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Court Wins

TDIU Denial Contained Legal Error by the Board

April Donahower

October 5, 2018

Updated: November 20, 2023

Court Win - TDIU


The Veteran served in the United States Army from November 1966 to September 1968. In September of 2013, the Board remanded the Veteran’s claim concerning his left leg disability. In this decision, the Board found that TDIU was reasonably raised by the record. In February of 2016, a regional office denied TDIU. Subsequently, the Veteran appealed to the Board of Veterans’ Appeals and was denied again.

Board denies TDIU

In June of 2016, the Board issued a decision denying TDIU. While the Board considered the Veteran’s April 2015 reports that he had unbearable pain in his left leg and was unable to stand for any length of time or walk very far, it gave more weight to prior medical records. Specifically, the October 2013 VA examination concluded the Veteran’s service-connected disabilities did not preclude sedentary work. Furthermore, the Board noted the Veteran’s past work history consisted of sedentary employment as he previously worked in a managerial position at his family’s business. In regards to the Veteran’s reports, the Board determined that he never stated he was incapable of sedentary employment.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied TDIU. CCK argued that the Board misinterpreted and misapplied the terms “sedentary employment” and “substantially gainful employment”. Specifically, the Board did not explain or define these terms as they relate to the Veteran’s case. Additionally, CCK asserted that the Board erred by only relying on the October 2013 VA examination in making its decision. In December 2017, CCK requested a stay of proceedings, pending a decision by the Court in Withers v. Wilkie.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed in light of Withers, that if the Board bases its denial of TDIU on the conclusion that a Veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that specific case. The Board did not meet that standard or provide adequate reasons and bases for denying TDIU based on the ability to perform sedentary work. As such, the Court vacated the Board’s decision and remanded the case back to the Board. In doing so, the Court is requiring the Board to clarify its definition of sedentary work, to include whether the Veteran’s standing, squatting, walking, and ladder-climbing restrictions affect this type of employment.

To read the Court’s decision, click here.

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

See more about April