12-28 143
12-28 143
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served 1975–1979 and 1980–1984; applied for TDIU via VA on April 21, 2014.
- Relevant period: up to one year before the April 2014 claim; contested period ends June 11, 2015 (after which a 100% combined rating applied through July 31, 2016).
- Service‑connected disabilities included multiple degenerative arthritides (knees, ankles, shoulders, lumbar spine) mostly rated 10% each, bilateral hearing loss noncompensable, and tinnitus 10%. Combined rating was 60% prior to June 11, 2015.
- Evidence included VA treatment notes, a Social Security Administration disability determination finding "not disabled" (RFC: occasional 20 lb lift, stand/walk 4 hours/day), employer statement showing termination for absenteeism, and a 2014 OT note showing cane use.
- Veteran testified and reported stopping work (security guard) due to back and knee problems; he has a high school education.
- Case remanded previously; at Board decision, VA met notice and duty-to-assist requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran is entitled to TDIU prior to June 11, 2015 | Veteran contends service‑connected conditions (arthritis, back, ankles, shoulders, tinnitus/hearing) rendered him unable to secure or follow substantially gainful employment | VA/Board contends medical and vocational evidence (SSA RFC, treatment notes, prior work, education) do not show inability to perform sedentary work; schedular criteria not met | Denied — preponderance of evidence shows Veteran could perform at least sedentary employment prior to June 11, 2015; no extra‑schedular referral warranted |
| Whether TDIU from June 11, 2015–July 31, 2016 remains at issue | N/A (Veteran had been awarded TDIU/100% for that period) | VA: issue moot because Veteran had 100% combined rating and SMC housebound in that period | Dismissed as moot |
| Whether extra‑schedular consideration required for period before June 11, 2015 | Veteran seeks total disability despite failing schedular percentages | Board: case lacks evidence of unemployability beyond schedular assessment to warrant extra‑schedular referral | No referral — extra‑schedular TDIU not warranted |
| Whether special monthly compensation (SMC) is implicated for period prior to June 11, 2015 | Veteran might seek SMC if TDIU based on single disability and additional disabilities at qualifying ratings | Board: TDIU later granted was multi‑site; prior to June 11, 2015 no single 100% rating or other 60% disabilities existed | SMC not applicable or for further consideration prior to June 11, 2015 |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA duty to assist/notice principles cited)
- Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir.) (ultimate TDIU determination is factual, not purely medical)
- Van Hoose v. Brown, 4 Vet. App. 361 (Vet. App.) (TDIU focuses on ability to perform job acts, not job‑finding)
- Kahana v. Shinseki, 24 Vet. App. 428 (Vet. App.) (veteran not competent to render nexus/opinion on vocational capacity)
- Sabonis v. Brown, 6 Vet. App. 426 (Vet. App.) (issue mootness where higher schedular rating in effect)
- Bradley v. Peake, 22 Vet. App. 280 (Vet. App.) (SMC analysis when TDIU is based on a single disability)