Roane v. McDonough, No. 21-2187 (Fed. Cir. 2023)
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Roane served in the Navy from 1981-1991. In 2013, he underwent vocational rehabilitation for disabilities, including sciatic nerve paralysis, degenerative spinal arthritis, and limited knee flexion. In 2017, he applied for total disability based on individual unemployability (TDIU), alleging that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. He then had a combined disability rating of 70 percent, 38 U.S.C. 1117. Between 2016-2019, several VA examinations established his inability to sit or stand for extended periods and difficulty changing positions from sitting to standing. In 2017, a peripheral nerve examiner opined that despite these limitations, he should be able to “seek and maintain a substantially gainful light physical or sedentary type of employment.” The VA regional office denied his TDIU claim. Roane submitted additional evidence, including a private vocational assessment where the expert opined that his difficulties with prolonged sitting, standing, and walking “affect his ability to perform any type of substantially gainful employment, even sedentary employment.”
The Board found that Roane’s service-connected disabilities met the rating requirement of 70 percent for TDIU, noting Roane’s college education, skills, and experience. The Veterans Court and Federal Circuit affirmed. The Veterans Court properly interpreted the benefit-of-the-doubt rule under 38 U.S.C. 5107 and applied the appropriate standard of review to the Board’s application of that rule under 7261(b)(1).
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