Citation Nr: 21000353 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-25 369 DATE: January 5, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to November 1967. In an October 2019 decision, the Board of Veterans’ Appeals (Board) denied increased ratings for residuals of frostbite to the left and right lower extremities and entitlement to a TDIU. In August 2020, the Veteran appealed the portion of the Board’s decision that denied entitlement to a TDIU to the United States Court of Appeals for Veteran Claims (Court) which granted a Joint Motion for Partial Remand (JMPR) filed by the parties. As part of the motion, the appellant expressly waived his appeal to those parts of the Board decision that denied rating an initial rating in excess of 10 percent from December 11, 2008 for residuals of frostbite to the left and right lower extremities; and a rating in excess of 30 percent from November 8, 2017 for residuals of frostbite to the left and right lower extremities. The appellant also indicated that the Court dismiss the appeal with respect to those issues. Pursuant to a JMPR, in an August 2020 Order, the Court vacated, in part, the Board’s October 2019 decision with regard to the issue of TDIU and remanded the matter to the Board consistent with the terms of the joint motion. Entitlement to a TDIU. The Veteran maintains that his service-connected disabilities, particularly his residuals of frostbite, prevent him from securing or following substantially gainful employment since 2004. See Form VA 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability received January 2016. As indicated in the August 2020 JMPR, the parties state the Board erred in relying on inadequate VA opinions in its October 2019 decision to deny TDIU. See JMPR at 2. Specifically, the parties state the Board erred in relying on the March 2017 examiner’s opinion which found it “‘unlikely’ that Appellant’s lower extremity peripheral neuropathy is the result of service connected frostbite,” where service connection was subsequently granted on a secondary basis in a February 2018 rating decision. Id. at 3. The parties also indicate the February 2018 addendum opinion relied on by the Board lacked clarity and was “unclear.” The February 2018 examiner stated that “Appellant has prolonged non-weight bearing, which is caused by peripheral neuropathy, and that non-weight bearing results in osteopenia, but also stated that osteopenia does not impair weight bearing.” Id. Next, the parties indicate the Board did not address a favorable VA neurology note dated January 2019 where the VA physician noted appellant “has great difficulty with balance and ambulation due to his sensory difficulties in his feet.” Id. The Veteran recently submitted a September 2020 private opinion from Vocational Expert Services. The consultant indicated the assessment was focused on the effects of service-connected conditions of residuals of frostbite bilateral upper extremities rated at 30 percent each; residuals of frostbite bilateral lower extremities rated at 30 each; peripheral neuropathy of the bilateral lower extremities rated 20 percent each; tinnitus at 10 percent; and noncompensable bilateral inguinal hernia and scar. The consultant opined the Veteran’s “service-connected disability conditions are likely to have resulted in his inability to secure or maintain substantially gainful employment at any exertional level as of 12/28/2016.” See private opinion submitted September 2020. However, the record shows a December 2015 VA examiner noting the Veteran’s multiple chronic conditions of diabetes mellitus type II, renal failure, peripheral vascular disease, hypertension, chronic pain treated with opioids, medical conditions for which he is not service connected. The Board also observes the last VA examination for peripheral neuropathy was in February 2018 and for cold injury residuals in July 2018. In light of the arguments raised in the August 2020 JMPR and submission of private opinion dated September 2020, which has not been considered, remand is warranted for a reexamination and medical opinion contemplating the additional evidence of record. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected residuals of frostbite and peripheral neuropathy. The electronic claims file should be accessible to the examiner in connection with the examination. The examiner should consider all signs and symptoms necessary for evaluating the disability under the rating criteria as indicated by the relevant Disability Benefits Questionnaire (DBQ). The examiner is asked to consider the September 2020 private opinion from Vocational Expert Services submitted by the Veteran. An explanation for all opinions expressed must be provided. 2. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable to the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate Counsel 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.