Citation Nr: 20046947 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 11-12 863 DATE: July 14, 2020 REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from June 1967 to May 1971 and from September 1972 to January 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2013, the Veteran had a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The appeal was previously before the Board in January 2017 and April 2018. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. Unfortunately, remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Board previously remanded this matter in April 2018, instructing the RO to obtain vocational opinions as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it was at least as likely as not (50 percent probability or greater) that the service connected disabilities, either separately, or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. The vocational opinions did not consider the combined effect of service-connected disabilities. Therefore, the Board finds there has not been substantial compliance with the remand request. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the RO was instructed to readjudicate the claims, to specifically include considering whether referral for consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(b) was warranted and whether referral for consideration of the assignment of an extraschedular rating was warranted for a lumbar spine disability pursuant to 38 C.F.R. § 3.321(b)(1). The claims file does not show that the RO considered referring the issue for consideration of the assignment of an extraschedular rating. Therefore, a remand is necessary to ensure compliance with the portion of the April 2018 remand that directed consideration of referral. Finally, VA treatment notes of April 2020 state that the Veteran has spinal stenosis, status post lumbar surgery. The Veteran indicated that he was scheduled to follow up with the surgeon soon. That clinical documentation is not of record. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. The Board finds that there has not been substantial compliance with the December 2016 remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is required to obtain an authorization and request current treatment records, to request additional medical opinions and to take into account whether referral for consideration of the assignment of an extraschedular rating is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider, including Dr. Dulebohn, who has treated him for a service-connected lumbosacral spine disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA clinical documentation not already of record. 3. Then schedule the Veteran for a VA examination with a medical doctor who has experience providing vocational opinions. The examiner should provide an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or greater) that the service connected disabilities, either separately or in combination, make the Veteran unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. If the Veteran is felt capable of work, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Then, readjudicate the claims, to specifically include considering whether referral for consideration of entitlement to TDIU pursuant to 38 C.F.R. § 4.16(b) is warranted and whether referral for consideration of the assignment of an extraschedular rating is warranted for a lumbar spine disability pursuant to 38 C.F.R. § 3.321(b)(1). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.