Citation Nr: 1805181 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-34 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1973 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The issue on appeal was remanded by the Board for evidentiary development in June 2013, February 2016, September 2016, and May 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his service-connected disabilities render him unemployable. Under the applicable law, VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a claimant is unable, as a result of service-connected disabilities, to secure or follow a substantially gainful occupation consistent with his education and experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is in receipt of service connection for chronic low back pain secondary to lumbar disc disease with degenerative arthritis (rated as 40-percent disabling); radiculopathy of the right lower extremity (rated as 40-percent disabling); radiculopathy of the left lower extremity (rated as 40-percent disabling); and degenerative arthritis of the right knee (rated as 20-percent disabling). He is also in receipt of service connection for residuals of a fracture of the left little finger, scar residuals of the right knee, burn scar residuals of the lumbar spine, and surgical scar of the right lower lumbar spine, all of which are rated as zero-percent disabling (noncompensable). These disabilities form a combined rating of 90 percent. Thus, as of December 2009, the Veteran meets the threshold disability percentage requirements for consideration of a TDIU on a schedular basis pursuant to 38 C.F.R. § 4.16(a). The remaining question is whether his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran underwent VA examinations for his service-connected disabilities in December 2016. The reports reflect the examiner's conclusions that although the Veteran's service-connected disabilities, considered in isolation, would prevent him from working physically demanding jobs, they would not prevent him from engaging in sedentary occupations "such as filing, answering phones, keyboarding or telemarketing." On review, the Board finds that the December 2016 VA examiner's opinions are inadequate. Specifically, the opinions do not meaningfully consider all of the Veteran's service-connected symptoms in relation to occupational impairment. For example, the Veteran reported during his back evaluation that he had constant achy pain with flare-ups two to three times weekly. Likewise, during his peripheral nerve evaluation, he reported shooting pains from his lower thighs, as well as itching and burning. While the examiner acknowledged that the Veteran would need to shift positions every 15 to 20 minutes due to back pain and would be unable to drive or stand for long periods on account of his radiculopathy, she did not consider the effect of these symptoms-particularly constant pain-on sedentary employment. Furthermore, the Veteran's Social Security Administration (SSA) records were added to the file after the December 2016 VA examinations were accomplished and should be reviewed by the examiner, as this evidence is relevant to the Veteran's employability. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Consequently, the Board finds that an addendum medical opinion is needed regarding the Veteran's application for a TDIU. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). In so finding, the Board is aware that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one but rather a determination for the adjudicator. See Geig v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Nonetheless, in light of the deficient VA opinions discussed above, the evidence of record is insufficient to decide the claim. On remand, the examiner/s is asked to specifically consider whether the service-connected symptoms reported by the Veteran would render him unable to perform sedentary employment. The examiner/s is also asked to discuss the cumulative impact of all of the Veteran's service-connected disabilities on his ability to perform sedentary employment. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from May 2017 to the present. 2. Forward the claims file to the appropriate specialist for an addendum regarding the Veteran's application for a TDIU. After reviewing the entire claims file, particularly to include the VA examination reports of record and medical records obtained from the Social Security Administration, the examiner/s should provide a detailed explanation of the functional impairment caused by the Veteran's service-connected disabilities. The examiner/s should specifically discuss whether the service-connected symptoms reported by the Veteran, to include constant back, leg, and right knee pain and flare ups, would render him unable to perform sedentary employment. The examiner/s is also asked to discuss the cumulative impact of all of the Veteran's service-connected disabilities on his ability to perform sedentary employment. 3. After completing all indicated development, readjudicate the issue on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. 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. §§ 5109B, 7112 (2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).