Citation Nr: 21010827 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-17 649 DATE: February 25, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1996 to February 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from various (including in May 2015) Department of Veterans Affairs (VA) rating decisions. A May 2019 Board decision addressed various service connection and increased rating issues. In July 2019, the Veteran’s attorney filed a Motion for Reconsideration of the Board’s decision, arguing that the Board erred by not addressing the TDIU matter. In a January 2021 letter to the Veteran and his attorney, the Board acknowledged the motion. However, upon further review of the record, the Board has decided on its own motion to issue this Supplemental Remand, which corrects the obvious error involving the inadvertent failure to address the TDIU issue that was within its jurisdiction at the time of the May 2019 decision. 38 U.S.C. § 7103(c). As such, the Motion for Reconsideration is moot. The Board acknowledges that the Veteran currently has additional issues on appeal. At present, the matter of service connection for headaches is before the Board, under a different docket number, and will be the subject of a separate decision. The matter of service connection for a low back disability, which the Board had remanded to the Regional Office (RO) or agency of original jurisdiction (AOJ)) in May 2019, is still in the jurisdiction of the AOJ, and has not been re-certified to the Board for consideration. Entitlement to a TDIU A review of the record found that the Veteran filed an application for TDIU in December 2014, claiming that his service-connected asthma, alone, prevented him from securing or following substantially gainful employment. A May 2015 rating decision denied TDIU, relying on an April 2015 VA examiner’s statements that the Veteran would be limited in the type of work he could perform until his asthma was better controlled. In a notice of disagreement (NOD) filed in August 2015 with regard to the May 2015 rating decision, the Veteran did not list TDIU as a specific issue of disagreement, although in remarks regarding his respiratory condition, he indicated that “asthma affects my ability to maintain work.” The AOJ did not issue a statement of the case on the TDIU matter (as it had on claims for increased ratings, which were decided by the Board in May 2019), but it has been added to the appeal because a TDIU claim is part of an increased rating claim when such claim is asserted by the Veteran or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the claim requires further development. There is conflicting evidence on the level of severity of the Veteran’s service-connected disabilities, including asthma. An April 2015 VA examiner stated that the Veteran would be limited in the type of work he could perform until his service-connected asthma was better controlled. An October 2017 VA examiner indicated that the Veteran’s asthma did not impact his ability to work. She also found that his service-connected gastroesophageal reflux disease (GERD) did not impact his ability to work and that his service-connected left foot neuralgia prevented him from walking long distances due to nerve pain. (Service connection is also established for dermatitis.) In July 2018, the Veteran’s attorney submitted a private opinion dated in June 2018 by HS, MD, who reviewed evidence in the file and interviewed the Veteran. His conclusion was that the combination of pain and limitations from all service-connected disabilities, without consideration of any nonservice-connected disabilities, prevented the Veteran “from performing any level of substantial gainful activity.” Notably, while Dr. HS specifically cited to many VA examination reports, he did not reference the October 2017 VA examiner’s evaluation of asthma and its impact on the Veteran’s ability to work. The Veteran’s asthma has not been evaluated for rating purposes by the VA since October 2017. In view of the opposing opinions on the functional impact of the Veteran’s service-connected disabilities, a new VA examination is necessary to decide the claim. The matter is REMANDED for the following action: 1. Secure for the claims file updated complete records of any VA evaluations and treatment the Veteran has received for his service-connected disabilities. 2. Then, arrange for a VA examination of the Veteran by an appropriate clinician or clinicians, to determine the nature and extent of functional impairment due to his multiple service-connected disabilities and the impact of such disabilities on physical and less strenuous/perhaps sedentary (e.g., desk job or bench work) types of employment (reconcile the conflicting opinions of record in the matter). The claims file should be reviewed by the examiner(s). All findings should be described in detail. The examiner(s) is asked to (a) consider functional and industrial impairment due to the Veteran’s service-connected disabilities since December 2010; and (b) comment on the June 2018 report by Dr. HS, who opined that the Veteran’s service-connected disabilities prevented him “from performing any level of substantial gainful activity,” and reconcile any divergent findings and conclusions on examination with those of Dr. HS (reconcile the apparently conflicting medical evidence that is of record in this matter).. In rendering the opinion sought, disregard the Veteran’s age and effects of any nonservice-connected disabilities. All opinions must be accompanied by rationale. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.