Citation Nr: 21032180 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-18 133 DATE: May 26, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2009 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Entitlement to a TDIU is remanded. In order to be entitled to a TDIU, the evidence must show that the Veteran is incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Here, the Veteran qualifies for a schedular TDIU from December 22, 2015 based on a 70 percent rating for depression. The Veteran is also service connected for a back disability, bilateral shin disabilities and hypertension. The record reflects that the Veteran has not been employed since his discharge from active service. The Veteran participated in Vocational Rehabilitation and Employment Services (VRE) since 2012 and obtained an Associate Degree in Computer Technology in December 2020. The Veteran contends that he cannot work because of his back pain. He testified at the April 2021 hearing that he is in pain all the time and cannot stand or sit for a long period of time without pain. At the time of the most recent VA examination for the Veteran's back disability, in April 2019, the VA examiner noted that the Veteran was unable to sit or stand for long periods of time, had difficulty climbing stairs and was unable to lift or carry heavy objects. The Veteran testified at the hearing that his back condition has worsened since the April 2019 VA examination. Based on the foregoing, the Board finds that remand is warranted to obtain an updated VA examination to determine the current nature and severity of the Veteran's back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The RO should also ensure that the Veteran's complete VRE file is associated with the claims file as part of the remand. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain outstanding records of the Veteran's participation in Vocational Rehabilitation and Employment Services and associate them with the claims file. All attempts to obtain the records must be documented in the claims file. 3. Afford the Veteran an examination to determine the current severity of his service-connected back disability. The claims file, including this remand, should be made available to and be reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability. In doing so, the examiner must attempt to elicit information regarding the severity, frequency and duration of any flare-ups, and the degree of functional loss during flareups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known fats), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Additionally, the examiner should discuss all occupational impacts attributable to the Veteran's back disability. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required) the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide and opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.