Citation Nr: 21006220 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 08-13 032A DATE: February 3, 2021 ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disability manifested by left ulnar nerve involvement. 2. Entitlement to an effective date prior to October 19, 2009 for the grant of service connection for post-traumatic stress disorder (PTSD) with dysthymia. 3. Entitlement to service connection for a brain disability, claimed as brain damage. 4. Entitlement to service connection for a disability manifested by left ulnar nerve involvement. 5. Entitlement to service connection for heroin addiction, claimed as secondary to service-connected post-traumatic stress disorder (PTSD) with dysthymia. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER New and material evidence sufficient to reopen the claim of service connection for disability manifested by left ulnar nerve involvement has been received, and to that extent only, the claim is granted. The appeal on the issue of entitlement to an effective date prior to October 19, 2009 for the grant of service connection for post-traumatic stress disorder (PTSD) with dysthymia is dismissed. The appeal on the issue of entitlement to service connection for a brain disability, claimed as brain damage is dismissed. REMANDED Entitlement to service connection for a disability manifested by left ulnar nerve involvement is remanded. Entitlement to service connection for heroin addiction, claimed as secondary to service-connected post-traumatic stress disorder (PTSD) with dysthymia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A June 1974 rating decision originally denied service connection for left ulnar nerve involvement. The Veteran did not file a Notice of Disagreement or submit new and material evidence within one year. The June 1974 rating decision became final. 2. Presuming its credibility, the evidence associated with the record since the June 1974 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a left ulnar nerve involvement disability. 3. In the December 31, 2020 Brief, the Veteran through counsel informed the Board that he wished to withdraw his appeal related to entitlement to an effective date prior to October 19, 2009 for the grant of service connection for post-traumatic stress disorder (PTSD) with dysthymia. 4. In the December 31, 2020 Brief, the Veteran through counsel informed the Board that he wished to withdraw his appeal related to entitlement to service connection for a brain disability, claimed as brain damage. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for left ulnar nerve involvement disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2018). 2. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an effective date prior to October 19, 2009 for the grant of service connection for post-traumatic stress disorder (PTSD) with dysthymia by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to service connection for a brain disability, claimed as brain damage by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to October 1971, with service in the Republic of Vietnam from May 1970 to September 1971. The Veteran was awarded the Vietnam Campaign Medal and Vietnam Service Medal with 1 Campaign Star, among other decorations. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from August 2007, September 2008, and January 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2017. A copy of the hearing transcript has been associated with the claims file. The appeal was remanded by the Board in August 2017 for additional development. Next, a February 2019 Board Decision denied all of the claims listed on the title page. Later that year, a November 2019 Order from the United States Court of Appeals for Veterans Claims (Court) granted a November 2019 Joint Motion for Remand (JMR) with respect to these issues currently before the Board. The Court vacated the February 2019 Board decision and remanded the matter for appropriate action. This is discussed further below. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran was sent a January 17, 2007 development letter. In the November 2019 Joint Motion for Remand (JMR), the Veteran’s attorney raised a myriad of new evidentiary challenges. He generally averred that VA failed to fully satisfy its duty to assist. We discuss each of the claimed Board errors below in relation to each issue. Later, in a December 31, 2020 Submission of Evidence and Appellant’s Brief “Brief,” counsel narrows his contentions. The Veteran through his attorney waives Agency of Original Jurisdiction (AOJ) review of additional evidence. Regarding treatment records previously claimed to be outstanding, he clarifies, “Therefore, any duty VA may have to make further attempts to obtain records from the Brecksville VA hospital, the Social Security Administration, or any other source is hereby waived.” (emphasis in original.) Counsel highlights additional evidence submitted since the JMR. He explains, “As set forth in the Introduction to this brief, Mr. [Veteran’s] primary goal in this case is to have TDIU granted as of October 19, 2009.” The Veteran through his attorney concludes that if this issue is granted, this will be considered a full grant of the benefit sought on appeal, and that all other claims will then be considered as having been withdrawn. Each issue is