08-32 159
08-32 159
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served 1987–1990 and appealed a denial of Total Disability based on Individual Unemployability (TDIU) to the Board; multiple remands/JMRs and RO development occurred before final Board denial.
- Service‑connected disabilities: atypical migraines (upgraded to 50% in Sept 2009), cervical strain (20%), thoracic degenerative disc disease (20%); combined rating reached 70% after Sept 16, 2009.
- Veteran worked part‑time in a family DJ/karaoke business post‑2002; tax records show substantial gross receipts and at times list the Veteran as sole or joint proprietor.
- SSA found the Veteran disabled as of August 2006 based on all impairments (including nonservice‑connected PTSD/cognitive effects from post‑service assaults); SSA’s finding relied in part on nonservice‑connected conditions.
- VA and private examiners repeatedly observed inconsistent, exaggerated, or suboptimal effort on functional testing; several examiners opined service‑connected disabilities alone did not render the Veteran unemployable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran meets schedular or extraschedular criteria for TDIU | Veteran contends combined service‑connected disabilities (including migraines) render him unable to secure substantially gainful employment | VA argues earnings exceed poverty threshold, work is substantially gainful, and service‑connected impairments (alone or combined) do not preclude sedentary/light work | Denied — preponderance of evidence shows Veteran employable; no referral for extraschedular TDIU and schedular criteria not met for period on appeal |
| Whether Veteran’s part‑time DJ work is marginal/protected employment | Veteran/rep argue work is marginal/protected and not substantially gainful (claimed low pay, sheltered family environment) | VA points to tax records, business ownership evidence, and gross receipts showing earned income above poverty thresholds and active business participation | VA found work substantially gainful (not marginal); tax returns and business ownership rebut sheltered‑employment claim |
| Weight of SSA disability determination for TDIU | Veteran relies on SSA disability decision to show unemployability beginning Aug 2006 | VA contends SSA considered nonservice‑connected impairments (PTSD, TBI) and thus its ultimate finding is not dispositive for TDIU, though SSA evidence probative on functional limits | SSA decision given limited weight; relevant because it attributes unemployability primarily to nonservice‑connected conditions |
| Credibility/medical evidence conflicts (effort, symptom exaggeration) | Veteran’s self‑reports and a vocational expert assert severe limitations and long‑standing unemployability | VA highlights multiple medical examiners and performance tests noting inconsistent effort, exaggeration, and objective findings inconsistent with claimed limitations | Board credited examiners’ findings of suboptimal effort and inconsistencies; afforded less weight to self‑reports and vocational opinion relying on them |
Key Cases Cited
- Timberlake v. Gober, 14 Vet. App. 122 (establishes requirement to address favorable evidence when rejecting it)
- Stegall v. West, 11 Vet. App. 268 (requires substantial compliance with remand instructions)
- Gilbert v. Derwinski, 1 Vet. App. 49 (burden of proof, benefit of the doubt rule)
- Van Hoose v. Brown, 4 Vet. App. 361 (TDIU: focus on ability to perform physical/mental acts of employment, not job‑finding)
- Pierce v. Principi, 18 Vet. App. 440 (50% schedular rating for headaches does not automatically equate to unemployability)
- Barr v. Nicholson, 21 Vet. App. 303 (standards for adequacy of VA examinations)
- Bernard v. Brown, 4 Vet. App. 384 (appellate review may proceed where duty to assist satisfied)
- Caluza v. Brown, 7 Vet. App. 498 (factors for assessing credibility of lay statements)