Citation Nr: 1808640 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-08 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jeffrey E. Marion, Attorney ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from October 1995 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board remanded this case in September 2015 and June 2017 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its June 2017 remand, the Board instructed the RO to complete any development necessary to adjudicate the Veteran's claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete education and occupational history. In September 2017, the RO requested that the Veteran submit additional evidence regarding his employment. In a September 2017 statement, the Veteran responded by stating that he owned his own carpentry business which produced limited income. However, the RO did not attempt to verify this information by requesting financial information, such as income tax returns. Hence, another remand is required. Additionally, in the September 2016 substantive appeal and a November 2017 VA treatment record, the Veteran indicated that his service-connected post traumatic headaches had worsened since his last VA examination suggesting that his disabilities may preclude the Veteran from substantially gainful employment. Accordingly, an examination is necessary prior to analyzing this TDIU claim on the merits. In requesting such an examination, the Board recognizes that a "combined-effects medical examination report or opinion" is not required to adjudicate a TDIU claim. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16 (a)). However, the Board finds that information as to the functional impact of the Veteran's service connected disabilities, particularly his post traumatic headaches, on employment would be useful to the Board in adjudicating the issue. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO must complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history. In particular, the RO should verify the Veteran's statements regarding his self-employment, to include obtaining financial information, such as his income tax returns. 2. Obtain a VA medical examination and opinion to determine the impact of the Veteran's service-connected disabilities on the Veteran's ability to maintain gainful employment. The examiner should comment on the functional impairment caused solely by the Veteran's service-connected disabilities (schizophrenia, post traumatic headaches, scars, and residuals of a cervical spine injury) relative to his ability to engage in substantially gainful employment. In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected. The VA examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. The VA examiner must acknowledge and take into account the Veteran's education, training, and work history. Neither age nor nonservice-connected disabilities should be considered or mentioned. A clear rationale for all findings should be provided. 3. After ensuring compliance with the development requested above, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).