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Court Wins

Vietnam War Era Veteran Wins TDIU Following Board Denial

Michael Lostritto

February 28, 2022

Updated: November 20, 2023


Case Summary

The Veteran served in the U.S. military during the Vietnam War Era.  In February 2014, he filed his first claim for Department of Veterans Affairs (VA) disability compensation.  At that time, VA granted a 10 percent rating for tinnitus and a 0 percent rating for hearing loss in the right ear.

With the help of Chisholm Chisholm & Kilpatrick, the Veteran filed another claim in May 2017, this time for diabetes mellitus type 2, coronary artery disease, ischemic heart disease, vision problems, and peripheral neuropathy in the lower extremities.  In August, VA granted a 40 percent disability rating for type 2 diabetes and a 30 percent rating for coronary artery disease, both effective from May.

CCK assisted the Veteran in filing an increased rating appeal for both conditions.  VA responded in November 2017 with a proposal to reduce the Veteran’s diabetes rating from 40 percent to 20 percent.

Board Denies Claims for Increased Ratings

In April 2018, VA granted service connection for peripheral neuropathy in the right lower extremity at 20 percent, the left lower extremity at 10 percent, and bilateral upper extremities at 10 percent.  VA denied service connection for the Veteran’s vision problems.

With CCK’s assistance, the Veteran filed a Notice of Disagreement, requesting increased ratings, service connection for his vision problems, and total disability based on individual unemployability (TDIU).

The Board of Veterans’ Appeals reviewed the Veteran’s case on November 8, 2019.  While the Board granted a 20 percent disability rating for peripheral neuropathy in the left leg – an increase from his previous rating of 10 percent – it denied all his other claims.

CCK Helps Veteran Secure TDIU Benefits

In September 2019, CCK also submitted a Supplemental Claim (VA Form 20-0995) on behalf of the Veteran regarding entitlement to TDIU.  While the Board acknowledged the Supplemental Claim in its November 2019 decision, it referred the matter back to the VA Regional Office.

The Supplemental Claim included several pieces of evidence supporting the Veteran’s claim for TDIU, including an employability evaluation acquired by CCK in September 2019.  In the report, the evaluator discussed each of the Veteran’s service-connected disabilities and how they prevented him from working.  She asserted that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected conditions.

Based on this report and other medical evidence, VA awarded the Veteran TDIU benefits, which are equal to a 100 percent schedular rating, effective from January 2018.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael