The veteran sought a total disability rating based on individual unemployability due to service-connected hypertensive cardiovascular disease. The record included repeated opinions from treating and examining physicians stating that he was totally disabled, unemployable, and subject to severe activity restrictions, along with evidence of early retirement and disability-related benefits. The Board denied TDIU and gave sparse reasons for concluding that the veteran remained capable of substantially gainful employment. On appeal, the Court first noted the Board’s inadequate reasons or bases but went further to address the merits. Applying the clearly erroneous standard of review under 38 U.S.C. § 7261(a)(4), the Court held that the Board’s finding of employability lacked a plausible basis. The Court faulted the Board for discounting the medical evidence largely because of obesity, for relying on an unrelated back injury, and for focusing on the veteran’s two years of college rather than the actual disability evidence. Concluding that the record overwhelmingly demonstrated unemployability, the Court reversed and remanded for assignment of a total disability rating effective the date of the TDIU claim. The practical significance is that a reversal is possible when the Board’s factual finding is not merely inadequately explained, but clearly contradicted by the record.

A Board finding that a veteran is capable of substantially gainful employment is clearly erroneous when the uncontroverted record shows that service-connected disability prevents substantially gainful employment and the Board lacks a plausible evidentiary basis for the contrary conclusion.

Hersey is a strong reversal case for TDIU when the record is one-sided in the veteran’s favor and the Board relies on unsupported reasoning instead of the evidence.

It demonstrates that the Court can reverse a TDIU denial when the Board’s employability finding is not just poorly explained but clearly wrong on the record. Advocates can use it to argue for reversal where treating opinions, work history, and disability-related benefits all point to unemployability.

Inadequate Reasons or Bases [Procedural Error]

A veteran with a service-connected cardiac condition has multiple treating doctors stating he cannot perform even sedentary work, retired early on disability, and receives disability-related benefits, yet the Board denies TDIU by emphasizing unrelated factors and ignoring the medical opinions.

Use this case to seek reversal, not just remand, when the Board’s TDIU denial rests on unsupported factual findings and the evidence of unemployability is overwhelming.

Hersey v. Derwinski, Gilbert v. Derwinski, Colvin v. Derwinski, United States v. United States Gypsum Co.