BVA Direct Review for TDIU submitted May 19, 2026
My attorney filed for a BVA on May 19th, 2026, after our HLR was denied. Here is the brief (edited)
ISSUE PRESENTED: Whether the Veteran is entitled to Total Disability Based on Individual Unemployability (TDIU) due to service-connected disabilities, and whether the March 26, 2026, Higher-Level Review decision erred by failing to consider and address highly probative vocational evidence establishing unemployability.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY: Mr. T is currently service-connected for:
- Additional non-compensable right knee scars.
His combined evaluation has satisfied the schedular requirements for TDIU throughout the appeal period.
On February 11, 2021, KP, Ph.D., completed a PTSD Disability Benefits Questionnaire documenting recurrent intrusive memories, distressing dreams, hypervigilance, exaggerated startle response, concentration deficits, chronic sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, difficulty maintaining relationships, and suicidal ideation.
On December 2, 2022, Dr. P, documented worsening occupational and social impairment with deficiencies in most areas, including work, judgment, thinking, and mood. She further documented passive suicidal and homicidal ideation, impaired judgment, near-continuous panic and depression affecting independent functioning, angry outbursts with verbal and physical aggression, impaired impulse control, neglect of personal appearance and hygiene, and persistent danger of hurting self or others.
On July 9, 2024, VA Vocational Rehabilitation Counselor DS, noted that Mr. T was precluded from working in loud or crowded environments and could not tolerate prolonged standing, walking, climbing, pushing, pulling, carrying, or similar physical activities. The counselor concluded that the Veteran’s service-connected disabilities placed him at a significant employment disadvantage and prevented him from obtaining or maintaining suitable employment.
On August 28, 2024, OS (VE), of V Vocational Consulting completed a comprehensive vocational assessment after reviewing the Veteran’s medical records, occupational history, educational history, and conducting a vocational interview.
ARGUMENT: The March 26, 2026, Higher-Level Review decision is legally deficient because VA completely failed to address the August 28, 2024, vocational assessment from VE. This omission is extraordinarily prejudicial because the vocational assessment directly addressed the dispositive issue in this appeal: whether the Veteran’s service-connected disabilities prevent substantially gainful employment.
The vocational assessment was exceptionally probative because it relied upon:
- PTSD Disability Benefits Questionnaires documenting suicidal ideation, homicidal ideation, panic symptoms, impaired judgment, angry outbursts, impaired impulse control, concentration deficits, and inability to adapt to workplace stress.
- VA Vocational Rehabilitation findings documenting inability to tolerate loud environments, prolonged standing, walking, climbing, or physical exertion.
- The Veteran’s documented workplace altercations and inability to complete shifts. The Veteran’s extensive educational accommodations and inability to tolerate classroom environments.
- and accepted vocational rehabilitation principles and Dictionary of Occupational Titles standards.
Despite this detailed and uncontroverted vocational evidence establishing unemployability, the Higher-Level Review decision denied TDIU without even acknowledging the vocational assessment existed. There is no summary of the findings, no weighing of its probative value, and no explanation for rejecting the conclusions of the vocational expert.
VA’s complete failure to address this highly favorable evidence violates 38 U.S.C. § 7104(d)(1), Caluza, Gabrielson, and Ray.
The evidence overwhelmingly establishes that Mr. T service-connected PTSD and right knee disabilities prevent him from securing or following substantially gainful employment.
RELIEF REQUESTED: The Veteran respectfully requests that the Board reverse the March 26, 2026, Higher-Level Review decision and grant entitlement to TDIU effective October 13, 2020.
The evidence overwhelmingly establishes that the Veteran’s service-connected disabilities prevent him from securing or following substantially gainful employment, and the August 28, 2024, vocational assessment is uncontroverted.
Let me know what you think or any opinion, I'm curious to hear it out.