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12-16 295
12-16 295
| Board of Vet. App. | Nov 30, 2017
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Background

  • Veteran served on active duty Feb 1966–Jan 1968 and appealed a July 2011 RO rating decision denying TDIU.
  • Service-connected conditions include penile conditions, major depression, coronary artery disease, bilateral hearing loss, tinnitus, and scars; nonservice-connected problems include left shoulder rotator cuff tear, left knee, and back conditions.
  • Veteran and spouse testified at a July 2013 Board hearing; multiple lay statements and letters (2009–2015) describe functional limitations and medication effects.
  • An August 2017 private vocational assessment (Z.T.F.) opined Veteran was unemployable due to service-connected disabilities since 2009, but it omitted discussion of several lay statements, nonservice-connected conditions, later VA exam records, and medication effects.
  • The Board found the vocational assessment inadequate and that no single VA exam addressed combined occupational impairment from service-connected disabilities, so remand for a VA examination and readjudication was ordered.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Entitlement to TDIU Veteran: service-connected disabilities preclude substantially gainful employment since Sept 2009 RO/VA: prior decisions denied TDIU; record lacks adequate nexus showing combined occupational impairment Remanded for further development (new VA exam and readjudication)
Adequacy of vocational evidence/exam Vocational report supports unemployability VA: vocational report omitted relevant lay statements, nonservice conditions, meds, and more recent VA exam findings Vocational report deemed inadequate; order for comprehensive VA examination covering combined effects, meds, timeline, and lay testimony

Key Cases Cited

  • Kutscherousky v. West, 12 Vet. App. 369 (1999) (VA must allow submission of additional evidence after remand and provide opportunity to respond)
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Case Details

Case Name: 12-16 295
Court Name: Board of Veterans' Appeals
Date Published: Nov 30, 2017
Docket Number: 12-16 295
Court Abbreviation: Board of Vet. App.