Citation Nr: 18144282 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 06-09 882 DATE: October 24, 2018 REMANDED Entitlement to a rating in excess of 40 percent for bulging disk/stenosis, L4-5, with degenerative arthritis (low back disorder) is remanded. Entitlement to a rating in excess of 10 percent for tear of semilunar cartilage, left knee (left knee disorder) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extra-schedular basis pursuant to 4.16(b) is remanded. REASONS FOR REMAND The appellant served on active duty from September 1971 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2005 and September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. In a December 2006 decision, the Board, in part, denied entitlement to a TDIU. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2008, pursuant to a Joint Motion for Remand (JMR) filed by the appellant and the Secretary of Veterans Affairs (Secretary), the Court issued an Order vacating the Board’s decision and remanding the case to the Board for further action consistent with the terms of the JMR. The Veteran’s appeal was remanded by the Board in October 2009, February 2011, September 2013 and October 2017 for further development. Unfortunately, a remand is again required. Increased Ratings for a Low Back and Left Knee Disorder The Veteran was last afforded VA examinations for his low back and left knee disorders in April 2016. In a January 2018 statement, the Veteran’s representative stated that such examinations were not reflective of the current level of severity of the Veteran’s disabilities. Accordingly, as the representative has alleged a worsening of the Veteran’s disabilities, a current examination is necessary. TDIU Pursuant to the Board’s October 2017 remand, an addendum opinion regarding the Veteran’s employability was obtained in February 2018. The Board finds that the February 2018 medical opinion is not sufficient to determine the issue of entitlement to a TDIU. As noted by the appellant’s representative in correspondence received in January 2018, the VA examiner’s opinion was not supported by a rationale as requested in the remand directives. Moreover, while the examiner noted review of the Veteran’s SSA records and disability determination, and the October 2002 and January 2010 VA treating physician opinions regarding the appellant’s unemployability, the examiner did not offer any comment on such, as was requested. Therefore, the Board finds that the VA medical opinion is inadequate and additional remand is necessary for compliance with the terms of the Board’s prior remand. Moreover, the Board notes that the issue of TDIU is intertwined with the Veteran’s claims for increased ratings for his low back and left knee disorder, as the latter claims may potentially impact the outcome of the former claim. Lastly, the Board notes that the October 2017 remand prematurely requested that the Agency of Original Jurisdiction (AOJ) refer the claim for TDIU to the Director of Compensation Service for a determination under § 4.16(b). However, the AOJ declined to do so, finding that the Veteran was not unemployable. The Board notes that the Veteran must first be determined unemployable before referral to the Director of Compensation Service for extraschedular consideration is warranted. Accordingly, on remand, the AOJ should readjudicate the claim for TDIU, to include on an extraschedular basis, and should refer the claim to the Director if appropriate. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his low back and left knee disorder. 2. Forward the claims file to an appropriate VA examiner—other than the examiner who provided the February 2018 opinion—to obtain an addendum opinion for the appellant’s TDIU claim. Access to records in the appellant’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. If the examiner determines that an examination is necessary, one should be scheduled. The physician must opine whether, without regard to the appellant’s age or impairment due to nonservice-connected disability, it is at least as likely as not (i.e., a 50 percent or greater probability) that the appellant’s service-connected disabilities render him unable to obtain or retain substantially gainful employment. The examiner is advised that the appellant is currently service connected for disc/stenosis of L4-5 with degenerative arthritis and for tear of semilunar cartilage, left knee. The examiner should comment on the “combined effects” of the appellant’s service-connected disabilities on his ability to secure or follow gainful occupation. All opinions expressed should be accompanied by supporting rationale. In rendering an opinion, the physician must specifically consider and discuss the SSA records and disability determination, as well as address the October 2002 and January 2010 VA treating physician opinions regarding the appellant’s unemployability. 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the Veteran’s increased rating claims for his low back and left knee disorders, and the claim for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. §§ 3.321 (b) and 4.16(b), in light of all pertinent evidence and legal authority. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.Z., Counsel