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Court Wins

CCK Helps Veteran Secure TDIU Following Multiple VA Errors

Alyse Phillips

November 1, 2021

Updated: June 20, 2024


Case Summary

The Veteran served in the United States Army during the Gulf War Era and peacetime from June 1977 to June 2003.  He initially filed a claim for U.S. Department of Veterans Affairs (VA) disability benefits on March 20, 2003, requesting service connection for numerous conditions, including chronic back pain, bilateral knee pain, a right shoulder injury, frost bite in both feet, and bilateral bunions.

VA issued a rating decision on August 22, 2003, granting service connection for frostbite in his right foot at 10 percent, frostbite in his left foot at 10 percent, a right shoulder strain at 0 percent, and a lumbar strain at 0 percent, all effective on July 1, 2003.  The other conditions (i.e., bilateral knee pain and bunions) were denied service connection.

On February 16, 2011, the Veteran filed for an increased rating for several conditions that had worsened since 2003.  His bilateral knee pain was diagnosed as degenerative joint disease (osteoarthritis) and his back pain developed into cervical degenerative joint disease.  In addition, the Veteran applied for service connection for post-traumatic stress disorder (PTSD).  In November of the same year, he also filed for Total Disability Based on Individual Unemployability (TDIU).

In an April 3, 2013 rating decision, VA granted him service connection for PTSD and the spine and bilateral knee conditions, effective July 2011.  However, VA denied the Veteran both TDIU and an increase in ratings for many of his conditions.  Then, in September 2013, VA decreased his bilateral knee condition rating from 10 to 0 percent.

Following the contradicting rating decisions and TDIU denial, the Veteran filed two Notices of Disagreement (NODs) with the Board of Veterans’ Appeals (Board).  He challenged the reduction and requested increased ratings based on unemployability for his service-connected conditions.

VA “Clearly and Unmistakably” Errs in Rating Decisions

In July 2015, VA rejected the NODs due to timeliness.  The Veteran filed another NOD contending that his previous two NODs were, in fact, timely.

The case finally reached the Board of Veterans’ Appeals on October 18, 2018.  Chisholm Chisholm & Kilpatrick LTD argued that VA clearly erred in rejecting the NODS, as the Veteran had submitted them within one year of the dates on the notice letters.  The Board concluded that the NODs filed in response to the 2013 rating decisions were valid and timely, opening the claim stream back up to 2011.

VA reissued a 10 percent rating for each of the Veteran’s knee conditions, effective February 17, 2011, after finding a “clear and unmistakable error” in its 2013 rating decision.  VA also granted the veteran increased benefits for his frostbite injuries and basic eligibility to Dependents’ Educational Assistance from November 5, 2018.

The Veteran submitted another Notice of Disagreement, as VA again denied him TDIU benefits.

CCK Helps Veteran Secure TDIU Benefits from Board

The appeal came before the Board in September 2019.  This time, Chisholm Chisholm & Kilpatrick LTD argued that the Veteran’s service-connected conditions prevented him from securing and maintaining substantially gainful employment.

CCK pointed out that the Veteran has been unable to work since his former role  as a Logistics Specialist in 2010, even in a sedentary environment.  In a November 2018 affidavit, the Veteran explained that his pain was constant, regardless of whether he was sitting, standing, or moving about.  He also stated that his PTSD prevented him from working around other people.  A 2016 vocational opinion also confirmed the Veteran was “as least as likely as not” unable to secure employment due to his service-connected disabilities.

Based on this evidence, the Board granted the Veteran TDIU, effective from February 17, 2011.  The retroactive and future TDIU benefits included additional compensation for his two dependents.

The Veteran also received an earlier effective date, February 17, 2011, for Dependents’ Educational Assistance following a Higher-Level Review by VA in August 2020.

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