W.D. hired Friedman Disability in July 2015 after the VA denied him a combined rating of more than 90 percent for his service-connected physical disabilities, which included obstructive sleep apnea, lumbar intervertebral disc syndrome, left and right sciatic nerve,migraine headaches, and gastroesophageal reflux disease (GERD). W.D. enlisted in the United States Air Force in 1994, serving honorably for 18 years before being medically discharged in 2012.
The VA failed W.D. in its 2015 ruling by not assessing W.D. for a total disability rating based on individual unemployability (TDIU rating), even though W.D.’s 90 percent combined rating, 50 percent schedular rating for sleep apnea, and schedular rating of 70 percent for intervertebral disc syndrome all qualified him for a TDIU rating under 38 CFR § 4.16(a).
To help W.D. prove his entitlement to a TDIU rating, Friedman Disability first obtained his complete VA claims file, VA and private medical records, and service records. Our investigation of the facts revealed that not only did the VA know that W.D. had not worked since his 2012 medical discharge, the VA’s own medical records documented many of the symptoms that were preventing W.D. from working, including persistent daytime hypersomnolence (sleepiness) due to sleep apnea, his frequent need to lie down due to migraines, and the pain and fatigue caused by his sciatic nerves and lumbar intervertebral disc syndrome.
The VA erred by failing to properly consider or rejecting without explanation the clear medical evidence of W.D.’s severely limited occupational functioning. To corroborate the impact of W.D.’s disabilities on his employment prospects, our firm also referred W.L. to an orthopedic specialist with extensive experience treating veterans for an examination, adding his report and sworn declaration to the favorable medical evidence of record.
Friedman Disability compiled this favorable evidence and submitted a Notice of Disagreement (NOD) on the veteran’s behalf. When the VA improperly rejected this NOD as a newly-filed claim, our firm filed another NOD on the veteran’s behalf addressing this improper rejection. After the VA accepted the NOD, the VA issued a new rating decision in January 2018 granting W.D. a TDIU rating with a 2014 effective date. This resulted in an award of more than $51,000 in past-due benefits, in addition to continuing current disability paid at the 100 percent rate.