Citation Nr: 18155772 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 07-39 360 DATE: December 6, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) from February 1, 2010 to present is remanded. REASONS FOR REMAND The Veteran served on active duty for training from March 1964 to September 1964 and on active duty from December 1968 to April 1970. This appeal comes before the Board of Veterans’ Appeals (Board) from September 2006 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a July 2011 decision, the Board denied entitlement to a TDIU prior to February 1, 2010 and remanded the issue of entitlement to a TDIU beginning on February 1, 2010. In a March 2015 decision, the Board remanded the entitlement to a TDIU beginning on February 1, 2010. The Veteran appealed the March 2015 Board decision, to the United States Court of Appeals for Veterans Claims (Court). In July 2015, the Court granted a Joint Motion for Partial Vacatur and Remand (Joint Motion) of the parties and remanded the case to the Board for action in compliance with the Joint Motion. In September 2015, the Board again remanded the issue of entitlement to a TDIU beginning on February 1, 2010. Entitlement to TDIU beginning on February 1, 2010 was remanded by the Board in September 2016 for referral for extraschedular consideration. In a November 2017 decision, the Board denied the Veteran’s claim for TDIU. That opinion was vacated, in part, by a June 2018 Joint Motion by the Court and remanded to the Board for readjudication. REMAND Pursuant to a June 2018 Joint Motion, the Court vacated and remanded the Board’s November 2017 decision addressing the issue entitlement to TDIU beginning on February 1, 2010. In the June 2018 Joint Motion, the parties agreed that the Board mischaracterized the substance of a November 2015 VA examiner’s opinion and that the opinion failed to consider the Veteran’s particular work history and did not consider evidence that the Veteran lost his commercial driving license due to failure to pass the hearing portion of his physical. An addendum opinion addressing such factors should be obtained on remand. The Board notes that the Veteran has submitted a July 2017 private vocational assessment that found that it was more likely than not that the Veteran was unable to secure or follow a substantially gainful occupation, to include sedentary employment, since he was forced to stop working as a truck driver in 1995 and that his CDL license was revoked due to his hearing loss. This vocational assessment also noted that the Veteran had only ever worked as a truck driver or in construction in the 25 years following his service. However, this vocational assessment also noted that the Veteran worked general construction (painting/concrete finishing) to maintain an income when he was terminated from a truck driving job and that he spent a number of years in construction work while seeking trucking jobs. Moreover, the Board notes that the Veteran reported that he was terminated from his job in 1995 following a worker’s compensation injury to his back and that he had worked as a manager of mini-storage units and as a heavy equipment operator in an August 2005 VA Vocational Rehabilitation counseling narrative. Further, records from the Veteran’s work-related injury are relevant to the issue, and the Veteran should provide VA with permission to obtain the medical records pertaining to his workers compensation claim that caused him to stop working in 1995 or he may submit them himself. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal, to include records related to a worker’s compensation injury in 1995. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records from November 2017 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, return the claims file, to include a copy of this remand, to a VA audiologist or similarly trained medical professional for an addendum opinion addressing the functional impairments related to the Veteran’s service-connected hearing loss and tinnitus. An additional in-person examination may take place at the examiner’s discretion. The examiner should consider the Veteran’s complete educational, vocational, and employment history and should note his complaints regarding the functional impairment of his service-connected disabilities. The examiner should respond to the following: (a) The examiner should assess the functional impairment caused by the Veteran’s service-connected bilateral hearing loss and tinnitus, in the aggregate (i.e., jointly), on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The Board notes that the Veteran’s work history includes work a truck driver, mini-storage unit manager, heavy equipment operator, general construction worker, painter and concrete finisher and that he has a 9th grade education. (b) What strategies, if any, could be used by the Veteran to lessen the functional impairments caused by his service connected bilateral hearing loss and tinnitus? How would such strategies be used to optimize communication in environments consistent with the Veteran’s past work history, to include his work as a commercial truck driver? All opinions should be accompanied by a rationale. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel