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06-05 127
06-05 127
| Board of Vet. App. | Jul 31, 2017
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Background

  • Veteran served 1967–1969; retired from state employment in 2007; college-educated and last worked in administration.
  • Veteran filed for TDIU in May 2009 and has argued his service‑connected orthopedic conditions (back, knee, ankle, foot scars) and medication side effects render him unemployable.
  • Since earlier exams, VA granted service connection for hypertension, tinnitus, and bilateral hearing loss; current combined rating is 80% effective May 2009.
  • Prior VA exams (2011, 2012) found the Veteran capable of sedentary work; recent treatment notes (2016) document worsened pain, cane use, dizziness, and functional decline.
  • Board finds need for a new VA examination addressing the impact of all service‑connected conditions (individually and combined) on work-related activities and remands for development.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Entitlement to TDIU Veteran: service‑connected orthopedic conditions and medication effects prevent lifting, standing, walking, and other work tasks; requires accommodations; currently unemployable. VA/RO: prior examinations conclude he can perform sedentary activities; continued denial of TDIU. Remanded for a new exam and readjudication; Board did not grant TDIU and directed further development.
Entitlement to an extraschedular rating Veteran: combined effect of service‑connected disabilities may warrant rating in excess of the schedular range. VA/RO: no extraschedular rating granted; further development needed. Remanded for new examination and readjudication because updated evidence may affect extraschedular consideration.

Key Cases Cited

  • Brambley v. Principi, 17 Vet. App. 20 (Vet. App. 2003) (holding that development relevant to TDIU may affect extraschedular consideration)
  • Jones v. Shinseki, 23 Vet. App. 382 (Vet. App. 2010) (requiring examiners to state whether opinions would require impermissible speculation)
  • Kutscherousky v. West, 12 Vet. App. 369 (Vet. App. 1999) (appellant may submit additional evidence after remand)
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Case Details

Case Name: 06-05 127
Court Name: Board of Veterans' Appeals
Date Published: Jul 31, 2017
Docket Number: 06-05 127
Court Abbreviation: Board of Vet. App.