Case: 19-8366 Remand For Army Veteran When The Board Wrongfully Denied A 100% Rating Based On TDIU

Case: 19-8366

Facts of Case

The Veteran served in the Gulf War era. After several hard parachute landings while in service, he claimed, and the Department of Veterans Affairs (VA) service-connected him for, degenerative disc disease of the cervical and lumbar spine, bilateral lower extremity radiculopathy, left knee tendinitis, residuals of a fractured right knee, and depression.

The combination of disabilities and the constellation of symptoms prevented the Veteran, especially with pain and medication management, from securing and/or maintaining substantially gainful employment. As such, he filed a claim for Total Disability Based on Individual Unemployability (TDIU). However, the VA and Board of Veterans Appeals (Board) wrongly held that the Veteran was still capable of working a sedentary job - as in, even if he was prevented from engaging in physically-demanding employment he could still perform a sit-down job.

Alex Argued That Not Only Did the Board Fail to Analyze the Effects of All Disabilities, But It Failed To Assess the “Combined Effects” Of All Disabilities And His Educational And Training Background

Under 38 U.S.C. § 7104(d)(1), a “decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.” Reyes v. Nicholson, 21 Vet.App. 370, 377 (2007); see also Gilbert v. Derwinski, 1 Vet.App. 49, 56 (1990). Deficiencies in the Board’s analysis preclude effective judicial review, and thus, remand would be warranted. See Simington v. West, 11 Vet.App. 41, 45 (1998).

First, the Board’s reasons or bases were inadequate because they failed to discuss in any meaningful detail Appellant’s disabilities and how they affect his ability to work, particularly in the context of his education and experience. Gilbert, 1 Vet.App. at 56; Ray v. Wilkie, 31 Vet.App, 58, 73 (2019).

Second, the Board is required to consider the combined effects of all service-connected disabilities when adjudicating TDIU, even if a combined-effects examination is not required. Floore v. Shinseki, 26 Vet.App. 376, 381, 383 (2013); See also Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993).

Third, the Board provided no discussions about the Veteran’s service-connected right ankle and his left knee tendonitis, and how those disabilities impacted his ability to find and/or maintain substantially gainful employment.

Court Sides With the Veteran and Vacates the Denial

The Court vacated the Board’s decision and held that remand is warranted for the Board to provide an adequate statement of reasons or bases, which properly considered the effects of all service-connected disabilities, the combined effects of all service-connected disabilities, and whether the Veteran’s disabilities preclude him from the type of employed that he was trained and experienced to perform - not just any type of employment.

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