TDIU Denial ignored important evidence

TDIU Denial ignored important evidence

Summary

The Veteran served in the United States Air Force from 1964 to 1968.  He originally filed for VA disability benefits for post-traumatic stress (PTSD) in June of 2008.  He was denied service connection in October of 2004 and appealed that decision in January of 2010.  After a VA exam in 2010, he was granted service connection in January of 2011 at a rating of 0%.  VA assigned an effective date of September of 2010.  The Veteran filed an appeal to the Board for an increased rating for his PTSD in March of 2011.  After a second VA exam in August of 2012, his rating was increased to 50% in a February 2013 decision.

Board denies entitlement to TDIU

The Veteran continued his appeal for an increased rating for PTSD to the Board of Veterans Appeals. In January of 2014, the Board issued a decision denying him a compensable rating prior to August of 2012.  The decision also remanded the issue of an increased rating above 50% after August of 2012.  The Board required that he have an additional exam and one was conducted in February of 2015.  In light of the Veteran’s symptoms, a decision was issued that same month that granted the Veteran a rating of 70% from the date of his third exam.

Again the Veteran appealed to the Board and after the relevant treatment records were obtained, the Board found that the Veteran was entitled to a 50% rating from August 2011 to August 2012, and a 70% rating from January 2015 to February 2015.  In this April 2016 decision, the Board also denied the Veteran’s appeal for a compensable rating prior to August 2011 and an increased rating above 70% after January 2015. This decision also denied the Veteran entitlement to a total disability rating, or “TDIU.”

CCK appeals to the Court of Appeals for Veterans Claims

CCK successfully appealed to the Court the Board decision that denied the Veteran entitlement to an increased rating for PTSD.  The decision had also determined that entitlement to TDIU was not reasonably raised by the record.  In its decision, the Board stated that TDIU was not reasonably raised because the Veteran had never claimed it and had not worked since prior to being service connected for PTSD.

CAVC sets aside the Board’s decision

CCK argued, and the Court agreed, that the Board erred when it concluded that TDIU was not reasonably raised.  The Court agreed that evidence suggested that the Veteran would have difficulty securing and maintaining substantially gainful employment due to his PTSD, and that the Board should have addressed the issue.  The Court reversed the Board’s decision that TDIU was not reasonably raised, and remanded the case back to the Board to adjudicate entitlement to TDIU.  The Board must not determine if the Veteran’s PTSD symptoms prevent him from being employed.

Category: Court Wins