Board Improperly Denied Unemployability Benefits, CAVC Finds
CCK Law: Our Vital Role in Veterans Law
The Veteran served honorably in the United States Army from June of 1968 to August of 1969. He filed a claim for service connection for PTSD in August of 2005. The Regional Office granted his claim in February of 2006. In a February 2010 decision, the RO granted an increased rating to 50% for his PTSD. Later, the RO granted the Veteran a 70% rating for PTSD in June of 2012. In November of 2012, the Veteran requested unemployability benefits.
Board denies unemployability
The Board denied unemployability prior to August of 2010 because it found that the Veteran did not work in a sheltered work environment.
In a June 2014 Board decision, the Board granted unemployability benefits effective August 2010. The Veteran appealed the denial of an earlier effective date for the grant of unemployability benefits. That appeal resulted in a Joint Motion for Partial Remand in which the parties agreed that the issue of whether TDIU prior to August 2010 was raised by the record and should have been adjudicated. The Court granted the motion for remand. The Board denied an earlier effective date for the Veterans unemployability benefits in a February 2016 decision.
CCK appeals to the Court
CCK successfully appealed to the Court the denial of an earlier effective date for his unemployability benefits. In its decision, the Board found that the evidence did not demonstrate that the Veteran worked in a protected environment. The Board focused on whether the Veteran worked in a sheltered work environment and not a protected work environment. The Board found that the Veteran’s work as a crane operator was isolated in nature and did not evidence that he worked in a protected work environment. On that basis, the Board denied an effective date earlier than 2010 for unemployability benefits.
CAVC agrees with CCK’s arguments
CCK argued, and the Court agreed, that the Board erred when it focused on whether the Veteran worked in a sheltered work environment and not in a protected work environment. Further, the Board improperly presumed that working as a crane operator was isolated work even when there was no evidence in the record that it was. Accordingly, The Court vacated and remanded the Board’s decision for adjudication.
