Jorgensen is self-employed and is not seeking benefits for 

individual unemployability at this time.” 

Despite having withdrawn his diabetes appeal, 

Jorgensen nevertheless appealed the Board’s denial of 

service connection for PTSD and fibromyalgia to the 

Veterans Court. While this appeal was pending, the 

parties field a Joint Motion for Partial Remand. In that 

motion, the parties requested that the Veterans Court 

vacate the part of the 2009 Board decision “finding that 

Appellant is not entitled to service connection for fibromyalgia, and remand the matter for re-adjudication.” The 

parties stated that remand was warranted because the 

Board had failed to (1) obtain certain medical records 

related to Jorgensen’s treatment for fibromyalgia and (2) 

consider whether Jorgensen was entitled to a medical 

examination. The Veterans Court granted the joint 

motion to remand. The Board, in turn, instructed the 

regional office to further investigate whether Jorgensen’s 

fibromyalgia was service connected. 

On remand, the regional office obtained all of Jorgensen’s VA medical records and also conducted a medical 

examination. In March 2011, the regional office issued its 

decision again denying service connection for fibromyalgia. The regional office found that none of Jorgensen’s 

medical records contained a diagnosis of fibromyalgia. In 

addition, the medical examination revealed that Jorgensen “did not fulfill the criteria for fibromyalgia, in that 
4 JORGENSEN v. SHINSEKI

[Jorgensen has] a variety of other reasons for [his] musculoskeletal complaints.” The medical examiner noted that 

Jorgensen’s musculoskeletal complaints were related to 

his diabetes, associated neuropathies, significant osteoarthritis, and a L1 compression fracture sustained in a car 

accident. 

Jorgensen appealed the regional office’s decision to 

the Board regarding the continued denial of service connection for fibromyalgia. The Board’s June 2011 decision

noted that the question before it was whether Jorgensen 

“currently has fibromyalgia as a result of active duty 

service.” The Board agreed with the regional office that 

Jorgensen’s medical records did not contain a diagnosis of 

fibromyalgia and that the VA medical examination attributed his musculoskeletal pain to a variety of other 

causes. The Board concluded that “entitlement to service 

connection for fibromyalgia is denied.” The Board did not 

address, and Jorgensen did not raise, whether Jorgensen’s 

40 percent rating for diabetes was correct because Jorgensen had earlier withdrawn this issue from appeal. Similarly, the Board did not address, and Jorgensen did not 

raise, whether Jorgensen was entitled to a TDIU rating

because Jorgensen had expressly stated he was not seeking such a benefit and because the Board was not making 

any other rating decision that would, implicitly, raise the 

consideration of a TDIU rating. 

Jorgensen appealed to the Veterans Court, arguing 

that the Board (1) failed to liberally construe his claim for 

benefits due to fibromyalgia as one of “overall body pain” 

and (2) failed to address the “reasonably raised” issue of 

his entitlement to a TDIU rating. The Veterans Court 

denied Jorgensen’s appeal. The court recognized that the 

only issue before the Board was whether Jorgensen was 

entitled to a service connection for fibromyalgia. The 

court also noted that the basis for Jorgensen’s arguments 

on appeal were present in the record at the time the 

parties field the Joint Motion for Partial Remand in 
JORGENSEN v. SHINSEKI 5

December 2009. Yet, according to the court, Jorgensen 

did not preserve his current arguments in the joint motion. The court noted that, when requesting remand, it is 

“the parties’ responsibly to ‘enumerate clear and specific 

instruction to the Board’ and a failure to do so will not 

result in a second bite at the apple.” 

Jorgensen appeals the Veterans Court’s decision, arguing before us only that the Board erred in not considering his entitlement to a TDIU rating. We have 

jurisdiction under 38 U.S.C. § 7292(a). 

DISCUSSION

Congress has limited the scope of this court’s review 

of Veterans Court’s decisions. See Deloach v. Shinseki, 

704 F.3d 1370, 1378 (Fed. Cir. 2013); 38 U.S.C. § 7292. 

Absent a constitutional issue, we may not review challenges to factual determinations or to the application of a 

law or regulation to facts. 38 U.S.C. § 7292(d)(2). This 

court reviews legal determinations of the Veterans Court 

de novo. See Prenzler v. Derwinski, 928 F.2d 392, 393 

(Fed. Cir. 1991). 

Jorgensen maintains that the Veterans Court erred in 

finding that he waived his argument that he was entitled 

to a TDIU rating. He argues that a veteran’s entitlement 

to a TDIU rating is implicitly “triggered by every adjudication” where the record evidence establishes that the 

veteran meets the regulatory requirements for a TDIU. 

Jorgensen further contends that, under 38 C.F.R. § 

3.103(a), the VA has a regulatory duty to maximize a 

veteran’s benefits and must, therefore, presume that a 

veteran is seeking maximum benefits, including a TDIU 

rating. 

