Citation Nr: 21032146 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 11-26 030 DATE: May 26, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to December 18, 2009, on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to January 1971. He died in May 2019, and the appellant is his surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran entitlement to TDIU, effective December 18, 2009 [the date he met the schedular criteria under 38 C.F.R. § 4.16(a)]. He appealed for TDIU prior to December 18, 2009 on an extraschedular basis under 38 C.F.R. § 4.16(b). In August 2017, the Board remanded the case to the RO for additional development. A December 2018 Board decision denied a TDIU rating prior to December 18, 2009, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In the interim, he died, and his surviving spouse was recognized as the claimant for the purpose of pursuing the appeal to completion. An August 2020 CAVC Memorandum Decision set aside the Board's December 2018 decision and remanded the matter to the Board for readjudication consistent with the Memorandum Decision. Entitlement to a TDIU prior to December 18, 2009, on an extraschedular basis In its August 2020 Memorandum Decision, the CAVC agreed with the contentions of the appellant that the Board failed to provide adequate reasons or bases to support its finding that the duty to assist was satisfied; improperly delegated its responsibility to adjudicate TDIU to medical examiners; and failed to consider potentially favorable evidence. The CAVC determined that the Board committed prejudicial error when it concluded that the evidence did not support referral to the Compensation Service Director for consideration of extraschedular TDIU, while failing to address the August 2009 testimony of the Veteran's PTSD therapist (who asserted it was medically consistent for stress to worsen PTSD symptoms) or adequately consider such testimony together with an April 2005 statement of the Veteran's former employer (who indicated he was no longer able to perform his job duties due to stress and illness [the nature of which was not described]). The CAVC also agreed with the appellant that the Board erred when it failed to obtain a medical opinion (per September 2017 remand instructions) "that adequately considers the collective impact of [the Veteran's service-connected] PTSD and diabetes." [The Board's remand document was date-stamped in August 2017, but a copy was not sent to the Veteran until September 2017.] While a combined effects medical opinion is not required as a matter of law because the need for an opinion is determined on a case-by-case basis, the CAVC stated that the Board had determined in its September 2017 remand that an examination was necessary in this case. Thus, there has not been substantial compliance with the August 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand is not required where there was substantial compliance with remand directives). The matter is REMANDED for the following action: 1. Arrange for an appropriate clinician to review the Veteran's claims file and provide a retrospective advisory opinion regarding the nature and extent of functional impairment due to the Veteran's service-connected PTSD and diabetes mellitus type II, jointly (i.e., combined effects), on his daily life prior to December 18, 2009. In furnishing an opinion, the consulting provider is advised of the following: (a). In addressing the Veteran's impairment prior to December 18, 2009, the types of activities that were precluded by the service-connected PTSD and diabetes mellitus, collectively/together (as opposed to singly/separately), should be described, as well as the types of activities that the Veteran remained able to participate in from a medical standpoint. (b). Consideration must include the August 2009 testimony of the Veteran's PTSD therapist (who asserted it was medically consistent for stress to worsen PTSD symptoms), an April 2005 statement of the Veteran's former employer (who indicated he was no longer able to perform his job duties due to stress and illness), and a November 2006 private treatment record (showing an increase in severity of diabetes), as well as other pertinent evidence such as VA examination reports of May 2005, June 2008, December 2009, and October 2017. (c). The Veteran's age and any effects/impairment caused by his multiple nonservice-connected disabilities must be disregarded (not considered). (d). Complete rationale must be provided with all opinions. (e). If an opinion sought cannot be given without resort to speculation, (to satisfy legal requirements) the provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or provider (additional facts are required, or the provider does not have the requisite knowledge or training). If such is the case, the examiner should identify the further specialist's opinion/other information that is needed to provide the requested opinion. 2. Thereafter, determine whether to refer the matter to VA's Director of Compensation Service, for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b), for the period prior to December 18, 2009. 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.