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CCK Argues Against Board Denial of TDIU Prior to December 2012, Court Agrees and Remands

May 20, 2019
Court Win - TDIU

Summary of the Case

The Veteran served the nation honorably on active duty in the United States Army from February 1969 to September 1970.  He initially applied for service-connected compensation for post-traumatic stress disorder (PTSD) in July 2005.  The following year, the Regional Office denied his claim.  However, he continued to appeal until he was eventually granted service connection for PTSD in September 2008 with a 50 percent disability rating effective July 2005.  In December 2008, the Veteran filed VA Form 21-8940, the application for total disability based on individual unemployability (TDIU).  Shortly after, the Veteran submitted lay evidence in the form of buddy statements to support his claim for TDIU.  In these statements, the Veteran’s former colleagues noted his poor attendance at work, including showing up late 2-3 times per week and calling in sick 3-4 times per month.  Additionally, they stated that the Veteran was very agitated while at work and had frequent issues with other co-workers.  After ongoing workplace issues, the Veteran abruptly quit his job, despite employers’ efforts to accommodate.  Nevertheless, the Regional Office denied entitlement to TDIU in March 2009.

The Veteran continued to appeal for a higher rating for his service-connected PTSD, to include entitlement to TDIU.  In April 2012, the Regional Office granted an increased rating of 70 percent for his PTSD, but once again denied TDIU.  Finally, in January 2013, the Regional Office assigned a 100 percent disability rating for the Veteran’s PTSD and granted TDIU, both effective December 17, 2012.  From here, the Veteran appealed for entitlement to TDIU prior to that time period.  His appeal made it to the Board of Veterans’ Appeals in July 2014 and again in September 2016, where it was remanded on both occasions.  In its September 2016 remand order, the Board requested an opinion by a “vocational expert or other appropriately trained person” in order to determine if the Veteran is entitled to TDIU prior to December 2012.  In August 2017, the Veteran attended a VA examination that was not completed by a vocational specialist, but rather by a social worker who found that despite his psychiatric-related difficulties, the Veteran was able to maintain employment.  The social worker also provided some examples of jobs the Veteran might be able to do, including a nursing assistant, medical support assistant, or health technician.

On February 14, 2018, the Board issued a decision that denied entitlement to TDIU for the period before December 2012.  In its decision, the Board relied heavily on the August 2017 examination, citing to the social worker’s conclusions.  However, the Board never addressed whether the social worker qualified as a person who was appropriately trained such that he could render a vocational opinion in the same manner as a VA vocational specialist.  The Board also failed to mention its prior remand order.

CCK appeals Board denial of TDIU prior to December 2012

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC), the Board decision that denied the Veteran entitlement to TDIU prior to December 2012.  CCK argued (1) the social worker was not competent to render a vocational opinion; (2) the Board speculated about the types of work that would be reasonable for the Veteran to perform; and (3) the Board relied on other irrelevant factors like the Veteran’s ability to perform household chores as evidence that he was employable.  CCK further argued that the Board should also consider the Court’s recent decision in Ray, which provided guidance to the Board concerning the meaning of the phrase “unable to secure and follow a substantially gainful occupation”.     

Court remands Veteran’s case back to the Board

CCK argued, and the Court agreed, that the Board never addressed whether the social worker was qualified to render a vocational opinion.  The Court’s decision also focused on the Board’s remand order to obtain a vocational expert opinion.  Specifically, the Court noted that the Board did not even mention its prior remand order in the decision on appeal.  Finally, the Court pointed out that the Board relied on other VA medical examinations that it had previously deemed insufficient when making its decision.  Accordingly, the Veteran’s case was remanded back to the Board for readjudication.

To read the Court’s full decision, click here.

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