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Court Wins

Board denied TDIU, committed legal error

Alyse Phillips

September 29, 2017

Updated: June 20, 2024

Court win tdiu


The Veteran served honorably in the United States Marine Corps from 1973 to 1977.  He injured his right knee in 1974, and has required multiple surgeries since that time, including a total knee replacement.  He also developed a left knee disability.  Furthermore, he was exposed to noise in the military, and began experiencing tinnitus in 1974.  In October of 2007, the Regional Office denied TDIU (total disability rating based on individual unemployability).

The Veteran is service-connected for a right knee disability (60% since July 1, 2013, 30% before that date); a left knee disability (20% since February 8, 2007); tinnitus (10% since March 14, 2005); and a finger disability, right tympanic membrane perforation, and right ear hearing loss, all rated noncompensable.

The Veteran’s right knee condition caused limitations to standing for 15-30 minutes.  His knee pain played a large part in his retirement from the postal service.  He used a cane because his right knee felt unstable.  VA examiners opined that the Veteran’s right and left knee conditions impacted his ability to work because of problems with prolonged standing and walking.  A VA audiologist found that both hearing loss and tinnitus would impact the ability to work.

Board denied TDIU

In November of 2011, the Board remanded the issue of TDIU as inextricably intertwined with the other claims it remanded.  In requesting further development, VA indicated that medical comment was needed concerning whether the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment.  The Board again remanded the issue of TDIU in March of 2015 as inextricably intertwined with the other claims remanded in that decision. The Board denied TDIU in March of 2016.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of entitlement to TDIU. In its decision, the Board determined that the Veteran’s limitations on standing, walking, and communication would not preclude sedentary employment.

The Board erred

The Court found that the Board erred in relying on two VA examinations which were inadequate.  Specifically, the exams were inadequate because they did not sufficiently describe the Veteran’s disability with respect to limitations on sitting.  The examiners also did not provide clear rationale for concluding that the Veteran’s tinnitus was not sufficiently severe to prevent employment.  Therefore, the Court held that the Board erred in relying on the opinions to conclude that the Veteran could obtain and maintain substantially gainful employment.  Accordingly, the Court set aside the Board’s decision and remanded the issue of TDIU for further adjudication.

To read the Court’s decision, click here. 

About the Author

Bio photo of Alyse Phillips

Alyse is a Supervising Attorney at Chisholm Chisholm & Kilpatrick. Since joining the firm in August of 2016, she has specialized in representing disabled veterans and their dependents before the United States Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Alyse