Citation Nr: 21066393 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-15 753 DATE: October 29, 2021 REMANDED Entitlement to service connection for Guillain-Barre Syndrome, to include as due to Agent Orange exposure or as secondary to lung cancer, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran testified before the undersigned Veterans Law Judge in an October 2017 Travel Board hearing. A transcript of the hearing has been associated with the file. The Board remanded the matters twice, in July 2018 and April 2021. Frustratingly, the Board finds that there has not been substantial compliance of the remand directives and therefore another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). As described in the April 2021 remand the November 2020 opinions are inadequate. Unfortunately, a review of the June 2021 VA opinions illustrates that these opinions, too, are inadequate. The examiner did not provide sufficient rationale on a direct theory of entitlement. His rationale is conclusory, simply stating that active-duty records and medical records are silent for evidence. He lists articles but does not describe how it is that in this case the Veteran's Guillain-Barre Syndrome is not related to service, to include his presumed Agent Orange exposure. As such a remand is needed to obtain an adequate medical opinion on a direct theory of entitlement. The VA examiner also opined that the Veteran's Guillain-Barre Syndrome is not due to or has not been aggravated beyond its natural progression by his service-connected disabilities. The rationale provided is conclusory, stating no such direct causal relationship exists for either condition. Additionally, the examiner just listed all the service-connected disabilities together, without providing rationale specific to each disability. As stated in the April 2021 remand, a VA opinion for secondary theory of entitlement must address aggravation and causation separately with rationale specific to those findings. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). As explained in the April 2021 remand, the TDIU claim is rendered moot from November 1, 2011 to September 30, 2020 and as of December 29, 2020, because there is no residual benefit that is available from concurrent assignment of both a 100 percent schedular rating and a TDIU given that the Veteran is receiving special monthly compensation under 38 U.S.C. § 1114 (s). However, from October 1, 2020 to December 28, 2020, the Veteran was not in receipt of 100 percent schedular rating for any of his disabilities. As such, entitlement to TDIU is not rendered moot for the entire period on appeal. The Veteran contends that his Guillain-Barre Syndrome (GBS) is the disability that has caused him to be unemployed. As the service connection claim for GBS is being remanded for further development, the issue of entitlement to a TDIU is inextricably intertwined and must be remanded. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should forward the Veteran's claims file to an appropriate examiner to determine the nature and etiology of his Guillain-Barre Syndrome, preferably with an examiner other than the one who performed the November 2020 examination or provided the June 2021 VA opinions. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. 2. Following review of the claims file and examination of the Veteran (if an examination is performed), the examiner should provide opinions that respond to the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran's Guillain-Barre Syndrome, manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include his presumed exposure to herbicide agents. The examiner is advised that the Veteran was exposed to herbicide agents during service. The examiner is further advised that the fact that Guillain-Barre Syndrome is not a disease that is presumptively associated with herbicide exposure under 38 C.F.R. § 3.309(e) may not be the only basis for a negative nexus opinion. In other words, there should be a more complete medical explanation of why medical evidence does not show Agent Orange is a risk factor for this Veteran's Guillain-Barre Syndrome. The examiner should also opine: (b.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's Guillain-Barre Syndrome, is proximately due to or caused by the Veteran's service-connected disabilities, to include his service-connected lung cancer. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's Guillain-Barre Syndrome, was aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities, to include his service-connected lung cancer. The examiner is advised that separate rationale for each service-connected disability is requested when opining as to whether there is correlation between the Veteran's diagnosed Guillain-Barre Syndrome and his service-connected disabilities. The examiner is also advised that the Veteran is competent to report observable symptoms. The examiner is further advised that the mere absence of treatment records is not wholly dispositive as to whether he had ongoing problems related to Guillain-Barre Syndrome since service, or as to whether the reported symptoms are credible. Any opinion offered must be supported by a complete rationale. If the clinician feels that the requested opinion cannot be rendered without resorting to speculation, he or she must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required), or the examiner does not have the needed knowledge or training). 3. The AOJ should ensure that the addendum opinions conform with the remand directives. 4. Re-adjudicate the TDIU claim, to include consideration of whether TDIU is warranted at any time TDIU is not considered moot. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.