Flexible Part-Time Work May Not Be Substantially Gainful Employment

CCK Law: Our Vital Role in Veterans Law

Summary of the Case

The Veteran served in the United States Marines from July 1966 to September 1969, to include service in Vietnam. The Veteran was service connected for diabetes mellitus type 2, a knee disability and peripheral neuropathy of his bilateral upper and lower extremities. He applied for Total Disability Based on Individual Unemployability (TDIU) in September 2006, stating that he was unable to work full-time since March of 2006, and that the flexibility he had in his current part-time work in insurance sales allowed him to rest when he had bad days and to work when he had good days. In October 2015, the Regional Office (RO) granted the Veteran entitlement to TDIU effective September 14, 2014, as well as service connection for tinnitus and right ear hearing loss effective the same date. The Veteran appealed for an earlier effective for TDIU to the Board of Veterans’ Appeals.

The Board Denies Veteran Earlier Effective Date

In December 2015, the Board denied the Veteran entitlement to an earlier effective date for TDIU. The Board found there was no evidence that indicated the Veteran’s employment was marginal prior to the September 2014 effective date. The Board relied in part on a November 2011 VA examination that found that the Veteran was capable of sedentary employment.

CCK Appeals the Board Denial to the Court of Appeals for Veterans Claims (CAVC)

CCK successfully appealed to the Court a Board decision that denied the Veteran an earlier effective date for TDIU. The Board denied TDIU for the period prior to September 16, 2014 as it determined that the Veteran’s work was considered to be substantially gainful employment. In this decision, the Board also declined referral for extraschedular consideration. The Board found that there was no collective impact from the Veteran’s service-connected disabilities that warranted extraschedular consideration.

Court Agrees with CCK and Remands Veteran’s Case

CCK argued, and the Court agreed, that the Board erred when it failed to determine whether the Veteran’s flexible part-time work environment amounted to a protected work environment, and was there not substantially gainful employment. Additionally, a November 2011 examination was inadequate because the examiner found that the Veteran was able to do sedentary work with proper restrictions. However, the examiner did not elaborate on what those restrictions were and whether they would render the work environment protected. Finally, the Board failed to address the examiner’s finding that the Veteran’s knee disability, peripheral neuropathy, and diabetes interfered with his ability to sit, stand, and walk.

The Court vacated the Board’s decision and remanded the case back to the Board for readjudication.