09-08 630
09-08 630
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served active duty Oct 1966–Oct 1968; appeal from Roanoke RO rating decisions (Oct 2008 denying hypertension; Aug 2009 denying TDIU).
- Veteran has multiple service-connected disabilities (notably peripheral neuropathy of both lower extremities, diabetes mellitus, coronary artery disease, PTSD, kidney disease) with a combined rating ≥70% throughout the appeal period.
- EMG/NCS of Nov 15, 2010, showed severe peripheral neuropathy; VA increased each lower-extremity neuropathy to 40% effective Nov 15, 2010.
- Veteran stopped working in 1989 (prior work in construction/welding); limited education (high school); reports use of cane/wheelchair and inability to walk long distances.
- VA examinations (Feb 2011 and Oct 2013) provided differing views on functional limitations; 2013 examiner noted limits on prolonged standing/walking and addressed hypertension relationship to diabetes.
- Board resolved reasonable doubt in Veteran’s favor and granted TDIU from Nov 15, 2010; remanded hypertension and TDIU prior-to-Nov-15-2010 issues for further development (addendum opinions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for hypertension | Hypertension is related to or aggravated by service-connected conditions (e.g., diabetes, CAD) | Prior VA opinions found no direct diabetic complication; relationship/aggravation not established | REMANDED for addendum opinion addressing nexus and possible aggravation by service-connected conditions |
| Entitlement to TDIU prior to Nov 15, 2010 | Veteran asserts unemployability since 1988/1989 due to fractures, chronic back disability, neuropathy, and other conditions | VA examiners found service-connected conditions did not fully preclude all employment; non-service conditions contributed to unemployability | REMANDED for a retrospective medical opinion describing functional limitations of service-connected disabilities and their impact on employability prior to Nov 15, 2010 |
| Entitlement to TDIU from Nov 15, 2010 forward | Veteran argues that severe lower-extremity neuropathy and other service-connected conditions prevented substantially gainful employment | VA examiners gave mixed opinions; one said employment not wholly prevented, another documented severe neuropathy limiting standing/walking | GRANTED — TDIU awarded from Nov 15, 2010, based on severe neuropathy limiting physical labor and the Veteran’s limited education/work history making sedentary work unrealistic |
Key Cases Cited
- Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (ultimate TDIU determination is a legal/adjudicative finding, not a purely medical one)
- Moore v. Derwinski, 1 Vet. App. 356 (1991) (definition of substantially gainful employment and marginal employment)
- Van Hoose v. Brown, 4 Vet. App. 361 (1993) (unemployability inquiry focuses on ability to perform acts required by employment, not mere unemployment)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (reasonable doubt rule: resolve benefit-of-the-doubt in claimant’s favor)
- Chotta v. Peake, 22 Vet. App. 80 (2008) (retroactive medical opinions can be helpful for assessing past employability)