Veteran Wins TDIU Appeal Because Board Failed To Explain Standard For Unemployability
CCK recently appealed a Board of Veterans’ Appeals decision that denied a Veteran entitlement to a rating of total disability based on individual unemployability (TDIU). The Court of Appeals for Veterans Claims agreed that the Board committed legal error when it failed to take into account the Veteran’s physical limitations in concluding that he was capable of sustaining substantially gainful employment. The Court also agreed that the Board erred when it did not consider the non-exertional requirements of sedentary work. The Board did not sufficiently discuss the standard of substantially gainful employment and how the evidence of record measures up to that standard. Additionally, the Court also found that the Board committed clear error when it discounted the Veteran’s lay statements merely because they did not constitute “medical” evidence. Veterans are qualified to provide evidence on the issue of whether they can perform the physical and mental acts required by employment. The Court found the Board’s analysis to be conclusory and conjectural. For these reasons, it vacated the Board’s decision and remanded the claim for further proceedings, including an adequate analysis of the Veteran’s ability to obtain and maintain substantially gainful employment.