discussed in greater detail below. Finality of Service Connection Claim 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disability manifested by left ulnar nerve involvement A review of the procedural and evidentiary history is instructive. By way of background, a June 1974 rating decision denied service connection for ulnar nerve involvement, severe, left. The rating decision shows in part, “Disability is a result of vet’s willful misconduct CHRONIC DRUG HABITUATION.” (emphasis in original.) The implicit denial was for all left arm pathology related to a 1973 surgery and drug use during service that resulted in paralyzing the ulnar nerve and atrophy of the left hand. The Veteran was informed of the decision and of the right to appeal. The Veteran did not file a Notice of Disagreement (NOD) or submit new evidence within one year. This decision became final. Decades later, in December 2006, the Veteran submitted a new claim to reopen his previously denied claim for left ulnar nerve disability. The Veteran described that he had surgery in 1973 on his left forearm to repair a ruptured artery which resulted from being a heroin addict during his service in the Republic of Vietnam. The Veteran was subsequently sent a January 17, 2007 develop letter describing the VA claims process. The letter described what information is necessary to establish entitlement to VA benefits and requested that the Veteran submit information to VA regarding the existence and whereabouts of evidence which would help substantiate his claim. The August 2007 rating decision denied reopening the Veteran’s claim for ulnar nerve involvement, severe, left. The RO explained that there is no basis to establish that the Veteran’s left arm disability was due to anything else but willful misconduct. The Veteran timely appealed the rating decision by way of a September 2007 Notice of Disagreement (NOD). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The Board would note that regardless of how the RO (or the Board in a prior denial) ruled on the question of reopening, the Board must re-decide that matter on appeal. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial) and Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). At the time of the August 2007 rating decision, the reason for the denial remained because the Veteran’s claimed left arm pathology was attributable to misconduct in service. A left arm disability was not otherwise shown to have been incurred or aggravated in service. In short, there were no post service findings that would justify left arm ulnar nerve disability other than that which was attributable to misconduct due to chronic heroin abuse. The Veteran elaborated at the March 2017 hearing, “This damage resulted from injecting heroin into me. Prior to going to Vietnam I’ve never done drugs in my life.” See March 2017 Hearing Transcript, pg. 15. As an ancillary matter, the Veteran has asserted that his heroin addiction is directly related to service; alternatively, he contends that it is the result of his service-connected PTSD. See March 2007 statement and March 2017 Hearing Transcript, pg. 16. Next, the Veteran was afforded a new VA psychiatric examination in November 2017. The Veteran reported a long history of heroin abuse. The VA examiner interviewed the Veteran, reviewed the claims file, and rendered a detailed negative nexus opinion related to secondary service connection for heroin abuse: First and foremost, it is important to note that substance use disorders are complex and multi-determined. Research suggests that numerous factors, including genetic and other biological factors as well as cognitive, behavioral, temperament, psychological, and sociocultural factors influence substance use disorders. In examining the evidence in this case, it appears as though several factors suggests that it is less likely than not that the veteran’s heroin addiction was caused by his service connected PTSD with dysthymia. First, there is evidence is the C-file that the veteran used “speed and grass” prior to his arrival in Vietnam (see pg. 50 of STRs). This evidence suggests that the veteran’s substance use began prior to his experience of traumatic events while in Vietnam. Therefore, there is evidence of substance use prior to his experience of traumatic events. Second, although there is evidence that the veteran’s heroin use began in Vietnam (see STRs, VA records, current and previous examination), there is no evidence of a diagnosis of PTSD until October 2009. Therefore, there is no concrete evidence of a proximal relationship between a diagnosis of PTSD and his heroin addiction. It is possible that he was experiencing symptoms of PTSD prior to his recorded diagnosis; however, this writer is relying on the medical evidence in his record. The evidence continued to show that although a left arm ulnar nerve disability was incurred in service, but was attributable only to willful misconduct. Indeed, no compensation shall be paid for a disability if the disability is the result of a Veteran’s own willful misconduct or abuse of alcohol or drugs; however, a Veteran is not precluded from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran’s service-connected disability. See 38 U.S.C. § 1110 (2012); see also Allen v. Principi, 237 F. 3d 1368, 1375 (Fed. Cir. 2001). Specifically, direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301 (a). