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Court Wins

Board erroneously focused on Veteran’s non-service-connected disabilities in TDIU denial

Jenna Zellmer

February 23, 2018

Updated: June 20, 2024

Court win tdiu


The Veteran served on active duty in the Army from December 1948 to December 1949 and from November 1950 to February 1953.  He served in the Korean War, earning the UN Service Medal and the Korean Service Medal.  His experiences in Korea, including combat and witnessing the deaths of fellow soldiers, caused him to suffer from an anxiety reaction.  In 1953, VA granted service connection for his anxiety reaction with a 10% rating.  This rating was increased several times over the years, eventually reaching 70%, effective from September 2009.  Following service, the Veteran worked in various job positions, including a hospital attendant, truck driver, and shipping clerk.  He worked as a barber, but quit in the 1970s due to his nerves and shaking hands.  From 1971 to about 2005, he worked part-time as a cab driver.

Board denies TDIU for service-connected anxiety reaction disorder

In December 2010, the Veteran filed an application for increased compensation based on unemployability.  He asserted that his service-connected anxiety reaction rendered him unemployable.  The Regional Office denied TDIU in October 2011, and the Veteran timely perfected his appeal.  In February 2015, the Veteran passed away, and his wife was substituted as the claimant.  The following September, the Board denied entitlement to TDIU because it found that the Veteran’s unemployability was due to his non-service-connected disabilities, rather than his service-connected anxiety reaction.

CCK appeals to the Court

CCK successfully appealed to the Court the Board’s denial of TDIU.  In its decision, the Board acknowledged that there was some evidence that the Veteran’s service-connected anxiety reaction resulted in unemployability.  However, it denied TDIU because it found the Veteran’s nonservice-connected conditions were the cause of his unemployability.  It also noted that the Veteran participated in treatment programs and organizations, and that he could perform activities of daily living.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board misapplied the law when it focused on whether the Veteran’s non-service-connected disabilities prevented him from working.  The Board should have considered whether the Veteran’s service-connected anxiety reaction, alone, rendered him unemployable.  The Court also agreed that it was unclear how the Veteran’s ability to participate in various treatment programs and organizations, pay his own bills, and manage his medications were relevant to the TDIU analysis.  On remand, the Board must properly apply the law and seek additional development, if necessary.

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.

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