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Court Wins

Board Provided Inadequate Reasons and Bases when Denying TDIU on an Extraschedular Basis

Robert Chisholm

January 6, 2019

Updated: June 20, 2024

Court Win - TDIU

Summary of the Case

The Veteran served honorably in the United States Army from March 1953 to January 1955.  In 2014, he submitted VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.  Subsequently, the Veteran submitted a Vocational Assessment indicating he had been unable to secure and follow substantially gainful employment since at least September 2009.  The Veteran continued to seek entitlement to TDIU, but was denied by the Board of Veterans’ Appeals.  The following appeal ensued.

Board denies TDIU on an extraschedular basis

On May 31, 2017, the Board issued a decision denying referral for extraschedular consideration for TDIU.  In its decision, the Board found that referral was not warranted for consideration of extraschedular TDIU.  The Board recognized that the Veteran is service-connected for residuals of squamous cell carcinoma of the left vocal cord as secondary to vocal cord polyps; bilateral pes planus; residuals of vocal cord polyps; tinnitus; and bilateral hearing loss, with a combined schedular rating of 50 percent prior to December 21, 2008 and 60 percent from that date forward.  However, the Board determined that he was not prevented from securing and following a substantially gainful occupation that is sedentary in nature.

CCK appeals denial of extraschedular TDIU to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied referral for extraschedular consideration for TDIU.  CCK argued that the Board provided an inadequate statement of reasons and bases in denying referral for consideration of TDIU on an extraschedular basis.  Specifically, the Board’s decision lacked any meaningful standards to assess the requirements of substantially gainful employment, to include features of sedentary employment.  CCK urged the Court to adopt the definition of “sedentary” found in the US Department of Labor’s Dictionary of Occupational Titles.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to explain how it interpreted “sedentary employment” in the context of the Veteran’s case, as referenced several times in its opinion.  Furthermore, the Court held that the Board relying on the plain meaning of the term was post hoc rationalization, that is only coming up with reasons after the fact.  As a result, the Court decided that remand is necessary to permit the Board to explain how the concept of sedentary work figures into the Veteran’s overall disability picture and vocational history.  In its decision, the Court cited to Withers, a recent precedential decision that CCK successfully argued.  Here, the Court affirmed if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case.

About the Author

Bio photo of Robert Chisholm

Robert is a Founding Partner of CCK Law. His law practice focuses on representing disabled veterans in the United States Court of Appeals for Veterans Claims and before the Department of Veterans Affairs. As a veterans lawyer Robert has been representing disabled veterans since 1990. During his extensive career, Robert has successfully represented veterans before the Board of Veterans Appeals, Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Federal Circuit.

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