Citation Nr: 21074566 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-34 017 DATE: December 15, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to June 1979 and from July 1981 to September 1992. This matter is on appeal from a May 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in June 2019, September 2020, and April 2021 when it was remanded for further development. Entitlement to TDIU is remanded. The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The Board finds that further development is necessary to address a contention raised by the Veteran's attorney in July 2021 written argument. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). As explained in the prior remand, the Veteran does not meet the requirements for a schedular TDIU during the appeal period. Further, if a Veteran fails to meet the schedular criteria and is unable to secure or follow a substantially gainful occupation by reason of service-connected disability, the case should be referred to the Director of Compensation Service for extraschedular consideration. Id. In November 2020, the Veteran was provided with a VA examination in which the clinician discussed the functional impairment caused by the Veteran's service-connected disabilities and the effect on his ability to function in an occupational environment. The Board thereafter referred this matter to the Director of Compensation Service for an opinion as to whether the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment pursuant to 38 C.F.R. § 4.16(b). In July 2021, the Director of Compensation Service provided an advisory opinion stating that the Veteran's service-connected disabilities would not preclude all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. Thereafter, VA received a letter from the Veteran's attorney in July 2021 stating that VA failed to consider the extent to which the side effects of the Veteran's pain medications (four to six Oxycodone tablets per day to alleviate pain) could interfere or prohibit the Veteran from sustained gainful employment in any capacity, to include in sedentary and semi-sedentary settings. However, the record reflects that the November 2020 examiner did not address the functional impact from the Veteran's pain medication taken for his service-connected disabilities. Thus, an addendum opinion must be obtained to address this question. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2021 to the present. 2. After completing the development requested in item 1, return the claims file to the November 2020 VA examiner, or another appropriate clinician if that examiner is not available, for review and an addendum medical opinion. An in-person (or telehealth) examination is only necessary if deemed so by the clinician. The clinician is asked to provide an opinion on the functional impairment caused by the Veteran's use of pain medication for his service-connected disabilities (to include the use of Oxycodone tablets, at least four times per day, to alleviate pain). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.