Citation Nr: 21006753 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 11-02 680 DATE: February 5, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1981 to July 1984; June 1999 to September 1999; June 2000 to September 2000; June 2001 to September 2001; and January 2002 to August 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2014. In April 2018, the Board issued a decision denying a TDIU. By Joint Motion for Remand, the United States Court of Appeals for Veterans Claims (Court) vacated the April 2018 Board decision, in regard to denial of a TDIU, and remanded the matter to the Board. The Board remanded the issue in October 2019, directing that a VA examination be performed to ascertain the level of functional impairment caused by the Veteran’s service connected disabilities, a VA vocational assessment be performed, and that the Veteran’s case be referred to the Director of Compensation Service in order to obtain an opinion regarding the issue of entitlement to a TDIU on an extraschedular basis. The Veteran’s appeal has been returned to the Board for further appellate review. The Veteran asserts that although he has helped his father on the farm, and with K-9 training, he has not been gainfully employed since May 2010, due to his service-connected disabilities. It is the Veteran’s position that his Bell’s palsy, bilateral knee conditions, hearing loss, and tinnitus rendered him unemployable as of May 2010, and his service-connected depression made him further unemployable from March 2012. The Veteran directs the Board to a July 2019 vocational assessment supporting this contention. Entitlement to a TDIU While the Board regrets the additional delay, because the Board remand directives were not substantially complied with, and due to the VA’s failure to assist, the Veteran’s claim must be remanded. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As part of that duty to assist, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In December 2019, the Veteran was afforded a VA examination to ascertain the level of functional impairment caused by the Veteran’s service-connected disabilities. The examination request specified that the Veteran’s claim for a TDIU is associated with the service-connected disabilities of right ear hearing loss; tinnitus; patellofemoral joint syndrome, right knee; patellofemoral joint syndrome, left knee; residuals, status post Bell’s Palsy; depressive disorder; left knee instability; and lagophthalmos, left eye. However, the examiner only considered the Veteran’s service-connected conditions of “Bell’s Palsy and knee condition.” The service-connected conditions of right ear hearing loss, tinnitus, depressive disorder, and lagophthalmos, left eye were not addressed. As such, the directives of the October 2019 Board Remand were not substantially completed. Additionally, the examiner’s opinions were inconsistent. The examiner indicated that the Veteran has no limitations for Bell’s Palsy, yet went on to state that “the excessive blinking, dry eye may provide some limitations, accommodations such as working indoors, protective eye wear and lubricating would be expected to limit any significant occupational limitations.” The examiner then continued to note that the Veteran has no limitations for Bell’s Palsy in the remainder of the report despite the statement acknowledging limitations would be necessary. Clarification of the inconsistencies regarding the opinion of the Veteran’s functional limitations due to Bell’s Palsy is needed. The examiner also found that the Veteran has moderate limitations for “knee condition.” The examiner appeared to only address knee pain, but did not mention the Veteran’s left knee instability. Furthermore, the examiner was specifically asked to describe the Veteran’s limitations and restrictions related to his service-connected disabilities, but the examiner did not provide this information. Rather, the examiner concluded that in regard to Bell’s Palsy and knee condition, the conditions “would not limit working with customers/coworkers technology, sitting, standing, walking, lifting, carrying pushing and pulling for up to 8 hours per day.” Although the examiner acknowledged the Veteran would have moderate limitations for his knee condition no limitations were described. For these reasons, the December 2019 examination was inadequate and did not comply with the Board remand directives. See Stegall; see also Barr. Regarding the matter of obtaining a VA vocational assessment, as directed by the Board remand, the Board acknowledges the RO policy letter by the Veterans Benefits Administration (VBA), stating that, consistent with the VBA Administration Adjudication Procedures Manual (M21-1 MR), VBA would no longer seek “social industrial surveys” from “social workers” in development, and for adjudication, of claims and appeals for a TDIU. See August 2017 VBA Appeals Management Office (AMO) Policy Letter 17-01 M21-1MR and the August 2017 AMO Policy Letter. As such, no additional action in this regard is requested. The Board does finds that obtaining an adequate VA examination will suffice to adequately assess whether the Veteran’s service-connected disabilities render him unemployable and not unduly burden the RO’s administrative processes. In this regard, the Board also points out that the Veteran’s attorney is aware of the RO’s policy and did ask the RO to proceed with adjudication. See Attorney’s Letter dated August 27, 2020. Thus, there is no prejudice to the Veteran. Accordingly, after obtaining an adequate VA examination, the Veteran’s case should be returned to the Director of Compensation Service for an addendum/updated opinion addressing the issue of entitlement to a TDIU on an extraschedular basis. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination(s) to ascertain the level of functional impairment caused by all of the Veteran’s service-connected disabilities. The record, to include a complete copy of this Remand and the July 2019 vocational assessment, must be made available to the examiner, and all necessary tests should be accomplished. After reviewing the file, the Veteran’s educational and occupational history and examination findings, the examiner should provide an opinion addressing the functional impairment caused by all of the Veteran’s service-connected disabilities, and to what extent the Veteran’s disabilities affected his ability to perform gainful occupational tasks from May 2010 to March 2012, and from March 2012 to the present. The examiner is asked to comment on and describe the functional impairment caused solely by the service-connected disabilities as it pertains to the Veteran’s ability to function in an occupational environment. For example, the examiner should describe the limitations and restrictions imposed by his service-connected impairments on such work activities as interacting with customers/coworkers and using technology, plus other such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling for up to eight hours per day. 2. After completing the above-requested action, refer the Veteran’s case to the Director of Compensation Service in order to obtain an addendum/updated opinion regarding the issue of entitlement to a TDIU on an extraschedular basis. 3. After accomplishing any additional actions deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his attorney should 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. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.