Citation Nr: 21001670 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 07-33 104 DATE: January 11, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1990 and July 1993 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, the Veteran testified at a Board hearing conducted by a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s VA claims file. In October 2018, the Veteran was informed that the VLJ that conducted the hearing was no longer employed by the Board. The Veteran was offered the opportunity to appear at another Board hearing but declined. In December 2016, the matter was remanded for further development. This case was last before the Board in April 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. The Board finds that an addendum opinion is warranted for the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). An adequate medical opinion must be based upon a consideration of the Veteran’s prior medical history and must describe the Veteran’s condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In short, an adequate medical opinion should contain sufficient information such that the Board is not required to rely on its own independent medical judgment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In May 2017, a VA examiner found that the Veteran’s service-connected major depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. In regards to unemployability, the examiner noted Veteran had had not worked since “2007 or 2008” and that the Veteran’s depressive symptoms had “increased in the context of increased chronic pain, and are of such a severity as to cause impairment in sleep, mood, motivation, ability to complete tasks, stay on task, cope with daily stress effectively, and affect his ability to interact with others to such a severe degree as to hinder Veteran’s ability to retrain for a position that would provide him gainful employment, while considering Veteran’s age and numerous physical limitations caused by a number of chronic medical conditions.” The examiner opined that the Veteran was unable to return to the workforce in either a physical or sedentary position. The Board notes that this opinion is inadequate in that it appears to consider non-service-connected disabilities in regard to the Veteran’s employability. The Board notes that the Veteran is only service connected for depression and chronic lumbar strain. However, the examiner cites “numerous physical limitations, caused by a number of chronic medical conditions,” that relate to the Veteran’s employability. On remand, an addendum opinion should be sought that only considered the Veteran’s service-connected depression and chronic lumbar strain. Furthermore, the Veteran’s VA treatment records reflect that he was followed by a private practitioner in December 2013 and was seen at St. Rita’s Medical Center in August 2009. See January 2017 VA Treatment Records and October 2012 CAPRI. Additionally, during his October 2009 VA examination, the examiner noted that the Veteran had been treated by a private chiropractor while on vacation. Those records, if any, have not been associated with the Veteran’s file. Because the clinical records of the treatment, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c). See also 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Ask the Veteran to provide a release for relevant records of treatment from any private practitioners, chiropractors, or, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. Specifically, treatment records from St. Rita’s Medical Center should be sought. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran should be notified. 3. Return the file to the examiner who conducted the May 2017 VA psychiatric examination. The need for conducting a new examination is left to the discretion of the examiner. After reviewing the record, together with the results of any testing deemed necessary, the examiner should provide a clear opinion regarding the Veteran’s employability, as a result of functional impairment associated with his service-connected disabilities, without regard to non-service-connected impairments. The examiner’s attention is drawn to the January 2007 Request for Employment Information in Connection with Claim for Disability, which reflects that the Veteran not have any disability concessions at this last known employment and was terminated “for cause.” A complete rationale for all opinions should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.