Citation Nr: 21061282 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-06 982 DATE: October 1, 2021 REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from October 1994 to March 1995, and from November 2003 to March 2005. The Veteran also served in the Army National Guard of Florida from January 1975 to May 1984, and from December 1987 to March 2015. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that granted service connection for a back disability and assigned an initial 10 percent disability rating from November 17, 2009. The Veteran subsequently challenged the initial rating assigned. The back rating issue had a long procedural history, with the Board most recently addressing the merits of the issue in a July 2021 decision. In its July 2021 decision, the Board also found that the issue of entitlement to a TDIU was raised alongside the back rating issue during the course of the appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board remanded the issue of a TDIU for initial adjudication by the Agency of Original Jurisdiction (AOJ). Subsequently, the AOJ denied a TDIU in an August 2021 supplemental statement of the case (SSOC). As the Board must once again remand the issue of entitlement to a TDIU for additional development, the Board need not further address remand compliance at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision remands the issue of entitlement to a TDIU, no further discussion of VA's duties to notify and assist is necessary. TDIU is Remanded. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue are to be addressed. 38 C.F.R. § 4.16(a),(b). Per a January 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran advanced being unemployable due to a combination of service-connected orthopedic disabilities and irritable bowel syndrome (IBS). Per the VA Form 21-8940, the Veteran last worked full time on December 31, 2010. At that time the Veteran had been working as a construction inspector. During the course of this appeal, VA received a private back disability benefits questionnaire (DBQ) dated August 2019. Per the DBQ, the private physician noted that the back disability symptoms would restrict a number of physical activities, to include bending, lifting, standing, crawling, climbing, and using stairs. The private physician specifically opined that the back disability symptoms would prevent the Veteran from performing past employment as a construction inspector and/or a mechanic. While such evidence is some support that the Veteran would have difficulty performing physical employment, in the January 2021 VA Form 21-8940, the Veteran conveyed working two hours per week as a notary. While such work is not substantially gainful as contemplated by VA rating criteria, it does support a finding that the Veteran is able to perform non-physical/sedentary employment. Nonetheless, the Board acknowledges that other service-connected disability symptoms may be the reason the Veteran works such limited hours as a notary. For instance, there is evidence of record indicating that the Veteran's back and lower extremity radiculopathy hinder the ability to sit for prolonged periods of time. Further, the report from a March 2013 IBS examination noted that the Veteran had alternating diarrhea and constipation on at least a weekly basis, with frequent episodes of abdominal distress. Such symptoms could hinder the ability to perform non-physical/sedentary employment. Unfortunately, the VA examiner in March 2013 did not squarely address whether/how the IBS symptoms would impact the Veteran's ability to work. Considering the conflicting evidence of record, the Board finds obtaining a VA occupational evaluation may assist the Board in its determination as to whether the service-connected disabilities alone preclude substantially gainful employment. The issue of TDIU is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the service-connected disabilities. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of service connected disabilities, not already of record, for the period from July 2020. 3. Ask a VA vocational or similar occupational specialist to evaluate the effect of the service-connected disabilities on employment-related tasks (the ability to obtain or maintain substantially gainful employment). Specifically, the VA examiner is directed to assess the extent of functional and industrial impairment resulting from the service-connected disabilities. The evaluation should address whether the service-connected disabilities alone are so disabling as to render the Veteran unable to perform any level of work, and/or are so disabling as to prevent training for positions at which the Veteran could work. In particular, the examiner should address whether the Veteran's part-time non-physical/sedentary work as a notary (or similar such clerical work) could be performed on a full-time basis. A medical, educational, and employment history should be taken. The Veteran's age and the effects of non service connected disabilities cannot be factors for consideration in making the determination; however, the effects of treatments and medications used to treat the service-connected disabilities should be considered in the opinion. A rationale for all opinions and a discussion of the facts should be provided. If the VA examiner finds that the Veteran is unable to perform any level of work and/or obtain training for work due to service-connected disabilities, the VA examiner should identify, based upon the lay and medical evidence of record, when the service-connected disability symptoms first rendered the Veteran unemployable. 4. Then, readjudicate the issue of a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.