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Court Wins

Board erred when it denied total disability based on individual unemployability

Jenna Zellmer

February 8, 2018

Updated: November 20, 2023

Board erred when it denied total disability based on individual unemployability


The Veteran served honorably in the United States Navy from May 1973 to June 1976.  The Veteran is currently service-connected for obstructive ventilator defect, i.e., respiratory disability, right ear hearing loss, chest scars, residuals of thoracotomy, tinnitus, and residuals of thoracotomy with excision of hilar mass rated noncompensable.  In September 2006 the Veteran submitted an application for increased compensation based on unemployability.  In a December 2006 rating decision, the Regional Office denied the Veteran entitlement to individual unemployability.  The Veteran filed a timely notice of disagreement in October 2007.

The Board denied total disability based on individual unemployability (TDIU)  benefits

In the June 2016 decision, the Board denied TDIU benefits.  It decided that although the Veteran’s service-connected disability may impact  her ability to work in certain situations, it did not completely prevent her from seeking or maintaining employment.  The Board also concluded that based on the Veteran’s work experience, education, and training, she was capable of employment.

CCK appeals to the Court

CCK successfully appeal to the Court the denial of TDIU.  Specifically, CCK argued that the Board did not adequately explain why the Veteran was capable of substantially gainful employment despite the impairment she suffers as result of her service-connected disabilities.  CCK also noted that the Board did not adequately consider the Veteran’s training, education, and experience before ending TDIU.

CAVC agrees with CCK’s arguments.

The Court agreed that the Board erred when it denied TDIU.  The Court found that the Board did not satisfactorily weigh medical evidence submitted in 2013.  Specifically, there was conflicting medical evidence about the impact of the Veteran’s service-connected disabilities, and the Board failed to reconcile that evidence.  The Court also found that the Board’s conclusion that VA medical examination reports were adequate was clearly erroneous.  One of the examination reports consisted of a partially filled out pre-fabricated response.  The other simply checked boxes and provided no analysis.  The Board also failed to consider favorable material evidence before denying the claim.  The Court thus vacated and remanded the Board’s decision.

To read a copy of the Court’s decision, click here. 

About the Author

Bio photo of Jenna Zellmer

Jenna joined CCK in January of 2014 as an appellate attorney, was named Managing Attorney in September of 2019, and now serves as a Partner at the firm. Her law practice focuses on representing disabled veterans at the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

See more about Jenna