Citation Nr: 21062113 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 07-36 875 DATE: October 6, 2021 REMANDED Entitlement to an extraschedular 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 United States Army from December 1974 to December 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision. An October 2010 Board decision, in part, denied entitlement to a TDIU rating on a schedular and extraschedular basis. The Veteran appealed that decision to the U. S. Court of Appeals for Veterans Claims (CAVC). In August 2011, the CAVC granted a Joint Motion for Partial Remand (JMPR) by the parties, thus vacating, in part, the October 2010 Board decision in this matter, and remanding the matter to the Board for action in accordance with the JMPR. In April 2012 and September 2016, the matter was remanded by the Board for further development. Thereafter, a June 2017 Board decision denied, in part, entitlement to a TDIU rating. The Veteran appealed that decision to the CAVC. In July 2018, pursuant to a Joint Motion for Remand (JMR) by the parties, the CAVC vacated the June 2017 decision and remanded the matter to the Board for action in accordance with the June 2018 JMR. In January 2019, the matter was remanded for further development. A September 2020 decision, the Board denied entitlement to service connection for a migraine headache disability and remanded entitlement to a TDIU rating. A February 2021 Board decision remanded the claim for referral to the Director of Compensation Service. The Director of Compensation concluded that an extraschedular TDIU was not warranted, and the agency of original jurisdiction (AOJ) continued the denial of the Veteran's claim. In May 2021, the case was remanded because clarification by a VA clinician regarding the Veteran's functional limitations from his service-connected disabilities was needed. The Board regrets the further delay, but unfortunately, it finds that the May 2021 remand instructions were not adequately fulfilled. See Stegall v. West, 11 Vet. App. 268 (1998). While the Veteran does not meet the schedular criteria for a TDIU, entitlement to a TDIU is warranted under 38C.F.R. §4.16(b) regardless of the veteran's disability ratings when the service-connected disabilities alone render him unemployable. Because this issue has been referred to the Director of Compensation, who determined an extraschedular TDIU rating was not warranted, the Board is now before the Board for a decision on the merits. The June 2018 CAVC decision directed the Board to consider whether the March 2016 VA examiner's opinion that the Veteran has functional limitations, based on his report of constant pain and inability to perform manual labor due to his lumbar spine, supported entitlement to a TDIU. A review of the March 2016 VA examination report found that the VA examiner reported the Veteran's pain complaints, but did not provide a specific opinion about related functional limitations. A subsequent September 2019 VA examination for back condition included the opinion that he would have difficulty with "prolonged" sitting, standing, walking, bending, lifting, and twisting due to pain; however, the meaning of "prolonged" was not clear. In addition, neither the March 2016 nor the September 2019 VA examiner considered the VA treatment notes indicating that the Veteran's opioid dependence increases his pain or discuss his statement in a November 2005 VA treatment record that the medications for his service-connected disabilities had a functional impact. Therefore, in May 2021, the Board remanded the claim to obtain a medical advisory opinion that addressed these matters. In a July 2021 VA opinion, the consulting provider opined that the Veteran experienced no restrictions for job activities due to his service-connected gastroesophageal reflux disease with grade I esophagitis, small sliding hiatal hernia, and non-erosive gastritis and peptic ulcer disease. In an additional July 2021 VA opinion, the provider indicated that the claims file was reviewed, and that the Veteran's occupation was identified as landscaper. She noted that a Society for Human Resource Management (SHRM) publication showed that the physical requirements for a groundskeeper/landscaper included in part: prolonged periods of walking, standing, bending, and kneeling, a physical ability to operate power equipment, an ability to lift up to 50 pounds at a time, and an ability to work in a variety of weather conditions. The provider opined that (regarding only his service-connected back disability) it was at least as likely as not that the Veteran is able to sit, stand, walk bend, stretch, push, pull, climb ladders and/or kneel 6 hours or less out of an 8-hour day and exert 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, which is consistent with "medium" work. She noted that whether a prescription drug will adversely affect the ability to safely operate machinery will depend on a number of factors, including the nature of the drug and bioavailability, etc., and that the Veteran's opiod use can impair his ability to safely operate machinery including mowers and trimmers, so safer alternates would include the use of rakes and/or shovels. The opinion is inadequate for rating purposes for multiple reasons. Although the provider indicated that the claims file had been reviewed, there was no discussion of the March 2016 VA examination report (as directed), and although the provider opined that the Veteran could engage in activities that were consistent with medium work (presumably in reference to the Veteran's reports on September 2019 examination), that opinion did not include any explanation of rationale. The opinion regarding whether prescription drug use would adversely affect ability to safely operate machinery is inadequate because it is speculative ("can") (the Board notes that it did identify "safer alternatives" to use of powered power machinery). Therefore (and considering the agreement by the parties to the JMRs regarding adequacy of development), a remand for a fully adequate medical advisory opinion is necessary. The matter is REMANDED for the following: Arrange for the Veteran's record to be forwarded to an appropriate clinician (other than the July 2021 opinion-provider) for review and addendum medical opinions that (a) identifies all functional limitations due to his service-connected disabilities, and (b) addresses the impact of the disabilities on his ability to obtain and maintain a substantially gainful occupation. The consulting provider should offer an opinion that responds to the following: Describe in detail the functional impairment and expected limitations on employability caused by the Veteran's service-connected disabilities. Disregarding age and effects of any nonservice-connected disabilities identify the types of occupational activities he remains able to participate in from a medical standpoint, if any, and the types of occupations that are precluded by his service-connected disabilities. (a) The rationale provided should consider and address the findings on the March 2016 and September 2019 VA examinations for the Veteran's lumbar spine disability. (b) The rationale provided should also consider and discuss the Veteran's lay testimony and assertions during the pendency of this claim regarding his complaints and how symptoms of his service-connected disabilities have limited his functioning. (c) Address the effects medications prescribed for the Veteran's service-connected disabilities have on occupational functioning, to specifically include the effects of his prescribed opioid medications on his ability to operate machinery, concentrate, and follow instructions. (d) Address the Veteran's statement that his opioid dependence worsens his pain, and also whether any opiod dependence shown is due to medication prescribed for his service-connected disabilities. (e) Note that the Veteran's functional ability should not be described in undefined terms such as "light" or "sedentary" but instead, either if such term is used define the term (what is meant by its use) or provide the particulars (describe the extent and quantify the duration) of the Veteran's ability to sit, stand, walk, lift, or other physical activity (citation to clinically reported data in the record supporting the findings would be helpful). A detailed rationale should be included with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.