Citation Nr: 21030591 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 07-36 875 DATE: May 19, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1986 to November 1988. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2006 rating decision issued by the Department of Veterans Affairs (VA). See October 2006 Notice of Disagreement (NOD); October 2007 Statement of the Case (SOC); November 2007 Substantive Appeal (VA Form 9). The Veteran's claim of entitlement to a TDIU has a long procedural history. See October 2010 Board decision; September 2011 Court of Appeals for Veterans Claims (CAVC) decision; April 2012 Board decision; September 2016 Board decision; June 2017 Board decision; June 2018 CAVC decision; January 2019 Board decision; September 2020 Board decision; February 2021 Board decision. The February 2021 Board decision remanded the claim for an opinion from the Director of Compensation Service on entitlement to an extraschedular TDIU. The Director of Compensation Service determined that entitlement to an extraschedular TDIU is not warranted, and the agency of original jurisdiction (AOJ) continued the denial of the Veteran's claim. Issue of entitlement to a TDIU is remanded. Unfortunately, the Board cannot make a fully-informed decision on the issue of entitlement to a TDIU because clarification is needed from a VA examiner as to the Veteran's specific functional limitations from his service-connected disabilities. While the Veteran does not meet the schedular criteria for a TDIU, entitlement to a TDIU is warranted under 38 C.F.R. § 4.16(b) regardless of the veteran's disability ratings where the service-connected disabilities alone render him unemployable. The Board cannot grant a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance, but must consider whether a remand for referring the case to the Director of Compensation Service is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Because this issue has been previously referred to the Director of Compensation Service, who issued a decision in March 2021, the Board now has jurisdiction to consider the extraschedular claim on the merits. The June 2018 CAVC decision directed the Board to consider whether the March 2016 VA examiner's opinion that the Veteran has functional limitations, based on his report of constant pain and inability to perform manual labor due to his lumbar spine, supports entitlement to a TDIU. A review of the March 2016 VA examination report shows that the VA examiner was reporting the Veteran's pain complaints and did not provide a specific opinion about the Veteran's limitations. See March 2016 VA examination back conditions. The Veteran was afforded a subsequent September 2019 VA examination for back condition which opined that he would have difficulty with "prolonged" sitting, standing, walking, bending, lifting, and twisting due to pain. However, it is unclear what "prolonged" means. In addition, neither the March 2016 nor the September 2019 VA examiners considered the VA treatment notes indicating that the Veteran's opioid dependence worsens his pain. See e.g., September 2019 VA treatment evidence. The VA examiners also did not discuss the Veteran's statement that the medications for his service-connected disabilities have a functional impact. See November 2005 VA 21 8940. The Board also notes that the Veteran's November 2020 VA Form 21-8940 indicates he is unable to work due to his nonservice-connected neck and headache disabilities as well as his service-connected back and gastrointestinal reflux disease disabilities. The Board, thus, finds that a VA general medical opinion is needed to determine the specific functional impact from the Veteran's service-connected disabilities. The matters are REMANDED for the following action: Obtain a general medical opinion from an appropriate medical professional for purpose of the Veteran's TDIU claim. The entire claims file and a copy of this remand must be made available for review, and the medical professional must specifically acknowledge receipt and review of these materials in any reports generated. If the medical professional determined it is necessary, schedule the Veteran for a VA examination. This examination may be held via telehealth, if appropriate. Based on a review of the claims file, the examiner must provide a functional assessment of each of the Veteran's service-connected disabilities on his ability to work, without consideration of his age or nonservice connected disabilities. (a) The medical professional should consider and discuss the findings from the March 2016 and September 2019 VA examinations for the Veteran's lumbar spine disability. (b) The medical professional should also consider and discuss the VA treatment evidence indicating the Veteran's opioid dependence worsens his pain and whether that is separatable from the Veteran's symptoms from his service connected disabilities. (c) The medical professional should also consider and discuss the Veteran's lay testimony and assertions regarding any pertinent complaints and symptoms. (d) The medical professional should also consider and discuss any medication the Veteran uses to treat his service-connected disabilities and their effect, if any, on his functional ability, including whether he has impairment from the use of opioids to treat to his service-connected disabilities. (e) Lastly, the Board notes that the Veteran's functional ability should not be described in undefined categories such as "light" or "sedentary" and the medical professional should, instead, either define the term or provide the particulars of the Veteran's ability to sit, stand, walk, lift, or other physical activity. A detailed rationale is requested, including citing to supporting clinical data, as appropriate. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.