Veteran Wins TDIU for Radiculopathy with Help of CCK

Summary of the Case

The Veteran served in the United States Navy during the Gulf War Era from 1993 to 1997.

In 2005, he filed a VA disability claim for back and ankle conditions.  The Department of Veterans Affairs (VA) denied service connection for both conditions, to which the Veteran quickly disputed by filing a Notice of Disagreement.  In June 2007, VA granted him a 20 percent rating for his back condition.

The Veteran filed an additional claim in August 2007 for Graves’ disease, diabetes mellitus type 2, hypertension, and sickle cell anemia.  VA denied service connection for these conditions; however, it did increase his back condition rating to 40 percent.  The Veteran submitted another claim requesting an even higher rating for his service-connected back disability, to which VA denied.

In October 2014, VA granted him a 20 percent rating for radiculopathy in the left lower extremity.  The Veteran filed a Notice of Disagreement, requesting an increased rating for the condition.

VA and Board Continue to Deny Veteran’s Appeals

After several more unfavorable VA rating decisions, the Veteran’s appeal was reviewed by the Board of Veterans’ Appeals in May 2017.  Following a Board denial, the Veteran hired Chisholm Chisholm & Kilpatrick, who helped him secure a Joint Motion for Partial Remand from the Court of Appeals for Veterans Claims (CAVC) in August 2018.

The case returned to VA, who in October 2018, issued a rating decision denying an increased radiculopathy rating and entitlement to total disability based on individual unemployability (TDIU).  In a June 2019 decision, the Board also denied an increased rating for radiculopathy; however, the issue of TDIU was remanded for further development.

Board Grants Increased Rating for Radiculopathy and TDIU

Following another CAVC Joint Motion for Partial Remand, the case returned to the Board in September 2020.

After reviewing additional evidence acquired by CCK that showed the Veterans suffered from moderate severe incomplete paralysis of the left lower extremity, the Board determined that an increased rating for radiculopathy was warranted.  The Board increased the Veteran’s rating from 20 to 40 percent, effective from the original date of benefits in May 2011.

CCK also obtained a March 2019 private vocational assessment that discussed how the Veteran’s condition prevented him from working.  According to the vocational expert, both his back disability and left leg weakness prevented him from sitting more than 10 minutes, standing longer than 10 minutes, and walking more than half a block.

Based on this evidence, VA granted entitlement to TDIU benefits, equal to a 100 percent rating, effective from May 2011.