Citation Nr: 21015050 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 07-33 097 DATE: March 16, 2021 REMANDED Entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 2000 to February 2002, and in the U.S. Coast Guard from June 2003 to May 2006. In August 2020, the Board informed the Veteran that the Acting Veterans Law Judge before whom he testified in February 2010 was no longer employed by the Board. The Board advised him that he was entitled to an additional hearing opportunity before a different Veterans Law Judge, and that he should contact the Board within 30 days if he did indeed desire an additional hearing. As the Veteran did not respond to the Board’s letter within 30 days, the Board will proceed with the adjudication of the Veteran’s claim with consideration of the transcript of the hearing testimony that he provided in 2010. Although the Board regrets the additional delay, further development is required before a decision may be made on the merits of the issue on appeal. When this issue was last before the Board in November 2020, it was remanded to obtain updated information regarding the Veteran’s employment history. The Board requested that the Agency of Original Jurisdiction (AOJ) ask the Veteran to file an updated VA Form 21-8940 detailing his work history throughout the period on appeal, including his employment as a Project Manager for a utility company. In a November 2020 development letter, the AOJ requested that the Veteran complete and return an enclosed TDIU application form so that it could process the Veteran’s TDIU claim. To date, VA has not received a completed VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) from the Veteran since the November 2020 request. The Board notes that the January 2021 supplemental statement of the case (SSOC) denied entitlement to a TDIU on the basis that the Veteran did not meet schedular TDIU criteria. However, pursuant to 38 C.F.R. § 4.16(a), the schedular requirements for a TDIU are met when a Veteran has two or more service-connected disabilities with at least one disability rated at 40 percent or more and a combined rating of 70 percent or more. As of June 11, 2018, the Veteran was service-connected for two or more disabilities with at least one disability rated at 40 percent or more and a combined rating of 70 percent or more, and thereby met the schedular TDIU criteria on June 11, 2018. In readjudicating the claim on remand, the AOJ is requested to take this fact into consideration. Moreover, the AOJ should obtain an opinion from a qualified VA medical examiner regarding the effects the of the Veteran’s service-connected disabilities on his employability throughout the appeal period. In this regard, the Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See 38 C.F.R. § 3.303 (1988) (requiring “all pertinent medical and lay evidence” to be considered in rating determinations); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (discussing 38 C.F.R. § 4.2 and stating that “[t]he medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability”). “[I]t is the responsibility of the rating specialist to... reconcil[e] the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” See Moore v. Shinseki, 21 Vet. App. 211, 218 (2007) (quoting 38 C.F.R. § 4.2). Because the Veteran’s claim is remanded herein for the additional development indicated above, the AOJ should also make an additional attempt to solicit an updated VA Form 21-8940, Application for a TDIU, from the Veteran, and a completed VA Form 21-4192 from the Veteran’s recent employer(s). The matters are REMANDED for the following action: 1. Make additional attempts to solicit an updated VA Form 21-8940, Application for a TDIU, from the Veteran detailing his working history though the appeal period, including his employment as a Project Manager at a utility company, and a VA Form 21-4192, Request for Employment Information, from the Veteran’s most recent employer(s), in addition to any other evidence relevant to the issue of entitlement to a TDIU. 2. Forward the Veteran’s claim to a VA vocational specialist, if possible, or other suitably qualified VA examiner, to discuss the functional impact that the Veteran’s service-connected disabilities have on his ability to secure or follow a substantially gainful occupation. If physical examination is indicated, it should be scheduled in accordance with applicable procedures. Following a thorough review of the evidence in the claims file, the examiner should provide a full description of the occupational and functional impairment resulting from the Veteran’s service-connected disabilities, which include: herniated disc disease of the lumbar spine with status post surgery at L5-S1 with opaque prosthetic endplates in the interspace; right lower extremity radiculopathy; right knee patellofemoral pain syndrome; left knee patellofemoral pain syndrome; tinnitus; left lower extremity radiculopathy; bilateral hearing loss; and erectile dysfunction. The examiner must provide a complete rationale for any proffered opinion, and is requested to address the Veteran’s competent lay statements of record. 3. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded a requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.