09-41 946
09-41 946
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served active duty 2000–2001 and 2003–2004; separated May 15, 2004. Filed for TDIU in 2007–2008, asserting unemployability from May 16, 2004.
- Service‑connected disabilities include lumbar spine herniations with radiculopathy and PTSD; combined 70% from May 16, 2004; increased to 100% effective February 11, 2014.
- SSA found the Veteran disabled as of May 15, 2004, but VA does not consider SSA determinations binding.
- Medical and treatment records (2005–2014) document PTSD with concentration/memory deficits and lumbar limitations affecting physical work; VA examiners and treating psychiatrist indicated substantial impairment and at least one VA examiner (2008) opined the Veteran could not work due to combined disabilities.
- Board obtained a 2016 retrospective VA opinion finding the spine precluded physical labor but allowed sedentary desk work prior to 2014; the opinion did not fully account for PTSD limitations.
- Board concluded evidence was in equipoise and, giving the benefit of the doubt to the Veteran, granted TDIU from May 16, 2004 to February 11, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU prior to Feb 11, 2014 | Veteran: service‑connected PTSD and lumbar disability rendered him unable to obtain/maintain substantially gainful employment from 5/16/2004 | VA/RO: medical opinion said sedentary work possible before 2014; SSA decision not binding on VA | Granted: TDIU awarded from 5/16/2004 to 2/11/2014 (benefit of the doubt applied) |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (explains TDIU must account for individual education, training, work history)
- Hatlestad v. Derwinski, 1 Vet. App. 164 (education is a factor in employability analysis)
- Faust v. West, 13 Vet. App. 342 (defines "substantially gainful employment" for VA purposes)
- Collier v. Derwinski, 1 Vet. App. 413 (SSA disability determinations not binding on VA)
- Moore v. Nicholson, 21 Vet. App. 211 (ultimate TDIU determination is adjudicative, not purely medical)
- Geib v. Shinseki, 733 F.3d 1350 (VA not bound to defer to medical examiners for ultimate TDIU decision)
- Smith v. Shinseki, 647 F.3d 1380 (VA not required to obtain vocational expert opinion in every TDIU case)
- Gilbert v. Derwinski, 1 Vet. App. 49 (benefit of the doubt rule in veterans adjudication)
- Ortiz v. Principi, 274 F.3d 1361 (application of reasonable doubt/benefit of the doubt in veterans claims)