Citation Nr: 18149052 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 10-01 348 DATE: November 8, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1987 to November 2006. She also had active duty for training from January 1986 to April 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of the Roanoke, Virginia Department of Veteran Affairs (VA) Regional Office (RO). TDIU In September 2016, the Board denied the Veteran’s TDIU claim. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In March 2018, the Court issued a Memorandum Decision that set aside the September 2016 Board decision and remanded the claim. The case has been returned to the Board for compliance with the directives contained in the March 2018 Memorandum Decision. The Court’s March 2018 Memorandum Decision indicated that the Board provided an inadequate statement of reasons or bases to finding that the duty to assist had been satisfied in denying the Veteran’s TDIU claim. Specifically, although the Board found that examinations that considered the Veteran’s disabilities were adequate in the aggregate, it was unclear as to how it made this determination. In this regard, each of the back and peripheral nerve examinations addressed in the Board decision suggested different limitations on employment, and none addressed the Veteran’s complaints that permeated the record of constant pain during all activities. Also, no examination deemed “relevant” by the Board addressed the functional effect that the Veteran’s service-connected plantar fasciitis had on her ability to work. Therefore, remand was required for the Board to provide an adequate statement of reasons or bases for its duty to assist determination or an examination that properly determined the effect of the Veteran’s service-connected disabilities on her employability. The Veteran’s service-connected disabilities are the following: plantar fasciitis, evaluated as 30 percent disabling; thoracolumbar paraspinal tendonitis with intervertebral disc syndrome, evaluated as 20 percent disabling; tinea pedis, evaluated as 10 percent disabling; right lower extremity sciatic nerve involvement associated with thoracolumbar paraspinal tendonitis with intervertebral disc syndrome, evaluated as 10 percent disabling; left lower extremity sciatic nerve involvement associated with thoracolumbar paraspinal tendonitis with intervertebral disc syndrome, evaluated as 10 percent disabling; and oophorectomy, right, evaluated as noncompensable. The Veteran’s highest combined disability rating prior to November 27, 2013 was 60 percent based on multiple disabilities, which does not meet the minimum threshold for the award of schedular TDIU. See, e.g., September 2015 Rating Decision (listing service-connected disabilities and calculating a 60 percent combined disability rating from May 7, 2010 to November 27, 2013); 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. For one month, from November 27, 2013, until December 27, 2013, the Veteran’s combined disability rating was 70 percent, with one 40 percent rating for the Veteran’s back disability. During that one-month period, the Veteran met the minimum threshold criteria for a schedular TDIU rating. Thereafter, from December 27, 2013, until the present, once the rating for the back condition was reduced, the Veteran’s combined disability rating has been 60 percent which, again, does not meet the threshold criteria. According to the Veteran’s April 2015 Application for Compensation Based on Unemployability, she had most recently worked as an officer at a jail, a position she held from September 2007 to December 2009. She indicated she completed four years of college education and had “Post 911” education or training from December 2010 to December 2014. In light of the ambiguities addressed in the March 2018 Memorandum Decision, the Board finds that the current evidence of record is inadequate to determine whether the Veteran’s service-connected disabilities in the aggregate preclude her from obtaining substantial and gainful employment. Therefore, the Board is of the opinion that a VA examination would be probative in ascertaining the functional impairment of the Veteran’s service-connected disabilities and the effect of these disabilities in the aggregate on her employability. See 38 C.F.R. § 3.159(c)(4) (2017) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Additionally, on an October 2018 claim for TDIU, the Veteran noted “ongoing” medical treatment related to her service-connected disabilities. As such, the Board finds that all outstanding medical treatment records pertinent to the claim on appeal should be obtained on remand. The matter is REMANDED for the following action: 1. Request the Veteran to provide authorization to obtain any outstanding, relevant private treatment records, to include ongoing treatment records noted in her October 2018 claim for TDIU. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 2. Thereafter, schedule the Veteran for a VA medical examination by an appropriate professional with regard to her claim of entitlement to TDIU. All necessary testing must be accomplished. The entire claims folder, to include all electronic records, must be reviewed by the examiner. The examiner must provide an opinion as to the functional impairment of the Veteran’s service-connected disabilities, which include plantar fasciitis, thoracolumbar paraspinal tendonitis with intervertebral disc syndrome, tinea pedis, right and left lower extremity sciatic nerve involvement associated with thoracolumbar paraspinal tendonitis with intervertebral disc syndrome, and oophorectomy, right. The examiner should interview the Veteran as to her employment and education history. The examiner is asked to provide an assessment of the functional impairment associated with the Veteran’s service-connected disabilities in the aggregate as related to the Veteran’s ability to perform activities required in various occupational situations such as walking, standing, and sedentary tasks. The examiner must also address the Veteran’s ability to obtain substantial gainful employment given her level of education and the type of employment she would be able to obtain. A full and complete rationale for any opinions expressed is required. 3. Review the claims file to ensure that all the foregoing requested development is completed, and arrange any additional development indicated. Then readjudicate the TDIU claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and her attorney with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel