Citation Nr: 20007840
Decision Date: 01/30/20	Archive Date: 01/30/20

DOCKET NO. 11-27 569
DATE: January 30, 2020

REMANDED

Entitlement to an effective date prior to July 1, 2007, for the award of a total disability evaluation based upon individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

In a December 2017 decision, the Board awarded an effective date of July 1, 2007, for the award of a TDIU.  The Veteran appealed that determination to the Court of Appeals for Veterans Claims (Court).  In a March 2019 Memorandum Decision (Decision), the Court vacated and remanded the matter.  

1. Entitlement to an effective date prior to July 1, 2007, for the award of a TDIU is remanded.

As explained in the Court’s Decision, at issue is the adequacy of a March 2016 VA examination report.  The Board assigned an effective date of July 1, 2007, based upon this report.  In the report, the VA examiner concluded that the Veteran’s service-connected disabilities would limit him to sedentary work since July 2007.  The Court stated that the examiner’s “opinion relied on [the Veteran’s] chronic [prescription] narcotic use as the main reason for [the Veteran’s] unemployability.”  The Court found that the Board had erred in failing to return this report for further clarification because it was unclear how the examiner concluded that unemployability would not have occurred prior to July 2007, when the Veteran had appeared to have been on prescription narcotics well before this period.  Thus, the Court ordered that the Board seek clarification of the opinion.  Accordingly, the claim is remanded.  38 C.F.R. § 4.2.

The matters are REMANDED for the following action:

Obtain a VA addendum opinion from the medical professional who provided the March 2016 medical opinion (or suitable substitute) assessing the effect of the Veteran’s service-connected disabilities on his ability to secure or follow a substantially gainful occupation prior to July 1, 2007. 

Make the claims file available to the examiner for review of the case.  

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The examiner is asked to address the March 2016 conclusion that the Veteran was unable to work due to service-connected disabilities as of July 1, 2007, and explain the rationale for this conclusion.  If the examiner finds that the Veteran was unable to work due to service-connected disabilities prior to July 1, 2007, the examiner is asked to provide an approximate date of when the unemployability arose, and again, must explain the rationale for any conclusion.  

The examiner’s attention is directed to the Veteran’s use of prescription narcotics for pain control of service-connected disabilities prior to July 1, 2007.  All opinions must be supported by a detailed rationale in a report.

 

 

C. TRUEBA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Department of Veterans Affairs

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.