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. 38 C.F.R. § 3.31 (n). For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301 (d); see also 38 U.S.C. § 105 (a). In the instant case, the Board observes that there is a wealth of evidence that does not cure the critical evidentiary defect that existed at the time of the prior denial. The added evidence, in pertinent part, consists of lay argument, private treatment records, VA treatment records, and VA examinations with medical opinions. The June 1974 rating decision and Veteran’s own lay history shows that left ulnar nerve involvement and any related disability is due to misconduct. Private treatment records already established the presence of a history of heroin abuse and a history of incarceration, but do not link the Veteran’s left arm ulnar nerve disability to service connected disability. Although the Veteran has continued to submit several lay statements, his theory does not conclusively establish that he is entitled to the benefit thought. In particular, although evidence must be presumed credible for purposes of deciding it’s materiality, it does not have to be presumed competent. And although the Veteran would be presumed credible in stating what a physician had told him for the purpose of determining materiality, such is not at issue here. Several years have passed. On the other hand, beginning with the November 2019 JMR and December 2020 Brief, the Veteran through his attorney has now presented additional argument and evidence with a specific theory of entitlement. First, in a turn of events, the Veteran submitted a lay statement received by VA as correspondence on December 31, 2020. In it, the Veteran avers that shortly after he arrived in Vietnam, he began using heroin as a way to cope with traumatic experiences. He now assures VA that prior to this, during the “hippie movement,” he only used marijuana and took a pill given to him by a stranger, but did not use other illegal drugs. Second, the Veteran through his attorney submitted a December 2020 private medical opinion from Dr. M. C., M.D. Dr. M. C. describes how the Veteran was exposed to the “unique horrors of the war zone in Vietnam.” See December 2020 Medical Opinion, p. 1. The Veteran used heroine and “spent decades incarcerated as a direct result of his substance use disorder.” Id. On page 12, Dr. M. C. highlights that the Veteran’s left arm ulnar nerve disability began in December 1973 as a result of cellulitis from heroin injection. At the top of page 13, Dr. M. C. concludes that the left arm ulnar nerve damage “is a direct result of his PTSD and concomitant substance use disorder.” The physician signed the medical opinion, and attached references. Here, when liberally construed, the additional evidence presented including lay statements and a medical opinion shows a possible positive nexus under a secondary theory of aggravation. The evidence establishes that the Veteran has left ulnar nerve involvement, possibly which began in service or is otherwise attributable to service-connected PTSD. As a lack of evidence a nexus was one of the bases for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156. For new and material evidence the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is mindful of the low bar for new and material evidence. Shade, supra. Drawing all inferences in favor of the Veteran, the Veteran’s claim of service connection for a left ulnar nerve involvement disability is reopened. The reopened service connection claim is discussed in the Remand section below. Withdrawn Appeals 2. Entitlement to an effective date prior to October 19, 2009 for the grant of service connection for post-traumatic stress disorder (PTSD) with dysthymia 3. Entitlement to service connection for a brain disability, claimed as brain damage Only an appellant, or an appellant’s authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55 (a). Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 19.55 (c). The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105 (d). By way of history, in the December 31, 2020 Brief, the Veteran through his attorney informed the Board that he wished to withdraw his current appeals for entitlement to service connection for a “brain disability” and his claim of entitlement to an earlier effective date for service connection for PTSD. The Veteran’s attorney signed the document. Accordingly, the Board does not have jurisdiction to review these two issues on appeal. Therefore, these issues on appeal are dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS FOR REMAND Although the Board regrets any possible delay, in light of the Veteran’s attorney’s contentions in the December 2020 Brief, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a disability manifested by left ulnar nerve involvement is remanded. 2. Entitlement to service connection for heroin addiction, claimed as secondary to service-connected post-traumatic stress disorder (PTSD) with dysthymia is remanded. