Citation Nr: 1804410 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 07-28 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected knee, hip, and Achilles tendon disabilities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active air service from August 1985 to April 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2013 and March 2015 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This case was previously before the Board, most recently in June 2017, at which time the claims at issue were remanded for further development. The case has now been returned to the Board for further appellate action. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has been in receipt of a combined rating of at least 70 percent, with one or more disabilities combinable to a 40 percent rating, for the entire period on appeal. 2. The Veteran is unable to obtain and maintain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that he is unable to work as a result of his service-connected disabilities. The Veteran has been in receipt of a combined rating of at least 70 percent, with disabilities combinable to at least 40 percent. Therefore, the Veteran meets the schedular criteria for consideration of a TDIU. 38 C.F.R. § 4.16(a) (2017). The Veteran has reported that he was last able to work full-time in May 2013, at which time he became too disabled to work as a result of his various service-connected disabilities. A review of the record shows that the Veteran has experience working as a custodian and as a social worker for a VA hospital. The record further reveals that the Veteran has obtained a degree in social work. In January 2017, the Veteran was afforded a VA hip and thigh examination. At that time, the VA examiner diagnosed the Veteran with bilateral hip osteoarthritis. The examiner explained that the diagnosis of bilateral hip osteoarthritis represented a progression of the Veterans service-connected hip strain. Upon examination, VA found that the Veteran's bilateral hip osteoarthritis caused limited range of motion in all movements and in part limited the Veteran to sitting for a period of 5-6 minutes. The examiner concluded that as a result of his bilateral hip osteoarthritis, the Veteran would be unable to tolerate the prolonged sitting required for light duty work. In January 2017, the Veteran also was afforded a VA knee and lower leg examination. At that time, the VA diagnosed the Veteran with bilateral knee osteoarthritis and explained that the diagnosis represented a progression of the Veteran's service-connected bilateral hip strain. Upon examination, the examiner found that the Veteran's bilateral knee osteoarthritis limited his capacity for flexion and extension. In January 2017, the Veteran was additionally afforded a VA ankle examination. At that time, the examiner diagnosed the Veteran with bilateral ankle osteoarthritis and explained that the diagnosis represented a progression of the Veteran's service-connected residuals of Achilles tendon ruptures and surgery. The examiner noted that the requirement of multiple pain medications for orthopedic issues caused foggy thinking which led him to leave work in 2011. The examiner found that the Veteran was unable to dorsiflex all the time. The examiner observed that walking was limited by the Veteran's hip, knee and back disabilities to about 50 feet using a walker. The examiner further observed that the Veteran's hip, knees and back disabilities rendered him capable of standing for only a minute or less. The examiner found that the Veteran's ankle condition impacted his ability to perform any type of occupational task. The January 2017 examiner ultimately opined that the Veteran's limitations in ambulation and standing precluded him from working in a capacity that required walking for a distance of more than a few yards or standing for any duration of time due to his service-connected knee, hip, and ankle disabilities. The Board observes that the January 2017 VA examinations found that the Veteran's service-connected knee, hip, and ankle disabilities restricted his capacity for standing and walking. The Board notes that the January 2017 VA examinations identified that standing and walking were both required as part of the Veteran's jobs as a custodian and a social worker. In addition, the examiner found the Veteran would be unable to tolerate prolonged sitting. In light of the Veteran's occupational background and the functional limitations described, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his education and industrial experience as a result of his various service-connected disabilities. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to a TDIU is warranted. 38 U.S.C. §5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a TDIU is granted. REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. In its June 2017 remand, the Board directed that the Veteran's claims file be returned to the VA Medical Center for an addendum opinion regarding the etiology of the Veteran's low back disability. The examiner was specifically directed to provide a detailed case-specific and medically supported opinion rationale for all conclusions reached. A review of the record shows that the directed addendum opinion was obtained in August 2017. However, the examiner continued to reiterate the conclusions which had previously been found inadequate by the Board. As the opinion does not contain a case-specific rationale as requested by the Board, the addendum opinion is not adequate. Therefore, the Board finds that the development conducted does not adequately comply with the directives of the June 2017 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board finds that another medical opinion should be obtained by an examiner who has not previously examined the Veteran or provided an opinion with regard to this appeal. Additionally, current treatment records should be identified and obtained before a decision is rendered in this case. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. 2. Then, send the claims file to an examiner with sufficient expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present low back disability. The claims file must be made available to, and reviewed by the examiner. If the examiner determines an examination is necessary before offering any opinions, then an examination should be scheduled. The examiner should provide an opinion as to whether any currently present low back disability is at least as likely as not (a probability of 50 percent or greater) etiologically related to active service, or had its onset during active service. The examiner should also provide an opinion as to whether any currently present low back disability is at least as likely as not (a probability of 50 percent or greater) (i) caused or (ii) aggravated by the Veteran's service-connected disabilities. The examiner must provide a detailed, case-specific, and medically supported rationale for any opinion expressed. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow appropriate time for response, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs