Citation Nr: 19115752 Decision Date: 03/05/19 Archive Date: 03/04/19 DOCKET NO. 13-20 206 DATE: March 5, 2019 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to a rating in excess of 10 percent, prior to August 6, 2015, and in excess of 20 percent from August 6, 2015 to June 2, 2016, for a thoracolumbar spine disability is remanded. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from sustaining gainful employed because he is currently gainfully employed. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1993 to October 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Board remanded the matter of entitlement to TDIU for further development. The Board finds that there has been substantial compliance with its directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a total disability rating based on individual unemployability Total disability based on unemployability exists where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. At a December 2015 VA examination, the Veteran reported that he works as a paramedic but currently was not working due to the symptoms of his back disability. Based on this statement, the Board inferred a claim for entitlement to a TDIU. In October 2017, the Board remanded the matter to provide the Veteran with appropriate notice of how to substantiate a claim for TDIU. That same month, the RO sent the Veteran a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). The Veteran did not return the completed form. In an August 2018 rating decision, the RO denied the Veteran’s claim for failure to submit the completed VA Form 21-8940 and due to evidence that he was currently gainfully employed. An August 2017 VA mental health outpatient note indicates that the Veteran reported, “I’m doing pretty well with my medication. I’m okay as a security guard in a hospital and my work is becoming excellent.” As there is credible evidence that the Veteran is currently employed, there is no cogent evidence of unemployability due to a service-connected disability, and therefore the claim for entitlement to a TDIU must be denied. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent, prior to August 6, 2015, and in excess of 20 percent from August 6, 2015 to June 2, 2016, for a thoracolumbar spine disability is remanded. In October 2017, the Board denied the Veteran’s claim for an increased rating for his spine disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Joint Motion for Remand (JMR), the parties agreed that the Board erred in denying an increased rating for the thoracolumbar spine disability. Specifically, the parties found that for the period before August 6, 2015, the Board erroneously relied on an inadequate August 2013 VA examination report which did not identify the Veteran’s functional limitations during a flare-up. The parties further found that the examination was inadequate because it was not conducted during “active, passive, weight-bearing and non-weight bearing modes.” See Correia v. McDonald, 28 Vet. App. 158 (2016)(38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Regarding the period from August 6, 2015 to December 2, 2015, the parties agreed that the Board erred by providing an inadequate statement of reasons of bases for why a higher rating was not warranted during the time the Veteran experienced increased limitation of range of motion. Based on the JMR findings, the Board finds that a remand is necessary to afford the Veteran another VA examination which assesses the current severity of the his disabilities and includes the requisite testing. Finally, there is evidence that the Veteran receives regular treatment at a VA facility. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain VA treatment records pertaining to the Veteran that date from August 2018 and associate them with the electronic claims folder. 2. Then, schedule the Veteran for an examination in order to determine the current level of severity of his thoracolumbar spine disability. The electronic claims folder and a copy of this remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any and all indicated evaluations, studies and tests deemed necessary, including range of motion testing, should be conducted. The examiner should indicate any functional limitations the Veteran experiences during a flare-up. The examination report should also include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. See Correia, supra. (Continued on the next page)   3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville