Citation Nr: 25004971 Decision Date: 04/11/25 Archive Date: 04/11/25 DOCKET NO. 09-05 316 DATE: April 11, 2025 REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from April 1973 to May 1977, and from January 1978 to October 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. By way of history, following the January 2008 rating decision and subsequent appeal, the Veteran testified at a March 2015 Board videoconference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. In a November 2016 Board decision, the aforementioned VLJ remanded the instant matter for additional development. While on remand, the Agency of Original Jurisdiction (AOJ) referred the TDIU issue to the VA Director of Compensation Service (Director) for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(b). An administrative decision was issued by the Director in March 2017. Upon the matter returning to the Board, in April 2021 the Board issued a de novo decision denying a TDIU. The Veteran appealed the April 2021 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated January 2022, the Court granted a Joint Motion for Partial Remand (JMPR), which remanded the TDIU issue on appeal back to the Board for development consistent with the JMPR. Per the JMPR, the parties agreed that the Board should not have issued a decision without providing a new Board hearing as requested by the Veteran in November 2019. The Veteran appeared for a new Board hearing before the undersigned VLJ in August 2023. The hearing transcript has been associated with the record. Subsequently, in October 2023, the Board again remanded the issue on appeal for additional development. Specifically, the Board remanded to request outstanding private chiropractic treatment records and to request that the Veteran submit an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Some of the aforementioned information was obtained on remand; however, in April 2024 the Board again remanded the issue on appeal for additional development. Upon the matter returning to the Board, the Board found that the AOJ had not adequately complied with the April 2024 remand directives, and this matter was again remanded in a July 2024 remand. In its July 2024 Remand, the Board directed the AOJ to obtain a vocational assessment of the Veteran. An adequate vocational assessment was received in two parts. First, in July 2024, the Veteran underwent VA back and TDIU examinations performed by a physician assistant. Then, in August 2024, the file was sent to a physician specializing in occupational medicine, who rendered an adequate vocational assessment of the Veteran; however, at the time of the vocational assessment the Veteran was solely service connected for degenerative joint disease (DJD) of the back, and the vocational assessment only considered that disability when opining that the Veteran was still capable of substantially gainful employment. Subsequently, in an August 2024 rating decision, the AOJ granted service connection for moderately severe right and left lower extremity radiculopathy (as secondary to the DJD of the back). Forty percent disability ratings were assigned for each leg, which raised the combined disability rating to 80 percent from July 29, 2024. As the occupational physician did not consider the occupational impairment caused by the bilateral lower extremity radiculopathy when rendering the August 2024 vocational assessment, in an October 2024 Remand the Board found remand for an addendum opinion considering these newly service-connected disabilities to be necessary. Upon the matter returning to the Board, in a February 2025 decision the Board again found remand necessary. Per the Remand, the Board explained that, in its October 2024 Remand, the Board explicitly directed that the July and August 2024 vocational assessment and opinions should be returned to the occupational physician who conducted the assessment for an addendum opinion. In other words, the opinions should be returned to the doctor who rendered the August 2024 vocational opinion. The Board did allow that, if the prior occupational physician was no longer available, an addendum opinion could be obtained from an appropriate VA vocational or similar occupational specialist. The Board further explained that an addendum opinion was obtained in November 2024; however, despite this only being three months following the August 2024 opinion, the addendum opinion was not rendered by the doctor who conducted the August 2024 vocational opinion. Rather, per the opinion reports, the opinion was rendered by a general practice physician assistant, and there was no indication that the general practice physician assistant was a VA vocational or similar occupational specialist. As such, the Board again remanded the instant matter to obtain an addendum opinion consistent with the October 2024 remand directives. While the Board regrets the additional delay, for the reasons discussed below, the Board must once again remand the instant matter to ensure the October 2024 remand directives are adequately complied with. ? TDIU is Remanded. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its February 2025 Remand, the Board again directed the AOJ to return the July and August 2024 vocational assessment and opinions to the occupational physician for an addendum opinion. The Board stated that, if the prior occupational physician was no longer available, an addendum opinion could be obtained from an appropriate VA vocational or similar occupational specialist. The Board also explicitly directed that, if the requested addendum opinion was not provided by the prior occupational physician, the addendum opinion must make clear that the opinion was being rendered by a VA vocational or similar occupational specialist. An addendum opinion was obtained in February 2025; however, this opinion was not issued by the occupational physician who rendered the August 2024 opinion. Review of the opinion report reflects that, under Section II - Restatement of Requested Opinion, the Board's language indicating that the opinion needed to be rendered by an appropriate VA vocational or similar occupational specialist in such circumstance was included in the Restatement. The Restatement also included the language that, if the opinion was not rendered by the original occupational physician who rendered the August 2024 opinion, the opinion report needed to make clear that the opinion was being rendered by a VA vocational or similar occupational specialist. Per the report, under Section XI - Examiner's Certification and Signature, the addendum opinion was rendered by a Family Nurse Practitioner in General Practice. Nothing in the Certification indicates that the nurse practitioner practices vocational or occupational medicine. Further, a cursory internet search reveals that the nurse practitioner practices family medicine. Nothing in the internet search indicates that the nurse is a vocational or similar occupational specialist. Nevertheless, as discussed above, the February 2025 opinion report did reiterate the Board's language acknowledging that the opinion was to be rendered by a vocational or similar occupational specialist. As such, the Board acknowledges that the February 2025 opinion may have been rendered by a nurse practitioner with expertise in vocational or occupational medicine, despite the report not confirming this fact as directed in the Board's prior remand. As such, the Board will once again remand this matter to first have the AOJ verify whether the nurse practitioner who rendered the November 2024 VA medical opinion practices and/or has expertise in vocational or occupational medicine. If the nurse practitioner does not practice or have expertise in vocational or occupational medicine, then the AOJ must obtain a new addendum opinion consistent with the Board's prior remand directives. The TDIU issue is REMANDED for the following action: 1. The AOJ should verify whether the Nurse Practitioner who rendered the February 2025 addendum opinion practices and/or has expertise in vocational or occupational medicine. If the Nurse Practitioner does practice and/or have expertise in vocational or occupational medicine, a memorandum stating as such should be associated with the claims file. 2. If the Nurse Practitioner does not practice and/or have expertise in vocational or occupational medicine, return the July and August 2024 vocational assessment and opinions to the occupational physician who rendered the August 2024 opinion for an addendum opinion. If the prior occupational physician is no longer available, an addendum opinion may be obtained from an appropriate VA vocational or similar occupational specialist. If the requested addendum opinion is not provided by the requested doctor, the addendum opinion must make clear that the opinion is being rendered by a VA vocational or similar occupational specialist. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The requested doctor, or an appropriate VA vocational or similar occupational specialist, should address whether the moderately severe bilateral lower extremity radiculopathy (for which service connection was granted, and which is rated) changes any of the findings or opinions found within the July and August 2024 vocational assessment and opinions. Specifically, the doctor, or the new VA vocational or similar occupational specialist, should reconsider whether the service connected back disability and the now service-connected bilateral lower extremity radiculopathies are so disabling as to render the Veteran unable to perform any substantial work, and/or are so disabling as to prevent training for positions at which the Veteran could work. Again, if the doctor or the new VA vocational or similar occupational specialist assesses that the disabilities are not so disabling as to render the Veteran unable to perform any substantial work, and/or are not so disabling as to prevent training for positions at which the Veteran could work, the VA examiner should discuss the rationale for such opinion. 3. Then, readjudicate the issue of entitlement to a TDIU. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.