This case involves a US Army veteran's (1975 to 1998) appeal to the BVA seeking an increased rating for a psychiatric disorder, right lower extremity radiculopathy, and the VA's denial of his TDIU claim.
A veteran who is unable to secure or follow a substantially gainful occupation because of service-connected disabilities may be eligible for a TDIU rating. 38 C.F.R. § 4.16(a). The central inquiry in a TDIU claim (Total Disability based on Individual Unemployability) in determining whether a veteran is entitled to a TDIU rating is whether his or her service-connected disabilities are of sufficient severity to render the veteran unable to get or keep substantially gainful activity.
The Board of Veterans Appeals is required to write an adequate statement of reasons and bases for its findings of fact and conclusions of law so that the CAVC can review those findings for clear error. 38 U.S.C. § 7401(d)(1). So in a VA TDIU claim, the BVA must provide an adequate statement of reasons and bases addressing both the economic and non-economic aspects of the TDIU claim.
In this case, the veteran was unable to work because of his service-connected back disability. In January 2008, an independent medical expert found that the veteran's back disability resulted in severe pain when he was sitting, walking, standing, and bending forward, along with moderate pain during the most basic activities of bathing and dressing. The BVA did not discuss the veteran's education and work history.
The issue before the Court was whether the BVA failed to provide an adequate statement of reasons and bases denying TDIU and finding the veteran could get and keep substantially gainful employment without a discussion of the veteran’s education and work history?
The appeal was resolved through a joint motion to remand.
The VA’s Office of General Counsel agreed that the BVA committed error, and that the decision needed to be vacated and remanded to the BVA to fix those errors.
The parties agreed that the Board of Veterans Appeals provided an inadequate statement of reasons or bases for its denial of TDIU. The Board failed to address a January 2008 private examination, and failed to discuss how the veteran’s education and work history factored into its conclusion that he was able to get and keep substantially gainful employment.
If your TDIU claim has been denied by the VA or BVA, and you would like help appealing to either the Board of Veterans Appeals or the US Court of Appeals for Veterans Claims (CAVC), click here to ask an attorney at the law firm of Attig | Curran | Steel to take a look at your case.
OGC Attorney: Alexander You (link to attorney's bio on OpenPayroll.org)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: U.R. Powell (Story on Veterans Law Judge at long-time veterans law blogger AskNOD.com)
Attorney for the BVA: B. G. LeMoine (link to attorney's bio on LinkedIn)
Regional Office: VA Regional Office
Vets’ Rep at BVA: Matthew D. Hill
Date of BVA Decision: November 21, 2019
Date of CAVC Joint Motion to Remand: November 23, 2020