Citation Nr: 18106980 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 12-17 164 DATE: June 1, 2018 ORDER Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) on or after March 27, 2018, is dismissed. REMANDED Entitlement to an evaluation in excess of 40 percent for post-back-surgery syndrome, to include chronic muscular strain superimposed on post-operative scarring and degenerative instability, is remanded. Entitlement to TDIU prior to March 27, 2018, is remanded. FINDING OF FACT The appeal as to the issue of entitlement to TDIU on or after March 27, 2018, has been rendered moot based on the grant of SMC at the rate under 38 U.S.C. § 1114(s) effective from that date. CONCLUSION OF LAW The appeal as to the issue of entitlement to TDIU on or after March 27, 2018, is dismissed. 38 U.S.C. §§ 1114(s), 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.350(i), 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to February 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is in the claims file. The Board remanded the case for further development in November 2014 and July 2017. The case has since been returned to the Board for appellate review. Law and Analysis All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Since March 27, 2018, the Veteran has a total (100 percent) evaluation for his coronary artery disease and a combined evaluation in excess of 60 percent for his other service-connected disabilities. Those evaluations provided the basis for the grant of SMC at the rate under 38 U.S.C. § 1114(s) effective from March 27, 2018. Because the Veteran has already been awarded SMC at the rate under 38 U.S.C. § 1114(s) (the only remaining benefit for which the assignment of a TDIU evaluation would be beneficial), the TDIU claim is moot since March 27, 2018. See Buie v. Shinseki, 24 Vet. App. 242 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (Mar. 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (stating that the logic of Bradley suggests that, if a veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent evaluation). The appeal as to entitlement to TDIU on or after March 27, 2018, is therefore dismissed. REASONS FOR REMAND The Board had previously remanded the case, in pertinent part, to afford the Veteran a VA examination that complied with the requirements of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court concluded that 38 C.F.R. § 4.59 required VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. The Veteran was subsequently provided a VA examination in January 2018, and the examination report was largely responsive to the remand directives. However, the examiner did not provide the range of motion findings for both weight-bearing and nonweight-bearing. Thus, in order to ensure compliance with the prior remand, the Board finds that an additional VA examination is needed. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). The Board had also remanded the case for a VA examination and medical opinion addressing the combined effects of the Veteran’s service-connected disabilities on his ability to work. The January 2018 VA examiner opined that his back disability would have no impact on employability, but did not render an opinion on the combined impact of the Veteran’s service-connected disabilities. Therefore, a remand is required to obtain a medical opinion regarding his impairment prior to March 27, 2018. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected back disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is asked to identify the specific symptomatology due solely to the Veteran's service-connected back disability, as opposed to any nonservice-connected disorder, such as his post-service industrial accident. See e.g. March 2015 VA examination report. If is not possible to separate such symptomatology, the examiner should so indicate in his report. The examiner should report all signs and symptoms necessary for rating the service-connected back disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine and state whether there is any ankylosis. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner should also state the total duration of incapacitating episodes over the past 12 months and identify any neurological manifestations of the service-connected disability. If there are any neurological manifestations attributable to a nonservice-connected disability, the examiner should explain in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to determine the combined effects of his service-connected disabilities and any resulting impairment prior to March 27, 2018. The examiner should address how the Veteran’s service-connected disabilities resulted in functional impairment prior to March 27, 2018, and comment on the Veteran’s ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could have performed, and if so, what type (such as sedentary in nature or physical labor). A written copy of the report should be associated with the electronic claims folder. 4. The AOJ should review the VA examination reports to ensure that they are in compliance with this remand. If a report is deficient in any manner, the AOJ should implement corrective procedures. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Kuczynski