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Court Wins

Denial of TDIU for neck disability and other conditions relied on inadequate reasoning

Jenna Zellmer

February 12, 2018

Updated: November 20, 2023

Denial of TDIU for neck disability and other conditions relied on inadequate reasoning


The Veteran served on active duty in the Marine Corps from 1971 to 1973.  He was granted service connection for a neck disability and a headache disability.  In addition, he received service connection for radiculopathy of the right lower radicular group, associated with his neck disability.  A VA examiner noted the Veteran “had to quit work in 2001 secondary to neck pain.”  Another examiner found that the Veteran“[t]rained in many physical tasks but was totally unable [to perform them] since movement exacerbates head pain.”  In June 2015, the Veteran applied for increased compensation based on unemployability (TDIU).  A vocational consultant found that the Veteran was unable to meet competitive levels of persistence, pace, and attendance.

Board denied increased rating for individual unemployability prior to January 2012

In September of 2015, the Board granted entitlement to TDIU as of January 2012.  It referred entitlement to TDIU prior to that date to the Director of Compensation and Pension Service.  In November of 2015, the Director concluded that prior to January 2012, there was no evidence that the Veteran was unable to secure and follow a substantially gainful occupation.

CCK appeals to the Court

In its decision, the Board found that entitlement to TDIU prior to January 2012 was not warranted.  CCK successfully appealed to the Court the denial of TDIU effective in 2001.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board provided an inadequate statement of reasons or bases to support its denial of an earlier effective date for TDIU.   The Court found that it was unclear whether the Board applied the correct legal standard in its TDIU analysis.  The Court also found that the Board inadequately explained why it rejected the vocational consultant’s assessment of the Veteran’s employability.  Finally, the Court found that the Board insufficiently discussed its prior finding that the evidence showed the Veteran had not been able to work since 2001.  Accordingly, the Court vacated the Board’s decision and remanded the issue of entitlement to TDIU prior to January 2012.  On remand, the Board must readjudicate the Veteran’s claim.

About the Author

Bio photo of Jenna Zellmer

Jenna joined CCK in January of 2014 as an appellate attorney, was named Managing Attorney in September of 2019, and now serves as a Partner at the firm. Her law practice focuses on representing disabled veterans at the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

See more about Jenna