Citation Nr: 21030325 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 08-33 740 DATE: May 18, 2021 REMANDED Entitlement to total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active duty in the United Stated Army from May 1975 to September 1978. This appeal to the Board of Veteran's Appeals (Board) arose from a derivative TDIU claim from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018 decision, the Board denied entitlement to a TDIU. In pertinent part, the Board found that the evidence of record failed to disclose that the Veteran's service-connected disabilities precluded obtaining and maintaining substantially gainful employment considering the Veteran's specific work history and education. The Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veteran's Claims (Court). In an August 2020 memorandum decision, the Court vacated the December 2019 Board decision. The Court found that the Board failed to ensure that VA had satisfied its duty to assist. Specifically, the Court found that the Board erred in finding that a February 2018 VA medical opinion substantially complied with the January 2018 remand directives. Stegall v. West, 11 Vet. App, 268, 271 (1998). The Court concluded that the Board did not make any underlying factual findings with respect to substantial compliance or the duty to assist, which frustrated Court review. D'Arles v. Peake, 22 Vet. App. 97, 104 (2008). Turning to the February 2018 VA medical opinion, the Board finds that there has not been substantial compliance with the January 2018 remand directives. Stegall, 11 Vet. App, 268. Noting discrepant findings in a prior VA examination report and a VA opinion (February 2011 and July 2017 respectively), the Board directed a VA clinician to render an opinion regarding the functional and occupational impact of the Veteran's service-connected disabilities on his ability to perform sedentary and manual work The Board specifically directed the clinician to provide a full description of the effects of service-connected disabilities upon the Veteran's ordinary activity, including the degree of any impairment of the Veteran's ability to sit, stand, and walk, as well as any impact on the Veteran's ability to do manual work. And, the Board requested that the VA clinician consider the February 2011 clinician's findings as to the impact of service-connected disabilities upon the Veteran's ability to sit. Should the clinician's assessment have differed, the Board directed the clinician to explain why. The February 2018 opinion did not mention the February 2011 VA clinician's examination report. See February 9, 2018 C&P Exam. p. 2. Therefore, the Board finds that additional evidentiary development is in order. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative to ascertain whether there are any outstanding private records related to the Veteran's service-connected disabilities. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. For any private records, should the Veteran or his representative provide an executed VA Form 21-2142 and an executed VA Form 21-4142a, the RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the such unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain outstanding VA treatment records, progress notes, and examination reports. All efforts should be undertaken until all outstanding VA records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C). 3. Arrange for a VA medical opinion with an appropriate clinician, other the clinician who prepared February 2018 opinion. The clinician must review all evidence of record and indicate such review in the body of the opinion. The clinician must evaluate the functional and occupational impact of the Veteran's service-connected disabilities on his ability to perform sedentary and manual work. Additionally, the clinician must provide a full description of the effects of service-connected disabilities upon the Veteran's ordinary activity, including the degree of any impairment of the Veteran's ability to sit, stand, and walk, as well as any impact on the Veteran's ability to do manual work. The clinician must address findings in the February 2011 VA examination report which evaluated the impact of the Veteran's service-connected disabilities upon the Veteran's ability to sit. Should the instant clinician's "assessment on the Veteran's ability to sit for prolonged periods" differ, the clinician must explain whywith reference to evidence of record and/or medical texts/research studies/treatises. The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. Should the clinician reject the Veteran's reports, she/he must provide an explanation for such rejection. Complete, clearly-stated rationales for the conclusions reached must be provided. Explanations are required that consider the record and pertinent medical principles and the clinician's rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. 4. The agency of original jurisdiction (AOJ) must ensure that the clinician's opinion responds to all of the Board's directives. Upon completion of ensuring this compliance, the AOJ should refer the Veteran's case to the Director of Compensation Service for entitlement to a TDIU rating on an extraschedular basis under the provisions of 38 C.F.R. 4.16(b). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.