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Court Wins

Board erred in denial of total disability rating [TDIU]

April Donahower

August 28, 2017

Updated: November 20, 2023

Board erred in denial of total disability rating [TDIU]


The Veteran served in the United States Army from 1959 to 1962.  He filed a claim for a total disability rating based on individual unemployability (TDIU) in February of 2010.   A painful bilateral foot condition prevented him from working, and he stopped full time work in 1998.  He attended a VA exam in October of 2010 to evaluate the severity of his condition.  Despite reporting severe pain in his feet, the examiner found that the Veteran’s foot condition would not have an impact on his ability to work.  In December of 2010 the VA denied him entitlement to a total disability rating (TDIU).

Board continues denial of total disability rating

The Veteran testified before the Board of Veterans’ Appeals in July of 2015 after continuing his appeal for TDIU.  He testified that he retired from his construction job because he was not able to stand for long periods of time as his job required.  He also testified that his foot condition would prevent him from keeping a desk job since his pain prevented him from sitting for long periods of time.  In January of 2016, the Board issued a decision denying the Veteran entitlement to TDIU.  The Board found that his conditions would not prevent him from performing sedentary work.

CCK appeals to the Court of Appeals for Veterans Claims

CCK successfully appealed to the Court the Board decision that denied the Veteran entitlement to a total disability.  It its decision, the Board acknowledged the Veteran’s inability to sit or stand for long periods of time, and prior work history in construction.  Nevertheless, the Board maintained that he was capable of mostly sedentary employment.

CAVC sets aside Board’s denial of TDIU

CCK argued, and the Court agreed, that the Board erred when it failed to adequately explain its decision-making.   The Court found that the Board did not adequately define sedentary work or explain what legal standard it used to come to a decision.  Because the Board did not properly explain the standard used in its evaluation, the Court vacated the decision.  The Veteran’s case was remanded for further development.  The Board is required to accept additional evidence from the Veteran and properly explain its logic in its new decision.

To read the Court’s decision, click here. 

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

See more about April