TDIU, "MARGINAL EMPLOYMENT"

Ortiz-Valles v. McDonald, docket no. 14-2540 (May 20, 2016)

HELD: the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.”

SUMMARY: In determining whether a claimant is entitled to a total disability rating based on individual unemployability (TDIU), the plain language of 38 C.F.R. § 4.16(a) does not allow VA “to limit consideration of marginal employment to only currently employed veterans.” The regulation defines “marginal employment” as one example “of what is not substantially gainful employment.” Therefore, “when the facts of the case reasonably raise the issue of whether the veteran’s ability to work might be limited to marginal employment,” VA must address this issue and “explain why the evidence does not demonstrate that the veteran is incapable of more than marginal employment.”

FULL DECISION

PARTIAL & TOTAL KNEE REPLACEMENT

Hudgens v. McDonald, docket no. 2015-7030 (Fed. Cir. May 18, 2016)

HELD: Diagnostic Code 5055 provides for a 100% rating for partial as well as total knee replacements. 

SUMMARY: The Federal Circuit reversed the CAVC’s determination that DC 5055, which provides for a 100% disability rating for “[p]rosthetic replacement of knee joint . . . [f]or 1 year following implantation of prosthesis” applies only to total knee replacements and not partial knee replacements. (Note: While this appeal was pending, VA amended its regulation to clarify that language referring to “Prosthetic Implants” refers to replacement of the whole joint, unless otherwise stated in DC 5054.)

FULL DECISION

EQUITABLE TOLLING

Threatt v. McDonald, docket no. 15-0835 (May 17, 2016) (per curiam order)

HELD: A veteran’s correspondence to his congressional representative expressing disagreement with a 2003 Board decision was a “timely misfiled” Notice of Appeal. Because this correspondence was submitted to the RO within the 120-day appeal period, the Court found that the appellant “has satisfied all the requirements of circumstance and diligence to warrant the application of equitable tolling.”

FULL DECISION

"SYSTEMIC THERAPY" DEFINED

Warren v. McDonald, docket no. 13-3161 (May 10, 2016)

HELD: "Systemic therapy" includes both oral and parenteral medication. 

SUMMARY: The Court in this case considered the term "systemic therapy," as used in 38 C.F.R. § 4.118, and found that “the types of systemic treatment that are contemplated under Diagnostic Code 7806 are not limited to ‘corticosteroids or other immunosuppressive drugs.’ Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” The Court found further support for this holding in the M21-1MR, VA’s adjudication manual, which defines “systemic therapy” as “any oral or parenteral medication prescribed by a medical professional to treat the underlying skin disorder.”

FULL DECISION