Citation Nr: 22012184 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-09 284 DATE: March 2, 2022 REMANDED Entitlement to service connection for lumbar spine disability, including as due to service-connected bilateral knee disability, is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability for the period prior to September 17, 2015, and for the period October 1, 2017 to January 29, 2019, is remanded. REASONS FOR REMAND On last review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. See 08/05/2021 BVA Decision. The AOJ endeavored to comply with the remand directive by arranging to obtain an additional medical opinion as directed. See 10/05/2021 SSOC. As discussed further below, however, the Board finds less than substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While the case was on remand the AOJ granted a TDIU, effective January 30, 2019, and denied it for the earlier period. See 10/05/2021 Rating Decision. The Board deems additional development necessary for the periods denied. 1. Entitlement to service connection for lumbar spine disability, including as due to service-connected bilateral knee disability, is remanded. In the August 2021 remand, the Board directed that the AOJ obtain an addendum opinion on secondary service connection that applied the legal standard of Ward v. Wilkie, 31 Vet. App. 233 (2019), which the AOJ did. See 10/01/2021 C&P Exam. Added to the record after the remand, however, was a positive nexus opinion submitted by the Veteran's non-VA chiropractor, B. Lynne Damali, D.C. See 08/26/2021 Medical Treatment-Non-Government Facility. Dr. Damali's opinion addressed direct service connection. She opined that the Veteran's currently diagnosed lumbar spine disorder is causally connected to the rigorous duties he performed during his active service. The October 2021 SSOC lists Dr. Damali's opinion as evidence, but the AOJ did not ask the VA examiner to comment on it. Hence, the Board finds inadequate compliance. 2. Entitlement to a TDIU due to service-connected disability for the period prior to September 17, 2015, and for the period October 1, 2015 to January 29, 2019, is remanded. This issue is intertwined with the lumbar spine claim. Further, the first indication that the Veteran's claim may include unemployability was an April 2012 report of his wife. See 06/26/2013 CAPRI, P. 213. Hence, the period for TDIU which remains in issue extends at least back to that date. The Board also notes a February 2016 VA outpatient entry notes that the Veteran was in receipt of disability benefits administered by the Social Security Administration (SSA). See 03/08/2016 CAPRI, P. 16. There is no indication that any records extant with SSA were requested. If not, an inquiry should be made. The matters are REMANDED for the following action: 1. If no prior inquiry has been made, the AOJ shall ask the SSA to provide any records extant that are related to the Veteran's receipt of SSA disability benefits. Document all efforts to obtain the records. 2. Regardless of whether additional records are obtained, send the claims file to the VA physician who provided the October 2021 addendum opinion. Direct the physician to review Dr. Damali's nexus opinion on the issue of direct service connection. Ask the VA physician to review Dr. Damali's opinion that it is at least as likely as not that the Veteran's currently diagnosed lumbar spine disorder is causally connected to his active service and to indicate agreement or disagreement with Dr. Damali's opinion. The VA physician must provide a full explanation for any agreement or disagreement. The explanation should include the specific facts of the Veteran's individual case. If the VA physician who provided the October 2021 addendum opinion is no longer available, then refer the claims file to another equally qualified clinician. 3. After all of the above is complete, the AOJ shall readjudicate the lumbar spine claim and the issue of entitlement to a TDIU for the applicable periods prior to January 30, 2019. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.