Citation Nr: 21030519 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-23 544 DATE: May 19, 2021 REMANDED Entitlement to a total disability rating based on unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1970. A hearing was held before the undersigned Veterans Law Judge in November 2017; a transcript is associated with the claims file. The Board of Veterans' Appeals (Board) initially denied the Veteran's claim in a May 2018 decision. The Veteran appealed the denial, and in June 2019 the Court of Appeals for Veterans Claims (the Court) issued a memorandum decision holding that the Board's May 2018 reasoning was deficient for two principal reasons. The Court ruled that the Board failed to explain what it understands sedentary work to mean, pursuant to Withers v. Wilkie, 30 Vet. App. 139 (2018), and failed to consider the Veteran's educational and vocational history, pursuant to Ray v. Wilkie, 31 Vet. App. 58 (2019). In its February 2020 remand, the Board instructed the AOJ to obtain an additional opinion from a VA examiner to provide a well-reasoned opinion regarding the nature and severity of the Veteran's service-connected back disability. The examiner was instructed to clarify the degree to which the Veteran is functionally impaired and to reconcile the finding of the January 2015 VA examiner that the Veteran has "difficulty with prolonged sitting" with the examiner's conclusion that his "sedentary occupational activities are not affected," to include defining "sedentary work." If the Veteran was found to be capable of "sedentary work" constituting a substantially gainful occupation, the examiner was asked to explain this finding in the full context of his history of objective disability symptoms and subjective complaints. The examiner was further instructed to comment on a May 2016 letter from the Veteran's private physician and specifically comment on the functional limitations discussed therein. The AOJ obtained the required opinion in April 2020; this opinion was issued by the same examiner who conducted the January 2015 examination. However, the Board finds this opinion to be inadequate. In that connection, the Board points out that the examiner simply stated that her opinion "remains unchanged" from January 2015. She did not offer a well-reasoned opinion, as was requested, regarding the nature and severity of the Veteran's service-connected back disability. Additionally, the examiner failed to define sedentary work as required by the remand directive. Accordingly, the matter must be remanded again for an addendum opinion. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes legal error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). As described above, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to a TDIU. Another remand is required. The matters are REMANDED for the following action: Provide the claims file to an appropriate medical professional other than the April 2020 VA examiner for a medical addendum opinion. If it is determined that a physical examination or telehealth interview, as appropriate, is required to provide the requested opinions, such should be scheduled. After reviewing the claims file, the examiner must clarify the degree to which the Veteran is functionally impaired due to his service-connected lumbosacral spine disability and residuals of right hand fracture. Specifically, the examiner must reconcile the June 2015 VA examiner's finding that the Veteran has "difficulty with prolonged sitting" with the conclusion that his "sedentary occupational activities are not affected." To that end, the examiner must provide his or her working definition of "sedentary work." The examiner must also explain how the Veteran's "sedentary occupational activities are not affected," if the examiner finds this to be the case. If the Veteran is found to be capable of "sedentary" work constituting a substantially gainful occupation, the examiner must explain this conclusion in the full context of his history of objective disability symptoms and subjective complaints. The examiner should explain how sedentary work, if shown to be possible here, figures into the Veteran's overall disability picture and vocational history. Finally, the examiner must comment on the May 2016 letter from the Veteran's private treatment physician and specifically comment on the functional limitations discussed therein. If it is not possible to provide any of the requested information, the examiner must explain why this is so. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.N. Bush, 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.