Denial of TDIU Failed to Consider Foot Scars

Denial of TDIU Failed to Consider Foot Scars

Summary

The Veteran served honorably on active duty from July of 1945 to December of 1948.  He was granted service connection for foot scars in July of 1980, and for bilateral hearing loss and tinnitus in March of 2004. The rating for foot scars was later increased to 10%, and the rating for hearing loss was later increased to 80% disabling.  The Veteran claimed that these disabilities prevented him from following substantially gainful employment.  VA denied entitlement to a total disability rating based on individual unemployability (TDIU).   The Veteran appealed to the Board of Veterans’ Appeals, which remanded the issue of TDIU in August of 2012.

In June of 2013, the Board increased the Veteran’s rating for hearing loss to 100% effective December of 2010.  Additionally, it denied entitlement to TDIU prior to that date.  The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). A joint motion for remand stipulated that the Board failed to provide an adequate statement of reasons or bases for its decision.

Board denied entitlement to TDIU prior to December 2010

The Board continued to deny TDIU prior to December of 2010, and the Veteran again appealed to the CAVC.  The Court issued a memorandum decision setting aside the Board’s April 2014 denial of TDIU.  It also remanded the matter for the Board to provide adequate reasons or bases for its decision.  In January of 2016, the Board again denied entitlement to TDIU prior to December of 2010.

CCK appeals to the Court of Appeals for Veterans Claims (CAVC)

CCK successfully appealed to the CAVC a Board decision that denied the Veteran entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 29, 2010.  The Veteran was service-connected for painful scars on his feet as well as hearing loss.  He asserted that these disabilities prevented him from performing substantially gainful employment.  In its decision, the Board incorrectly stated that the Veteran never asserted that his foot scars interfered with employment.  Therefore it only considered entitlement to TDIU on the bases of the Veteran’s hearing loss.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred in finding that the Veteran never asserted that his foot scars interfered with employment. Indeed, the Veteran had asserted exactly that in his original filing for TDIU.  Thus, the Board erred when it failed to consider all of the Veteran’s service-connected disabilities in determining whether TDIU was warranted for the period prior to December 29, 2010.  The Court vacated the Board’s decision and remanded the case back to the Board for readjudication.

Category: Court Wins