BVA erroneously determines Veteran is capable of sedentary duties, denies TDIU

BVA erroneously determines Veteran is capable of sedentary duties, denies TDIU


The Veteran served in the United States Army from October 1966 to October 1969.  In July 2004, the Regional Office granted the Veteran’s claim for service connection for PTSD.  He was assigned a 10% disability rating.  The RO granted service connection for residuals of prostate cancer in January 2007, eventually assigning a rating of 60%.  In the meantime, a VA social worker described the effect of the Veteran’s PTSD symptoms as a life “of self-imposed isolation.”  The worker also noted the Veteran’s only social interaction as “involv[ing] survival needs or coming to counseling.”   The RO granted an increased rating of 30% for the Veteran’s PTSD.   The Veteran applied for increased compensation based on unemployability (TDIU).

Board denied individual unemployability, determined Veteran capable of sedentary duties

In August 2015, the Board remanded the issue of TDIU for further development.  VA examiners opined that “there is no reliable indication that the symptoms of PTSD the claimant currently experiences cause clinically significant social and occupational impairment.”  Furthermore, despite “mild functional limitation,” the Veteran was “capable of sedentary duty activities only.”  In May 2016, the Board denied entitlement to a TDIU.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of TDIU.  In its decision, the Board found the VA social worker’s opinion regarding the Veteran’s employability speculative.  Instead, it relied on a Social Security Administration functional assessment report and VA medical examiners’ opinions that the Veteran was employable despite his service-connected conditions.  The Board found probative the examiners’ opinions that the Veteran could perform sedentary duties.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in its decision.   Specifically, it inadequately explained why it found the social worker’s assessment of the Veteran’s employability less probative than the examiners’ assessments.  Though the Board found the social worker’s assessment speculative due to a lack of sufficient medical training, it nevertheless “incorrectly elevated the SSA examiner’s education and training, despite no indication” that the examiner had any medical training.  The Board also appeared to require evidence that the Veteran could not secure and follow a substantially gainful occupation rather than evidence he could not secure or follow such an occupation.  Finally, the Court agreed that the Board did not adequately consider the Veteran’s employment and educational background.  Specifically, the Veteran only had experience in primarily manual labor.  This factor should have been considered before concluding that he could perform sedentary duties.

Accordingly, the Court set aside the Board’s decision and remanded the claim for further development, if necessary, and readjudication.

Category: Court Wins