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Court Wins

Denial of individual unemployability relied on Board’s conjecture instead of evidence

Alyse Phillips

March 17, 2018

Updated: November 20, 2023

Denial of individual unemployability relied on Board’s conjecture instead of evidence


The Veteran served honorably in the United States Navy from November 1986 through April 1989.  He had a combined disability rating of 80% and was service-connected for depression, rated 70% disabling; right ankle degenerative joint disease, rated 20% disabling; and tinnitus, rated 10% disabling.  He completed high school and Navy engineering school and received certification for training in high-voltage maintenance, HVAC, and light rail signal work.  Although he enrolled in computer skills training at a local community college, he did not successfully complete it.  He obtained a vocational rehabilitation placement at his local VA hospital for volunteer work, where he struggled to complete assigned tasks and had conflict with a supervisor.

Board denied individual unemployability (TDIU)

In September 2015, the Board remanded the issue of TDIU for further development.  A VA examiner opined that the Veteran’s right ankle disability “would not be expected to make an impact [on] working in an office or sedentary type of job [because] this would involve sitting[,] which would not aggravate his ankle.”  In her opinion, the Veteran would better tolerate “less than full-time work” in “a job that allowed flexibility to change positions [and] stretch [his] ankle as needed.”  A scheduled VA psychiatric examination to determine the effects of the Veteran’s service-connected depression did not take place because the Veteran began shouting and cursing at the examiner when invited to the examination room.  In December 2016, the Board denied entitlement to TDIU.

CCK appeals TDIU Denial to the Court

CCK successfully appealed to the Court the denial of TDIU.  Noting that the Veteran “did complete two years of college,” the Board found “nothing in the record to suggest that he would be unable to perform a sedentary job.”  The Board also relied on a finding that VA examiners “have consistently found that [the Veteran’s] service[-]connected disabilities did not so functionally impair the Veteran as to preclude substantially gainful employment.”

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board inadequately explained why the Veteran was not entitled to TDIU.  Observing that the Board had conceded the Veteran had no sedentary work history, the Court determined the Board “provided mere conjecture for finding that that he was capable of securing sedentary work,” relying on “a lack of evidence to suggest that [the Veteran] would be unable to perform a sedentary job.”  The Court also determined that the Board failed to explain how the Veteran’s educational background could support a sedentary career.  Finally, it determined the Board erred in failing to discuss whether the Veteran would be limited to marginal employment.  Accordingly, the Court vacated the Board’s decision and remanded the matter for readjudication.

To read the Court decision, click here. 

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