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). The Board observes that 38 U.S.C. § 105 and § 1110 preclude compensation for primary alcohol and drug abuse disabilities and secondary disabilities that result from primary alcohol or drug abuse. Allen v. Principi, 237 F. 3d 1368, 1376 (Fed. Cir. 2001). However, service connection can be warranted when drug or alcohol abuse results secondarily from a service-connected disability, but compensation should only result “where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by the veteran’s primary service-connected disability.” Allen, 237 F.3d at 1371, 1381. By way of background, the Service Treatment Records (STRs) include a September 1971 Report of Medical History from separation. It shows that the Veteran denied loss of memory or amnesia. He endorsed head injury. The related September 1971 Report of Medical Evaluation disclosed a clinically normal evaluation of the head, face, neck, and scalp, neurologic system, and psychiatric evaluation. A September 1971 Drug Treatment Center Psychosocial history and Work Sheet shows in part that the Veteran used “grass” and “speed.” He started using drugs at age 19 when introduced by friends. Decades later, in December 2006, the Veteran filed several claims for service connection. The Veteran also submitted a timely NOD in September 2008 related to the issue of service connection for heroin addiction. He perfected his appeals in May 2008. Years later, the Veteran was afforded an April 2012 VA psychiatric examination. Regarding PTSD and opioid dependence, it was not possible to differentiate which symptoms are attributable to each diagnosis due to the overlap in symptoms. The Veteran reported heroin use since Vietnam, with some periods of sobriety. The Veteran reported that he had been in and out of prison for 30 years. Next, the Veteran testified at the March 2017 hearing that his experiences in the Republic of Vietnam and service-connected PTSD induced heroin addiction. The Veteran testified, “Well, while in Vietnam, and this is not documented, but I woke up in a ditch next to a hooch. Now, I was a heroin addict and lots of people there were just like me, but there were also lots of people who didn’t like heroin addicts, and I woke up on the side of a ditch and I lost my entire memory. I didn’t know what my name was. It took I want to say at least 12 hours before the memory came back of what my name was. Now, as a heroin addict I was, I couldn’t go to, for treatment and tell them I’m a heroin addict.” The Veteran testified that he has a blurred recollection of events in Vietnam. Further, the Veteran reported that his treating VA psychologist, Dr. T. M., told him that his heroin use was related to his service-connected PTSD. See March 2017 Hearing Transcript, pg. 16. The Veteran was afforded the aforementioned November 2017 VA examination. He reported that he continued to participate in VA mental health treatment, and had been doing well and put his life back together since he had been clean. The Veteran reported that he never used an illegal drug until he went to Vietnam. He reported that his father was “an alcoholic.” The Veteran described that he firmly believed that all that he is struggling with at this time and throughout his life is service connected. In addition to the negative nexus opinion related to secondary service connection, the VA examiner provided an explanation regarding any claimed aggravation. The clinical psychologist opined, “[I]t is this examiner’s opinion that this cannot be resolved without resorting to mere speculation. Research suggests that there is a great deal of comorbidity between substance use disorders and PTSD (Chilcoat and Menard, 2003; Ford, Russo, & Mallon, 2007). However, the precise interplay between PTSD and substance use disorders is complex and multifaceted. It is unlikely that additional evidence would help to resolve this issue. It is likely that the veteran’s PTSD and heroin addiction had reciprocal influences on each other.” Even so, the VA examiner identified evidence dissociating any heroin addiction from PTSD. She wrote: In examining the evidence in this case, it appears as though several factors suggests that it is less likely than not that the veteran’s heroin addiction was caused by his service connected PTSD with dysthymia. First, there is evidence is the C-file that the veteran used “speed and grass” prior to his arrival in Vietnam (see pg. 50 of STRs). This evidence suggests that the veteran’s substance use began prior to his experience of traumatic events while in Vietnam. Therefore, there is evidence of substance use prior to his experience of traumatic events. Second, although there is evidence that the veteran’s heroin use began in Vietnam (see STRs, VA records, current and previous examination), there is no evidence of a diagnosis of PTSD until October 2009. Ongoing VA and private treatment records show diagnostic impressions of and a history of heroin abuse. The Veteran reported significant periods of incarceration. Next, the November 2019 Joint Motion for Remand (JMR) shows that the Board did not “adequately analyze the November 2017 VA examination” containing negative nexus opinions for heroin addiction. See November 2019 JMR, p. 3. The JMR shows the theory of entitlement that “it is not necessary that the service-connected disability be the sole cause, as long as it contributed to the secondary disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 4439, 448 (1995).” See November 2019 JMR, pp. 3-4. The parties concluded, “The parties further agree that the claims of