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BVA relied on an inadequate VA exam to determine the Veteran capable of sedentary employment

BVA relied on an inadequate VA exam to determine the Veteran capable of sedentary employment

Summary

The Veteran served on active duty in the United States Navy from January 1981 to October 1989.  In April 1990, the Veteran was granted service connection for arthroscopy right knee for chondromalacia with findings of partial ACL tear, as well as service connection for tinnitus with history of perforated tympanic membrane due to blunt trauma.  Both conditions received a 10% rating from October 1989.  In December 2010, the Veteran filed a claim for increased rating for his knee condition.  The Veteran stated that as a result of his knee pain, he avoided walking, using stairs, kneeling, and crawling.

In May 2013, the Veteran filed an application for increased compensation based on unemployability.  He reported that he had not worked since 2010 as a result of needing narcotics for his knee pain, and being unable to drive.  During the time on appeal, the Veteran underwent several VA examinations and submitted lay and medical evidence.  In May 2016, the Board denied the Veteran’s claim for increased rating for his psychiatric disorder and application for TDIU.

The Board denied TDIU benefits, finds Veteran capable of sedentary employment

In May 2016, the Board denied TDIU.  This denial came despite evidence indicating that the Veteran could not tolerate sitting, standing, or walking for prolonged periods of time, due to his knee condition.  Evidence on file also noted that the Veteran had difficulty communicating, talking on the telephone, concentrating, and driving.  The Board nonetheless found that the Veteran was capable of performing sedentary work.

CCK appeals to the Court

CCK successfully appealed to the Court the May 2016 denial of entitlement to TDIU.  In its decision, the Board misinterpreted the term and failed to provide an adequate statement of reasons or bases for its conclusion.  Specifically, the Board neglected to explain how it defined substantially gainful employment, sedentary employment, and sedentary job with light duty.  Therefore, its decision was arbitrary and capricious.  Finally, the Board erred when it failed to consider the Veteran’s occupational, training and educational background when concluding the Veteran was capable of sedentary work, such as a clerical position.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that in denying TDIU, the Board failed to address favorable evidence.  Furthermore, they failed to provide adequate reasons and bases for determining the Veteran was capable of substantially gainful employment.  The Court also agreed that the Board did not adequately address a VA examiner’s finding that the Veteran would have difficulty working in a sedentary job.  The Court remanded the Veteran’s case for further adjudication.

Category: Court Wins

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