Citation Nr: 1804404 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-27 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2016, the Veteran testified at a hearing at the VA central office in Washington, D.C. before the undersigned Veterans Law Judge (VLJ). The Veteran's claims file is entirely electronic, using "Virtual VA" and the "Veterans Benefits Management Systems" (VBMS) databases, and a copy of the hearing transcript has been associated with this electronic file. The claim was remanded by the Board in June 2016 for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that "medical examiners are responsible for providing a 'full description of the effects of disability upon the person's ordinary activity,' 38 C.F.R. § 4.10, but it is the rating official who is responsible for 'interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,' 38 C.F.R. § 4.2."). The claims folder reflects that the Veteran is currently unemployed. The Veteran has alleged her inability to work is due to her service-connected disabilities. However, the claims folder reflects that in addition to the service-connected disabilities, the Veteran also experiences other conditions such as a chronic neck back disability, which are not service-connected. Additionally, the claims folder reflects that the last examination assessing the Veteran's service-connected disabilities was conducted over a decade ago. In this particular instance, without an adequate examination addressing the functional limitations/restrictions attributable to the Veteran's service-connected disabilities, meaning all of them, the Board does not have the information needed to appropriately decide the TDIU claim. The Board finds that an examination assessing the severity and occupational impairments of the Veteran's service-connected disabilities is necessary to decide the issue of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom they have received treatment for their service-connected disabilities, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records. 2. Thereafter, schedule the Veteran for a VA medical examination with an appropriate clinician to determine the current severity of her service-connected total abdominal hysterectomy with salpingo-oophorectomy and rhinosinusitis. The claims file should be made available for the examiner to review, and the examination report should reflect that such review was accomplished. All pertinent findings should be reported. The examiner must opine as to what impairment, if any, the Veteran's service connected disabilities have on physical and sedentary employment. In offering this impression, the examiner must acknowledge and take into account this Veteran's education, training, and work history. All finding and conclusions should be set forth in a legible report, accompanied by a rationale. 3. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).