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Court Wins

Decorated Veteran Awarded TDIU Back to 1969

Alyse Phillips

September 2, 2020

Updated: November 20, 2023

Decorated Veteran Awarded TDIU Back to 1969

About the Veteran

The Veteran served honorably in the United States Army from 1967 to 1969, spending 11 months in Vietnam.  He was decorated for his combat service, receiving a bronze star, three purple hearts, and several other awards.  Following his discharge, the Veteran owned his own business and then worked at his family’s company.  In 1967, the Veteran filed a claim seeking service connection for the residuals of shrapnel wounds as well as psychiatric symptoms.  He then began a difficult and prolonged process with VA to obtain the benefits to which he was rightfully entitled.

Factual and Procedural History

After filing his initial claim, VA awarded the veteran service connection for shrapnel residuals and anxious reaction, rating his psychiatric condition at only 10 percent disabling.  His psychiatric condition was then reduced in a May 20, 1969 Rating Decision.  The Veteran began fighting for an increased rating for his psychiatric condition as well as total disability based on individual unemployability (TDIU) in 1997.  In 2000, VA awarded him an increased rating of 30 percent, reclassifying his condition as post-traumatic stress disorder.  The Veteran continued to appeal, believing VA committed clear and unmistakable error (CUE) in the initial 1969 reduction, and maintaining that his condition warranted a higher rating along with TDIU.

CCK Begins Representation after Board Denies CUE Claim

CCK first began representing the Veteran in April 2007, after a 2006 Board decision determined there was no CUE in the 1969 rating reduction.  In this decision, the Board also awarded him a 70 percent rating for PTSD, but determined the appeal period only went back to 1997.  Additionally, the Board awarded TDIU benefits effective 2003.  Our veterans’ advocates appealed to the Court of Appeals for Veterans Claims (CAVC) and successfully argued that the 1969 decision was not final and therefore, the appeal period remained open.  The CAVC remanded the Veteran’s increased rating for PTSD claim between 1969 and 1997 back to the Board.

The battle for benefits continued, and in 2008, the Board denied the Veteran’s entitlement to TDIU prior to 2003.  The team at CCK appealed to the CAVC again and secured another remand (i.e., the Veteran’s claim was sent back to the Board).  Both the increased rating for PTSD prior to 1997 and TDIU prior to 2003 were denied twice more by the Board, resulting in additional returns to the Court.  Overall, CCK secured four wins at the CAVC in the 13 years CCK represented the Veteran.  Ultimately, the Board awarded TDIU back to 1969.

Securing TDIU Benefits Back to 1969

Securing TDIU benefits back to 1969 involved obtaining a vocational expert opinion discussing the Veteran’s work within a protected work environment, filing a motion for recusal of a Board judge (i.e., asking to withdraw the judge from the case), obtaining lay statements from the Veteran’s wife and adult children, and fighting multiple negative credibility findings at the CAVC.  Finally, in February 2015, CCK secured a Board decision awarding the Veteran a 70 percent disability rating for PTSD and TDIU benefits back to 1969.  However, CCK continued to fight on behalf of the Veteran.

The Regional Office’s implementation of the Board grant resulted in the Veteran being awarded permanent and total (P&T) status and thus, entitlement to Dependents’ Educational Assistance (DEA) benefits back to 1969.  The Veteran’s adult daughters had obtained college degrees during this time, and so CCK began representing them to obtain their retroactive DEA benefits.  This was finally granted by the Board in 2019 but the Regional Office then delayed the process with tedious requests for information.  Recently, CCK was able to obtain substantial awards for both of the Veteran’s daughters.

Veteran’s Family Shows Appreciation for CCK

The Veteran has been incredibly appreciative of CCK’s help over the years.  His daughter stated this process kick-started their father’s healing process, as he could finally talk about the symptoms he had been coping with since his service in Vietnam.  She thanked the CCK team for all of the assistance that was provided along the way.

CCK’s Thoughts about the Case

This was a great, hard fought win for a very deserving Veteran resulting in over 40 years of retroactive benefits.  This significant victory demonstrates how the persistence, collaborative work, and creative thinking central to our practice truly sets CCK apart as a leader in Veterans’ law.

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