Citation Nr: 21002646 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 03-05 599A DATE: January 14, 2021 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) from December 23, 2002, to May 16, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1978 to November 1982, with additional service in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2011, the Board held that a TDIU claim was “reasonably raised by Veteran’s statements at a January 2010 VA examination” under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU claim and three other claims for additional development. The other claims were entitlement to service connection for a right shoulder disorder, entitlement to an increased rating for service-connected laceration of the right index finger, and entitlement to an increased rating for service-connected left-hand ulnar nerve laceration. In August 2012, the Board denied the Veteran’s increased rating claims and remanded the Veteran’s right shoulder claim for an addendum opinion. The TDIU claim was also remanded, but no specific development was ordered. In February 2013, the RO granted entitlement to TDIU from December 26, 2012, the date from which the Veteran met the schedular criteria for TDIU. The Veteran appealed the effective date of that decision. In July 2013, the Board denied the Veteran’s claim of entitlement to service connection for a right shoulder disorder. Regarding TDIU, the Board noted that since the August 2012 Board decision, the Veteran had been service connected for other disorders, notably PTSD. The Board ordered an examination to “address whether it is at least as likely as not that the Veteran’s service-connected disorders cause unemployability.” In October 2015, the Board remanded the Veteran’s claim for additional development, including obtaining a Social Work and Industrial Survey outlining how the Veteran’s employability between 2002 and 2012 was affected by his service-connected disabilities, both individually and in the aggregate. In October 2015, the Board stated that medical opinions dated December 2014, April 2015, and July 2015 “failed to provide an opinion as to the impact of the Veteran’s service-connected conditions on his unemployability in the aggregate.” The Board remanded the Veteran’s TDIU claim to “obtain a social and industrial survey from a different examiner than the one who provided the 2015 survey, to ascertain the Veteran’s employment during the relevant time periods.” The Board further stated that “the examiner must review the prior July 2015 survey.” The fact that the July 2015 survey was to be reviewed on remand indicates neither it nor the other opinions were inadequate for all purposes. In April 2017, the RO granted entitlement to TDIU for the period from May 17, 2012, to December 25, 2012. In July 2017, the case returned to the Board. The Board denied the Veteran’s claim of entitlement to TDIU prior to May 17, 2012. In doing so, the Board held that an April 2017 VA Social and Industrial Survey was not probative, in that it was based on an assessment of PTSD symptoms, for which the Veteran was not service connected until May 17, 2012. Nevertheless, the Board held that an additional remand was not required for a new survey, in that the RO had substantially complied with prior remand instructions by obtaining VA medical opinions dated April 2016 and October 2016. Also, the Board found that there was sufficient additional information of record that allowed the Board to address the Veteran’s claim, including numerous statements by the Veteran to medical providers that nonservice-connected disabilities and PTSD caused unemployment. In April 2018, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (Joint Motion), on the bases that in issuing a July 2017 decision, the Board erred by failing to ensure substantial compliance with prior remand instructions; and by relying on an April 2015 VA medical opinion that had been held inadequate. In August 2018, the case returned to the Board. The Board remanded the Veteran’s claim in order to obtain a social and industrial survey for the period from December 23, 2002, to May 16, 2012. 1. Entitlement to a total disability rating due to individual unemployability from December 23, 2002, to May 16, 2012 is remanded. The Board notes that a social and industrial survey was obtained in April 2019. Following a review of the record, the examiner simply stated that no examiner has ever found that the Veteran’s service-connected disabilities either alone or together in the aggregate are of sufficient severity to produce unemployability. The Board finds this opinion inadequate because the examiner did not provide a well-reasoned and thorough analysis that discussed the level of occupational impairment that the Veteran’s disabilities exhibited during this period of the appeal. Thus, the Board finds that a remand is required to obtain a more complete medical opinion that specifically addresses the occupational impairments and functional impact on the Veteran’s ability to work. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). The Board notes that it is VA’s unofficial policy to not request social and industrial surveys. The reason is that such surveys are generally completed by a social worker, and most VA facilities do not have a social worker on staff. This can result in unnecessary delays in adjudication as the RO seeks to locate a social worker at a different facility who is able to complete the survey. Such delays in adjudication have been frowned upon by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Martin v. O’Rourke, 891 F.3d 1338, 1352 (Fed. Cir. 2018) (Moore, J., concurring). While that may be the case, pursuant to the case of Stegall v. West, 11 Vet. App. 268 (1998), the Board finds it necessary to remand this matter to afford the Veteran a social and industrial survey in order to comply with the prior Board remand instructions and the April 2018 Joint Motion. The matters are REMANDED for the following action: The RO should obtain an addendum opinion from the April 2019 examiner. The examiner’s opinion should provide a more detailed analysis with respect to whether the Veteran’s service-connected disabilities rendered him unable to secure or maintain a substantially gainful occupation during the period of December 23, 2002, to May 16, 2012. The examiner’s addendum opinion must include a discussion regarding the occupational and functional impact the Veteran’s disabilities had on his ability to work. The examiner’s opinion must also include a discussion as to whether the Veteran’s disabilities together in the aggregate are of sufficient severity to produce unemployability during the subject time period. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.