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Court Wins

BVA fails to consider TDIU despite being raised in an increased rating claim for Veteran’s lower back condition

Alyse Phillips

February 16, 2018

Updated: November 20, 2023

BVA fails to consider TDIU despite being raised in an increased rating claim for Veteran’s lower back condition


The Veteran served in the Air Force from March 2004 to June 2004 and from May 2007 to October 2007.  Following service the Veteran began to suffer from a lower back condition.  In May 2011, a private physician described the Veteran’s worsening “continuous strong back pain” as characterized by continuous muscle spasms; inability to tolerate prolonged sitting or standing, lift heavy objects, bend, squat, or crawl; limited ability to climb, reach, or put on his shoes; and stiffness after sleeping or prolonged maintenance of a position.  His lower back condition restricted his daily activities, preventing exercise and causing “difficulty realizing his house[ ]hold activities.”  As a result, he was frustrated, anxious, and irritable.  He also had difficulty sleeping and was fatigued every day.  Furthermore, his condition restricted social functioning.

In February 2009, the Regional Office granted service connection for a lower back disability.  VA evaluated the condition at a 20% rating.  In April 2012, the Veteran applied for entitlement to total disability based on individual unemployability (TDIU).  He stated that he was in the process of obtaining a medical discharge from the National Guard.  The RO denied a higher rating for the Veteran’s lower back condition and entitlement to TDIU in a January 2014 statement of the case.  In response, the Veteran timely submitted a substantive appeal on a VA Form 9.  He indicated that he was appealing “[e]ntitlement to an increase for” his low back disability.  He further noted, “I am in total disagreement with the Agency of Original Jurisdiction.”

Board fails to consider individual unemployability despite being raised as part of an increased rating claim for lower back condition

In September 2015, the Veteran’s representative filed an informal brief in which he disputed the RO’s denial of entitlement to TDIU.  The representative stated that the Veteran “continues to assert that an increase on his service[-]connected . . . lower back condition, currently evaluated at 20% disabling . . . and entitlement to individual unemployability, should be granted.”  The following January, VA certified the Veteran’s appeal to the Board, listing an increased rating for his low back disability and TDIU as the issues on appeal.

The Board found in September 2016 that “[a]lthough the issue of entitlement to a TDIU is a part and parcel of an increased rating claim . . . here, the Veteran has specifically declined Board review of this issue as reflected in his substantive appeal.”

CCK appeals to the Court

CCK successfully appealed to the Court the denial of TDIU.  It argued that VA certified TDIU for appeal, and noted that the Board reasoned that “certification [nevertheless] is used for administrative purposes and does not confer or deprive the Board of jurisdiction over an issue.”

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Veteran made the RO’s TDIU determination part of his appeal.  The Court also agreed that the Board  erred in finding the Veteran withdrew his appeal of the TDIU determination.  It noted that in order to withdraw this issue, “he would have had to explicitly mention TDIU, in writing, and communicate his intent to withdraw.”  Accordingly, the Court set aside the Board’s decision and remanded for further proceedings consistent with its decision.

About the Author

Bio photo of Alyse Phillips

Alyse is a Supervising Attorney at Chisholm Chisholm & Kilpatrick. Since joining the firm in August of 2016, she has specialized in representing disabled veterans and their dependents before the United States Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Alyse