Citation Nr: 21000410 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-34 498 DATE: January 5, 2021 REMANDED Entitlement to an effective date prior to July 21, 2016, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from July 1978 to July 1981 and from May 1984 to September 1989. The Board remanded the case in October 2016 to schedule the Veteran for a Board hearing. In December 2016, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Board remanded the issue again in November 2017 and February 2020 for further development. 1. Entitlement to a TDIU prior to July 21, 2016, is remanded. Unfortunately, another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. A TDIU award of benefits may be granted where the schedular rating is less than total, but when it is found that the disabled person is 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. §§ 3.340, 3.341, 4.16(a). Section 4.16(a) states that for the purpose of determining whether a claimant has one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. Here, in the November 2017 decision, the Board granted entitlement to a TDIU from July 21, 2016. The Board remanded the issue of entitlement to a TDIU for the remainder of the period of appeal (from September 25, 2012, to July 20, 2016). In the February 2020 decision, the Board determined that the Veteran met the schedular requirements for entitlement to a TDIU for the period of appeal from September 25, 2012, to July 20, 2016, and remanded the issue to obtain a medical opinion on whether the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment for the relevant period of time. In March 2020, a VA examiner reviewed the claims file, providing a detailed list of relevant records. The examiner noted that prior to July 21, 2016, the low back pain was “significant” and required imaging and a Tens unit, caused radiculopathy symptoms, and required medication. The examiner also noted that the Veteran had left knee pain prior to July 21, 2016. However, the examiner did not identify any limitations or functional impairment caused by the low back, bilateral radiculopathy, and/or the left knee prior to July 21, 2016, nor did he comment on the Veteran’s employability for this period of time. Therefore, there has not been substantial compliance with the remand directives, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance). The matter is REMANDED for the following action: Contact the VA examiner who provided the March 2020 medical opinions (or if he or she is no longer available, a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinions. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner. The examiner should provide an opinion regarding the severity of the Veteran’s service-connected low back, bilateral lower extremity radiculopathy, and left knee for the period from September 25, 2012, to July 21, 2016. The examiner should specifically identify all limitations and/or functional impairment, including the Veteran’s employability, caused solely by the low back, bilateral radiculopathy, and left knee for the relevant time period in light of the Veteran’s educational background and work history. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.