Citation Nr: 1753903 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 09-21 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to February 1977 and from October 1978 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2010, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In March 2011 and July 2015, the Board remanded the appeal for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board remanded the claim for TDIU in July 2015 for VA examinations to address the functional limitations imposed on the Veteran's ability to engage in employment activities. Although the requested VA examinations were conducted in March 2016, the examinations reports are inadequate as they do not contain the requisite information to make a TDIU determination by adjudicators. Therefore, remand for new VA examinations is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. All updated relevant medical records should be obtained and associated with the claims file. 2. The Veteran should be scheduled for VA examinations of his service connected lumbosacral spine disability and depressive disorder to address the functional impact of these disorders for the purpose of evaluating entitlement to TDIU. The claims file must be reviewed and the review noted in the report. A complete examination should be conducted that for the spine includes findings for the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. For TDIU purposes, the following is requested. (a) The examiner(s) should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner(s) should ask the Veteran to describe in his own words the functional impact of his service-connected disorders on his ability to engage in substantially gainful work. The Veteran's response should be recorded in the report. (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, the examiner(s) should indicate the objective functional effects of the Veteran's service connected disorders on his ability to perform the physical and mental acts required for employment. (i) With regard to physical acts, the examiner(s) should address functions of the upper and lower extremities to include the ability to sit, stand, walk, bend, carry, lift, grasp, pull and push. The examiner should indicate whether the Veteran can lift, carry, push, or pull objects weighing up to 10 pounds and, if not, why. Please, do not state generically that the Veteran has "difficulty with prolonged standing, sitting, and walking," but rather provide specific details, as appropriate, that identify the frequency, duration, and/or severity of any limitation arising from the service-connected low back disorder. (ii) With regard to mental acts, the examiner(s) should address functions of the mind to include concentration, focus, attention, and memory. The examiner should indicate whether the Veteran displays objective signs of sleep impairment and, if so, whether this is due to service connected disorder(s) (i.e. lumbosacral strain and/or depressive disorder). (iii) The examiner(s) should indicate the effect, if any, of the Veteran's medications and/or treatment for the low back and/or depressive disorders on his ability to perform the physical and mental acts required for employment. (iv) The examiner(s) should indicate whether the Veteran has had any medical restrictions imposed on his activities due to service-connected low back and/or depressive disorders. The examiner(s) should refrain from commenting on whether the Veteran is employable to include providing remarks, such as, "clerical and sedentary occupations are otherwise neither limited nor precluded." 3. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).