Citation Nr: 18109239 Decision Date: 06/07/18 Archive Date: 06/07/18 DOCKET NO. 10-24 524 DATE: June 7, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding this TDIU claim. Another remand therefore is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s prior remand directed the Regional Office (RO) to further develop the Veteran’s claim of entitlement to a TDIU as it had been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Following the Board’s remand the RO scheduled the Veteran for a VA social and industrial survey and examination in May 2017. However, in subsequent internal VA correspondence the examination was apparently canceled. The examination was requested by the Seattle RO and, according to the internal VA corresponsdence it was “cancelled by [the medical administration service] (MAS).” Additional VA documents indicate the Puget Sound RO did not have a social worker on staff. The RO resultantly readjudicated this TDIU claim and denied it, in part, due to the canceled examination — a failing attributed to a request by the Veteran. Other internal VA documents indicate that clarification was sought to determine if the Veteran had withdrawn the claim entirely. The Veteran’s representative filed a post-remand brief on the Veteran’s behalf asserting that the Veteran is contesting the RO’s conclusion that he had canceled the examination. Part of the confusion may be since VA no longer does social and industrial surveys in developing these type claims, but VA does still do compensation examinations, although the examiner is to be directed to comment on functional impairment owing to the service-connected disability(ies), rather than on whether the Veteran is unemployable. This unemployability determination is ultimately for the VA adjudicator, not examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the record does not indicate he refused to attend the examination, the Board finds this was not substantial compliance with the remand order to provide him an examination. That said, however, the Veteran is reminded that the duty to assist is a two-way street. If he wishes help in further developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If he does not attend his examination or provide sufficient justification to have it rescheduled, the claim will be denied. See 38 C.F.R. § 3.655 (2016) (“shall” language indicating this result is mandatory, not discretionary). This claim is again REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA compensation examination(s) in response to this claim of entitlement to a TDIU. The claims file must be made available to and reviewed by the examiner with such review noted in the examination report. The examiner shall record the full history of the conditions, including the Veteran’s account of symptomatology and the relevant medical evidence of record. The examiner is requested to opine on the functional impact of the Veteran’s service-connected disabilities. In answering this question, the examiner is requested to discuss the type or types of employment in which the Veteran would be capable of engaging with his service-connected disabilities, given his skill set and educational background (if there is belief he is still employable). That said, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; this determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator]’ not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity.’ 38 C.F.R. § 4.10, but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,’ 38 C.F.R. § 4.2 (2013).”) It is currently the Veteran Benefits Administration’s (VBA’s) policy that: “if the facts of the case require VA to examine the Veteran [as part of his or her TDIU claim or claim forming the basis of the TDIU claim], do not ask the examiner to opine as to whether or not the Veteran is unemployable due to his or her service-connected disabilities. The responsibility for this decision rests solely with the rating activity. VA should request that the examiner comment instead on the functional impairment caused solely by the service-connected disabilities.” See VBA Fast Letter 13-13 (June 17, 2013) (citations omitted) (emphasis added). While Fast Letters are not binding on the Board, the information contained therein is consistent with case law. Floore, 26 Vet. App. at 381. 2. After completion of the above development, and any additionally indicated, readjudicate this claim. If the benefit sought is not granted to the Veteran’s satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and provide opportunity to respond. If necessary, return the case to the Board for further appellate review of this claim. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod