Citation Nr: 21065306 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-43 833 DATE: October 25, 2021 REMANDED The issue of entitlement to service connection for cervical strain is remanded. The issue of entitlement to service connection for a clavicle condition is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 9, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April to September 1974, June 2004 to May 2005, and March 2006 to October 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in August 2018 at which time it was remanded for further development. 1. The issue of entitlement to service connection for cervical strain is remanded. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Examinations that fail to describe the condition in sufficient detail; those that do not consider all the relevant evidence of record, including lay statements; and those that rely on the absence of evidence in the Veteran's service medical records are inadequate for VA purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, two opinions were provided in furtherance of the Veteran's claim for service connection for cervical strain. Neither the May 2013 opinion nor the May 2021 opinion described the Veteran's cervical strain in detail or incorporated the Veteran's lay statements. In addition, both opinions relied on the lack of service treatment records evidencing treatment for cervical strain to opine that no connection existed between the Veteran's cervical strain and his active-duty service. Thus, both opinions are inadequate for VA purposes, and remand to obtain an adequate opinion is necessary. 2. The issue of entitlement to service connection for a clavicle condition is remanded. The August 2018 remand confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders, and the Board has a duty to ensure that compliance. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Those remand orders called for an opinion addressing the possibility of a connection between the Veteran's in-service incident, whereby a cabinet fell on his right shoulder, and his clavicle condition. That opinion was not provided. Therefore, remand is necessary. The Board notes that the Veteran is already service connected for a right shoulder rotator cuff tear and tendinitis which incorporates some clavicle impact; however, the Board also notes that the Veteran's service treatment records include a diagnosis for thoracic outlet syndrome. See 9/14/2011 Service Treatment Record. Upon remand, an opinion is needed which addresses any connection between the Veteran's current clavicle symptoms and that diagnosis. 3. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 9, 2017 is remanded. A TDIU may be assigned where the schedular rating is less than total, when the Veteran is, in the judgement of the rating agency, unable to secure or follow a substantially gainful occupation consistent with his education, training, and work experience as a result of service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Neither the Veteran's age nor nonservice-connected impairment may be considered. 38 C.F.R. §§ 3.341, 4.16a, 4.19. If there is only one service-connected disability, that disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In this case, the Veteran's combined schedular rating was 100 percent as of February 9, 2017. Therefore, as of that date, he did not meet the schedular rating requirements for consideration for TDIU. However, while he may have been entitled to TDIU prior to February 9, 2017, that determination is dependent upon the resolution of the aforementioned claims. Therefore, a TDIU determination prior to that date is premature at this juncture. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate clinician to provide a medical opinion regarding the nature and etiology of the Veteran's cervical strain. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's cervical strain had its onset in, was caused by, or is otherwise related to service? (b) Is it at least as likely as not (50 percent probability or more) that the condition was caused by a service-connected disability, to include service-connected lumbar spine disorder? Please explain why or why not. (c) If not caused by a service-connected disability, is it at least as likely as not that the condition has been worsened beyond normal progression by a service-connected disability, to include lumbar spine disorder? Please explain why or why not. (d) If the examiner finds that the condition has been worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of cervical strain that is attributed to the service-connected disability (e.g., increase severity, decrease strength, decrease range of motion). The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. A complete rationale for all opinions rendered must be provided. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate as such and provide a supporting rationale as to why that is so. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Forward the Veteran's claims file to an appropriate clinician to provide a medical opinion regarding the nature and etiology of the Veteran's clavicle condition. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: (e) Is it at least as likely as not (50 percent probability or more) that the Veteran's clavicle condition had its onset in, was caused by, or is otherwise related to service? Comment specifically on the thoracic outlet syndrome diagnosed in service. (f) Is it at least as likely as not (50 percent probability or more) that the condition was caused by a service-connected disability, to include service-connected right shoulder disorder? Please explain why or why not. (g) If not caused by a service-connected disability, is it at least as likely as not that the condition has been worsened beyond normal progression by a service-connected disability, to include right shoulder disorder? Please explain why or why not. (h) If the examiner finds that the condition has been worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of clavicle condition that is attributed to the service-connected disability (e.g., increase severity, decrease strength, decrease range of motion). The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. A complete rationale for all opinions rendered must be provided. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate as such and provide a supporting rationale as to why that is so. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Provide the Veteran with additional VA Forms 21-8940 and 21-4192. Document all attempts to obtain employment information and associate with the claims file. Following a review of the form and any additional evidence provided, the RO should make an initial determination regarding entitlement to a TDIU. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.