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Veterans Law

The Board Erred When It Denied the Veteran Unemployability Benefits

Bradley Hennings

April 5, 2017

Updated: November 20, 2023

Court Win - TDIU

Summary of the Case

The Veteran served on active duty in the United States Army from April 1999 to December 1999, with service in the Persian Gulf. He worked for several years following his separation from the military but was fired from his job in 2004 for taking too many bathroom breaks due to his now service-connected interstitial cystitis and irritable bowel syndrome (IBS). He spent a brief time working for a pest control company in 2011 but had to leave his job for similar reasons.

He filed for Total Disability Based on Individual Unemployability (TDIU) in February 2007. He was denied by the Regional Office (RO) in March 2008 and the Veteran appealed his case to the Board. The Board remanded his case back to the RO in February 2013. In May 2013, a VA examiner found that the Veteran’s interstitial cystitis, IBS, and gastroesophageal reflux disease (GERD) “do not render him unable to secure or follow a substantially gainful occupation.”

In May 2013, the Board denied the Veteran his claim for TDIU and the Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). After securing a joint motion for partial remand, the Board issued another denial of TDIU in August 2015.

CCK appealed the August 2015 denial of TDIU to the Court.

The Board wrongly denied the Veteran entitlement to unemployability benefits and the Court found that the Board’s decision was deficient in six ways.

  1. The Court found that the Board’s consideration of the Veteran’s statements that he had not worked for several years was inadequate. The Board should have determined whether the Veteran was not working by choice, or for some other reason.
  2. If the Board determined that the Veteran was not willingly unemployed, it should have determined whether he was unable to find a job due to his service connected disabilities.
  3. The Board also erred when it failed to thoroughly explain why a medical examination that considered all of the Veteran’s service-connected disabilities at once was not required. The evidence demonstrated that multiple service-connected disabilities impacted the Veteran’s ability to work. Further, the Board failed to adequately discuss the conflicting medical evidence.
  4. The Board failed to consider whether the Veteran’s need to use the bathroom frequently, which led him to lose several jobs, rendered the Veteran unable to maintain employment.
  5. The Board did not sufficiently support its conclusion that three medical opinions were sufficient for it to rely upon to deny Individual Unemployability (TDIU). The Board improperly used the VA examiners’ incompetent non-expert medical opinion that the Veteran was able to work. The Board also did not adequately explain why the VA examiners’ rationale supported the determination that the Veteran could work.
  6. The Board erred when it failed to adequately consider the Veteran’s work experience and education in any detail before denying Unemployability (TDIU).

The Court vacated the Board’s decision and remanded the case for further proceedings. On remand, the Board must fix the above errors.

To read the Court’s decision.

About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

See more about Bradley