Citation Nr: 21075454 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 95-38 804 DATE: December 20, 2021 REMANDED Entitlement to an effective date prior to January 23, 1998, for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1978 to October 1982. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C. that, in part, granted entitlement to a TDIU rating, effective February 27, 2002. The Board remanded the claim in August 2005. In a February 2006 decision, the Board denied entitlement to an effective date earlier than February 27, 2002, for the award of a TDIU rating. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which, in November 2007, on the basis of a Joint Motion for Remand (Joint Motion), vacated the Board's February 2006 decision and remanded the matter to the Board for further action. In a June 2008 decision, the Board again denied entitlement to an effective date earlier than February 27, 2002, for the award of a TDIU rating. The Veteran appealed the Board's decision to the Court, which, in a March 2011 Memorandum Decision, vacated the Board's June 2008 decision and remanded the matter to the Board for further action. In a December 2011 decision, the Board again denied entitlement to an effective date earlier than February 27, 2002, for the award of a TDIU rating. The Veteran appealed the Board's decision to the Court, which, in August 2012, on the basis of a Joint Motion, vacated the Board's December 2011 decision and remanded the matter to the Board for further action. In an October 2013 decision, the Board granted an effective date of January 23, 1998, for the award of a TDIU rating. In August 2014 and January 2015, the Board denied motions to reconsider its October 2013 decision. However, in June 2015, the Board granted the Veteran's motion for reconsideration the portion of the October 2013 Board decision that denied entitlement to a TDIU rating from July 29, 1993, to January 22, 1998. Because of the Board's grant of reconsideration, the October 2013 Board decision was vacated as a matter of law. In September 2015, the Board panel remanded the case to the Director, Compensation Service, to consider entitlement to a TDIU rating on an extraschedular basis in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In July 2016, the Director determined that entitlement to a TDIU rating on an extraschedular basis was not warranted prior to January 23, 1998. The panel determined that an additional medical opinion was needed to resolve conflicting medical evidence of record, to include opinions obtained from the Veterans Health Administration (VHA) in 2013. See August 2018 VHA request. In October 2018, the Board obtained a medical expert opinion from a VHA physiatrist. In an April 2019 decision, the Board denied entitlement to an effective date earlier than January 23, 1998, for the award of a TDIU rating. The Veteran appealed the Board's decision to the Court, which, in December 2019, on the basis of a Joint Motion, vacated the Board's April 2019 decision and remanded the matter to the Board for further action. Most recently, in an August 2020 decision, the Board again denied entitlement to an effective date earlier than January 23, 1998, for the award of a TDIU rating. The Veteran appealed the Board's decision to the Court, which, in April 2021, on the basis of a Joint Motion, vacated the Board's August 2020 decision and remanded the matter to the Board for further action. 1. Entitlement to an effective date prior to January 23, 1998, for the grant of TDIU is remanded. While the Board regrets additional delay in this case, the matter must be remanded for additional development. In the April 2021 Joint Motion, the parties agreed that the Board erred when it failed to provide an adequate statement of reasons with regard to a March 2018 private opinion. The Veteran has most recently submitted an October 2021 vocational expert report in support of his claim. Based on the April 2021 Joint Motion, and in light of the October 2021 vocational expert report, the Board finds that this matter must be remanded for a retrospective medical opinion addressing the symptoms and severity of his service-connected disabilities for the period prior to January 23, 1998. The matters are REMANDED for the following action: Forward the Veteran's claims file to the October 2018 physiatrist, and if unavailable, another appropriate VA clinician to obtain a retrospective opinion regarding the Veteran's claim for a TDIU rating prior to January 23, 1998. The reviewing medical expert is asked to review the entire claims file, and in particular the March 2018 private medical opinion, the August 2018 VHA request, October 2018 VHA opinion, January 2019 vocational consultant opinion, and October 2021 vocational expert opinion, as well as any records referenced in those records, in providing the requested opinions. Based on a review of the claims file, the medical expert is asked to provide an opinion as to the following: (a) Is it at least as likely as not that prior to June 1, 1997, based solely on the Veteran's service-connected left knee instability, he was unable to secure or follow a substantially gainful occupation? In providing this opinion, the medical expert is asked to consider the effect of his left knee pain and related functional impairment. In addition, the medical expert should address whether the Veteran lacked the mental capacity for desk-related/sedentary employment due solely to his service-connected left knee instability (and medicine prescribed to treat such), education, and/or experience. (b) Is it at least as likely as not that prior to July 22, 1997, based solely on the Veteran's service-connected left knee instability and limitation of left knee motion, he was unable to secure or follow a substantially gainful occupation? In providing this opinion, the medical expert is asked to consider the effect of his left knee pain and related functional impairment. In addition, the medical expert should address whether the Veteran lacked the mental capacity for desk-related/sedentary employment due solely to his service-connected left knee instability and left knee limitation of motion (and medicine prescribed to treat such), education, and/or experience. (c) Is it at least as likely as not that prior to January 23, 1998, based solely on the Veteran's service-connected left knee instability, limitation of left knee motion, and lumbar spine disability, he was unable to secure or follow a substantially gainful occupation? In providing this opinion, the medical expert is asked to consider the effect of his left knee and lumbar spine pain and related functional impairment. In addition, the medical expert should address whether the Veteran lacked the mental capacity for desk-related/sedentary employment due solely to his service-connected left knee instability, left knee limitation of motion, lumbar spine disability (and medicine prescribed to treat such), education, and/or experience. (d) If it is found that the Veteran, at any time prior to January 23, 1998, lacked the mental capacity to secure or follow a substantially gainful occupation, the medical expert should identify the cause of such (e.g., the Veteran's service-connected disability(ies), medication prescribed to treat such disability(ies), or due to nonservice-connected disabilities). (e) Is it at least as likely as not the Veteran lacked the capacity for training to operate computers at any time prior to January 23, 1998? If the answer to any of the above questions is yes, the please specify the date on which the Veteran became unable to secure or follow a substantially gainful occupation. The Veteran's level of education and previous work experience must be considered in the formulation of the opinion. The Veteran's age and the impact of any nonservice-connected disabilities must not be considered. The medical expert should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why that is so. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals M.E. Larkin Veterans Law Judge Board of Veterans' Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.