Citation Nr: 22015656 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 14-43 003 DATE: March 18, 2022 REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to September 9, 2015 on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1981 to November 1985. In May 2020, the United States Court of Appeals (CAVC) issued a Memorandum Decision vacating the Board's December 2018 decision which denied entitlement to TDIU prior to September 9, 2015 on an extraschedular basis, remanding the matter to the Board for additional consideration. The appeal was remanded by the Board in February 2021 for additional development. Entitlement to a TDIU prior to September 9, 2015 on an extraschedular basis In February 2021, the Board remanded the Veteran's appeal to the Regional Office (RO) for additional development, including a new VA opinion regarding the impact of the Veteran's service-connected lumbosacral strain on his employability prior to September 9, 2015. In its remand, the Board noted that the medical evidence of record reflected findings that the Veteran's service-connected lumbar spine strain along with various other nonservice-connected disabilities impacted his employability, but that there was "no proper opinion in which explicitly speak to the functional loss to the Veteran's occupation, due exclusively and solely to the Veteran's back disability" and therefore, a "retrospective opinion" should be obtained. Thereafter, the RO obtained an April 2021 VA opinion. However, the opinion does not provide a retrospective analysis of the impact of the Veteran's service-connected lumbar spine strain on his employability prior to September 9, 2015, as requested. Furthermore, the opinion fails to address any of the pertinent medical evidence detailed extensively in the Court's May 2020 Memorandum Decision or the February 2021 Board Remand. Accordingly, remand for a new VA opinion is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In that regard, the VA opinion must address the pertinent medical evidence of record relating to the Veteran's employability prior to September 9, 2015 and, to the extent possible, must state whether the effects of the Veteran's service-connected lumbar spine strain can be separated from the effects of his nonservice-connected degenerative arthritis of the lumbar spine prior to September 9, 2015, explaining the impact of each disability on the Veteran's employability. The Board notes that, if the effects of the nonservice-connected degenerative arthritis of the lumbar spine cannot be separated from the effects of the service-connected lumbar spine strain prior to September 9, 2015, VA must attribute all effects to the service-connected lumbar spine strain. See Mittleider v. West, 11 Vet. App. 181, 192 (1998). Additionally, the VA opinion must address the impact of the Veteran's lumbar spine disorder on the physical activities required by his prior occupation and any occupation that he is qualified to have performed. The matters are REMANDED for the following action: Obtain a new retrospective VA opinion, conducted by a qualified VA physician, to determine the impact of the Veteran's service-connected lumbar spine disability upon his employability prior to September 9, 2015. To the extent possible, the examiner should be different from the April 2021 VA examiner. The examiner is asked to review the pertinent evidence of record, summarized in the Court's May 2020 Memorandum Decision and the Board's February 2021 Remand. After a thorough review of the evidence of record, the examiner should provide an opinion as to the impact of the Veteran's service-connected lumbar spine disability upon his employability prior to September 9, 2015. The examiner should fully describe any occupational and functional impairment resulting from the Veteran's service-connected lumbar spine disability prior to September 9, 2015. To this end, the examiner is advised that the evidence of record suggests that other nonservice-connected disabilities may have impacted the Veteran's employability prior to September 9, 2015, including nonservice-connected degenerative arthritis of the spine. The examiner should state whether the symptoms from the service-connected lumbar spine strain may be clearly delineated from the symptoms of the nonservice-connected degenerative arthritis of the lumbar spine. If the symptoms can be delineated clearly, the examiner should describe the symptoms solely attributable to the service-connected lumbar spine strain and the symptoms solely attributable to the nonservice-connected degenerative arthritis, and the impact that each would have on his employability prior to September 9, 2015. If the symptoms cannot be clearly delineated, the examiner is to consider the impact of both the nonservice-connected degenerative arthritis of the lumbar spine as symptoms of the service-connected lumbar spine strain in the opinion regarding the Veteran's employability prior to September 9, 2015. If the examiner determines that the Veteran was employable prior to September 9, 2015 despite his spine disability, the examiner must describe the impact of the Veteran's lumbar spine disorder on the physical activities required by his prior occupation and any occupation that he is qualified to have performed (e.g., limitations of lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching). A complete rationale must accompany any opinion provided. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.