11-14 947
11-14 947
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty June 1969–April 1971 and appealed a denial of TDIU (total disability based on individual unemployability) from VA regional office decisions.
- Claim for TDIU was raised as part of increased-rating claims for service-connected headaches, bilateral hearing loss, left eye impairment, right knee disorder, and tinnitus.
- Veteran has a bachelor’s degree, two associate degrees, and prior work as a journeyman carpenter and later sedentary/clerical federal support work through ~2014.
- Medical evidence includes VA and private exams showing: headaches (improved when away from computer work; roughly monthly prostrating attacks historically), left eye visual acuity reduced to roughly 20/200 (essentially monocular), bilateral hearing loss with hearing-aid use, right knee degenerative changes with intermittent pain/instability but preserved ROM allowing sedentary activity, and tinnitus manageable with masking.
- SSA found the Veteran disabled for Social Security purposes with an RFC for sedentary work; VA found the service-connected conditions do not, singly or combined, preclude substantially gainful sedentary employment with periodic breaks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU based on service-connected disabilities | Veteran contends service-connected headaches, vision loss, hearing loss, right knee, and tinnitus prevent substantially gainful employment | VA argues combined service-connected impairments permit sedentary work with accommodations; Veteran’s work history and exams show ability to perform sedentary tasks | Denied — Board found preponderance of evidence against TDIU entitlement |
| Whether additional Board hearing required after remand | Veteran requested another Board hearing on TDIU | VA/Board: prior Board hearing on same issues, same representative; Cook v. Snyder not controlling here | Denied — no additional hearing warranted |
| Whether combined disabilities meet schedular criteria or require extraschedular referral | Veteran’s combined ratings and functional impact may warrant extraschedular consideration | Board: service-connected disabilities do not produce unemployability; not meet schedular thresholds requiring referral | No extraschedular TDIU — neither schedular nor extra-schedular criteria met |
| Application of benefit-of-the-doubt doctrine | Veteran seeks benefit of doubt in close factual areas | Board finds preponderance of evidence against claim so doctrine not applicable | Benefit-of-the-doubt not applied; claim denied |
Key Cases Cited
- Rice v. Shinseki, 22 Vet. App. 447 (Vet. App. 2009) (TDIU can be reasonably raised by increased-rating claims)
- Moore v. Derwinski, 1 Vet. App. 356 (Vet. App. 1991) (definition of substantially gainful employment)
- Hatlestad v. Brown, 5 Vet. App. 524 (Vet. App. 1993) (central inquiry: whether service-connected disabilities alone cause unemployability)
- Van Hoose v. Brown, 4 Vet. App. 361 (Vet. App. 1993) (consider education and work experience, not age or nonservice-connected disabilities)
- Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board need not discuss every piece of evidence but must consider the record)
- Cook v. Snyder, 28 Vet. App. 330 (Vet. App. 2017) (addresses when additional Board hearings may be required after remand)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App. 1990) (benefit-of-the-doubt rule standard)