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After Precedential Win at Court, CCK Wins TDIU Case for Veteran

October 22, 2020

History of the Veteran’s Claim

The Veteran developed multiple health conditions after serving in the Army from November 1966 to November 1969.  As these conditions left him unable to work, the Veteran filed his initial claim for disability benefits with VA in 1987.  He first raised the issue of TDIU in 2011 but, as VA had only given him a 50 percent rating based on his earlier claims, he failed to meet VA’s schedular criteria and was denied TDIU in a March 2012 Rating Decision.

In July 2014, the Board of Veterans’ Appeals referred the Veteran’s appeal for entitlement to extraschedular TDIU under 38 CFR § 4.16(b) to the Director of Compensation Service.  The Board found that although an October 2011 VA examiner opined the Veteran could perform sedentary employment, “the record suggests that the Veteran may not be able to obtain such employment as it is inconsistent with his education and occupational background.”  Based on this decision, it seemed as though the Veteran would be awarded TDIU; however, the Director ultimately provided a negative TDIU opinion and the Board determined that the Director’s opinion was sufficient evidence.  Subsequently, the Veteran was denied entitlement to TDIU in a February 15, 2017 Board Decision.

CCK Wins in Precedential TDIU Decision

CCK took on representation of the Veteran in March 2017, and on September 5, 2018, CCK argued the Veteran’s case before the U.S. Court of Appeals for Veterans Claims.  In the resulting precedential panel decision, the Court found that the Board erred by failing to analyze the Director’s decision and to explain the difference between its 2017 conclusion regarding the Veteran’s employability and its July 2014 decision.  Moreover, the panel decision also provided CCK with precedential case law for future TDIU cases.  The Court defined substantially gainful employment as having both an economic and non-economic component, and required the Board to discuss the Veteran’s education and work history, as well as whether the Veteran has the physical and mental ability to perform the acts required for substantially gainful employment.  This was the first time any form of definition for substantially gainful employment had been imposed as a legal standard.

Board Grants Veteran’s Appeal for TDIU

Despite the win at Court, the Veteran had not yet been granted TDIU benefits.  The CCK team worked to complete an affidavit and obtain a report from a vocational expert.  Armed with a definition of substantially gainful employment, CCK drafted a 90-Day response outlining exactly where the Board previously erred and why the Veteran was entitled to TDIU.  CCK explained that the Board’s February 2017 finding that the Veteran could perform sedentary work was, in fact, based on the same evidence used to refer his case to the Director in 2014 on the basis that he likely could not perform this type of work.  As these contradictory conclusions were never reconciled, the Board had to rely largely upon the Veteran’s vocational rehabilitation progress notes.  CCK used these notes to demonstrate that the Veteran could not obtain competitive employment, and argued that the evidence of record clearly showed the Veteran was unable perform sedentary employment, as per the testimony of the vocational expert and the Court’s own findings in Ray v. Wilkie. On March 2, 2020, the Board agreed, and granted the Veteran TDIU for the entire appeal period, beginning in January 2011 when the issue was first raised.  Not only did CCK succeed in getting this Veteran the benefits to which he was rightfully entitled, but CCK’s representation at the Court of Appeals for Veterans Claims led to a precedent-setting decision regarding individual unemployability that will benefit all veterans seeking TDIU benefits.