18-05 048
18-05 048
| Board of Vet. App. | Aug 13, 2021Background
- Veteran served in the Navy from Sept. 1979 to Apr. 1982 and filed claims beginning with an Aug. 2016 claim and appeals thereafter.
- Veteran has a graduate degree in engineering and worked as an A/V engineer until termination in Nov. 2013; he reports being unable to work since 2013 due to service-connected conditions.
- Service-connected conditions at issue include lumbosacral strain with radiculopathy (back and left sciatic nerve), tinnitus, and PTSD; claims also include left elbow disorder, bilateral pes planus with bunionectomies, and sleep apnea.
- Multiple VA exams during the appeal period documented significant functional limits from back pain (limited bending, lifting, sitting, walking), tinnitus-related sleep impairment affecting work as a sound engineer, and psychiatric symptoms ranging from mild/transient to severe with occupational impairment.
- The Board found that, based on the record, the Veteran’s service-connected disabilities precluded substantially gainful employment beginning Feb. 22, 2017, and granted TDIU from that date; the Board remanded the other claims for additional development (exams, records, and extraschedular consideration for earlier TDIU).
Issues
| Issue | Veteran's Argument | VA's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU (effective date claimed from 2013; decision for period on appeal) | Veteran contends service-connected disabilities rendered him unemployable since 2013 | VA noted schedular criteria not met before Feb. 22, 2017 but evidence supports grant thereafter | TDIU GRANTED effective Feb. 22, 2017 |
| TDIU prior to Feb. 22, 2017 (extraschedular consideration) | Veteran contends unemployability began earlier (post‑2013) | VA: did not meet schedular criteria pre‑Feb. 22, 2017; extraschedular possible but not decided | REMANDED for extraschedular consideration |
| Service connection — left elbow disorder | Veteran asserts elbow disorder is service‑connected; reports private treatment | No VA exam or sufficient records in file to decide | REMANDED to obtain private records/authorization; no VA exam ordered now |
| Service connection — bilateral pes planus with bunionectomies | Veteran asserts feet condition is service‑connected; reports private treatment | No VA exam or sufficient records in file to decide | REMANDED to obtain private records/authorization; no VA exam ordered now |
| Service connection — sleep apnea (and possible secondary nexus) | Veteran alleges current sleep apnea, possibly secondary to PTSD or tinnitus | No VA exam yet to address etiology or nexus | REMANDED for VA examination and nexus opinion |
| Increased rating >50% for PTSD | Veteran asserts worsening of psychiatric symptoms | Existing exams are dated and show inconsistent severity; new exam needed | REMANDED for updated VA psychiatric exam |
| Increased ratings for lumbosacral strain, IVDS, vertebral fracture | Veteran asserts worsening back condition and functional loss | Prior exams dated; current severity needs reassessment | REMANDED for updated VA back exam and testing |
Key Cases Cited
- Hatlestad v. Brown, 5 Vet. App. 524 (1993) (defines central inquiry for TDIU: whether service‑connected disabilities alone produce unemployability)
- Layno v. Brown, 6 Vet. App. 465 (1994) (veteran competent to testify about observable symptomatology)
- Prejean v. West, 13 Vet. App. 444 (2000) (competent VA examinations can support TDIU findings)
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical examination when the record indicates it is necessary to decide a claim)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (2008) (requirement that VA consider and explain probative value of lay evidence and medical opinions)