service connection for left ulnar involvement and for a brain disability are inextricably intertwined with the claim for service-connection for a heroin addiction, and thus those issues must be remanded as well.” See November 2019 JMR, p. 4. They later request that the Board address whether the November 2017 VA examiner’s opinion is adequate. Later, the December 2020 private medical opinion from Dr. M. C. is of record. At the top of page 13, Dr. M. C. concludes that the ulnar nerve damage “Is a direct result of his PTSD and concomitant substance use disorder.” The Board observes that this medical opinion does not establish that a contemporaneous physical examination of the Veteran was performed in rendering these medical conclusions. Recently, in the December 2020 Brief, the Veteran through his attorney raises several new arguments. In essence, they accept that although service connection is precluded for heroin addiction and related disability, secondary service connection could still be warranted under Allen. See Allen v. Principi, 237 F. 3d 1368, 1376 (Fed. Cir. 2001). They assert that there is “credible evidence showing Mr. [Veteran] began using heroin in an attempt to mitigate the PTSD symptoms he developed as a result of the traumatic events he experienced in service.” See December 2020 Brief, p. 2. In short, the Veteran’s central theory of entitlement is that he abused heroin induced by traumatic events in service, also leading to the intertwined left ulnar nerve disability. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). More specifically, the Veteran is competent to report abusing heroin and feelings of drug dependence. He is competent to report experiencing these in service and after discharge. He is competent to report an incident during which he experienced ulnar nerve impairment in service. However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between PTSD and heroin addiction. Thus, his statements regarding any such link are not competent. See Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A remand is necessary to obtain a supplemental VA examination with medical opinion for the heroin addiction issue and the reopened left ulnar nerve disability. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Counsel has challenged the adequacy of the November 2017 VA examination, and additional evidence has also been associated with the claims file since that time. There is also some evidence that the Veteran may have now recovered from his heroin addiction documented by way of the November 2017 VA examination. Consequently, a remand for a supplemental VA examination with medical opinion is warranted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board incorporates its discussion from the sections above by reference. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Veteran’s VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability dated February 2007 shows that he last worked in 2001. The Veteran indicated that he became too disabled to work in 1971 since returning from Vietnam. In 2001 he was last employed as a tire shop/sander. The Veteran indicated that the service connected disabilities precluding him from securing or following substantially gainful occupation were “medical issues resulting from opiate dependence. Also left arm injury.” Next, a November 16, 2011 VA Psychiatry Note is included with a clutch of ongoing VA treatment records submitted by counsel along with the December 2020 Brief. The VA treatment record shows that the Veteran has a history of polysubstance abuse. He was admitted to the emergency room for opiate withdrawal and a suicide attempt. He had one previous attempt when he found out that he would be going to jail for robbery for 8 years. Later, the April 2012 VA PTSD disability benefits questionnaire indicated that the Veteran was unable to sustain employment in large part due to his past incarcerations. The Veteran testified at the March 2017 hearing that he last worked in 2001 for less than 60 days at KraftMade Cabinets. He left employment because of drug addiction. Next, in August 2017, the Board remanded the issues for additional development. One of the Remand directives asked the examiner for any heroin use to discuss the impact of both PTSD and diabetes mellitus on employment. See August 2017 JMR, p. 4. Months later, the November 2017 VA psychiatric examiner provided insight into the Veteran’s psychosocial functioning, including documenting the Veteran’s lay statements: “Now, I’ve put my life back together. I’ve got an apartment.” The veteran currently lives alone. The veteran is not currently employed. He reported that he has not worked since 2001. He reported that he believes that he worked for 2 months at KraftMade on an assembly line. He reported that he left that work because he was using oxycontin. He reported that he does not believe that he is capable of maintaining or obtaining gainful employment. “I can’t pass a background check. There is no one who would look at my background and hire me.” He reported that he has had an evaluation by bureau of vocational rehabilitation who deemed him to be “unemployable” due to his heroin addiction and criminal history. He reported that he has a lot of hobbies. He reported that he carves wood. He also enjoys assembling models. He reported that he recently