California Veteran Prevails

California Veteran Prevails – September 11, 2018, Washington, DC – Bergmann & Moore attorneys prevailed on behalf of a Vietnam War Veteran who sought disability benefits for individual unemployability (IU) from the U.S. Department of Veterans Affairs (VA).

In November 2008, the California Veteran filed his initial VA claim for posttraumatic stress disorder (PTSD).  In October 2009, VA’s Regional Office (RO) granted service connection.  The Veteran disagreed with the rating and initiated an appeal for a higher rating. 

In January 2015, the Board of Veterans’ Appeals (Board) granted the Army Veteran increased ratings for PTSD and recognized that a claim for IU had been raised by the Veteran.  If during a claim for an increased rating, evidence reflects that a Veteran is unemployable due to the service-connected disability, then a claim for IU is considered to be raised.  IU is a VA benefit that compensates a Veteran at the 100 percent rate when it is determined that a Veteran is unable to work due to a service-connected condition.

In March 2017, the Board remanded (sent back) the Veteran’s claim to the RO to obtain a new Compensation and Pension (C&P) exam to determine the severity of his PTSD and his ability to work.  After obtaining a new C&P examination in August 2017, the Veteran appealed to the Board a second time.  In December 2017, the Board denied the Veteran’s appeal for IU.  He then contacted B&M in March 2018, seeking to appeal the Board’s denial to the Court of Appeals for Veterans Claims (Court).  

In August 2018, B&M and the Veteran prevailed at the Court when VA agreed to a Joint Motion for Remand (JMR).  In the JMR, VA admitted:  

 – The Board and VA made a mistake by failing to ensure compliance with the Board’s March 2017 remand instructions.  The Board instructed VA to obtain a new C&P exam about the effects of the Veteran’s PTSD on his employability.  VA’s new C&P exam opinion failed to comply with the Board’s instructions.

 – The Board failed to address relevant evidence about the Veteran’s PTSD and ability to work, including his VA medical records and a previous VA C&P exam.

 – The Board improperly limited the scope of the Veteran’s claim by considering only schedular IU.  The Board failed to consider an extraschedular IU rating. 

As result of the JMR, the Veteran’s appeal was returned by the Court to the Board in order to correct VA’s errors and decide the claim again for IU benefits.

B&M is honored to assist Veterans with their VA disability compensation appeals at an RO, the Board, or the Court.  For a free consultation, please call 877-838-2889, or contact us at

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