A recent memorandum decision by Judge Hagel serves as a reminder to Veterans that forwarding a favorable disability finding by the Social Security Administration is no “slam dunk” for a finding of unemployability/TDIU. Veterans that submit SSA decision letters on their own miss the crucial opportunity to explain at the outset that while an SSA finding may reference several conditions that—in the aggregate—render the Veteran disabled; the Veteran’s service-connected conditions, even considered alone, render the Veteran unemployable.
In Doty v. Wilkie, 2019 WL 1941547 (May 2, 2019), Judge Hagel vacated and remanded a Board decision that denied entitlement to a total disability rating based on unemployability. The Board cited SSA records (in part) to support its conclusion that Mr. Doty’s post-traumatic stress disorder alone did not cause his unemployability; rather, a combination of all his disabilities, including nonservice-connected ones, caused his unemployability. In denying Mr. Doty’s TDIU claim, the Board concluded that Mr. Doty’s unemployability was due to a combination of his disabilities, including nonservice-connected disabilities, and hence his service-connected disabilities [alone] did not render him unemployable.
Judge Hagel admonished the Board for erroneously focusing on whether Mr. Doty’s service-connected disabilities were the sole cause of his unemployability, rather than whether the service-connected disabilities were sufficient to cause his unemployability (a distinction that only a lawyer could love).
Judge Hagel further noted that under 38 C.F.R. § 4.16(a), a determination concerning unemployability must be made on the basis of service-connected disabilities alone, without regard to non-service-connected disabilities; however, the Board erred by considering evidence that Mr. Doty’s unemployability was caused in any degree by non-service-connected disabilities, including his heart condition and skin cancer, and concluding that, since non-service-connected disabilities were partially responsible for his unemployability, his service-connected disabilities did not make him unemployable. Instead, Judge Hagel ruled that the Board’s analysis should have instead focused on whether Mr. Doty’s post-traumatic stress disorder was sufficient by itself to cause his unemployability.
If you’re a Veteran who cannot hold a job, call (504) 235 4075 to ensure you’re awarded full TDIU benefits. Our attorneys will evaluate your SSA disability award and determine how best to utilize and present the findings in connection with your VA claim.