bought a sewing machine and is looking forward to sewing. He reported that he cleans his apartment about once/week. He reported that he does his best to keep busy because he knows that it is a key to his sobriety. Regarding his current symptoms, the November 2017 VA examiner observed, “The veteran reported that he has been doing ‘great’ since he has been clean. The veteran reported that he is active in mental health treatment. He reported that he tries to keep himself busy. He denied any current SI/HI.” Significantly, in the November 2019 Joint Motion for Remand (JMR), the Veteran through his attorney raised a duty to assist issue. It reads in part, “Thus, remand is required because the November 2017 examiner did not opine on diabetes mellitus and there is no other opinion of record regarding the impact of Appellant’s diabetes mellitus on his ability to work. On remand, the Board must ensure compliance with its remand instructions, including obtaining an opinion on the impact of Appellant’s diabetes mellitus on his ability to work.” See November 2019 JMR, p. 5. In the December 2020 Brief, the Veteran through his attorney described the evidentiary and rating history. Counsel now asserts that the Veteran is also unable to perform “mental acts” of gainful employment as a result of his service-connected psychiatric symptoms, which they explicitly assert to include heroin addiction. See Brief, p. 5. Counsel cites the private medical opinion from Dr. M. C., described as “12/22/20 Psychiatric Evaluation Report,” in support of this contention. Counsel concludes that if the TDIU issue is granted as of October 19, 2009 onward, this will be considered a full grant of the benefit sought on appeal, and that all other claims will then be considered as having been withdrawn. The Board observes that the Veteran is service connected for PTSD with dysthymia, rated 50 percent disabling from October 19, 2009 and 70 percent disabling thereafter; and diabetes mellitus, rated 10 percent disabling from September 16, 2010. The Veteran has a combined disability evaluation of 60 percent prior to November 14, 2011, and 70 disabling thereafter. See 38 C.F.R. § 4.25 (2018). As such, the Veteran currently satisfies the minimum percentage rating requirements of 38 C.F.R. § 4.16(a) (2018) for a TDIU from November 14, 2011. Here, a remand is necessary in compliance with the November 2019 JMR. The Veteran should be afforded a supplemental VA examination with medical opinion regarding the impact, if any, of his service-connected diabetes mellitus type II on his employability. As described in the JMR, this medical opinion was requested as a part of the February 2017 Board Remand directives. See August 2017 Decision and Remand, p. 6. We note that the need for remand now arises because this issue was explicitly raised by the Veteran’s attorney as part of the November 2019 JMR. The JMR cites Stegall on page 4. Under Stegall, compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, a remand is necessary to obtain a supplemental VA examination with medical opinion. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any heroin addiction disability and left ulnar nerve involvement disability. Please utilize one or more Disability Benefit Questionnaires (DBQs) as deemed appropriate by the examiner. The claims file should be made available to the VA examiner. a) For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. The VA examiner should clarify whether the Veteran has a current drug addiction disability. b) The VA examiner should opine whether any diagnosed left ulnar nerve involvement disability and and/or heroin addiction disability is proximately due to or the result of the Veteran’s service-connected disabilities, including PTSD with dysthymia. c) The VA examiner should also opine whether any diagnosed left ulnar nerve involvement disability and and/or heroin addiction disability is aggravated by the Veteran’s service-connected disabilities, including PTSD with dysthymia. d) Lastly, the examiner should also comment on the Veteran’s ability to function in an occupational environment, and describe the functional impairment caused solely by the service-connected disability or disabilities. Attention is invited to the November 2017 VA examination and medical opinion showing a history of incarceration and willful misconduct. The examiner should provide a rationale for all opinions expressed. 3. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected diabetes mellitus. Additionally, the examiner should review the Veteran’s claims file in conjunction with the examination, to include evidence regarding the Veteran’s education, training, and work history, and comment on the functional impairment caused by service-connected diabetes mellitus, with specific regard to the Veteran’s ability to perform tasks, including sedentary and physical tasks. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the clinicians unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. After the above development has been completed (to the extent possible), the AOJ should undertake any additional development necessary to adjudicate the Veteran’s claims. 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his attorney an appropriate Supplemental Statement of the Case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.