Citation Nr: 21073559 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 04-41 155 DATE: December 9, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 5, 2006 under 38 C.F.R. § 4.16 (b) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1980 to April 1989. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran's claim for TDIU arose out of his claim for an increased rating for his left knee disability filed in March 2003. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for TDIU was initially raised by the Board in a July 2014 decision where it was remanded for additional development. In February 2017 and June 2018, the Board denied the claim and the Veteran subsequently appealed the decisions to the U.S. Court of Appeals for Veterans Claims (Court). In both March 2018 and June 2019, the Court granted Joint Motions for Remand (JMR) and remanded the claim for action consistent with the terms of the JMRs. The claim was remanded by the Board in February and December 2020 for additional development. The Veteran's claim was most recently before the Board in July 2021 where it was remanded for consideration of a TDIU on an extraschedular basis. Entitlement to a TDIU prior to December 5, 2006 is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted above, the Veteran's claim was remanded by the Board in December 2020. The Board instructed the examiner to fully describe what types of employment activities would have been limited during the period prior to Deceber 5, 2006 and what types of employment would not be limited for which his education and occupational experience would otherwise qualify despite the effects of his service-connected disabilities. Review of the April 2021 VA medical opinions fail to reflect the examiners' opinion as to what types of employment the Veteran would qualify based on his education and occupational experience despite the effects of his service-connected disabilites prior to December 5, 2006. Thus, remand is required for complaince with previous remand directives. Additionally, in July 2021, the Board requested extraschedular consideration by the Director of Compensation Service. The August 2021 VA advsiory opinion drafted by the Director of Compensation Service notes that a March 2005 Social Security Administration (SSA) letter that notes the Veteran was denied disability benefits was considered when formulating the decision. Review of the March 2005 SSA letter indicates the Veteran did not file an application and therefore an informal decision was made to deny eligibility for benefits. At a June 2005 Board hearing, the Veteran testified that he had been denied SSA benefits several times and that the agnecy had relevant medical evidence regarding his service-connected disabilities. In a May 2006 decision, the Board instructed these records be obtained and associated with the claims file. The records were requested and in 2006 the SSA indicated that the Veteran was not entitled to disability or social security insurance (SSI) benefits. In September 2008, the SSA indicated that the Veteran's medical records were not able to be located. There have been no further attempts to obtain such records. As such the Board finds additional attempts should be made to obtain these records prior to the adjudication of the appeal. 38 C.F.R. § 3.159 (c)(2) (2020). The matter is REMANDED for the following action: 1. Contact the SSA to obtain the Veteran's SSA records. If any records are unavailable, a Memorandum of Unavailability should be associated with the claims file. 2. After the above development, obtain a retrospective opinion addressing the combined functional effects of the Veteran's service-connected disabilities prior to December 5, 2006, based on the electronic claims file review. The contents of the entire, electronic claims file, to include a complete copy of this REMAND), must be made available to the examiner, and the opinion should include discussion of the Veteran's documented history and all lay assertions. Based on full consideration of all pertinent medical and lay evidence, the examiner must identify and fully describe the combined functional effects of the Veteran's service-connected disabilities on his ability to perform the physical acts required for gainful employment prior to December 5, 2006. The examiner should fully describe what types of employment activities would have been limited prior to December 5, 2006 because of his service-connected disabilities, and what types of employment would not be limited (if any) for which his education and occupational experience would otherwise qualify him despite the effects of his service-connected disabilities. In doing so, the examiner may consider and discuss the Veteran's education and workplace skills, as well as the effects of any associated medications, but not the Veteran's age or distinguishable impairment from any nonservice-connected disorders. 3. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran must be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.