Citation Nr: 21005865 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 10-43 995 DATE: February 2, 2021 REMANDED Entitlement to a total rating based on individual unemployability (TDIU) due to a single service-connected disability (mechanical low back pain with degenerative joint disease) is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from July 1973 to August 1976 and from January 1979 to November 1987. The Veteran presented sworn testimony at a hearing before the undersigned in May 2012. This claim was previously remanded by the Board in April 2014 for additional development. In a July 2017 decision, the Board denied entitlement to a higher rating for the Veteran’s residuals of fracture of his left great toe with neuritis and granted entitlement to a TDIU. The RO implemented the decision and assigned an effective date of September 21, 2012, for the award of the Veteran’s TDIU. The Veteran appealed the Board’s July 2017 decision to the extent that the failed to address whether the Veteran’s entitlement to a TDIU could be based on a single disability and agreed that the Board erred when it failed to adjudicate whether the Veteran’s back disability alone (to include the bilateral radiculopathy) warrant a TDIU. The United States Court of Appeals for Veterans Claims (Court), in an August 2018 order, granted the parties’ joint motions for partial remand (JMR), remanding the Board’s July 2017 for compliance with the terms of the JMR. As noted above, in the August 2018 joint motion for partial remand, the parties determined that the Board failed to consider an extra-schedular evaluation for the Veteran’s back disability. Subsequently, the Board remanded this matter in March 2019 for compliance with the Court’s August 2018 date order granting the parties’ joint motion to remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled.). Entitlement to a total rating based on individual unemployability (TDIU) due to a single service-connected disability (mechanical low back pain with degenerative joint disease) is remanded. The Veteran has asserted that his service-connected back disability renders him unemployable, an issue that had not previously before the Board in the adjudication of this appeal. The Veteran claimed entitlement to special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i). See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, the Veteran’s back has been rated as 20 percent disabling since August 2000 and service connection is also in effect for peripheral neuropathy of the left and right lower extremities, which are rated as 20 percent and 10 percent disabling, respectively. Thus, his back disability and his peripheral neuropathy, when combined, do not meet the schedular requirements for a TDIU. The Board referred the claim to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). See March 2019 BVA Decision. The Veteran submitted a VA Form 21-8940 in February 2020 in connection for his claim for TDIU, indicating his back disability prevents him from securing or following any substantially gainful occupation. The evidence of record shows that the Veteran was last gainfully employed in October 2009. In a November 2020 advisory opinion from the Director, Compensation Service, the extraschedular consideration for TDIU was denied, as a review of the file showed that while functional limitations are conceded due to the service-connected back condition and neuropathies, the preponderance of the evidence did not show that the Veteran is unable to obtain or maintain gainful employment. See November 2020 VA Memo. The Board notes that the Veteran was last afforded a VA examination for his back disability in December 2014, more six years ago. The evidence suggests that this disability has worsened since that time and the December 2014 VA examination report is not adequate in light of the Court’s determination in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressing the adequacy of the VA examiner’s opinion concerning additional functional loss during flare-ups of musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The December 2014 VA Back examination did not provide range of motions for active and passive motions per Correia v. McDonald, 28 Vet. App. 158 (2016), and the examiner held the examination neither supports nor contradicts the Veteran’s statements describing functional loss during flare-ups. As the Veteran contends that his back disability has worsened since his last VA examination and it solely renders him unemployable, the Veteran should be afforded a new VA examination to assess the current severity of his service-connected back disability and its impact on Veteran’s ability to secure or follow a substantially gainful occupation. Thus, a remand is necessary to obtain a new VA examination for the Veteran’s back disability and associated neuropathies that comply with Sharp and Correia. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his back symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the severity of the Veteran’s service connected back disability. The examiner should also opine on the current severity of the Veteran’s back-related peripheral neuropathies. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.