Citation Nr: 1808308 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 09-37 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1983 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By that rating action, the RO denied entitlement to TDIU. The matter was most recently Remanded by the Board in August 2017. That development having been completed, this matter is once again before the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets the additional delay, the Veteran's claim must once again be remanded to ensure that there is a complete record upon which to decide the Veteran's claim and to afford the Veteran every possible consideration. 38 U.S.C. § 5013A; 38 C.F.R. § 3.159(c), (d). In a January 2018 statement submitted through his representative, the Veteran contends that the Veteran's claim file should be returned to the VA examiner responsible for the June 2016 and December 2016 VA examinations and the August 2017 VA addendum opinion so that a rationale can be obtained. The Board agrees. A new VA addendum opinion is required to comply with the Board's August 2017 remand directives. Those directives ordered the VA examiner to identify all limitations imposed on the Veteran as a consequence of his service-connected HIV and hepatitis B. If the VA examiner concluded that the Veteran's service-connected disabilities did not preclude employment, then the VA examiner was instructed to suggest the types of employment in which the Veteran would be capable of engaging, taking into account his educational background and skill set. The Board further required the VA examiner to provide in the examination report complete rationales for all opinions expressed. In an August 2017 VA addendum opinion, the VA examiner concluded that the Veteran is precluded from physical labor, but is not precluded from sedentary occupation or desk work. The VA examiner failed to provide any rationale for those opinions as required in the August 2017 Board remand. Therefore, a new medical opinion is required to provide complete rationales for the VA examiner's conclusions that the Veteran's service-connected disability preclude physical labor but do not preclude sedentary occupations or desk work. Accordingly, the case is REMANDED for the following action: 1. Refer the case to the June 2016, December 2016, and August 2017 VA examiner for a supplemental opinion. If that examiner is not readily available, a VA addendum opinion may be obtained from another medical professional with an appropriate background and/or expertise. The Veteran need not be scheduled for an examination unless deemed necessary by the VA examiner rendering an opinion on this claim. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she reviewed the folder in conjunction with the addendum opinion. Following review of the claims file, the VA examiner should identify all limitations, if any, imposed on the Veteran by his service-connected HIV and hepatitis B, and provide an opinion as to the impact of those limitations on his ability to secure and follow gainful employment. All opinions must be accompanied in the VA examination report by complete rationales explaining the analyses leading to the opinions expressed. The VA examiner must address in the rationale the Veteran's contentions that his recurrent diarrhea and the frequent medical visits required for treating his service-connected HIV and hepatitis B impact his ability to secure and maintain gainful employment. If the VA examiner concludes that the Veteran can engage in physical labor, the VA examiner must explain the rationale for that opinion. Stated differently, the VA examiner must explain in the addendum opinion the analysis that leads to the conclusion that the Veteran can engage in physical labor despite his service-connected disabilities. Why can he engage in physical labor even though he has HIV and hepatitis B? Similarly, if the VA examiner concludes that the Veteran can engage in sedentary and/or desk work, the VA examiner must explain in the addendum opinion the rationale for that opinion. Again, the VA examiner must explain the analysis that leads to the conclusion that the Veteran can secure and maintain gainful employment in a sedentary or desk-based occupation despite his service-connected HIV and hepatitis B. Why can he work at a sedentary occupation even though he has HIV and hepatitis B? 2. After completing the requested development and any other development that may be necessary, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).