The Government responds that the Board is not required to consider a TDIU rating when a veteran expressly states he does not wish to pursue it. The Government 

notes that Jorgensen expressly elected not to pursue a 
6 JORGENSEN v. SHINSEKI

TDIU claim before the regional office and the Board, 

limiting his appeal to whether he was entitled to service 

connection for fibromyalgia. The Government also contends that the Board is not required to consider a TDIU 

unless a veteran is seeking a higher disability rating. 

Because the Board denied service connection for fibromyalgia, the Government argues, there was no disability 

rating at issue, and no requirement to consider Jorgensen’s entitlement to a TDIU rating. The Government also 

notes, as the Veterans Court recognized, that Jorgensen 

did not include a request for a TDIU rating in the parties’ 

joint motion for remand in 2009. 

Entitlement to a TDIU can be either explicitly raised 

by a veteran or reasonably raised by the record. Comer v. 

Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (“the VA is 

obligated ‘to determine all potential claims raised by the 

evidence’”) (quoting Roberson v. Principi, 251 F.3d 1378, 

1384 (Fed. Cir. 2001)); see also Rice v. Shinseki, 22 

Vet.App 447 447, 453 (2009). In particular, when the VA

is deciding what percentage to rate a service connected 

disability, if evidence of unemployability is present, the 

VA must consider a TDIU rating. This is true whether 

the veteran is seeking an increased rating or an initial

rating. Comer, 552 F.3d at 1367 (a TDIU request is 

“implicitly raised whenever a pro se veteran, who presents 

cogent evidence of unemployability, seeks to obtain a 

higher disability rating.”); Roberson, 251 F.3d at 1384

(initial claim for benefits). Roberson explains that, when 

a veteran makes a claim for the highest rating possible 

and submits evidence of unemployability, “the ‘identify 

the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is 

met and the VA must consider a TDIU.” Id. (citing Hodge 

v. West, 155 F.3d 1356 (Fed. Cir. 1998). 

Here, Jorgensen did not expressly request a TDIU 

rating and the record evidence does not reasonably raise 

such a request. After the regional office denied Jorgensen 

a TDIU rating, Jorgensen’s counsel expressly stated that 
JORGENSEN v. SHINSEKI 7

“Mr. Jorgensen is self-employed and is not seeking benefits for individual unemployability at this time.” Thus, 

unlike Roberson, Jorgensen was not seeking the highest 

maximum rating on appeal. Roberson, 251 F.3d at 1384. 

In addition, the Board was not deciding what percentage to rate a service connected disability. First, 

unlike Comer, Jorgensen was not seeking an increased 

rating for his currently service connected conditions

before the Board. Comer, 552 F.3d at 1367. While it is 

true that Jorgensen sought an increase in his disability 

rating for his diabetes condition before the regional office, 

after the regional office raised his rating to 40 percent, 

Jorgensen’s counsel expressly withdrew that claim from 

his appeal. (“Karl A. Jorgensen wishes to withdraw the 

appeal for diabetes type II currently 40 percent service 

connected. He is satisfied with the percentage awarded.”). Thus, Jorgensen’s appeal to the Board did not 

include a request to increase his disability rating. Second, because the Board found that Jorgensen’s fibromyalgia claims were not service connected, there was no basis 

to issue a rating for these claims. Certainly, had the 

Board decided that fibromyalgia was service connected, 

Jorgensen could have argued, as in Roberson, that the 

record evidence requires the VA to consider his entitlement to a TDIU. Roberson, 251 F.3d at 1384. But, that is 

not the case before us.1 Accordingly, because Jorgensen 

expressly disclaimed any request for a TDIU rating based 

upon his current service connected conditions, and because the Board found no further service connected conditions, the record does not reasonably raise a TDIU 

request. 

1 Jorgensen does not argue on appeal to this court 

that his PTSD and fibromyalgia conditions are service 

connected.

 
8 JORGENSEN v. SHINSEKI

Our holding does not preclude Jorgensen from later 

seeking a TDIU because a veteran can independently 

assert entitlement to a TDIU at any time. See Rice v. 

Shinseki, 22 Vet.App 447, 453 (2009) (“[A] veteran may, 

at any time, independently assert entitlement to TDIU 

based on an existing service connected disability.”). Such 

a claim may be viewed as a request for an increased 

disability rating based upon unemployability. Id. 

Jorgensen is merely unable to seek a TDIU rating in his

current appeal because he affirmatively withdrew any 

request for individual unemployability benefits, and he is 

not seeking either an increased rating for any current 

condition, nor an initial rating for any new service connected condition. 

CONCLUSION

Because a request for a TDIU rating was not expressly raised by Jorgensen nor reasonably raised by the 

record, we affirm the decision of the Veterans Court.

AFFIRMED 

COSTS

Each party shall bear its own costs.