Client Win: CAVC No. 20-8383, (BVA denial of entitlement to TDIU usurped Agency's jurisdiction)
This case involves a veteran's entitlement to TDIU, but it demonstrates some of the backwards logic that invades the BVA's interpretation of the AMA Appeals process.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA denial of entitlement to TDIU usurped Agency's jurisdiction)
In this case, the BVA granted service connection for the veteran's PTSD.
But because the veteran was not service connected for PTSD at the time of the underlying rating decision that was on appeal, the BVA denied TDIU. The BVA judge felt that under AMA, they could only consider the evidence of record at the time of the rating decision on appeal.
This is a ridiculous proposition in which the BVA judge ignored the fact that their own decision to service connect PTSD required the BVA to remand the issue of TDIU to the Agency.
RESOLUTION AT THE CAVC.
The VA's Office of General Counsel wanted to defend the BVA decision, so we filed an opening brief at the Veterans Court.
In our brief, we argued that the Board of Veterans Appeals exceeded its jurisdiction when it denied a rating for PTSD (based on TDIU) before the VA regional offices had adjudicated Mr. Steele’s initial schedular PTSD rating.
Based on our brief, the VA reconsidered its position and agreed that the BVA had committed error.
The parties agreed that to the extent the BVA denied entitlement to TDIU on the grounds that PTSD had not been service connected prior to the rating decision on appeal, it clearly erred. The BVA failed to consider the effect of the grant of service connection for a psychiatric disorder on the entitlement to a rating for TDIU. The parties wrote that "[g]iven that the Board granted service connection for a psychiatric disorder, its finding that Appellant is not service connected for any disabilities is inaccurate."
It's important to remember what TDIU is.
Veterans are entitled to a 100-% rating based on TDIU (Total Disability due to Individual Unemployability) when their service connected disability(ies) render them unable to get and keep substantially gainful activity.
TDIU is a rating, not a claim. Just like any other impairment rating, the VA and BVA must consider entitlement to TDIU whenever there is evidence in the record that a service-connected disability affects a veteran's ability to get and keep substantially gainful activity.
So when the BVA grants service connection of any condition, it cannot deny TDIU if there is cogent evidence of unemployability.
The TDIU rating is part and parcel of the decision to assign an impairment rating, the duty to maximize and must be remanded to the Agency to consider as part of the full rating.
If you believe the VA or BVA issued a decision that failed to consider your entitlement to TDIU, or if you believe you have a psychiatric disability that is related to your military service, click here to have Attig | Curran | Steel take a look at your case.
Case Details
OGC Attorney: Alejandro Diaz-Ferguson (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Haley Smith (link to bio)
Board of Veterans Appeals Veterans Law Judge: L. Howell (link to our firm's cases involving Judge Howell's decisions)
Attorney for the BVA: Danielle Ragofsky (link to attorney's LinkedIn bio)
Vets’ Rep at BVA: Brian D. Hill, Attorney (link to attorney's bio on Hill and Ponton website)
Date of BVA Decision: August 4, 2020
Date of CAVC Joint Motion to Remand: March 7, 2022
Link to Attig | Curran | Steel Opening Brief
Link to CAVC Joint Motion to Remand
