Citation Nr: 21013690 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-61 540 DATE: March 10, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to July 18, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1964 to January 1967. This case has a long procedural history. Most recently, in June 2020, the United States Court of Appeals for Veterans Claims (Court) on a Joint Motion for Remand (JMR) by the Veteran and the Department of Veterans Affairs (VA) (the parties), vacated the May 2019 Board of Veterans’ Appeals (Board) decision that addressed a VA Regional Office (RO) January 2017 rating decision. The Court remanded the matter. The parties to the JMR agreed, and the June 2020 Court decision adopted the parties’ position, that the Board erred when it found that the Veteran had the ability to perform light or sedentary work without explaining what it understands the terms “sedentary” employment or “light duty” to mean. Withers v. Wilke, 30 Vet. App. 139, 148 (2018) (holding that, if the Board bases its denial of TDIU in part on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of that case). The Court found the Board relied on a March 2012 VA examination that concluded that the Veteran can perform “light duty.” Neither the March 2012 examiner nor the Board explained what the term “light duty” means or how such a finding is “consistent with the medical evidence as a whole” in this case. Id. Accordingly, the Court directed the Board, on remand, to explain its understanding of the terms “sedentary” employment and “light duty” and how it interprets these concepts in the context of the Veteran’s complete disability picture and his educational and occupational history in determining whether his service-connected disabilities preclude him from securing or following a substantially gainful occupation. Id. To implement the JMR, the Board finds this matter must be remanded to obtain a medical opinion regarding the Veteran’s work-related physical functioning due to his service-connected disabilities prior to July 18, 2016. The examiner must specifically describe any and all occupational tasks the Veteran can perform without using generalities such as “sedentary” or “light duty” work, unless those terms are defined in detail. Accordingly, while the Board regrets the additional delay, a remand for further development is required. The matters are REMANDED for the following action: 1. Afford the Veteran the opportunity to attend a VA examination or examinations with an appropriate clinician(s) to obtain an opinion regarding the limitations of the Veteran’s ability to perform occupational tasks due to his service-connected disabilities for the period from 2010 to 2016. 2. Provide the clinician(s) the Veteran’s complete claims file, including the June 2020 Court decision and this Remand order, for review in connection with the examination. The examination report should reflect that such review was accomplished. 3. Based on review of the record and review of the Veteran’s lay statements pertaining to the period from 2010 to 2016, the clinician is requested to provide an opinion as to the Veteran’s limitation on performing occupational tasks due to each of his service-connected disabilities. The examiner must specifically describe any and all occupational tasks that the Veteran can perform. The examiner should avoid framing his or her opinion in terms of ability to perform “sedentary” or “light duty” work, unless the opinion includes a detailed definition of those terms. In formulating the requested opinion, the clinician’s opinion should specifically address the March 2012 VA examination opinion. 4. A reasoned rationale supporting the clinician’s conclusions must be provided for any and all opinions offered. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If any requested opinion cannot be provided without resorting to mere speculation, the clinician must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 5. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claim. (continued on the next page) 6. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case (SSOC) should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.