CCK Helps Veteran Secure TDIU Benefits Based on Stomach Ulcer
Facts of the Case
The Veteran is a Gulf War Era veteran who served in the Army from March 1988 to March of 1992. The Veteran became service connected for a duodenal ulcer and received a 10 percent rating in April 1993. A 2015 Board of Veterans’ Affairs (BVA) decision remanded the issue of TDIU and granted an increased rating for the Veteran’s ulcer to 30 percent.
VA Denies Increased Rating and TDIU
CCK took the Veteran’s case in April of 2017. The following year, in March 2018, another BVA decision remanded the issues of TDIU and an increased rating for the duodenal ulcer. A Supplemental Statement of the Case (SSOC) was then issued in July 2018 which denied entitlement to an extraschedular rating for the duodenal ulcer and total disability based on individual unemployability (TDIU).
The denial was issued based on statements made by the Director of Compensation Service, who found that the Veteran’s ulcer did not warrant extraschedular TDIU because there was no evidence of “marked interference with employment or frequent periods of hospitalization” associated with the ulcer.
CCK Responds to the Denial
In August of 2018, CCK issued a response to the SSOC. We noted that the Board is not bound by an adverse determination made by the Director of Compensation Service and, as such, the Director’s opinion should be afforded little value. CCK also argued that the Director’s opinion was not made in accordance with the regulation regarding TDIU.
According to the regulation, the Veteran must indicate, with evidence, that he is unable to secure and follow substantially gainful employment due to his service-connected ulcer. CCK noted that in the 8940 form, which was submitted as part of his claim for TDIU, the Veteran reported that while he had been able to secure many different jobs as a cook, server, or general laborer over the years, he has never been able to maintain more than part-time employment for an extended period of time without being fired or quitting because of the limitations imposed by his ulcer.
The Veteran’s earnings records provided indicated that he received marginal earnings between 2001 and 2004, and after 2005. Additionally, CCK indicated that the vocational assessment CCK had secured as evidence found that the Veteran could not walk further than one block without pain or stand longer than 10 minutes. The report further stated that the Veteran’s ulcer prevented him from performing sedentary work in a reasonable manner as he requires the ability to lay down multiple times per day, which would interfere with work-related tasks. The evidence and assessment made in the vocational report was consistent with the examinations of record.
Since the Director of Compensation Service’ opinion is not binding and should be afforded little weight in the Boards’ decision, and the fact that the evidence of the record and the vocational assessment prove that the Veteran could not maintain income other than marginal, CCK argued that the Board could not deny TDIU without producing evidence as to the contrary.
The Board Agrees with CCK
In September 2018, the Board issued a decision granting entitlement to TDIU. The Board found that, based on evidence, the Veteran had attempted employment on numerous occasions, but was prevented from maintaining gainful employment based on the significant functional impairment caused by his ulcer. A following BVA decision, issued in December 2018, granted TDIU with an effective date of July 1, 2017.
CCK Pushes for an Earlier Effective Date and More Benefits
Though CCK helped the Veteran secure TDIU, CCK knew the Veteran was entitled to a much earlier effective date, and therefore much more compensation. CCK filed a Notice of Disagreement (NOD) with the December 2018 decision based on the effective date. A Statement of the Case (SOC) determined that there was no change warranted in the TDIU effective date. CCK disagreed and filed a VA Form 9 appeal on behalf of the Veteran.
The BVA issued a decision in February 2020 agreeing with CCK and granting an earlier effective date of November 11, 2011. However, CCK was not finished. Knowing that the Veteran deserved an even earlier effective date, CCK filed a Higher-Level Review appeal for an earlier effective date and increased rating for the extraschedular duodenal ulcer. Finally, in March of 2021, VA granted the earlier effective date for TDIU, based on the extraschedular rating for the duodenal ulcer, dating all the way back to February 2001.
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