07-29 069
07-29 069
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty from June 1994 to April 1998; service connection granted for multiple conditions including anxiety with major depressive disorder and several musculoskeletal conditions.
- TDIU had been awarded from June 1, 2002, but the RO terminated TDIU effective May 1, 2006 based on evidence the Veteran had been employed full time since February 1, 2005 as an assistant controller.
- The Court (in 2012) found a TDIU claim was reasonably raised by the record; Board remanded in 2013 for further development and examinations.
- VA requested a completed VA Form 21-8940 (employment/unemployability form) twice (April 19, 2016 and December 9, 2016); the Veteran did not provide a completed form.
- VA examinations (2016–2018) show the Veteran works as an accountant (often from home), is isolative and has had to change jobs, but retains the dexterity, mobility, and cognitive capacity to perform accounting work and has held full-time positions (including one paying $2,500/month).
- The Board concluded the Veteran failed without good cause to complete required development, that he has maintained substantially gainful employment since at least Feb 1, 2005, and denied TDIU from May 1, 2006.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU from May 1, 2006 | Veteran: Service‑connected mental and physical conditions render him unable to secure/follow substantially gainful employment; current work is in a "protected" environment (works from home), has short job tenures and reduced earnings. | VA: Veteran has maintained substantially gainful employment since Feb 1, 2005; he failed to submit required VA Form 21‑8940; VA exams show capacity to perform accounting work; working from home is not a protected environment. | Denied. The preponderance of evidence shows capacity for substantially gainful employment; development requirements were satisfied and the claim is not established. |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (TDIU claim can be part of an increased‑rating claim when reasonably raised by the record)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay evidence standards for establishing medical matters)
- Hatlestad v. Brown, 5 Vet. App. 524 (central inquiry is whether service‑connected disabilities alone produce unemployability)
- Van Hoose v. Brown, 4 Vet. App. 361 (consider vocational factors but not age or nonservice‑connected disability in TDIU analysis)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit‑of‑the‑doubt rule and weighing of evidence)