Citation Nr: 21062872 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 08-33 740 DATE: October 12, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) to include as on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) as a derivative TDIU claim from the appeal of a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the Veteran's entitlement to a TDIU in a December 2018 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (Court), and in an August 2020 Memorandum decision the Court vacated the December 2018 Board decision and returned the case to the Board for action consistent with the memorandum decision. The Board then remanded the claim in May 2021 for further development. When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). TDIU As part of the May 2021 Board Remand, the RO was required to obtain a medical opinion wherein the clinician evaluated the functional impact of the Veteran's service-connected disabilities on his ability to perform sedentary and manual work. While the RO obtained a July 2021 medical opinion, for the reasons explained below the Board finds it to be inadequate. As part of the remand, the clinician was required to provide a full description of the effects of the Veteran's service-connected disabilities on his ordinary activity including any degree of impairment of the Veteran's ability to stand, walk, sit, as well as any impact on the Veteran's ability to do manual work. Further, the clinician was specifically required to address the February 2011 VA examination's findings which evaluated the impact of the Veteran's service-connected disabilities on the Veteran's ability to sit. If the clinician's current assessment differed from the 2011 examiner's, then the clinician was to explain why with reference to the evidence of record and/or medical treatises. After completion of the above, the agency of original jurisdiction (AOJ) was to ensure the clinician's opinion responded to the Board's directives and then refer the case to the Director of Compensation Service (Director) for a determination regarding whether the Veteran was entitled to an extraschedular TDIU rating. However, the July 2021 examiner did not comply with the Board's remand instructions. The examiner seems to indicate that the Veteran's service-connected disabilities had no impact on the Veteran's employment because with his disabilities he had been employed at the USPS Post office but has since retired. The clinician continues that the Veteran's current limitations are due to non-service-connected disabilities but does not actually discuss specific conditions. Further, while the examiner notes the February 2011 examination in prompt for his rationale, he does not discuss the examination, nor its findings about the Veteran's limited capacity to sit. Nor does the examiner discuss the limitations attributed to the Veteran's service-connected conditions by his other prior VA examinations. It is unclear whether this examiner's opinion differs from that of prior examiners, or if the examiner is saying that the Veteran experiences no functional limitations at all. As such, the Board finds that a new medical opinion is required. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a VA examiner, who has yet to opine on this case, with sufficient expertise to comment on the functional impairment/occupational effects caused by the Veteran's service-connected disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. The examiner must evaluate the functional and occupational impact of the Veteran's service-connected disabilities on his ability to perform sedentary and manual work. The examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected conditions for each disability. Additionally, the clinician must provide a full description of the effects of service-connected disabilities upon the Veteran's ordinary activity, including the degree of any impairment of the Veteran's ability to sit, stand, and walk, as well as any impact on the Veteran's ability to do manual work. The types of impairments the examiner should address include, but are not limited to: limitations with bending, sitting, standing, or walking. The clinician must address findings in the February 2011 VA examination report which evaluated the impact of the Veteran's service-connected disabilities upon the Veteran's ability to sit. Should the instant clinician's "assessment on the Veteran's ability to sit for prolonged periods" differ, the clinician must explain whywith reference to evidence of record and/or medical texts/research studies/treatises The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. Should the clinician reject the Veteran's reports, she/he must provide an explanation for such rejection. Complete, clearly stated rationales for the conclusions reached must be provided. Explanations are required that consider the record and pertinent medical principles and the clinician's rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. (Continued on the next page) The examiner must provide a complete rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. The agency of original jurisdiction (AOJ) must ensure that the clinician's opinion responds to all of the Board's directives. Upon completion of ensuring this compliance, the AOJ should refer the Veteran's case to the Director of Compensation Service for entitlement to a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.