09-19 106
09-19 106
| Board of Vet. App. | May 22, 2017Background
- Veteran served in the U.S. Navy (1965–1969) and is service‑connected for bilateral interstitial fibrosis (respiratory), PTSD with major depression, diabetes mellitus type II, lichen simplex chronicus, bilateral hearing loss, and tinnitus.
- VA awarded a 100% rating for bilateral interstitial fibrosis, with an effective date of March 6, 2012, based on a claim asserting unemployability due to the respiratory condition.
- Veteran sought an earlier effective date for TDIU (total disability based on individual unemployability) covering the period prior to March 6, 2012.
- Record shows Veteran met schedular percentage thresholds for TDIU as of November 21, 2008, but also shows continued employment/self‑employment (tax preparer) with reported earnings through at least January 2013.
- VA developed the claim (hearings, employment history forms, VCAA notices); the Board found VA substantially complied with prior remand instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to TDIU prior to Mar 6, 2012 | Veteran contends service‑connected disabilities rendered him unable to secure and follow substantially gainful employment earlier than Mar 6, 2012 | VA contends evidence shows Veteran maintained employment/self‑employment with earnings above poverty threshold and no medical opinions found complete unemployability before Mar 6, 2012 | Denied: preponderance of evidence shows Veteran could obtain/maintain substantially gainful employment prior to Mar 6, 2012 |
| Whether TDIU claim from Mar 6, 2012 onward remains viable after 100% schedular award | Veteran seeks TDIU beginning Mar 6, 2012 | VA notes Veteran received a 100% schedular rating and SMC for same disabilities effective Mar 6, 2012, making TDIU redundant | Moot: award of 100% rating and SMC renders TDIU for that period duplicative |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA duties to assist and claims processing)
- Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (interpretation of "substantially" in TDIU standard)
- Stegall v. West, 11 Vet. App. 268 (1998) (requirement of compliance with Board remand directives)
- Faust v. West, 13 Vet. App. 342 (2000) (definition of substantially gainful employment)
- Bradley v. Peake, 22 Vet. App. 280 (2008) (effect of a 100% schedular rating on pending TDIU claims)
- Pelegrini v. Principi, 18 Vet. App. 112 (2004) (VCAA notice requirements)