Citation Nr: 18156431
Decision Date: 12/11/18	Archive Date: 12/10/18

DOCKET NO. 10-13 224
DATE:	December 11, 2018
REMANDED
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1968 to September 1969. 
1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
In July 2017, the Board denied entitlement to TDIU. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a June 2018 Joint Motion for Remand (JMR) filed by the contesting parties, the Court vacated the Board’s decision and remanded the claim back to the Board for further development and readjudication in compliance with the specified directives.
In the June 2018 JMR, the contesting parties determined that the July 2017 Board decision failed to ensure compliance with the previous July 2015 Board Remand directives. The July 2015 Board remand instructed a VA examiner to provide a medical opinion on the Veteran’s employability, to include consideration of his education and work history, as well as the results of an earlier December 2012 VA examination. However, the January 2016 VA examination report did not address the prior examination results, nor provide a clear and comprehensive rationale. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board’s reliance on the noncompliant January 2016 VA examination results was not found to not be permissible, and remand for a new VA examination is required. Mariano v. Principi, 17 Vet. App. 305, 311 (2003). 
Given the instructions of the JMR underlining the inadequacy of compliance with the prior remand, the Board notes that the requested opinion here will mirror the language utilized in the July 2015 remand.  This is to ensure full compliance with the JMR, in view of Stegall v. West, 11 Vet. App. 268 (1998).
The matter is REMANDED for the following action:
1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)).
2. Schedule the Veteran for an in-person VA examination with a physician who (if possible) has not previously examined him. The examiner must review the claims file and must note that review in the report. The examiner should opine whether it is at least as likely not (50 percent or greater or probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the current severity of his service-connected disabilities of lumbar spine disability and bilateral lower extremity radiculopathy disabilities. Consideration should be given to the Veteran’s eighth-grade education and limited work history, but not to his age and nonservice-connected disabilities, in making the determination. Furthermore, the examiner should consider the December 2012 VA examination results. A clear and comprehensive rationale should be provided for the opinion. If the Veteran is determined to be able to secure or follow a substantially gainful occupation, the examiner should state what type of work, any limitations that would exist, and any accommodations that would be needed due to the service-connected disabilities.
 
 A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Mukherjee, Associate Counsel