Citation Nr: 21028591 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-27 536 DATE: May 11, 2021 REMANDED Entitlement to an effective date earlier than March 13, 2009, for an award of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1979 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision, which granted TDIU effective the date of claim, March 13, 2009. Previously, the Board found that the Veteran's November 2007 claims for increased ratings of his service-connected back disability and headaches raised the issue of entitlement to TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009), because he submitted evidence of a medical disability, made a claim for the highest rating possible, and submitted evidence of unemployability. See August 2016 BVA Decision (and Remand). A Board hearing was held in September 2017, and a transcript is of record. In January 2018, the Board remanded this issue to obtain a medical opinion to determine whether, prior to March 13, 2009, the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. The Board directed that the rationale of any medical opinion obtained "must address the Social Security Administration (SSA) Disability Determination and Transmittal and associated SSA medical records showing that the Veteran was found disabled as of January 1995 due to a primary diagnosis of 'Disorders of back.'" In a March 2018 negative medical opinion, the reviewing clinician stated, without explanation: "I cannot speculate on the SSA determination of disability." Stating that speculation would be required is a medical conclusion just as much as a firm diagnosis or a conclusive opinion and, without an explanation, is ambiguous as to whether the examiner lacks the expertise to render the opinion or whether some additional testing or information is required that would permit an opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). If certain facts cannot be determined, the examiner should clearly identify those facts. Id. Consequently, the Board finds that this medical opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that, once VA provides an examination, it must be adequate). This is particularly so because the evidence of record contains the March 1997 SSA Office of Hearings and Appeals decision, with detailed rationale, as well as several hundred pages of medical records associated with that decision. Furthermore, it appears that the reviewing clinician based the opinion solely on medical records. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence). The report of a December 2007 VA examination shows that the Veteran reported having constant pain in the mid-to-low back that radiated down the right side of his leg to his foot. He also got numbness in both his legs. It was noted that he walked with a limp and that he took oxycodone and Percocet for pain. It was noted that he had had spinal blocks in the past, but they had not lasted. The Veteran reported that he was unable to lift more than a gallon of milk; was unable to walk more than a quarter mile; was unable to stand more than 30 to 40 minutes; and was unable to sit more than a few hours. He reported that his pain was the same each time and that he got flares two to three times per week that lasted four to five hours. He reported that he was unable to do any physical activity with the flares and that he had not worked since retirement from service. The examining clinician noted that the Veteran had been advised by his doctor to do whatever activity that he could tolerate. The Veteran reported that with flares he needed to stay in bed four to five hours, two to three times per week. Last, the Board directed that the Veteran's education and experience had to be considered in the formulation of the medical opinion. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (noting that the level of education is a factor in deciding employability). The March 1997 SSA decision reflects that the Veteran stated that his work experience spanned the 15 years he served on active duty working as an aircraft maintenance mechanic. He reported that he was a self-employed mechanic from September 1994 to January 1995. He stated that his work as a mechanic required him to primarily stand and walk throughout the workday. He stated that his work required him to frequently lift and carry 25 pounds with a heaviest weight lifted of 100 pounds. The consideration provided by the reviewing clinician consisted of the statement: "Veteran's education and experience in his line of work (aircraft maintenance), was noted." It was opined that the Veteran's "functional status between 1995 and 2009 as evidenced by medical records, would have permitted physical and sedentary employment, obviated by efforts to avoid prolonged activity due to pain, and would not have precluded gainful employment during any period prior to March 13, 2009." This is inadequate because the medical opinion fails to reconcile the Veteran's exclusive experience working as a mechanic and his physical limitations. Consequently, a remand is required to obtain a new medical opinion, possible referral to VA's Director of Compensation Service for consideration of entitlement to TDIU prior to March 13, 2009, under the provisions of 38 C.F.R. § 4.16(b), and readjudication of the issue on appeal. This matter is REMANDED for the following actions: 1. Refer the Veteran's claims file and a copy of this Remand to help ascertain based upon a record review the effect of the Veteran's service-connected disabilities on employment prior to March 13, 2009. The specialist is advised that the Veteran was service-connected for degenerative disc disease of the lumbar spine, evaluated as 10 percent disabling; hiatal hernia with reflux, evaluated as 10 percent disabling; mixed headaches, evaluated as 10 percent disabling; and labyrinthitis, hemorrhoids, and nephrolithiasis, each evaluated as noncompensable. The Veteran served 15 years as an aircraft maintenance mechanic. The examiner should provide an opinion as to the Veteran's occupational impairments and limitations resulting from all the service-connected disabilities prior to March 13, 2009. The Board draws the examiner's attention to: (a) records obtained from the Social Security Administration, including the March 1997 decision, and (b) report of December 2007 VA examination for brain and spinal cord. In rendering the opinion, the examiner should consider the Veteran's education, special training, and previous work experience, but should not consider age or the effect of any non-service-connected disabilities. A rationale should be given for all opinions and conclusions rendered. 2. If it is determined that the service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation prior to March 13, 2009, refer the Veteran's claim to the VA's Director of Compensation Service for consideration of entitlement to a TDIU prior to March 13, 2009, under the provisions of 38 C.F.R. § 4.16(b). (Continued on the next page.) 3. Readjudicate the claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Leanne M. Innet, 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.