Citation Nr: A21019656 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 211027-194503 DATE: December 9, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1953 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board notes that the October 2021 VA Form 10182 was not submitted within one year of the July 2020 rating decision. In the VA Form 101082, the Veteran's representative stated the RO failed to adjudicate a claim of TDIU in an August 2021 rating decision, which denied service connection for hypothyroidism. Nevertheless, the Board finds that the evidence of record, as well as the Veteran, have reasonably raised the question of whether the Veteran's disabilities have rendered him unemployable. Consequently, this issue must be addressed. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. In the July 2020 rating decision, the AOJ determined that the Veteran's claim of entitlement to a TDIU was moot, as his service-connected disabilities were evaluated as 100 percent disabling with no potential entitlement to an earlier effective date. However, in his TDIU application form, the Veteran indicated he became too disabled to work in December 2006, and in the October 2021 VA Form 10182 the Veteran's representative contended the Veteran has been entitled to a TDIU since June 29, 2011. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Since February 13, 2020, the Veteran was granted a 100 percent combined disability evaluation. Previously, the Veteran had a 70 percent combined disability evaluation from June 29, 2011, but at the time did not meet the rating requirements for a TDIU. Effective November 10, 2011, the Veteran had a 90 percent combined disability evaluation, and met the TDIU rating requirements, as he was in receipt of a 50 percent rating for posttraumatic stress disorder (PTSD) with additional disabilities to reach a 70 percent or more combined evaluation. The Veteran has not yet been provided with VA examination or medical opinion concerning his claim for a TDIU. The Board finds a predecisional duty to assist error occurred prior to the issuance of the July 2020 rating decision. On remand, a retrospective medical opinion should be sought concerning the extent of the Veteran's functional impairment from service-connected disabilities and how they affected his ability to obtain and maintain substantially gainful employment prior to February 13, 2020. The matter is REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate physician addressing any effects the Veteran's service-connected disabilities had on his occupational functioning from November 2011 to February 12, 2020. The physician should be given access to the entire claims file and a copy of this remand. If the physician determines that examination/interview is needed to address the below inquiries, such should be scheduled, and the Veteran provided with notice. 2. Based on a review of the claims file, the clinician should fully describe any occupational impairment resulting from the Veteran's service-connected disabilities for the period prior to from November 2011 to February 12, 2020, with complete rationale. All service-connected disabilities must be addressed. (Continued on the next page) 3. The examiner is advised that the Veteran has been service connected for the following disabilities since November 2011: (a.) PTSD, vascular headaches, degenerative arthritis of the lumbar spine, fusion with degenerative arthritis and degenerative disc disease of the cervical spine, left eye cataract with lens replacement, bilateral upper extremity radiculopathy, post-surgical scar of the neck, tinnitus, and bilateral hearing loss. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.