Citation Nr: 22013764 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-07 800 DATE: March 10, 2022 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 29, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1960 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2018 and February 2021, the Board remanded the Veteran's claims for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As explained below, the Board finds that another remand is necessary in order to provide the Veteran with adequate examinations and/or opinions. During the pendency of the appeal, service connection was granted for bilateral lower extremity neuropathy in the November 2021 rating decision. Furthermore, a TDIU was granted effective March 29, 2012, in the same rating decision. 1. Entitlement to service connection for a low back disability is remanded. In its February 2021 remand directives, the Board explicitly stated that there had not been an adequate direct service connection opinion obtained regarding the Veteran's claimed low back disability. The Board instructed that both direct and secondary service connection opinions with adequate rationales must be obtained and based on the Veteran's lay reports and complete medical record. While the two required VA opinions were obtained and associated with the claims file in November 2021, the Board finds the direct service connection opinion to be inadequate for adjudication purposes. Specifically, the examiner opined that the Veteran's low back disability is less likely than not related to service. It was reasoned that the Veteran did not injure his low back during his active-duty service. The examiner nonetheless acknowledged the Veteran's chronic daily back pain and stated he has age-related multilevel spondylotic changes to the lumbar spine and kyphosis. The examiner went on to note, nonetheless, based on a December 2015 neurology record, that an x-ray showed disc narrowing and degenerative spondylosis in the lumbar spine and an MRI showed disc extrusion at L3-4 and disc protrusion at L5-S1. The Board notes that a recitation of the nature of the Veteran's current disability does not constitute an adequate rationale, nor does a mere conclusory statement that the Veteran did not have a low back injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (noting that the absence of documented treatment in service or thereafter is not fatal to a service connection claim); See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (an adequate rationale is one with clear conclusions and supporting data, as well as a reasoned explanation connecting the two). Furthermore, the Board notes the examiner failed to consider a September 2013 statement wherein the Veteran described an in-service fall from a ladder which resulted in low back pain in addition to neck pain. Finally, the Board notes that while the examiner indicated the Veteran's spondylotic changes are age-related, he acknowledged the presence of disc protrusions and extrusions in the lumbar spine, which may be injury-related. Yet, the examiner did not address the etiology of the Veteran's lumbar findings. Therefore, regrettably, the matter must once again be remanded for further development, to include an adequate VA etiological opinion. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran was granted a TDIU in a November 2021 rating decision, effective March 29, 2012, the date the Veteran met the schedular criteria. The Board notes, however, that a TDIU was not granted for the entirety of the appellate period. In this regard, it is noted that a claim for an increased rating of a cervical spine disability was granted with an effective date of February 13, 2011. During the pendency of this increased rating claim, the Veteran indicated in a May 2012 statement that he has been unemployable due to his chronic pain and resulting depression, specifically noting his neck and back pain. Therefore, the Board finds that a TDIU claim was raised by the appellant during the appeal period, and thus became part and parcel of the increased rating claim for the cervical spine disability as well as the other disabilities on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). As such, the appeal period spans from February 13, 2011. Although the period between February 13, 2011, and March 29, 2012, is relatively small, the Veteran does not meet the schedular criteria for assignment of a TDIU prior to March 29, 2012. Where the schedular criteria for TDIU are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration of all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Here, the evidence reflects that the Veteran's symptoms may have prevented his ability to obtain or maintain substantially gainful employment prior to March 29, 2012. Specifically, the evidence of record indicates that the Veteran experienced pain and debilitating musculoskeletal symptoms prior to March 29, 2012. Specifically, the Veteran reported he had not had full time employment since 1986 due in part to chronic pain, and reported receiving Social Security Disability benefits since 2003. Thus, a remand is required to refer consideration of extraschedular TDIU to the Director of Compensation. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the Veteran's low back disability. 2. Thereafter, forward the entire claims file, including a copy of this remand for an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran's low back disability. Any opinion must include a notation that this record review took place. It is up to the discretion of the reviewing clinician whether a physical examination of the Veteran is needed to answer the questions below. The reviewing clinician should answer the following: (a.) Is it at least as likely as not that the Veteran's low back disability was incurred in, or is otherwise related, to his time on active service? (b.) Is it at least as likely as not that the Veteran's low back disability was caused OR aggravated by his service-connected neck disability? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The Veteran's reports of an in-service low back injury, including a fall from a ladder; current diagnoses including lumbar disc protrusions and extrusions; and the Veteran's reported continuity of symptomatology must all be addressed. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Mere absence of in-service treatment records for a low back disability is not a sufficient rationale. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Refer the Veteran's claim for a TDIU to the Director, Compensation Service, for consideration of an extraschedular TDIU award for the appeal period prior to March 29, 2012. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.