Citation Nr: 21066110 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 10-27 798 DATE: October 28, 2021 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2017, the Board denied entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In a May 2018 Joint Motion for Remand (JMR), the Veteran and the VA (the Parties) agreed to vacate the September 2017 Board decision and directed the Board to provide additional reasons and bases addressing positive evidence of record. In September 2018, the Board determined that the Veteran met the schedular criteria for a TDIU, but again denied entitlement to a TDIU. The Veteran appealed that decision to the CAVC. In an April 2019 JMR, the Parties agreed to vacate the September 2018 Board decision. The Parties agreed that the September 2018 Board decision included inadequate reasons and bases, as the Board failed to discuss favorable evidence. Specifically, the Board erred when in failed to discuss a March 2009 Dr. N.O. assessment. The Veteran also stated his intention to argue that the evidence implicates a protected work environment, and the VA did not oppose. In August 2019, the Board remanded this matter to secure additional records and updated examinations. In October 2020 and May 2021, the Board remanded this matter to attain substantial compliance with the August 2019 Board remand directives. The Board observes that in December 2020, the AOJ granted entitlement to service connection for hearing loss and tinnitus. In January 2021, the Veteran sought direct Board review of this decision under VA's modernized appeals system and explicitly raised the issue of entitlement to a TDIU. See January 2021 VA Form 10182. The January 2021 Board appeal will be addressed in a separate decision. However, as the Veteran did not timely opt into VA's modernized appeals system, this legacy appeal remains pending. The Board acknowledges that the Veteran has waited many years for an adequate decision. Regrettably, remand is once again required to achieve substantial compliance with the April 2019 Board remand directives. Critically, the examiners of record again failed to comply with the Board's directive that "[i]f the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations, if any, would be necessary due to the service-connected disabilities" and to reconcile that opinion with the March 2009 Dr. N.O. assessment. See August 2019 Board Remand at 4; October 2020 Board Remand at 4; May 2021 Board Remand at 3. Once again, the examiners simply acknowledged the existence of this positive evidence, as well as positive evidence identified in the October 2020 and May 2021 Board remands, but failed to discuss the evidence. See October 2020 Board Remand at 2; May 2021 Board Remand at 2. On remand, it is essential that the AOJ secure evidence that substantially complies with the Board's remand directives. The matters are REMANDED for the following action: Afford the Veteran examinations addressing the functional impairment arises from his service-connected disabilities and the effect on his ability to secure or follow substantially employment. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner's opinion should address the following: (a.) The examiner is asked to comment on and describe the functional impairment caused solely by the service-connected disabilities as it pertains to the Veteran's ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on work activities. (b.) If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations, if any, would be necessary due to the service-connected disabilities. All opinions rendered MUST be reconciled with Dr. N.O.'s March 2009 opinion and should specifically discuss the Veteran's symptomatology and functional limitations throughout the period on appeal. The examiners are also specifically asked to address the relevance (or lack thereof) of the following: (1) Dr. T.S.S-R.'s July 2020 opinion pertaining to the Veteran's epilepsy disorder and its associated functional impact; and (2) The February 2019 lay statement from G.E.N. (submitted in September 2019), the Veteran's colleague from employment at the United States Post Office. The Board emphasizes that it has repeatedly determined that merely mentioning this evidence does not substantially with the remand directives. Any opinion that does not include an actual reconciliation or other discussion of this evidence will be returned as inadequate. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.