Flexible part-time work may not be substantially gainful employment

Flexible part-time work may not be substantially gainful employment

Summary

CCK successfully appealed to the Court a Board decision that denied the Veteran total disability based on individual unemployability (TDIU).  The Board denied TDIU for the period prior to September 16, 2014.  In this decision, the Board also declined referral for extraschedular consideration.

The Veteran requested TDIU in March of 2006, indicating that he stopped full time work earlier that year.  He was only working part time, and his job allowed him to work on good days and rest on bad days.

The Board stated that there was no evidence indicating the Veteran’s employment was marginal during the period in question.  The Board also found that there was no collective impact from the Veteran’s service-connected disabilities that warranted extraschedular consideration.

Outcome

CCK argued, and the Court agreed, that the Board erred when it failed to determine whether the Veteran’s flexible part-time work environment amounted to a protected work environment.  Additionally, a November 2011 examination was inadequate because the examiner found that the Veteran was able to do sedentary work with proper restrictions.  However, the examiner did not elaborate on what those restrictions and whether they would render the work environment protected.  Finally, the Board failed to address the examiner’s finding that the Veteran’s knee disability, peripheral neuropathy, and diabetes interfered with his ability to sit, stand, and walk.  The Court vacated the Board’s decision and remanded the case back to the Board for readjudication.

Category: Court Wins